A&A: DMV denied request for records previously accessed. What should I do next?

Q: I am attempting to identify information from the Department of Motor Vehicles (DMV). The specific information is an identifying number on a driver’s license print out. The identifying number corresponds with a specific court in California. If you call DMV’s toll-free number, they will tell you what court belongs to the identifying number.

My public records request for the entire list has been rejected because the information is cited as privileged and confidential. Reasons listed for the denial: Gov. Code 6254, subdivision (k), as that section interacts with Evidence Code section 1040 (privileged official information), (2) pursuant to Government Code section 6254, subdivision (f), as intelligence or security information for licensing purposes, and (3) pursuant to Government Code section 6253.9 as information that would compromise the security or integrity of the DMV database.

I have not yet sent a response, and my point of argument is that the information is public if you call and ask individually. However, the information is protected as an entire list. Is there any case law to compel production of this list? Thanks in advance for your assistance.

A: I am not clear as to the exact nature of the information contained in these reports, specifically the “identifying number,” that you are seeking. As a general matter, if your written Public Records Act request is denied, the agency must not only cite a specific exemption that it claims authorizes it to withhold the records, but also should provide you with a detailed explanation as to the reasons that the exemption it cites apply. (Under the PRA, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. Gov’t Code § 6255.)

Generally, the PRA’s exemptions are to be narrowly construed in favor of disclosure. If the response from the agency thus far has been to merely cite specific code provisions, without any explanation of how those provisions apply to the information that you seek, you should press the agency to further explain why the information may be withheld. You may also want to point out the fact that the information that you seek is available from individual reports, and that you have never been denied the information in this form.

With respect to exemptions under Gov’t Code§ 6254(k) and Evidence Code § 1040, “official information” means “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” Thus, the exemption applies only to information that is expressly acquired in confidence. Additionally, this exemption applies only if “[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” Gov’t Code § 1040(b)(2).

Furthermore, the exemption for official information may not be claimed under this section if anyone authorized to do so has consented to disclosure, and in determining whether disclosure of the information is against the public interest, the interest of the public agency may not be considered. Id.

If the agency continues to deny your request, you may consider taking legal action to force disclosure of the records. Lawsuits to enforce the PRA are usually initiated by a verified petition that asks the court to issue a “writ of mandate,” which is an order directing the public agency to take specified action. If you need professional assistance in filing your lawsuit, you might try using FAC’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/lawyers-assistance-request-form/ in order to find a public records attorney in your area. You can also find a sample PRA request letter, as well as additional information on the PRA, on FAC’s website at the following link: https://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.