Q: I am a researcher for a state government agency. For a current project, I hoped to access the applications for state professional licenses submitted by engineers. I say the records are public. Our lawyer said no. Help!
A: Under the Public Records Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
It seems from your inquiry that you are not seeking applications submitted by jobseekers to a particular state agency, but rather applications submitted by individuals who are attempting to obtain a state-issued professional license.
It is not clear why records containing the license application information you seek would be exempt under the Public Records Act. Even where licensees under government programs are individuals, records containing information about the licensees has been held to be subject to disclosure under the PRA.
CBS Broadcasting Inc. v. Superior Court, 91 Cal. App. 4th 892 (2001) (in ordering that lists of names of convicted criminals who had received exemptions to work at licensed daycare facilities be disclosed under PRA, the court held as beyond dispute that “the identity of each individual who received a license to work, operate, or own a daycare facility” was a matter of public record).
In CBS, Inc. v. Block, 42 Cal. 3d 646, 648 (1986), the plaintiffs sought access to applications for licenses to carry concealed weapons. Id. at 648. The agency argued that the Act’s catch-all exemption, which permits the agency to withhold a record if it can demonstrate that “on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record,” applied, because releasing the information would allow expose licensees to potential attack, since would-be attackers could then plan crimes against license holders. Id. at 652, quoting Gov’t Code § 6255.
The court rejected this argument, finding it “conjectural” at best. Id.
The court also rejected the agency’s contention that disclosure of the records would discourage the the filing of applications to carry concealed weapons, which the court also found unpersuasive. Id. at 653.
“This court respects the people’s right to know and will not limit that right based on an inchoate fear that some will violate the law rather than have their names disclosed.”
The defendants also argued that the licensees’ constitutional right of privacy would be violated, which the court also rejected, finding that the information sought would not inflict any social stigma upon the applicants (in contrast with, e.g., a list containing names of individuals suspected of being affiliated with organized crime). Id. at 654.
The court concluded, “”If the press and the public are precluded from learning the names of concealed weapons’ licensees and the reasons claimed in support of the licenses, there will be no method by which the public can ascertain whether the law is being properly applied or carried out in an evenhanded manner.” Id. at 656.
The public interest in making public information about the licensing of professional engineers would seem to be similarly strong, and there would seem to be no countervailing interest in keeping that information hidden. Indeed, if there are portions of the application that contain particularly sensitive information that could be withheld under some privacy justification, that information could be redacted, and the records disclosed.
Also, it is worth noting that there is a specific exemption for statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency in order to gain a license. Gov’t Code § 6254(n).
It seems that the fact that the legislature included this express exemption indicates that it considered other portions of a license application to be public records under the Act.
You might want to ask the agency’s attorney what exemption justifies nondisclosure of the information. If you feel that the records should be disclosed to you, you might consider making a Public Records Act request for those records. Although the PRA contains a definition of “member of the public” that has caused some question as to whether employees of a government agency acting within the scope of their employment may use the PRA to obtain public records
“‘Member of the public’ means any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the scope of his or her membership, agency, office, or employment,” Gov’t Code § 6252(b), another provision of the PRA provides that “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided” and that “[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” Gov’t Code § 6253 (emphasis added).
In other words, the PRA does not seem to make itself available only to “members of the public” but rather to all persons.
The California Court of Appeal considered a similar issue in 2007, when a government agency refused to disclose records to a city, on the grounds that the city was not a “person” under the PRA.
Despite theoretical support based on a technical reading of certain parts of the statute, the court emphasized that the fundamental purpose of the PRA was to give access to public records and held that the city had standing to obtain records from other government agencies under the PRA. Los Angeles Unified School Dist. v. Superior Court, 151 Cal. App. 4th 759, 777 (Cal. App. 2d Dist. 2007)
“[T]he purpose of the CPRA is to have openness in government and to enable full disclosure of public records. This policy is enshrined in the Constitution. To fulfill that purpose, governmental entities must have access to the public records of other agencies. LAUSD offers no public policy sufficiently strong to justify precluding one governmental agency from obtaining the public records maintained by another.”
Similar considerations would weigh against any interpretation of the PRA that restricted access to particular individuals.
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.
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