AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA INC v. DEUKMEJIAN (1980)

Defendants appeal from a judgment requiring them to disclose information from the files of the Organized Crime and Criminal Intelligence Branch (OCCIB) of the California Department of Justice. The American Civil Liberties Union Foundation of Northern California, Inc. (ACLU) brought suit for declaratory and injunctive relief under the California Public Records Act (Gov.Code, s 6250¹ et seq.), after its request to inspect and copy samples of card files and computer printouts (with personal identifications deleted), was denied by the OCCIB. We reverse.

The basic rule is contained in section 6253, subdivision (a), and reads: “Public records are open to inspection at all times during the office hours of the state or local agency and every citizen has a right to inspect any public record, except as hereafter provided.” At issue are index cards prepared by law enforcement agencies and deposited in a central Law Enforcement Intelligence Unit (LEIU) file in Sacramento. The OCCIB is the coordinating agency for the nationwide LEIU system and distributes copies of the cards to member agencies on request. Also at issue are computer printouts of the Interstate Organized Crime Index (IOCI),² a discontinued compilation of previously published information on individuals allegedly active in organized crime activities, their families and associates. Existing IOCI printouts are still used by law enforcement agencies but no new information is being added to them.

After examining samples of LEIU cards and IOCI printouts in camera, the trial court found they contained certain personal identifiers and some information from and regarding confidential sources; in addition they included entries giving information identified as public, such as arrest summaries, criminal activity reports, modus operandi descriptions, miscellaneous entries taken from public and other records, and surmises from gossip, rumor and hearsay. Except for the identification of individuals (exempted by s 6254, subd. (c)),³ and the identification of persons who gave information to law enforcement agencies in confidence and whose public identification “would jeopardize concrete, definite and legitimate criminal investigation processes,” the court ordered disclosure of all remaining information; it found that the public interest in the contents of the cards and printouts weighed in favor of disclosure, reasoning that such remaining matter is relevant to inform interested persons of the type of information the public agency is gathering and developing.

As we understand the court's order, defendants are to delete from the cards and printouts, pursuant to section 6254, subdivision (c), (1) all references to names of any individuals (including “family” names of certain groups), (2) pictures and physical descriptions, (3) identification numbers (including social security, drivers license, vehicle descriptions and license numbers and agency designations), (4) dates, identification numbers and locations of arrests, (5) all names of cities, towns or geographical areas identified as places where individuals reside, travel, or are active, (6) all names of organizations or business entities, and (7) all addresses; after such deletions, copies are to be provided to ACLU. No information that could be used to identify the “subject” of the file is to be disclosed.⁴ Pursuant to the court's definition of intelligence information exempted by section 6254, subdivision (f), defendants are to delete references to matter which could identify a source of information (such as the agency which submitted file data or an agency holding additional information) when that source obtained the information in confidence and disclosure of the confidential informant would jeopardize an investigation into some specific criminal activity. Our examination of the materials inspected by the trial court in camera discloses no apparent indication on the IOCI printouts or LEIU cards themselves of confidentiality or jeopardy; we thus conclude that under the court's order, defendants would be given an opportunity before disclosure to obtain and insert such information.⁵

I

The pivotal issue relates to the interpretation to be given the exception from the general disclosure requirement contained in section 6254, subdivision (f). In pertinent part it reads: “. . . nothing in this chapter shall be construed to require disclosure of records . . . of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, and any state or local police agency, or any such investigatory or security files complied by any other state or local police agency, or any such investigatory or security files complied by any other state or local agency for correctional, law enforcement or licensing purposes, . . .” (Emphasis added.)

Defendants (and amicus curiae, the California District Attorneys Association), contend that the trial court's definition of “intelligence information” in section 6254, subdivision (f), as that “(received) in confidence, (from sources) whose public identity would jeopardize concrete, definite and legitimate criminal investigation processes” is too restrictive. They maintain that the term exempts all information in their files and that the Legislature so intended when enacting the California Public Records Act (Act). Noting that the trial court's definition of exempt information closely parallels that applied to federal provisions for “investigatory records complied for law enforcement purposes” (5 U.S.C. s 552, subd. (b)(7)), defendants concede that the Act was apparently modeled on the federal scheme. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 652, 117 Cal.Rptr. 106.) They argue however that since “intelligence information” is not excluded or even mentioned in the federal legislation, since the California Legislature had authorized information exchanges between state and federal law enforcement agencies before passage of the Act, and since the Act specifically exempts “intelligence information,” the Legislature must have intended in its own legislation a much broader exemption than that allowed by the federal statute. We agree.

The federal Freedom of Information Act (Federal Act), was enacted in 1966 and became effective July 4, 1967 (80 Stat. 250 (1966); codified by 81 Stat. 54 (1967)). As originally worded it permitted federal agencies to withhold from disclosure: “. . . investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.” (5 U.S.C.A. s 552(b)(7).) In 1974 it was amended to restrict the exemption provision regarding investigatory files. Now the amended statute exempts: “. . . investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel.” (Emphasis added.)

In the meantime section 6254, subdivision (f), was enacted in 1968, containing no restrictions relative to investigation records such as were later added to the Federal Act, and also including an “intelligence information” exclusion which the Federal Act has never contained. Thus there is no justification for reading into the Act's intelligence information exception the restrictions of the Federal Act.

Furthermore, it is clear to us that the Legislature elected deliberately to broaden the class of information protected from disclosure under the Act beyond that of the Federal Act. The legislative history so indicates. When the Act was enacted, it was apparent that the Department of Justice was engaged in information exchanges for law enforcement purposes, which exchanges were unrelated to particular investigations. As pointed out to us by the defendants' brief, the official budgets submitted to the Legislature by the Governor for the fiscal years 1967-1968 and 1968-1969 both identified the Department of Justice's cooperative program with the Federal Bureau of Investigation for exchange of information. For example in the budget document submitted on January 31, 1967, the statement is made:

“The availability of currently authorized equipment will enable the state to exchange law enforcement information with the federal government. Commencing in January 1967, the department's data processing system will be connected to the National Crime Information System operated by the Federal Bureau of Investigation. Linking of the 2 data systems will permit a direct exchange of data between state and national files. Initially, information will be transmitted and received pertaining to stolen property, stolen weapons and wanted persons. The Federal Bureau of Investigation will reimburse the department for peculiar costs incurred as a result of connecting the state to the national system.

“The design study for a criminal justice information system, authorized by the Legislature last year, is currently underway. A project director and staff totaling 12.5 positions were established in 1966-67 and 11.1 of these positions will be continued in the 1967-68 fiscal year as originally planned. It is anticipated the study will be completed April 30, 1968, at which time the positions will be abolished. Two federal grants, totaling $164,442 in 1966-67 and $110,558 in 1967-68, have been received to assist in financing the study.” (State of Calif., Support and Local Assistance Budget for Fiscal Year July 1, 1967 to June 30, 1968, p. 557.)

In the budget document submitted February 8, 1968, the statement is made:

“A second computer was installed in March 1967, which connected the department's data processing system to the National Crime Information System operated by the Federal Bureau of Investigation. This link allows the state to exchange law enforcement information with the Federal Government. Currently, information pertaining to stolen property, stolen weapons and wanted persons is being exchanged.

“The design study for a criminal justice information system, authorized by the Legislature in 1966, has been extended into 1968-69. It is estimated that the study will be concluded in March 1969, at which time the 10 remaining positions will be abolished.

“Organized Crime Unit

“Consistent with the recommendations of the President's Crime Commission, provision is made for the establishment of an Organized Crime Unit consisting of 3 attorneys, 11 Special Agents and 4 clerical positions. The agents and 2 clerical positions are included in this budget under Law Enforcement, CII. The attorneys and 2 clerical positions are reflected in the Division of Criminal Law and Office Management and Services respectively.” (State of Calif., Support and Local Assistance Budget for Fiscal Year July 1, 1968 to June 30, 1969, p. 744.)

These activities were brought to the attention of the Legislature in the legislative analyst's report on the budget bill for fiscal year 1967-1968. There he comments:

“During the interim since the last legislative session, the department has joined with the federal government in establishing the nucleus of a National Crime Information Center. This system will connect the Bureau of Criminal Identification and Investigation to the Federal Bureau of Investigation on a computer to computer basis when fully implemented. The two bureaus are to interchange information relating to stolen property and wanted persons. The California Highway Patrol auto status system will also connect with N.C.I.C. to interchange stolen auto information. It is visualized that eventually a total national network may be established. This, of course, will depend on acceptance by the states and funding by the Congress. The first year state costs of this system are to be reimbursed by the federal government. Continuation of the program will be subject to legislative review in the 1968-69 budget.” (Analysis of the Budget Bill of the State of California for the Fiscal Year July 1, 1967 to June 30, 1968, pp. 651-652.)

Thus it was to protect the information obtained in this type of cooperative program that the Legislature broadened the class of exempted information from investigatory files under the Federal Act to records of investigations and records of intelligence. The exact limits of that class are not defined, but the information on the LEIU cards and IOCI printouts in question undisputably falls within any reasonable limits.

The avowed intention of plaintiff in this action, and that of the trial court in its judgment (as well of course as the Act's intention as articulated in s 6250) is “to inform those interested members of the public of the type of information the public agency in question is developing and gathering.” We are of the mind that this objective is fully realized consistently with our holding. To illustrate our point, we append hereto a reproduction of the LEIU and OCCIB cards and printouts in question, blank of course as to any specific answers, but fully disclosing what is sought and what is obtained.⁶

The forms, which defendants have not refused to provide, fully describe the “type of information” involved. Anything more than that is the information itself, which would add nothing but specific data relating to specific people. To the extent that the forms used may contain variations from what is noted in appendices No. 1 and No. 3, certainly the public, and ACLU, have the right to learn of such variations. But the specific data placed into the blank spaces is beyond question “intelligence information,” expressly excluded by section 6254, subdivision (f), from the scope of section 6253, subdivision (a).

The judgment is reversed.

APPENDIX # 1

APPENDIX # 2

I dissent. The trial court properly found that the public interest in the contents of the cards and printouts weighed in favor of disclosure and that the information is relevant to inform interested persons of the type of information the public agency gathers and develops. Specifically, the trial court defined “intelligence information” in Government Code section 6254, subdivision (f) as that “received in confidence from sources whose public identity would jeopardize concrete, definite and legitimate criminal investigation processes.” Accordingly, as the majority note, the trial court ordered disclosure of all information save personal identifiers and confidential sources of information. The balance struck by the trial court is reasonable it protects the public's right to know and at the same time protects the privacy of individuals mentioned and the sources of police information.

The majority find the trial court's definition too restrictive. Rather, they declare that all information entered in the files may be labeled “intelligence.” They thereby permit the exception to swallow the rule.

The California Public Records Act cannot be so read. That Act exempts “(r) ecords of complaints to or investigations conducted by, or records of intelligence information or security procedures of, . . . the Department of Justice, . . .” (s 6254, subd. (f)) from the required disclosure of “information concerning the conduct of the people's business” (s 6250). Defendants acknowledge that the trial court's definition of exempt information closely parallels the federal provisions and that the California Act was apparently modeled on the federal scheme. I am unpersuaded that since “intelligence information” is not mentioned in the federal legislation, and the California Legislature had authorized information exchanges between state and federal law enforcement agencies before the Act was passed in 1968, the Legislature must have intended a much broader exemption than the federal statute allowed. Nor am I persuaded that the Legislature intended a broader exemption than is now found in the federal statute. The entire argument presupposes that since the federal statute does not mention “intelligence information” all such information in the federal files was subject to discovery. There is no basis in the record for such a conclusion. The majority buttress their view by noting that, prior to the enactment, the State had authorized exchange of information with the federal government. Such legislative history appears to prove the opposite that is, the State Legislature meant to follow the federal lead.

The federal term “investigatory records compiled for law enforcement purposes” is semantically broad enough to encompass both “records of investigations” and “intelligence information” as the trial court defined the latter term. More to the point, both the federal statute and the trial court's definition impose what is basically a relevancy criteria for exemption of data vital to effective law enforcement. The requirement is entirely consistent with the purpose of both statutes, i. e., the elimination of unnecessary secrecy in governmental record keeping. Records of investigations are exempted by section 6254, subdivision (f) only when the prospect of enforcement proceedings is concrete and definite. (Uribe v. Howie (1971) 19 Cal.App.3d 194, 212-213, 96 Cal.Rptr. 493.) The same qualification must apply to intelligence information.

The appendices convince me, as they do not the majority, that the type of information gathered is not manifest. Appendix No. 1, for example, lists “Associates” as information gathered. Absent information on the entries no member of the public will know what type of persons (friends, fellow church members, business associates) or organizations (social, political) are considered by the fact gatherer as coming within that category.

Statutorily declared public policy favors disclosure. 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.” The agency may withhold information only if it can show a need for nondisclosure in order that it may fulfill its function. (See Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 653, 117 Cal.Rptr. 106.) The record discloses no such showing.

I would affirm.

FOOTNOTES

1.  Section references henceforth are to the Government Code, unless otherwise noted.

2.  Mercifully for the reader, this exhausts the list of acronyms to be used in this opinion. OCCIB, ACLU, LEIU, and IOCI (reminiscent of the TARFU, SNAFU, FUBAR, and WEFT of the early 40's), are quite enough. And we hope the reader notes with appreciation our beneficence in using “Act” rather than CPRA and “Federal Act” rather than FOIA (see infra ).

3.  Section 6254, subdivision (c), exempts from disclosure:“Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”

4.  Uncensored by the trial court at this point are:a. -names of submitting agenciesb. -family relationships (e. g., wife's cousin, brother-in-law)c. -names of agencies from which additional information is availabled. -occupations (e. g., attorney, bar owner)e. -date of opening or updating of filef. -comments on criminal or other activitiesg. -list of crimes for which arrested.

5.  Because the IOCI was designed to record only matters of public record, it is unlikely that confidentiality of informants will be a factor as to entries on the printouts. However, since the record shows defendants asserted confidentiality and the trial court treated both LEIU and IOCI records alike in its order, both would presumably be subject to such review by defendants under the court's order.

6.  Appendix No. 1 is an example of the printed 5 X 7 LEIU cards; Appendix No. 2 exemplifies the mimeographed 81/2 X 11 OCCIB computer printouts.

PARAS, Associate Justice.

PUGLIA, P. J., concurs.