FREEDOM NEWSPAPERS INC v. COUNTY OF ORANGE 100 (1986)

Petitioner (“the Register”) seeks an order compelling the Orange County Auditor-Controller (“the auditor”) to release its record of payments made to court appointed attorneys representing an indigent defendant.

The auditor maintains a payment ledger which reflects the amount of money paid a court appointed lawyer for services rendered in the defense of an indigent defendant in a criminal case.¹  A second payment ledger kept by the auditor reflects payments made in a capital case for ancillary services rendered by investigators, experts, and the like on behalf of an indigent defendant.²  The names of the individuals or organizations rendering the service are not listed in the ledger, only the attorney or attorneys of record are shown along with the amount paid.

A reporter for the Register, doing investigation and research concerning the amount paid by the county to attorneys representing indigent defendants, was denied access to payment records regarding People v. Kraft (Super.Ct. Orange County No. C–52776).³  He discovered the superior court had, on March 21, 1985, ordered the auditor to seal all records of payments made to attorneys appointed by the court in that case.

The Register's reporter requested access to both ledger books regarding all cases, and the Kraft case in particular.   The auditor refused, citing the superior court order.   The Register then filed a petition in superior court seeking an order compelling the auditor to disclose the requested information pursuant to the California Public Records Act.  (Gov.Code, § 6250, et seq.)

The court denied the Register's petition, ruling that section 987.9 ⁴ exempts payment records from disclosure until the judgment is final.   It further found section 987.2 records, while not statutorily exempt from disclosure, could be sealed, when necessary, to protect a defendant's right to a fair trial and that the special facts of the Kraft case warranted sealing the 987.2 records.   The court expressly stated that its ruling would permit the auditor to disclose section 987.2 records, except in the Kraft case.   Petitioner's request for attorney's fees was also denied.⁵

Petitioner argues the amount of county money spent on behalf of indigent defendants is a matter of public concern and its First Amendment rights have been abridged by the trial court's ruling.   The Register fashions its argument, in this an election year, as a political controversy:  Since the district attorney has decided to prosecute Kraft on all 16 murders as opposed to a lesser number or a select few, the costs of defense will be greater.   This alleged increase in the amount defense attorneys will charge the county may be attributable to an overzealous district attorney.   On the other hand, it may be justifiable because our Supreme Court will not uphold a death penalty in the Kraft case unless, perhaps, it is based upon multiple murder counts.   Since the Orange County District Attorney and members of our Supreme Court face the electorate this year, the Register seeks, it says, to publish the information sought to inform the voters of Orange County.

 This fanciful flight of reasoning, however, is not supported by any declarations from the district attorney's office nor citation to any authority.   While such speculations and created controversies may be grist for newspaper stories and editorials, they have no place in legal proceedings.   Ironically, petitioner's argument, based on First Amendment freedoms, does it and the public, whose rights petitioner claims to champion, a disservice.   We need not reach petitioner's constitutional arguments to insure the rights of the public to government information.

The public's right to information concerning the conduct of government business is a fundamental and necessary right.   It is not dependent upon election year rhetoric nor is it dependent upon a newspaper's First Amendment freedoms.   It is a basic and enforceable right of every citizen of this state.

 We have already held a newspaper has no greater right of access to public records than anyone else nor is the right of access based upon First Amendment freedoms of speech or press.  (Register Div. of Freedom Newspaper, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 900, 205 Cal.Rptr. 92;  San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774, 192 Cal.Rptr. 415;  see also Estate of Hearst (1977) 67 Cal.App.3d 777, 785–786, 136 Cal.Rptr. 821;  accord, Houchins v. KQED, Inc. (1978) 438 U.S. 1, 15, 98 S.Ct. 2588, 57 L.Ed.2d 553.)   Notwithstanding the disingenuousness of petitioner's argument and reasons, we hold the public's right of access to information in this case has been impermissibly restricted.

The California Public Records Act (CPRA) was enacted to promote the accountability of government to the public, (Register Div. of Freedom Newspapers, Inc. v. County of Orange, supra, 158 Cal.App.3d at p. 901, 205 Cal.Rptr. 92), and to give the public greater access to information in the possession of public agencies.  (Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 668, 135 Cal.Rptr. 575.)   CPRA's general policy is to favor disclosure.  (Cook v. Craig (1976) 55 Cal.App.3d 773, 781, 127 Cal.Rptr. 712.)  “Accordingly, support for a claim of nondisclosure ‘must be found, if at all, among the specific exceptions to the general policy that are enumerated in [CPRA].’  [Citation.]”  (Register Div. of Freedom Newspapers, Inc. v. County of Orange, supra, 158 Cal.App.3d at p. 901, 205 Cal.Rptr. 92.)

The auditor contends records of payments made to attorneys by court direction are not “public records” subject to the disclosure provisions of CPRA.   He argues the records are court records which, although public in the general sense, are not “public records” under CPRA.   We disagree.

 The auditor's ledgers are, by definition, “public records” under CPRA.   The act defines a “public record” as “any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”  (Gov.Code, § 6252, subd. (d).)  The auditor's records are writings prepared and retained by the auditor, a county administrative agency, as a record of county disbursements.   Since the auditor keeps the ledgers as a necessary or convenient part of his official duty, they are public records.   (See Braun v. City of Taft (1984) 154 Cal.App.3d 332, 340, 201 Cal.Rptr. 654.)

The fact that the court directs the payments recorded in the ledgers does not alter their public nature.  Code of Civil Procedure section 1904 defines a “judicial record” as “the record or official entry of the proceedings in a court of justice, or of the official act of a judicial officer, in an action or special proceeding.”   The auditor's ledgers are neither records of judicial proceedings, nor records of a judicial officer's actions.   They are bookkeeping ledgers recording court-approved county disbursements.   While the actual applications for funds under sections 987.2 and 987.9, the transcripts of the in camera hearings, and the court's payment authorizations are court records outside CPRA's ambit, the auditor's ledgers recording those payments are not.

This does not end our inquiry, however, since CPRA contains numerous exemptions from its disclosure provisions.  (See Gov.Code, §§ 6254 and 6255.)   Though the auditor attempts to apply the exemptions to both section 987.2 and section 987.9 payments, we analyze the sections and their corresponding ledgers separately.

Section 987.2 does not itself contain any language which suggests disclosure is prohibited.   However, the auditor argues its 987.2 ledger is exempt from disclosure under Government Code section 6254, subdivision (k), which provides disclosure is not required for public “[r]ecords the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”   We find no statute or case authority which prohibits disclosure in this case.

Kraft's attorneys argue disclosure is prohibited under Government Code section 6255.⁶  That section provides the court must order disclosure of public records unless the custodial agency can show the public interest served by disclosure is clearly outweighed by the public interest served by confidentiality.  (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 657, 117 Cal.Rptr. 106.)   The public interest in confidentiality under Government Code section 6255 is paramount because they claim disclosure will severely prejudice their ability to defend Kraft at trial.   They suggest the public will somehow “hold it against” Kraft if they know how much public money has been spent on his defense.   Thus, they contend this potential denial of a fair trial or an impartial jury creates an implied exception to the disclosure provisions of CPRA.   Their argument is based upon the 1974 amendment to the federal Freedom of Information Act (FOIA), which provides a disclosure exemption when necessary to protect the rights to a fair trial and impartial jury.  (See 5 U.S.C. § 552(b)(7)(B).)   Additionally, our Supreme Court has held “[s]ince the 1974 amendments [to FOIA] were adopted to reinstate the scope of the exemption as intended in the original act [citation], and since [CPRA] was modeled upon that original act, we may use the amendments to guide the construction of [CPRA].”  (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 449, 186 Cal.Rptr. 235, 651 P.2d 822.)

 We refuse to accept the notion a defendant's right to a fair trial is automatically prejudiced by media disclosure of factual information concerning alleged crimes.   History provides many obvious examples of cases with extensive pretrial publicity which did not preclude a full and fair trial on the merits.⁷  Disclosure of the amount of public money expended in defense of Randy Kraft is very unlikely to be prejudicial relative to what has already been published.   Newspapers in Orange County have over a period of months described in detail the facts surrounding the murders of which he is accused.   They have repeatedly detailed the brutality and homosexual nature of the crimes, and disclosed the fact a dying man or deceased victim was in Kraft's car when he was arrested.   The district attorney, in well publicized hearings before the Orange County Board of Supervisors, has asked for additional deputy positions to help prosecute the case because of its size and scope.   The amount spent in defense of Randy Kraft, whatever it is, pales next to the information already received by the public concerning this case.

Kraft's attorneys next argue the holding in Keenan v. Superior Court (1982) 31 Cal.3d 424, 180 Cal.Rptr. 489, 640 P.2d 108, requires us to apply the confidentiality provisions of section 987.9 to payments made to attorneys pursuant to section 987.2.   We disagree.

Section 987.9 was enacted in 1977 in response to the then recently passed death penalty statute.  (See Stats.1977, ch. 1048, p. 3179.)   It applies only to capital cases and contains specific language requiring confidentiality:  “․ The fact that an application has been made shall be confidential and the contents of the application shall be confidential․”  (§ 987.9.)

Keenan dealt with a defendant's application for a second appointed counsel.   The court found the appointment of additional counsel was authorized under sections 987, subdivision (b), and 987.2—987.8, but not section 987.9.  (Id., at p. 430, 180 Cal.Rptr. 489, 640 P.2d 108.)   It further held a request for additional appointed counsel was “entitled to the application, by analogy, of section 987.9's provisions for confidentiality to the making and hearing of the motion for such appointment.  [Citations.]”  (Id., at p. 430, 180 Cal.Rptr. 489, 640 P.2d 108.)

 Disclosure of payments to those additional appointed counsel would reveal to the prosecution and trial judge the fact such additional attorneys had been appointed, defeating the confidentiality of section 987.9 as approved in Keenan.   However, we are not faced with disclosure of the identity of Kraft's additional lawyers;  they are known, all having appeared at various hearings.   Rather, we are asked to keep secret the amount of money they have received as compensation for defending Kraft.   This is a far different situation than that presented in Keenan, where the appointment of a second attorney was sought and the court granted the appointment under the confidentiality provided in section 987.9.   Here, any claim of confidentiality as to the fact of appointment of additional counsel or their identity has been waived by their appearances on behalf of Kraft.  (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321, 204 Cal.Rptr. 165, 682 P.2d 360.)

Finally, it is claimed disclosure of the 987.2 ledger records will “lighten the prosecution's burden of proving its case in chief.”  (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673.)   In Prudhomme, the court enjoined enforcement of a trial court order requiring the attorney for defendant to turn over to the prosecution the names, addresses and expected testimony of the witnesses the defendant intended to call at the time of trial.   The court held the order was overbroad since it was not limited to information which could not possibly have a tendency to incriminate the defendant.   The court stated the trial court's order “could require petitioner to disclose information which might serve as a link in a chain of evidence tending to establish her guilt of a criminal offense.”   (Prudhomme v. Superior Court, supra, 2 Cal.3d at p. 327, 85 Cal.Rptr. 129, 466 P.2d 673.)

 Knowing the amount of money paid to defense attorneys pursuant to section 987.2 could not possibly tend to lighten the prosecutor's burden of proving its case in chief.   The knowledge a particular sum of money has been paid to one or more attorneys for an indigent defendant can be of no help to a prosecutor.   Even if they were to surmise a certain sum represented a particular number of hours' work, we fail to see how that fact alone either helps the prosecutor or prejudices the defendant.   There will be no means of ascertaining the subject matter of the defense effort from the ledgers.   We are certain the prosecution will be fully prepared no matter what amount of money is paid to the defense attorneys.   Conversely, we feel secure the defense will be fully and adequately prepared regardless of the number of district attorneys assigned to prosecute the case.   We find no merit in real party's argument.

 Finally, we address the payments made pursuant to section 987.9 and recorded in the corresponding ledger book.   The statute, which applies only to capital cases, allows compensation for “investigators, experts, and others for the preparation or presentation of the defense.”  (§ 987.9.)   It requires confidentiality:  “The fact that an application has been made shall be confidential and the contents of the application shall be confidential.”   Further, “a judge, other than the trial judge presiding over the capital case in question,” is the one to whom such application is made.   Clearly, the Legislature intended a defendant in a capital case to be free from disclosing the fact investigators or experts had been retained to aid in his or her defense.   Petitioner, while recognizing the confidential nature of the application, argues it does not extend to the payments made in response thereto as recorded in the auditor's ledger book.   We disagree.   By disclosing the amount of money paid pursuant to section 987.9, the fact an application had been made would no longer be confidential.   The trial court correctly sealed the ledger book in question as to all cases until they become final.

Since we find section 987.9 itself prohibits disclosure and thus falls within the exceptions to CPRA under Government Code section 6254, subdivision (k), we need not address real party's argument such disclosure would violate the holding of Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673.

Petitioner is entitled to costs and attorney fees incurred in seeking the order below pursuant to Government Code section 6259.⁸

The alternative writ is discharged and a peremptory writ is granted.   The trial court is directed to vacate its order denying the Register's petition and to enter an order as set forth in this opinion.   The court is further directed to award petitioner the reasonable value of attorney fees and costs for its pursuit of relief, both here and below.

I fully concur in the lead opinion, but I do not understand Justice Wallin's view that somehow the due process rights of Randy Kraft are threatened in this proceeding.   Kraft has at least been given the full opportunity to appear in this court and present all the facts and arguments at his disposal with respect to the claim that his right to a fair trial will be impinged by the minimal disclosure we contemplate, i.e., the amount of public funds expended to provide him not only an adequate but a superlative defense.   Not one, not two, but three veteran criminal specialists have been named by the superior court to defend him.   Some denial of due process.

To be contrasted with this case is that of Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 205 Cal.Rptr. 92.   There, this court over my dissent and with Justice Wallin joining the majority, allowed newspaper access to the personal injury file of a jail inmate who settled a lawsuit against the county on the condition that the settlement would not be made public.   Although the inmate was not made a party in either the superior court or this court, and his settlement, to say nothing of his privacy, was potentially jeopardized by our decision, the majority ordered disclosure of the amount of the settlement and “all settlement documents contained in [the inmate's] settlement file with the exception of the crime report ․ and the rough undated notes made by Risk Management staff․”  (Id., at p. 910, 205 Cal.Rptr. 92.)   I am pleased that our dissenting colleague has become more sensitive to the rights of necessary parties, but this hardly seems the case in which to express such concerns.

I dissent.

This case is a procedural nightmare and is not in an appropriate posture for a decision affecting the rights of Real Party In Interest, Randy Kraft.   Neither Kraft nor his counsel were a party to the proceedings initiated by Freedom Newspapers.   Even so, the trial court stood by its previous order sealing the county auditor's records of payments to Kraft's attorneys.   The court continued to believe that its previous order, entered at the request of Kraft's attorneys ancillary to the pending criminal case, was correct, and that Kraft could not get a fair trial in Orange County if the information was released.   Because Freedom Newspapers did not initially seek relief from the order sealing the Kraft records, and instead sought relief applicable to all of the auditor's records in every criminal case, no opportunity was presented for an adversarial hearing between the relevant opposing sides.

The lower court did recognize the delicate balance between two competing interests—protecting a defendant's right to a fair trial and preserving the public's right to disclosure.   I am unwilling to hold, as the majority opinion might suggest, that in all cases the public's right to disclosure prior to verdict of amounts paid to attorneys for an indigent capital defendant will necessarily outweigh a potential impairment to the defendant's right to a fair trial.   Furthermore, absent some record suggesting that the ruling here, favoring the fair trial interest, was in error, I would defer to the trial court's decision.

Accordingly, I would deny the petition.

FOOTNOTES

1.   Penal Code section 987.2, in relevant part, provides:  “(a) In any case in which a person, including a person who is a minor, desires but is unable to employ counsel and in which counsel is assigned in the superior court, municipal court, or justice court to represent such a person in a criminal trial, proceeding or appeal, such counsel, in a county or city and county in which there is no public defender, or in a case in which the court finds that because of conflict of interest or other reasons the public defender has properly refused to represent the person accused, shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, to be paid out of the general fund of the county.”

2.   Penal Code section 987.9, in relevant part, provides:  “In the trial of a capital case the indigent defendant, through his counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense.   The application for funds shall be by affidavit and shall specify that the funds are reasonably necessary for the preparation or presentation of the defense.   The fact that an application has been made shall be confidential and the contents of the application shall be confidential.   Upon receipt of an application, a judge of the court, other than the trial judge presiding over the capital case in question, shall rule on the reasonableness of the request and shall disburse an appropriate amount of money to defendant's attorney.   The ruling on the reasonableness of the request shall be made at an in camera hearing.   In making the ruling, the court shall be guided by the need to provide a complete and full defense for the defendant․  [¶ ] ․ At the termination of the proceedings, the attorney shall furnish to the court a complete accounting of all monies received and disbursed pursuant to this section.”

3.   Randy Kraft has been charged with the murder of 16 young men.   The district attorney's office has also filed “notices of aggravation” indicating its intent to link Kraft to an additional 22 slayings.   The case has received extensive media attention and Kraft has been labled in the press as the “freeway killer,” a sobriquet derived from allegations the victims were picked up while hitchhiking and their bodies found in close proximity to freeways.

4.   All statutory references are to the California Penal Code, unless otherwise indicated.

5.   The matter comes before us in an unusual posture.   The original order sealing the ledgers in question was obtained by Kraft ex parte.   We were not provided with a record of that proceeding if, in fact, one exists.   The Register's petition in superior court did not include Kraft as a respondent.   We, however, invited a response from Kraft as a real party and he has responded through his attorneys.   Though not a party below, he has been afforded the opportunity to be fully heard on all issues in this court. 

6.   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.”

7.   For example, the prosecutions of Sirhan Sirhan, Charles Manson, Angelo Buono, John Hinkley, John De Lorean, Dan White, Angela Davis, etc.

8.   Government Code section 6259 provides:“(a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so.   The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and such oral argument and additional evidence as the court may allow.“(b) If the court finds that the public official's decision to refuse disclosure is not justified under the provisions of Section 6254 or 6255, he or she shall order the public official to make the record public.   If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.“(c) In an action filed on or after January 1, 1985, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of the extraordinary writ of review as defined in Section 1067 of the Code of Civil Procedure.   Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.“(d) The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.   The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official.   If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”

TROTTER, Presiding Justice.

CROSBY, J., concurs.