A&A: Records request regarding government contractors was denied on privacy grounds

Q:  I manage a small organization that helps teach people to use public records for their protection. Recently we made a request to several municipalities for records of payments made to people doing business with the muni’s.

We sought to discover the names of persons or companies who were paid by the county or city in the previous year, and in order to separate individuals from companies we requested files sorted by tax ID information.  For instance, we asked for the ones who were being paid under corporation tax forms by their tax ID type. In another instance, it was sole proprietors, so we asked for the ones using a social security as their tax ID’s. We re-itierated we were not requesting the ID numbers themselves, but the names of those using that reporting method when receiving compensation.

One muni has denied the request under 1) California Constitution article one section 1 and 2) 6254 of the PRA, section i and K. We are not asking for any personal information other than the names of the persons, amounts paid in a calendar year, branch of the government the payments were made from, and general description of the payment made for people or companies either working for, or contracting with the county/city. Somehow they believe it would be an invasion of privacy to disclose whether the persons/companies in question were operating as individuals, corporations, LLCs, or other entities. I believe we are entitled to this information, and I’m wondering if you can offer any guidance on this matter.

A: From what I understand, you are seeking information related to individuals or corporate entities paid by a public agency during the previous tax year, and are attempting to gather this information by requesting that certain information related to tax status be disclosed to you, though it does not sound like you are necessarily seeking the tax documents themselves.

The Public Records Act exempts from disclosure “[i]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.” Gov’t Code § 6254(i). Also, certain tax documents are specifically exempted, including income tax returns, certain Franchise Tax Board settlements, business information acquired by the Board of Equalization, and real property ownership statements. Rev. & Taxation Code §§ 19272, 19133, 15619; Gov’t Code § 27280.

Unfortunately, there is little case law interpreting the PRA’s exemption as it relates to tax documents and the information contained therein. If the agency has cited this particular PRA exemption, please keep in mind that there are two requirements that must be met here: (1) that the information was received in confidence, and (2) that disclosure of the information to others would result in unfair competitive disadvantage to the person supplying the information.

Section 6254(k) exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” This apparently is in reference to the California Constitution you cite, which provides that “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. 1, §1 (emphasis added).

It is difficult to imagine how disclosure of the information that you requested would constitute an invasion of privacy for these individuals, especially given that they are being paid with public funds. As the California Supreme Court recognized in a recent case where disclosure of the salaries of individuals earning more than $100,000 per year in a particular municipality was sought, any “cognizable interest that public employees may have in avoiding the disclosure of their salaries” is counterbalanced by the “strong public interest in knowing how the government spends its money. As we have observed in the context of the public’s right of access to court proceedings and documents, public access makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.” International Federation of Professional & Technical Engineers v. Sup. Ct., 42 Cal. 4th 319, 333 (2007).

If, indeed, all you seek are the names of recipients, the amounts paid, and a description of the amounts paid, it is difficult to imagine, especially in light of this case, how that information would constitute an invasion of privacy for the individuals who benefitted from these contracts. If there is any information that would implicate this privacy provision contained in the state constitution, the city could always redact those sections, while still providing you with the information that you requested.

However, one thing to keep in mind is that the PRA is written in terms of records rather than information. So sometimes part of the challenge is to frame your request in terms of documents that are likely to contain the information you are looking for. You may want to word your request with narrow language asking for any document that the city might possess that contains information related to payments to contractors by the city during a certain year.

As a practical matter, you might consider asking for clarification on the grounds for the denial of your request. To the extent that the city is concerned that it might release private information that you are not interested in, you can then tailor your request to make clear that you are only seeking certain information available in those documents, and that other information that is arguably exempt under the PRA may be redacted. The California Constitution requires agencies to construe statutes that limit the right of access narrowly, which supports an argument that any close call under the PRA should be resolved in favor of disclosure.