Question
I have requested the name of a complainant against me in a Building Code Enforcement case. There Have been anonymous harassment events in my neighborhood that the complaint may be linked to. The agency declined to release the name,citing the 6255 catch-all provision in the city regulation that says the public interest clearly outweighs the release of complainant names in all cases (City of San Jose v. Superior Ct. 74 Cal.App.4th 1008). I believe such a blanket policy is inconsistent with Section 6255 because it doesn’t consider the facts of particular cases.
Answer
Given that 6255 requires an agency to “demonstrat[e] … 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,” any kind of generalized policy that a particular type of request will always be denied under 6255 seems problematic, as you say.See, e.g., American Civil Liberties Union Foundation v. Deukmejian,32 Cal. 3d 440 (1982) (“Section 6255 … imposes on the California Courts a duty …to weigh the benefits and costs of disclosure in each particular case.”).
Note, also, that while state or federal law can exempt an otherwise public record from disclosure, Govt. Code Section 6254(k), a local ordinance or regulation doesn’t have the same authority.While a local regulation stating that there is or is not a public interest in disclosing or not disclosing a particular record might conceivably be considered in the 6255 analysis,it is hard to imagine how it could legitimately form the actual basis for the denial (either explicitly or because the 6255 began and ended with it).
Holme Roberts & Owen 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.
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