Q: We’re trying to request the applications of taxicab applicants to see if the regulatory body is discriminating. The public agency has redacted most of the applications for fear of a misdemeanor in releasing “convictions,” (e.g. the agency maintains its own allegations of infractions and the applicants voluntarily submitted their place of doing business and their DMV record.) We understand that law enforcement was required to release convictions of concealed weapon permit holders. CBS, Inc. v. Block (1986) 42 Cal.3d 646. Do you know of other case law that would require the municipal corporation to release the applications? Also, do you know what the penalties are for a violation of the Public Records Act?
A: Unfortunately, I couldn’t find any cases dealing with the disclosure of applications. However, CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892 (2001) may be applicable to your inquiry. CBS sued state Department Of Social Services (DSS), seeking to compel disclosure of the identity of every individual granted criminal conviction exemption to work in licensed child day care facility, and the facilities employing such individuals. The court found, “the public has an overwhelming interest in making sure that DSS does not abuse its discretion in granting exemptions that will allow individuals with qualifying criminal convictions to be employed at child daycare centers licensed by DSS. Accordingly, ‘there is a clear and legislatively articulated justification for disclosure—the right of the public and the press to review the government’s conduct of its business.’” Id. at 906. While the public may have a less compelling interest in the criminal history of taxicab applicants than daycare providers, much of the court’s reasoning is applicable to your situation.
“Initially, we conclude that nondisclosure is not compelled under subdivision (c) of section 6254, which exempts disclosure of ‘[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy’…We further conclude that nondisclosure is also not compelled under subdivision (k) of section 6254, which exempts ‘[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.’… Contrary to DSS’s claim, disclosure of the requested information would not cause DSS to violate Penal Code sections 11105 and 11142…the fact that an individual suffered a criminal conviction, as conceded by DSS, is a matter of public record.” Id. at 907 (citations omitted).
Additionally, “in determining whether public records which are not expressly exempted from disclosure must be disclosed over the government’s objection, California courts apply the section 6255 balancing test for the catchall exception on a case-by-case basis. Where the public interest in disclosure of the records is not outweighed by the public interest in nondisclosure, courts will direct the government to disclose the requested information…DSS has failed to carry its burden.
Initially, we again point out the fact a specific individual suffered a criminal conviction is a matter of public record. Additionally, we conclude that, to the extent that such individual maintains any privacy interest in nondisclosure of such fact, he or she has subjected himself or herself to public review by virtue of applying for a license to work at, operate, or own a child daycare facility, which license also constitutes a matter of public record.” Id. at 909 (citations omitted).
I suggest you write a letter to the regulatory body, requesting the records you seek. They must determine whether the records can be disclosed within 10 days of your request, and “promptly notify” you, in writing, if it will make the records available, or specifically state the reasons the records are exempt from disclosure. Gov’t Code § 6253(c). You may want to cross-reference any suggested reasons against both CBS, Inc. v. Block and CBS Broad Inc. v. Superior Court. You may also want to remind them that attorneys’ fees are available should you be required to bring a lawsuit to enforce your rights under the Act.
If the body refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Gov’t Code § 6259. Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate – a type of order directing the public agency to take a specified action. Attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d) — a fact that you may want to draw the Board’s attention to in your next correspondence. You can find more information on the PRA on this website: Access to Records
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.