Q: I made a request to the California Medical Board for licensing application information. The Medical Board denied my request and offered no avenues for appeal.
By my reading of relevant case law, and admittedly I am not a lawyer, this information is clearly not exempt from the Public Records Act. Are there avenues for appeal for this kind of denial that don’t involve entering litigation?
If litigation is required, is it common practice, or even legal, for a law firm to take the case on contingency. That is, if the firm wins, they get their attorney’s fees paid by the state under PRA, and I pay nothing (or a lesser amount) if we lose? I may be able to front the litigation costs in any case.
A: As you point out, there does not seem to be any provision in the Act that explicitly exempts the Medical Board records you describe from disclosure. See, e.g., Lorig v. Medical Bd., 78 Cal. App. 4th 462, 467-68 (2000) (discussing, in general, the nonapplication of certain PRA exemptions to medical board records, in particular, names and addresses of licensees).
Although the Lorig case involved slightly different facts — in that case, the plaintiffs filed suit against the Medical Board for violating the Public Records Act and Information Practices Act by posting their names and addresses on its website — the court’s discussion is instructive. Id. at 464-65.
The court found that the Medical Board violated neither statute. Id. at 468-69. With respect to the Public Records Act, the court found that neither the exemption relating to withholding records (or portions of records) containing the home addresses and telephone numbers of state employees, nor the exemption relating to personnel files, applied (despite the fact that the physicians, in this instance, were state employees). Id. at 468-69.
The court went on to state, “Any privacy interest a physician may have with respect to this type of information is minimal and far outweighed by the public interests asserted by the Board.” Id. at 468.
With respect to the Information Practices Act, which prohibits the “‘indiscriminate … dissemination of personal information’ by state agencies, and prohibits them from disclosing ‘any personal information in a manner that would link the information disclosed to the individual to whom it pertains,'” the court also found that the Medical Board had not violated this particular statute. Id. at 469.
It seems that there is a strong public interest that would outweigh any countervailing considerations in disclosing the records you seek. Indeed, if there is any information that is sensitive — i.e., home address, social security number, etc. — that information could be redacted from the records that you seek.
Unfortunately, litigation is the only procedure available to enforce the Public Records Act. Although you can ask an agency to reconsider its decision, there is no formal process for administrative appeals, and the agency has no statutory obligation to reconsider its original position.
However, before embarking upon litigation, you may want to write to the agency and ask for an explanation, including the specific exemption, that justifies nondisclosure of the records that you seek.
Under the Act, the agency must must cite the specific exemptions justifying nondisclosure, and how those exemptions apply to the specific situation. See Gov’t Code § 6253(c):
…each agency, “upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of hteh agency and shall promptly notify the person making the request of the determination and the reasons therfor”.
You may want to point out that, should the Medical Board continue to maintain that the records are exempt from disclosure, and you decide to file a writ of petition in the Superior Court to compel disclosure of the records, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. Gov’t Code § 6259(d).
You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.
You may be able to find an attorney to assist you through the First Amendment Coalition’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/. You may want to mention that you are seeking representation under a contingency or alternative-fee arrangement.
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.