CBS INC v. BLOCK

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Court of Appeal, Second District, Division 2, California.

CBS, INC., Plaintiff, Respondent and Cross-Appellant, v. Sheriff Sherman BLOCK and Los Angeles County, Defendants, Appellants and Cross-Respondents.

Civ. B002673.

Decided: October 09, 1984

Jack B. Purcell, Herbert M. Schoenberg, Ira L. Kurgan, Los Angeles, for plaintiff, respondent and cross-appellant. DeWitt W. Clinton, County Counsel, Gary E. Daigh, Deputy County Counsel, for defendants, appellants, and cross-respondents. Adrian Kuyper, County Counsel and Arthur C. Wahlstedt, Jr., Asst. County Counsel, Santa Ana, amicus curiae, for Brad Gates, Sheriff-Coroner and County of Orange.

The Columbia Broadcasting System, Inc. (CBS), by invoking provisions of the California Public Records Act (Gov.Code, § 6255, et seq., hereafter the Act) seeks access to certain records of the Los Angeles County Sheriff's Department, specifically the records pertaining to persons to whom the sheriff has issued a license to carry a concealed weapon.

When the sheriff refused CBS's request, the latter instituted an action for injunctive and declaratory relief and sought a preliminary injunction.   In this latter effort, CBS was partially successful in that the trial court directed the sheriff to disclose the names and certain identifying information concerning most of the individuals who had been granted licenses.   The trial court denied CBS access to any data pertaining to two individuals and refused to require disclosure of the applications for permits which had been filed by the individuals.   Both sides have appealed.

We have concluded that the records in question are in their entirety exempt from disclosure under the Act.   We therefore direct that the preliminary injunction be vacated.

Carrying a firearm concealed on the person or in a vehicle is generally prohibited by Penal Code section 12025.   Certain exceptions to the general prohibition are contained in sections 12026 and 12027 of the Penal Code but are not relevant here.

Penal Code section 12050 authorizes the sheriff of each county and the chief of any municipal police department to license, from year to year, certain qualified individuals to carry concealed firearms.   The statutory criteria is that the person be a resident of the jurisdiction of the sheriff or chief, be of good sound character and show that good cause exists for such licensing.

The licensing procedure requires the preparation and collection of certain records including:  (a) an application describing the applicant and the reason for desiring the permit (Pen.Code, § 12051);  (b) a report of all data and information in the California Department of Justice files on the applicant, including any state summary criminal history information (frequently referred to as a “rap sheet”) maintained pursuant to Penal Code section 11105 (Pen.Code, § 12052);  (c) any record of the investigation which is required to be made on each applicant (see Salute v. Pitchess (1976) 61 Cal.App.3d 557, 561, 132 Cal.Rptr. 345);  and (d) a record of the permit, if granted.   (Pen.Code, § 12053.)   The permit issued must set forth the data required in the application and a description of the weapon authorized to be carried.   (Pen.Code, § 12051.)

The Los Angeles County Sheriff's Department has augmented the statutory provision by establishing an internal procedure and policy for processing applications for licenses.   Procedurally the initial evaluation of all applications is made by a committee consisting of the undersheriff and the two assistant sheriffs—the highest administrative echelons below the sheriff himself.   The final decision is made by the sheriff, who under the statute, has broad discretion.

According to the sheriff's policy, good cause to issue a license exists when “The applicant produces convincing evidence of a clear and present danger to life or of great bodily harm to the applicant, his spouse, or dependent child, which cannot be adequately dealt with by existing law enforcement resources, and which danger cannot be reasonably avoided by alternative measures, and which danger would be significantly mitigated by the applicant's carrying of a concealed firearm;  and (2) the applicant obtains a valid certificate from an advanced officer training institution approved by the California State Bureau of Collection and Investigative Services, attesting to [the] applicant's satisfactory completion of at least twenty-four hours of training.   Alternate proof of firearms proficiency may be submitted for review and possible acceptance in lieu of this certificate.”

Pursuant to the department's policy guidelines no concealed weapons license is granted “merely for the personal convenience of the applicant.   No position or job classification in itself should constitute good cause for the issuance or denial of a license.   Each application shall be individually reviewed for cause.”

Sherman Block, the present defendant, has been Sheriff of Los Angeles County since January 1982.   For a period of time prior to that date he served as undersheriff to his predecessor Peter J. Pitchess.

Prior to 1976, former Sheriff Pitchess had followed a policy of routinely denying applications for licenses except in a very limited number of cases.   Those cases included judges and elected officials who expressed a concern for their personal safety.   Twenty four licenses were extent in 1976.

In that latter year, upon a petition for a writ of mandate by two attorneys, Division Four of this court directed the sheriff to exercise his discretion by conducting an individualized investigation and making an individualized determination on each application.  (Salute v. Pitchess, supra.)

The aforementioned internal policy and procedure was adopted in response to the court's mandate.   Thirty five licenses are now in existence.   Sheriff Block, as undersheriff, thus served on the screening committee until his assumption of the office of sheriff.   We point this out as evidence of Sheriff Block's familiarity with the process and his expertise in the field.

In April 1983, CBS requested by letter that Sheriff Block provide the news division of KCBS (a CBS owned television station in Los Angeles) with copies of the permits then in effect which had been issued by the department.

Alternatively, CBS sought the names of each permit holder, their ages, addresses, occupations, and the reasons for the issuance of the permits as set forth in the various application forms.   The information obtained was to form the basis of a television news report concerning the issuance of concealed weapons permits in Los Angeles County.   According to a declaration submitted by the News Director of KCBS in connection with the motion for a preliminary injunction, such information had become newsworthy as the result of a state Senate bill, introduced in March 1983, which purportedly would have liberalized the requirements for obtaining a concealed weapons license.   CBS also professed to be concerned with the possible abuses of power by Sheriff Block in the issuance of the permits to either friends or substantial political contributors.

Sheriff Block denied the request on the ground “that there is a clear danger to the permittees that outweighs the public interest in disclosure.”   In asserting such grounds the sheriff was relying on section 6255 of the Act, which permits a public official to withhold disclosure of a record where the public interest in nondisclosure outweighs the public interest in disclosure.1

 Before discussing what we consider to be the pivotal issue in the case we dispose of a number of collateral arguments advanced by both sides by declaring that beyond peradventure the records in question are subject to the Act and their disclosure or nondisclosure is governed by the provisions of the Act—specifically section 6255.

Enacted in 1968 and modeled on the 1967 federal Freedom of Information Act (81 Stats. 54), the Act replaced a confusing mass of statutes and court decisions relating to disclosure of governmental records.  (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 447, 186 Cal.Rptr. 235, 651 P.2d 822;  see also Shaffer, et al., A Look at the California Records Act and Its Exemptions (1974) 4 Golden Gate L.Rev. 203, 210–213.)

The legislative imprimatur of the Act is contained in section 6250 declaring that “․ the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.”

 In the spirit of this declaration, judicial decisions interpreting the Act seek to balance the public right to access to information, the government's need, or lack of need, to preserve confidentiality, and the individual's right to privacy.  (American Civil Liberties Union Foundation v. Deukmejian, supra, at p. 447, 186 Cal.Rptr. 235, 651 P.2d 822;  see also Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 651–652, 117 Cal.Rptr. 106;  American Federation of State, etc. Employees v. Regents of University of California (1978) 80 Cal.App.3d 913, 915–916, 146 Cal.Rptr. 42;  Craig v. Municipal Court (1979) 100 Cal.App.3d 69, 161 Cal.Rptr. 19.)

The Act itself consists of a group of integrated sections which generally define public records and the rights of any person to inspect, copy, and receive copies of such records.  (Gov.Code, §§ 6252, 6253, 6253.5, 6254.7, 6254.8.)   These rights are, as noted, subject to certain exceptions only one of which is germane to this dispute.

 Section 6255 has no counterpart in the federal Freedom of Information Act, and imposes on the courts of this state a duty which does not burden the federal courts—the duty to weigh the benefits and costs of disclosure in each particular case.  (American Civil Liberties Union Foundation v. Deukmejian, supra, 32 Cal.3d at p. 452, 186 Cal.Rptr. 235, 651 P.2d 822;  see also Procunier v. Superior Court (1973) 35 Cal.App.3d 207, 209, 110 Cal.Rptr. 529;  Yarish v. Nelson (1972) 27 Cal.App.3d 893, 902–903, 104 Cal.Rptr. 205.)

The significance of section 6255 lies in the fact that it provides a means by which an agency may withhold a public record which would not be exempt under any of the specific exemptions delineated in section 6254.

 The statute specifically states that there are two public interests which must be considered when access to a public record is at issue, the interest served by disclosure and the interest served by nondisclosure.   The section, however, does not purport to define these public interests.   The public interest in disclosure is, for the most part, synonymous with the public's “right to know” and thus embodies all the concerns associated with the public's need to be informed of governmental activities.  (See Barber, The California Public Records Act:  The Public's Right of Access to Governmental Information (1976) 7 Pacific Law Journal 105, 118.)   The specific exemptions enacted in section 6254 also make clear the Legislature's conception of the public interest in nondisclosure.   An examination of section 6254 reveals that the Legislature obviously intended to protect from disclosure those records which would expose personal or financial information relating to an individual (Gov.Code, §§ 6254(c), 6254(i), 6254(n)) or which compromise agency integrity by exposing state secrets (Gov.Code, §§ 6254(b), 6254(f), 6254(h), 6254(k)), confidential sources of information (Gov.Code, §§ 6254(f), 6254(k)), or agency deliberative processes (Gov.Code, § 6254(a)).

When the Legislature balanced the competing interests in formulating section 6254, it found that the public interest in nondisclosure of these types of records outweighed the public interest in disclosure.  Section 6255 was thus designed to act as a catchall for those individual records similar in nature to the categories of records exempted by section 6254, but which the Legislature determined, in balancing the competing interests, would not justify nondisclosure as a general rule.  (See Barber, The California Public Records Act:  The Public's Right of Access to Governmental Information, supra, at pp. 119–120.)

 Section 6255 embodies the established common law rule that public policy demands certain records should not be open to indiscriminate public inspection, even if they are in the custody of a public official and even if they contain material of a public nature.  (See City & County of San Francisco v. Superior Court (1951) 38 Cal.2d 156, 238 P.2d 581;  Craemer v. Superior Court (1968) 265 Cal.App.2d 216, 71 Cal.Rptr. 193.)  “[W]here there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed.   In this regard the term ‘public policy’ means anything which tends to undermine that sense of security for individual rights, whether of personal liberty or private property, which any citizen ought to feel has tendency to be injurious to the public or the public good.”  (Craemer v. Superior Court, supra, at p. 222, 71 Cal.Rptr. 193.)

 We think it is important at this juncture to emphasize that a license to carry a concealed weapon confers on the license holder nothing more than an immunity from prosecution for the misdemeanor of carrying a concealed weapon.   The license does not give the holder the right to use the weapon in any manner not available to any other citizen.

Further, we are impressed with the fact that in a county of over seven million people, only 35 licenses have been issued by the sheriff.   It seems obvious that there are considerably fewer persons holding these licenses than the number of persons who honestly believe that they need such a license.

We are also impressed with the fact that CBS has not even hinted at the proposition that any one of these 35 licensees has committed any crime with a firearm or misused a firearm.   We have examined the record in camera and are convinced that had the licensees been guilty of any crime in the misuse of the firearm it would have received wide media attention.

The sheriff, in his opposition to the motion for a preliminary injunction, set forth the following justification for his refusal to disclose the records.

“All of the concealed weapons licenses presently outstanding were issued by the Sheriff's Department to protect the applicant's life or that of his family from threats of violence made against them.   In each case, there is a clear and present danger to the safety of these persons which cannot be protected by law enforcement resources.   To make public the licenses issued or the information contained therein would subject the licensees to the increased risk of serious injury or death that the issuance of concealed weapons is designed to prevent.

“Many times a criminal's plans to commit a serious crime or serious injury to an intended victim fails for lack of proper planning and preparation.   In this instance, if the identity of the licensee or the reason for issuance of a concealed weapons license became known to the criminal, the likelihood is that crime planning would become much more sophisticated and would involve an escalated use of force.   This would substantially increase the likelihood of success of the crime at the risk of the safety to the licensee and his or her family.   In short, if the criminal is aware that his victim is armed, he is likely to better plan his crime and use a more sophisticated weapon to ensure its success.

“In addition, some of the Department's licensees are prominent, well known people.   It is quite likely that if their status as concealed weapons licensees became public, they would be subject to an increased risk of personal harm.   Many persons who commit crimes of violence do so to get back at society and to obtain publicity for their criminal acts.   If the identity of these officials and business people were made public, it is quite likely that these criminals would view an attack on these citizens as a larger challenge with all of the corresponding increased publicity.

“Lastly, to make public the identity of persons who possess concealed weapons would greatly inhibit the issuance of licenses to people who need them.   For all of the reasons referred to above, if prospective applicants knew their identity was going to be made public, it is probable that they would not apply to carry a concealed weapon.   Because law enforcement cannot adequately protect these individuals and they would possess no weapon to protect themselves, specific and identifiable threats to them and their families would go unprotected, increasing the risk of physical harm.”

Our in camera examination of the records has also convinced us that each of the thirty-five permits were issued by the Sheriff's Department to protect the applicant's life or that of his or her family from threats of violence made against them.   In each instance there is a clear and present danger to the safety of these persons which cannot be protected by law enforcement resources.   Public disclosure of the licenses issued or the information contained therein would undoubtedly subject the licensees to the increased risk of serious injury or death.

Public disclosure of the records would clearly jeopardize the safety of the permit holders, for it would provide a veritable shopping list of weapons potentially available for theft, and it would expose the particular vulnerabilities of the individuals who possess such weapons.

Balanced against the foregoing considerations is CBS's claim that the public “right to know” compels disclosure.   In considering that claim we look at what CBS, ergo the public already knows, and what CBS thinks that the public ought to know together with the possible effect on private citizens by disclosure of that information.

According to CBS the matter of licenses to carry concealed weapons became a newsworthy subject when legislation was introduced to liberalize the issuance of such licenses.   CBS, the public, and more importantly the Legislature, already know the sheriff's procedure and policy and that only 35 licenses have been issued in the most populous county of the state.

CBS makes no claim that it has had any difficulty in identifying persons who have been denied permits.   In fact, on July 7 and 8, 1983, CBS broadcast reports on that aspect of the issue.

CBS in addition, however, wants the names and addresses of the license holders together with the reasons for which the licenses were issued.   The first and most obvious result of obtaining that information would be the probability that the licensees would be subject to contact and questioning by media representatives—not always a pleasant experience.

The second and more serious consequence would undoubtedly be the dissemination via television of the names, addresses, pictures and backgrounds of the licensees together with their assigned reasons for needing the license.2

We have considerable difficulty in discerning any important public interest that would be served by exposing this group of citizens to such treatment, especially in view of the sheriff's expert assessment of the danger involved.

It may well be that in light of the serious crime problem which exists in our community and the Legislature's evident concern, that the sheriff should be persuaded to liberalize his policy.   That cause, however, will not be advanced one wit by disclosure of the identity of the 35 present licensees.

Moreover, public disclosure of such information might seriously discourage future applicants from being open and honest in providing the information required under Penal Code section 12051.   If prospective applicants knew that their identity was to be made public, there also exists the strong possibility that they would not apply to carry a concealed weapon.   This dramatically increases the probability that those who need to carry such weapons would do so irrespective of the laws which generally prohibit the possession of concealed firearms.   Such a result is, of course, abhorrent to our legal system and increases the risk of injury, accidental or otherwise, to the public as a whole.

CBS maintains that the concerns articulated by Sheriff Block constitute nothing more than unsupported speculation.   We disagree.   Sheriff Block, as an elected official with years of training and experience in the detection and prevention of crime, is particularly well suited to offer his opinion on the issues raised by this litigation.   Under the circumstances, the fact that his concerns are not supported by detailed empirical data is of little moment.

The evidence produced at the hearing on the preliminary injunction not only identified legitimate privacy interests in the release of concealed weapons information, but it also established that the need for CBS to obtain the data in question is minimal if not non-existent.   We are not dealing here, as did the court in Salute v. Pitchess, supra, with litigation involving persons who have been denied a concealed weapons permit.   CBS' demands are overly broad and its assigned reasons are supported by no compelling interest that would serve the public welfare.

Allegations that Sheriff Block may be issuing concealed weapons permits to political supporters or friends is nothing but the wildest of speculation based on no facts or expertise on the part of CBS.

The Legislature has vested designated law enforcement officials with almost unfettered discretion in this area.   If that discretion is to be curtailed, the Legislature is the body to do it.

In light of the record presently before this court, we must assume that Sheriff Block, the duly elected sheriff, is performing his official duties with complete regularity, (see Evid.Code, § 664) and is presumed innocent of any wrongdoing.  (Evid.Code, § 520;  see also Pen.Code, § 1096.)

 We also reject CBS's argument that the news media has a constitutional right of access to the information above and beyond the right of the public as a whole.   Courts have frequently and consistently pointed out that the right to speak and publish does not carry with it the unrestrained right to gather information;  nor has the right ever been held to confer upon the press a constitutionally protected right of access to information not available to others.  (See Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626;  Yarish v. Nelson, supra, 27 Cal.App.3d at p. 899, 104 Cal.Rptr. 205.)   As the court put it in Trimble v. Johnston (1959) 173 F.Supp. 651, 656, “the liberty of the press does not include any legal right of securing assistance from public officials in procuring information that it is desired to print.   It does not comprise any alleged right of access to material not available to others, any more than it would include the privilege of attending closed meetings at which news of interest might possibly be gathered.”

“If citizenship in a functioning democracy requires general access to government files, limited but genuine interests also demand restricted areas of nonaccess.   Decisional law on the subject accepts the assumption that a statute calling for general disclosure may validly define reasonably restricted areas of nondisclosure, provided that the latter are justified by genuine public policy concerns.   One concern is the privacy of citizens whose information gets into government hands.

Overbroad claims of disclosure may threaten the privacy of individual citizens and accelerate the advent of the Orwellian state.”  (Black Panther Party v. Kehoe, supra, 42 Cal.App.3d at p. 655, 117 Cal.Rptr. 106.

 Based upon the foregoing, we think that the disclosure of the materials sought by CBS would constitute an unwarranted invasion of the privacy of the individual permit holders involved.  (See Cal. Const., art. 1, § 1).   Although neither we nor the sheriff can anticipate precisely the effects of public disclosure, we may surmise that general access to these records would result in an increased risk of danger to all permittees.   On the other side of the balance, we discern no overriding public interest which mandates disclosure.   It is, therefore, readily apparent that Sheriff Block was justified in denying CBS access to the documents in question.

The order granting a preliminary injunction is reversed and the matter is remanded to the trial court with directions to enter an order denying a motion for a preliminary injunction.

Costs on both the appeal and cross-appeal are to be born by CBS.

FOOTNOTES

1.   Government Code section 6255 provides:  “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”

2.   CBS makes the assertion that it is a “responsible” organization and that we should not presume that indiscriminate disclosure would result.   The problem with that argument is that if the information is subject to disclosure, there is no way that this court or the sheriff could limit it to CBS.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.