A&A: Can a records request be denied in California over fear of the public being misinformed?

Q: Are there any California Public Records Act cases that allow or disallow the withholding of records under CA Gov. Code Section 6255, based on the danger of the public being misinformed by the disclosure?

A: We are unaware of any cases holding that a danger of misleading the public is valid grounds for withholding a record. As you know, the “catch-all” exemption of § 6255 only applies if the agency can demonstrate 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.” Cal. Gov. Code § 6255(a) (emphasis added). The agency must set forth facts showing that the public’s interest in not releasing the documents clearly outweighs the interest in disclosure—the agency’s own interest in nondisclosure is not considered. Coronado Police Officers Assn. v. Carroll, 106 Cal. App. 4th 1001, 1015-1016 (2003).

Theoretically, an agency could argue that the public has an interest in not being misled by an out-of-context or inaccurate document that clearly outweighs the public’s interest in accessing information to which it is legally entitled, but it seems difficult to square that argument with the CPRA’s overarching purpose of providing prompt public access to any non-exempt government records to anyone who requests them. See Cal. Gov. Code § 6253(a) (“Public 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…”) (emphasis added), § 6253(b) (“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…”) (emphasis added), § 6253(d) (“Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”). In any event, to our knowledge, no court has yet considered such an argument.

Bryan Cave Leighton Paisner 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.