Public/Private Interest Tests, Publics Records, And the Department of Housing and Community Development
Q: I am trying to obtain from the Department of Housing and Community Development a list of those cities and/or counties that applied for designation as an Enterprise Zone in Sept. 2006. The Dept. first responded to my request stating that they would take more time. Today I have received a letter from them denying my request based on the reason that “the public interest in ensuring that no one gains an unfair business advantage outweighs the public interest in disclosing the identities of the applicants at this time.”
Any community that submitted an application would have had to pass a city council resolution (or similar) in order to do so. Therefore the information is certainly public. Is there any other way for me to argue to simply receive a list of names of those communities that applied?
A: As you may know, under California’s Public Records Act, the public has a presumptive right to inspect and copy government records unless a specific exemption allows the government to withhold a particular record. The Act does contain a “catch-all” provision, however, providing that an “agency shall justify withholding any record by demonstrating 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.” Govt. Code § 6255.
Based on the information in your e-mail, it is not clear why the public interest would be served by refusing to withhold the information in this case. Because a record that is disclosed to one member of the public must be disclosed to any member of the public who requests it, it is not clear why releasing the record to you would give you an unfair business advantage, as everyone else would also be entitled to inspect the record. Govt. Code § 6254.5 (“Notwithstanding any other provisions of the law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law.”).
As a practical matter, it might be worthwhile to respond to the refusal, perhaps bringing it to the attention of the agency’s counsel, who may better understand the requirements of the Public Records Act than did the official who refused your request. The ultimate recourse in the case of a denial of a request under the Act is to initiate litigation. You might want to point out in your next communication that the Act provides that prevailing parties in PRA litigation should be awarded attorneys’ fees. Govt. Code § 6259(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.”).