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A&A: Is A Public Agency Required to Disclose Names of Board Member Applicants?

Q:  We are trying to obtain the names of applicants for board vacancies, not the applications themselves or the information they contain, which seems to be covered by the California First Amendment Coalition v. Superior Court (Wilson) 1998.

Voters in November authorized the District to turn operation of the hospital over to a nonprofit corporation, which will consist of hospital district directors, the chief of the medical staff, and three appointees. The hospital board is in the process of picking the appointees. It also must fill a vacancy left by a resignation of one of the elected district hospital board.

A: First, as a technical matter, California’s Public Records Act requires the disclosure of “writings” rather than information, per se, Gov’t Code § 6252.  So, technically, a PRA request would encompass
records that reflect applicant names rather than simply asking for the names.  As a practical matter, this could mean requesting, e.g., records sufficient to reflect the names of each applicant.  It sounds like the district did not stand on that technicality, though.

The case you mention is definitely relevant, though it doesn’t necessarily control the outcome of the scenario you describe.  In California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159 (1998)

The deliberative process privilege is not a formal exemption under the PRA (like those listed in Gov’t Code § 6254).  Rather, an agency withholding records based on deliberative process must justify its refusal to disclose “by demonstrating that … on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  Gov’t Code § 6255.  In the CFAC case, the Court of Appeal said that if the applicants for the position in question – who were evidently required to submit answers to potentially sensitive questions – knew that the application materials would be open to the public, they might be discouraged from applying or discouraged from providing complete and candid answers.

Though the governor’s office seems to have taken the position that even the names of applicants should be confidential, I don’t read the CFAC decision as saying that applicant names themselves would be exempt.  Extending the rationale articulated in CFAC to the names of applicants would seem to require the conclusion that disclosure of the fact that an individual had applied and not been selected could serve as such a strong disincentive that the risk outweighs the public interest in disclosure.  The analysis should be fact-specific.  Though the CFAC court was not swayed by the argument that the applicants were seeking a position that would normally be elected, that factor, along with other attributes of the position, seems at least arguably relevant to the question of whether applicant names should be disclosed.  However, I am not aware of any definitive authority in California.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.  No attorney-client relationship has been formed by way of this response.

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