Q: My City is planning to build a large in-patient psychiatric hospital less than 600 feet from a high school. So far there have been zero safety assessments and yet the City is trying to push it through. We figured this out via a PRA request and subsequently I’ve been making several PRAs – I received a response today and asked for access to the City’s calendars. Without providing any description as to why, they exempted access to calendars under Govt Code 6255 and Times Mirror Case. Is the city legally allowed to restrict public access to calendars?
A: It sounds like the city is claiming the broad, yet undefined, catch-all exemption, and has not fully explained how that exemption applies to the records that you seek, which I understand includes calendars. Specifically, the exemption found in Government Code § 6255 states that a record may be withheld if non-disclosure greater serves the public interest.
Importantly, the “public interests” in disclosure and non-disclosure are weighed against each other, not the agency’s interests, and there must be a “clear” overbalance in favor of the public interest. Further, the Times Mirror case cited by the city does not denote that any and all calendars held by a governmental entity are exempt from disclosure. Rather, the § 6255 balancing test must be considered in light of the particular records at issue.
In Times-Mirror, the court ultimately found that the governor’s calendars were exempt in accordance with the catchall provision of section 6255 because the public interest in non-disclosure clearly outweighed the public interest in disclosure (with respect to those specific calendars). See Times Mirror Co v. Superior Court, 53 Cal. 3d 1325 (1991).
However, that holding was largely based on the peculiar interests the governor had in keeping his calendars secret, and not so much on general concerns that all calendars should be kept secret. This case was decided before the state constitution was amended to command that the Public Records Act be construed broadly (so as to maximize access to records).
Given the city’s duty under Government Code § 6253(c) to explain how a particular exemption applies to government records – including why the public interest is better served by withholding the documents under § 6255 – I would suggest you write back to the city reminding it of its duties under the Act, and reiterating your request for the calendars. You might also want to remind the city that should you be forced to bring a lawsuit to enforce your rights under the PRA, the city will be liable for your attorneys’ fees should you prevail. Gov’t Code § 6259(d).
Bryan Cave 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.