A&A: Documents once public now denied

Q: In the past 3 years we have requested and received public records of the names and addresses of  individual medical technicians licensed by the state. The requested public records have been given to us by three different methods. 1. In electronic format by a typed document created by the State of California 2. In electronic excel format as provided medical technicians association 3. In paper copies as provided by that group.

Since July 26 2010 we have submitted the same records requst have been denied under Government Code section 6254(c:

The information that you seek constitutes examination data used to administer a licensing examination. As such, this information is exempt from disclosure under California Government Code section 6254(g).

In addition, California Civil Code section 1798.60 prohibits the release of an individual’s name and address for commercial purposes, unless specifically authorized. Although California Civil Code section 1798.61(b) does not specifically prohibit the release a license applicant’s name and address, release of applicant records is discretionary. Here, compilation of the requested information for this single request would require approximately ninety (90) hours of the Association’s staff time. Given current budgetary constraints, the Association cannot spare those resources and must deny your request.”

My question is under Section 6254.5 which states that 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. This record has already been released to the public, in many different forms, therefore, has this agency already waived any claim to an exemption regarding these records? I have even modified my request for just inspection of these records and continued to be denied?

A: If you are indeed requesting the same records that have previously been released, then it would seem that, whether the records are exempt under the Act or not (which I’ll get to below), the agency has, under Gov’t Code 6254.5, waived the exemptions provided for in the Public Records Act, and the records should be released.

However, please keep in mind that the Public Records Act applies to records, and not information. Thus, the agency is not necessarily required to compile information from various sources to create a new record that did not previously exist.

As to the agency’s contention that the records are exempt under Gov’t Code section 6254(g), it does not seem that this exemption, which applies to licensing examination materials, would apply here if all you are asking for is the names of those who have passed the examination, and not the examination itself.

As for the agency’s statement that the release of the requested records under Civil Code 1798.61 is discretionary, it does not seem that the section cited, read together with applicable provisions of the Public Records Act, stand for this contention.

The Act permits “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law” to be withheld from release. Gov’t Code 6254(k). The cited Civil Code sections do not appear to prohibit the release of certain types of records, specifically those containing the names and addresses of persons possessing licenses to engage in professional occupations. Civil Code 1798.60. Under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009).

As such, it seems that Civil Code 1798.61 should not be read to restrict disclosure of the requested records.

Finally, for what it’s worth, if the Act does not require requesters to state their purpose in seeking out the records they are requesting (“This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” Gov’t Code § 6257.5). Thus, to the extent that the agency is refusing to honor your request based on its beliefs about what you will do with the records, it may be violating the Act.

If you are interested in finding an attorney to assist you, you might consider requesting one through the First Amendment Coalition’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.

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.