Question
I’m a reporter working on a project about complications linked to sedation dentistry. The Dental Board of California refused my CPRA request for reports of dental complications pursuant to the Business and Professions Code 1680(z)(1-3). The Board maintains that these records are exempt under Government Code Section 6254(f). The Board contends that these reports are exempt because they are complaints or investigations compiled for licensing purposes. I believe the Board is wrong for two reasons:
i) These reports are neither complaints (dentists aren’t complaining about themselves, they’re participating in a public health self-reporting program) nor investigations (they exist prior to and separate from any investigative activity by the board). These are mandatory self-reports from health care providers.
ii) These reports are not compiled for licensing purposes. In Howie v. Uribe, the California Court of Appeals held that an ag board could not withhold mandatory reports of pesticide spraying by licensees. The ag commissioner argued that these were exempt because they were “investigatory for licensing purposes,” but the court said that the legislature never meant to exempt everything that a licensing board might use to assess a licensee. Rather, in the court’s opinion, they only applied to those reports that were currently being used to assess licensees.
Am I interpreting the law correctly? I would like to appeal the Board’s decision, and I would be grateful for any guidance you could offer about how best to go about that.
Answer
Under the California Public Records Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code section 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. As you are aware, the investigatory exemption set forth in Gov’t Code § 6254(f) includes, in relevant part:
Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.
I agree with your interpretation of Uribe—it suggests that in order to fit within the Gov’t Code § 6254(f) exception, the report must either be created or used for licensing or investigatory purposes.
Uribe plaintiff farm worker suffered health problems attributed to pesticides. The county agricultural commissioner denied plaintiff’s CPRA request to inspect mandatory reports filed by farmers who had sprayed pesticides in the area. The commissioner argued that the reports belonged to investigatory files compiled for “licensing” purposes. The Court of Appeal rejected the argument because licensing was not the primary purpose for which the files were compiled. Uribe v. Howie, 19 Cal. App. 3d 194, 213 (1971). “[P]esticide applicator spray reports had been used to review the licenses of the applicators on various occasions.
However, this was not the primary purpose they were compiled. Nor was there any testimony that any of the reports were being put to such a purpose at the time of trial. If some reports were currently being used to investigate an applicator, the reports relating to that applicator would be exempt, but not all the reports.” Id. “To say that the exemption created by subsection (f) is applicable to any document which a public agency might, under any circumstances, use in the course of a disciplinary proceeding would be to create a virtual Carte blanche for the denial of public access to public records.” Id. at 213. Courts have held the investigatory file exemption applies only when there is “a concrete and definite prospect” of “criminal law enforcement” proceedings. State of California ex rel. Div. of Indus. Safety v. Superior Court, 43 Cal. App. 3d 778, 784 (1974); Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1277 (2009).
If the reports you seek are relevant to licensing or disciplinary proceedings, but were not complied and are not being used for that purpose, the investigatory exemption would not apply.
You might want to send a follow-up letter to the Board and suggest you are willing to work with them to identify disclosable records, but remind them of
their duty to assist you in making a focused and effective request that reasonably describes identifiable records, and to provide suggestions for overcoming any practical basis for denying access to the records or information sought. Gov’t Code § 6253.1(3).
You may inform them that just because a report may theoretically be used in a suspension proceeding does not exempt it from disclosure. See Uribe v. Howie, 19 Cal. App. 3d 194, 213 (1971). You should remind the Board that attorneys’ fees are available should you be required to bring a lawsuit to enforce your rights under the Act. If the Board 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, which is 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.
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.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.