City’s stonewalling newspapers
Q: City officials will not speak to this newspaper at all, and so we only communicate through documents gotten through public records requests. A recent from us to the city asked for “all audits performed by Municipal Auditing Services in calendar years 2003, 2004, 2005, 2006 and 2007”. The city attorney sent a letter stating they will not give us the information, citing Section 6245(i) — basically, they are concerned about protecting the city\’s businesses from “unfair competitive disadvantage” by releasing information about their gross profits or taxes owed/paid to the city.
To solidify the city’s legal grounds to deny our request, they are taking a vote next week to bring the state code 6245(i) in line with municipal code. We want to keep the lines of communication open as much as possible, and the fact that they are putting so much energy into denying our requests is very worrisome to me.
I spoke informally with the assistant city attorney, who signed the response to our request, and gave him more specific direction as to what information we really want… An anonymous source told me that a city business (that has close ties to the mayor) owes the city $1000s in taxes that they are not paying. I believe the city is trying to hide that, and I told the assistant city attorney that I only want that business’s information, and I do not want to create an “unfair competitive disadvantage” to that company, but that I am acting as a watchdog to make sure the city is collecting all its business taxes.
I do not believe the city will be cooperative with this request either, and wonder if I have any recourse to this 6254(i) code they are using. They also cited Lion Raisins Inc. v U.S. Department of Agriculture (9th Circuit 2004), Uribe v. Howie, 19 Cal. App. 3d 194, 213 (4th District, 1971), Ilaynie v. Superior Court (Co. of Los Angeles), 26 Cal. 4th 1061, 1069 (2001), McCabe v. Snyder, 75 Cal. App. 4th 337 (3rd Dist 1999). Webb v. Standard Oil company 49 Cal. 2d 509, 513 (1957), Sav-On Drugs v. Superior Court, 15 Cal. 3d 6-7 (1975), and Crest Catering Co. v Superior Court, 62 Cal. 2d 274 (1965). Any advice you can give me to open the door to this information would be appreciated.
A: As you are aware, the California Public Records Act (“CPRA”) generally requires state and local agencies, including cities, to allow members of the public to inspect records in their custody and obtain copies of those records, unless one of the CPRA’s specific exemptions applies. The exemption that the city is claiming here allows a government agency to withhold records that constitute:
Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information. Cal. Gov. Code 6254(i).
It is unclear whether this exemption allows the city to withhold the audit records you are seeking. While I found no California court cases or attorney general opinions addressing a denial of a CPRA request based on this exemption, the California Court of Appeal has twice suggested that the exemption would allow an assessor’s office to withhold from the public information provided by a corporation to a property tax assessor.
See Roberts v. Gulf Oil Corp., 147 Cal. App. 3d 770, 803 (1983); Chanslor-Western Oil & Dev. Co. v. Cook, 101 Cal. App. 3d 407, 412 (1980). However, the exemption only allows the agency to withhold records from the public if disclosure would actually result in an unfair competitive disadvantage to the business that provided the information to the government. To better assess the city’s reliance on this exemption, you might ask them to articulate the nature of the competitive disadvantage that would result from release of this information. If the city continues to withhold the records, your only option may be to petition a court to require release of the audit records. Whether a court would take such action is unclear given the lack of legal precedent on this issue.