State Dept. of Public Health v. Super. Ct. ( 2013 )

Filed 9/18/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
STATE DEPARTMENT OF PUBLIC HEALTH, C072325
Petitioner, (Super. Ct. No. 34-2012-
80001044)
v.
THE SUPERIOR COURT OF SACRAMENTO
COUNTY,
Respondent;
CENTER FOR INVESTIGATIVE REPORTING,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary writ of mandate.
Timothy M. Frawley, Judge. Peremptory writ issued.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant
Attorney General, Niromi W. Pfeiffer and Grant Lien, Deputy Attorneys General,
for Petitioner.
No appearance for Respondent.
Davis Wright Tremaine, Duffy Carolan and Jeff Glasser for Real Party in
Interest.
1 (SEE DISSENTING OPINION)
This is an action under the California Public Records Act (PRA) (Gov. Code,
§ 6250 et seq.). Pursuant to the PRA, an investigative news organization requested
citations for patient care violations that the State Department of Public Health (Public
Health) issued to state facilities housing mentally ill and developmentally disabled
patients. These citations were issued under California‟s Long-Term Care, Health, Safety,
and Security Act of 1973 (hereinafter, Long-Term Care Act) (Health & Saf. Code, § 1417
et seq.).
Long-Term Care Act citations are publicly accessible in certain contexts,
including through a PRA request. However, another statutory scheme, the Lanterman-
Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) and companion statutes in the
Lanterman Developmental Disabilities Services Act (id., § 4500 et seq.), renders mental
health records, and information obtained in the course of providing such services,
confidential (id., §§ 5328, 5328.15, 4514).1
Pursuant to the Lanterman Act, Public Health redacted from the citations it
provided the news organization essentially all the facts concerning the nature of the
violations.
In this writ review proceeding (Gov. Code, § 6259, subd. (c)), we harmonize the
Long-Term Care Act‟s public accessibility provisions with the Lanterman Act‟s
confidentiality provisions in the context of this PRA request. We conclude, among other
things, that Public Health must not redact from the citations provided under the PRA the
particular description of what the nature of the violation was, a description required by
the Long-Term Care Act. Consequently, we issue a peremptory writ of mandate along
these lines.
1 We will refer to this statutory scheme—the Lanterman-Petris-Short Act and the
Lanterman Developmental Disabilities Services Act—collectively as the Lanterman Act.
2
FACTUAL AND PROCEDURAL BACKGROUND
In May 2011, the Center for Investigative Reporting (News Center), an
investigative news organization, requested under the PRA (Gov. Code, § 6250 et seq.)
copies of citations for violations of patient care standards that Public Health issued to
seven of the state‟s residential facilities for the mentally ill and the developmentally
disabled (occasionally hereinafter, state facilities; these facilities are operated by the State
Department of Developmental Services, not a party herein).2 News Center sought
citations issued from January 1, 2002, to the present.
Public Health responded to News Center‟s PRA request by stating that Public
Health was required to maintain citations for only four years, and that any citations
produced would be redacted pursuant to the confidentiality provisions set forth in the
Lanterman Act, applying to the mentally ill and the developmentally disabled.
Public Health produced 55 extensively redacted citations for the years 2007 to
2011. Public Health removed essentially all factual information about the nature of the
violation from the citations, so that they stated generically along the following lines:
“The facility failed to keep Client 1 free from harm”; “The facility . . . failed to ensure
clients‟ rights to be free from the harm of abuse”; “The facility . . . failed to treat clients
with dignity and respect”; or simply, “The facility failed to: [remainder redacted].”
News Center filed a complaint for declaratory relief and petitioned the trial court
for a writ of mandate to obtain the PRA-requested citations in unredacted or minimally
redacted form. News Center relied principally on the Long-Term Care Act (Health &
Saf. Code, § 1417 et seq.), the statutory scheme under which Public Health issued the
2 The term “developmental disability” includes “mental retardation, cerebral palsy,
epilepsy, and autism” and disabling conditions “closely related to mental retardation”; the
term does not include “handicapping conditions that are solely physical in nature.”
(Welf. & Inst. Code, § 4512, subd. (a).)
3
citations. The Long-Term Care Act provides that its citations (for found violations) are
publicly available (id., § 1429; see id., §§ 1423, 1424), and that its writings are open to
public inspection pursuant to the PRA, except for the names of individuals other than
certain investigating officers (id., § 1439).
In ruling on News Center‟s complaint and writ petition, the trial court concluded
that (1) “[w]here mental health records are involved [(i.e., the records at issue here)],
there is an irreconcilable conflict between the Lanterman Act‟s confidentiality provisions
and the Long-Term Care Act‟s accessibility provisions”; (2) “[t]he statutes cannot be
harmonized by disclosing the citation denuded of all the underlying factual information
giving rise to the citation”; and (3) “the Legislature intended the accessibility provisions
of the Long-Term Care Act to prevail as a special exception to the Lanterman Act‟s
general rule of confidentiality.” Consequently, the trial court issued a writ of mandate
(and corresponding declaratory relief) directing Public Health to produce the citations
requested by News Center “without redaction, except as to the names of individuals other
than investigating officers . . . .”3
3 The trial court also stated that Public Health could not rely on “its internal retention
policy” (i.e., Public Health‟s policy that it was required to maintain citations for only four
years), and concluded that if Public Health still has responsive documents, it is obligated
to produce them. In the context of our resolution of this case, we agree.
4
Public Health filed a petition for extraordinary writ of mandate with us, seeking
review of the trial court‟s decision. (Gov. Code, § 6259, subd. (c).)4 We issued an
alternative writ and stayed further proceedings.5
4 In a one-paragraph passage in its writ review petition, Public Health contends the trial
court‟s writ of mandate also overlooked the privacy protections set forth in the
Information Practices Act of 1977 (Civ. Code, § 1798 et seq.), which prohibits state
agencies from releasing an individual‟s personal identifying information unless
authorized to do so—for example, name, home address, home phone number, social
security number, or medical history or financial matters. (Civ. Code, §§ 1798.3, subd.
(a), 1798.24.) The trial court‟s ruling and writ order redacted names, and contemplated
redacting any personal identifying information that could be akin to “naming” someone
(except, as the relevant statutes provide, the names of certain investigators). We intend
our resolution of this case to similarly foreclose the release of personal identifying
information.
5 News Center claims that we lack jurisdiction to consider Public Health‟s writ review
petition, because Public Health filed its petition late. (Gov. Code, § 6259, subd. (c);
People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 683 [where a statute sets
forth a specific time limit within which a writ petition must be filed, the failure to do so
has been held jurisdictional].) We disagree. Under the PRA review procedure, Public
Health had 25 days from the date the court clerk served notice of the trial court‟s ruling
(20 days plus five days for mailing) either to file with us its petition for extraordinary writ
(seeking review), or to request a filing extension from the trial court of up to 20 more
days. (Gov. Code, § 6259, subd. (c); see Cornell University Medical College v. Superior
Court (1974) 38 Cal.App.3d 311, 314 [it is generally implied in such a statute that an
extension must be requested before the statutory filing deadline expires].) The court
clerk stated that it mailed the trial court‟s ruling on September 13, 2012, but the trial
court‟s postage meter disclosed the ruling was mailed September 17, 2012. Public
Health‟s first act regarding its writ review petition was to seek in the trial court on
October 10, 2012, an extension of time to file the petition (and the trial court granted
Public Health a 20-day extension). This October 10 date is 27 days from September 13,
but only 23 days from September 17. Recognizing the import of which mailing date was
the correct one given the 25-day deadline to act, the parties letter-briefed the trial court on
this issue, and the trial court, as authorized by Code of Civil Procedure section 1013a,
subdivision (4), impliedly determined that the September 17 date was the correct one.
Public Health then filed its petition for extraordinary writ of mandate (seeking review)
with us on October 26, 2012, which is 39 days from September 17.
5
DISCUSSION
I. Issue and Standard of Review
New Center‟s PRA request for the Public Health citations for the state facilities
implicates three statutes: the PRA (Gov. Code, § 6250 et seq.); the Long-Term Care Act
(Health & Saf. Code, § 1417 et seq.); and the Lanterman Act (Welf. & Inst. Code,
§§ 5000 et seq., 4500 et seq.).6
The issue is, in the context of a PRA request for citations issued by Public Health
to state facilities housing the mentally ill and the developmentally disabled: Can the
public accessibility provisions for citations issued under the Long-Term Care Act be
reconciled with the confidentiality provisions of the Lanterman Act, and, if so, how?
The PRA provides for the inspection of public records maintained by state and
local government agencies to fulfill the “fundamental and necessary right of every person
in this state” to have access to information concerning the conduct of the people‟s
business. (Gov. Code, § 6250.) The PRA‟s general policy is to favor disclosure; a claim
of nondisclosure must be found in a specific exemption enumerated in that act. (Cook v.
Craig (1976) 55 Cal.App.3d 773, 781; Gov. Code, § 6253.) The PRA exemption at issue
here masks “[r]ecords, the disclosure of which is exempted or prohibited pursuant to . . .
state law . . . [the state law here being the Lanterman Act confidentiality provisions].”
(Gov. Code, § 6254, subd. (k).) The Long-Term Care Act, however, makes its citations
publicly accessible via statutory provisions on posting, requesting, and the PRA. (See
Health & Saf. Code, §§ 1423, 1424, 1429, 1439.)
6 Because the statutes we discuss are found in various codes, for simplicity, we will refer
to the statutes in discussion pursuant to their act rather than their code—for example,
section 6254 of the PRA (i.e., the Government Code); section 1417 of the Long-Term
Care Act (i.e., the Health and Safety Code); and section 5328 of the Lanterman Act (i.e.,
the Welfare and Institutions Code). We will, however, cite to the acts by their respective
code attributions.
6
As for any reconciliation between the Long-Term Care Act‟s public accessibility
provisions and the Lanterman Act‟s confidentiality provisions, “[t]he issue presented is
essentially one of statutory construction. When engaged in statutory construction, our
aim is „to ascertain the intent of the enacting legislative body so that we may adopt the
construction that best effectuates the purpose of the law.‟ [Citations.] „We first examine
the words themselves because the statutory language is generally the most reliable
indicator of legislative intent.‟ [Citation.] When construing the interaction of two
potentially conflicting statutes, we strive to effectuate the purpose of each by
harmonizing them, if possible, in a way that allows both to be given effect.” (Chavez v.
City of Los Angeles (2010) 47 Cal.4th 970, 986 (Chavez).)
We turn now to the statutory purposes and relevant language of the Long-Term
Care Act and the Lanterman Act.
II. The Statutory Purposes and Relevant Language of the
Long-Term Care Act and the Lanterman Act
A. The Long-Term Care Act
The Long-Term Care Act (Health & Saf. Code, § 1417 et seq.), which applies to
the state facilities for the mentally ill and the developmentally disabled at issue here, also
applies to the much more populous skilled nursing facilities and convalescent hospitals in
the state (and essentially to all long-term health care facilities in the state). (See Health &
Saf. Code, §§ 1418, 1250.)
The Long-Term Care Act establishes an inspection, citation, reporting, and civil
(monetary) penalty system that is designed to create a less cumbersome, less draconian,
and more preventative enforcement method than the system of suspending and revoking
health facility licenses. (See Health & Saf. Code, div. 2, chs. 2, 2.4, 3; Health & Saf.
Code, § 1417.1; California Assn. of Health Facilities v. Department of Health Services
(1997) 16 Cal.4th 284, 294-295 (California Assn.); Kizer v. County of San Mateo (1991)
7
53 Cal.3d 139, 150 (Kizer).) This act is designed to “ensure that long-term health care
facilities provide the highest level of care possible,” by ensuring that patient care
standards are met. (Health & Saf. Code, §§ 1422, subd. (a), 1417.1.) The Long-Term
Care Act applies to some “of the most vulnerable segments of our population”—for
example, “ „nursing care patients . . . who are already disabled by age and infirmity‟ ”
and, as here, the mentally ill and the developmentally disabled. (California Assn., supra,
19 Cal.4th at p. 295; Kizer, supra, 53 Cal.3d at p. 150.) As a remedial statute, the Long-
Term Care Act‟s citation provisions are to be liberally construed on behalf of the class of
persons they are designed to protect. (California Assn., supra, at p. 295; Health & Saf.
Code, § 1424.)
Public Health (formerly the Department of Health Services) administers and
enforces the Long-Term Care Act. (California Assn., supra, 16 Cal.4th at p. 288.) The
Long-Term Care Act contains provisions that make citations publicly available, except
for the names of individuals other than specified investigating officers. (See Health &
Saf. Code, §§ 1423, subd. (a)(2), 1424, 1429, 1439.) Public availability of the citations is
accomplished primarily through prominent posting at the facility (for the more serious
class A and class AA citations), public request, and PRA request. (Health & Saf. Code,
§§ 1429, 1439.) In this way, the Long-Term Care Act affords the public an oversight role
concerning long-term health care facilities. We note, however, that the media, such as
News Center, has no greater right of access to public records pursuant to a PRA request
than the general public. (Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1279.)
The two most pertinent provisions of the Long-Term Care Act covering the nature
of citation information available to the public are sections 1423 and 1424. (Health & Saf.
Code, §§ 1423, 1424.)
Health and Safety Code section 1423, subdivision (a)(2) specifies, as relevant, that
“[e]ach citation shall be in writing and shall describe with particularity the nature of the
8
violation, including a reference to the statutory provision, standard, rule or regulation
alleged to have been violated, the particular place or area of the facility in which it
occurred, as well as the amount of any proposed assessment of a civil penalty. The name
of any patient jeopardized by the alleged violation shall not be specified in the citation in
order to protect the privacy of the patient. . . . The citation shall fix the earliest feasible
time for the elimination of the condition constituting the alleged violation, when
appropriate.”
And Health and Safety Code section 1424, subdivisions (a) and (b) add, as
relevant:
“Citations issued pursuant to [the Long-Term Care Act] shall be classified
according to the nature of the violation and shall indicate the classification on the face
thereof [(i.e., class „B‟, class „A‟, and class „AA‟ [in increasing severity])].
“(a) In determining the amount of the civil penalty, all relevant facts shall be
considered, including, but not limited to, the following:
“(1) The probability and severity of the risk that the violation presents to the
patient‟s or resident‟s mental and physical condition.
“(2) The patient‟s or resident‟s medical condition.
“(3) The patient‟s or resident‟s mental condition and his or her history of mental
disability or disorder.
“(4) The good faith efforts exercised by the facility to prevent the violation from
occurring.
“(5) The licensee‟s history of compliance with regulations.
9
“(b) Relevant facts considered by [Public Health] in determining the amount of the
civil penalty shall be documented by [Public Health] on an attachment to the citation and
available in the public record. . . .”
News Center made its request for the Public Health citations pursuant to section
1439 of the Long-Term Care Act, the act‟s PRA provision. (Health & Saf. Code,
§ 1439.)
Section 1439 of the Long-Term Care Act states that “[a]ny writing received,
owned, used, or retained by [Public Health] in connection with the [Long-Term Care Act]
is a public record within the meaning of [the PRA], and, as such, is open to public
inspection pursuant to the [PRA] provision[s] of Sections 6253, 6256, 6257, and 6258 of
the Government Code. However, the names of any persons contained in such records,
except the names of duly authorized officers, employees, or agents of the state
department conducting an investigation or inspection in response to a complaint filed
pursuant to [the Long-Term Care Act], shall not be open to public inspection and copies
of such records provided for public inspection shall have such names deleted.” (Health &
Saf. Code, § 1439.) Government Code section 6253, subdivision (b) of the PRA states,
as relevant, that public records are to be made promptly available, “[e]xcept with respect
to public records exempt from disclosure by express provisions of law . . . .”
Government Code sections 6256 and 6257 have been repealed. (Stats. 1998, ch. 620,
§§ 7, 10, p. 4121.) Government Code section 6258 governs the proceedings to enforce
the right to the record.
Section 6254 of the PRA specifies the particular types of records exempt from
PRA disclosure. The PRA disclosure exemption at issue here, as noted, is for “[r]ecords,
the disclosure of which is exempted or prohibited pursuant to . . . state law, including, but
not limited to, provisions of the Evidence Code relating to privilege.” (Gov. Code,
§ 6254, subd. (k).)
10
That leads us to the state law here on exempting or prohibiting disclosure—
sections 5328 and 4514 of the Lanterman Act. (Welf. & Inst. Code, §§ 5328, 4514.)
B. The Lanterman Act
The Lanterman Act (see Welf. & Inst. Code, §§ 4500 et seq., 5000 et seq.) is a
comprehensive state law directed at the evaluation, supervision, protection, care and
treatment of persons who are mentally ill, developmentally disabled or impaired by
chronic alcoholism. (Welf. & Inst. Code, § 5001.)7
The Lanterman Act states that all information and records obtained in the course
of providing services under the Lanterman Act (and other specified mental health
programs) shall be confidential, subject to defined statutory exceptions. (Welf. & Inst.
Code, §§ 4514, 5328.) The legislative purpose for confidentiality is to encourage persons
with mental or severe alcohol problems or developmental disabilities to seek, undergo
and accept treatment, and to be candid and open in such treatment, knowing such
treatment will remain confidential and any embarrassment, undesired publicity or stigma
will be avoided. (In re S. W. (1978) 79 Cal.App.3d 719, 721; County of Riverside v.
Superior Court (1974) 42 Cal.App.3d 478, 481 (County of Riverside); see also Tarasoff v.
Regents of University of California (1976) 17 Cal.3d 425, 440 (Tarasoff).)
Section 5328 of the Lanterman Act sets forth the following general rule of
confidentiality applying to the mentally ill: “All information and records obtained in the
7 As originally enacted, the Lanterman-Petris-Short Act, including its confidentiality
provisions, applied to both the mentally ill and the developmentally disabled. (Welf. &
Inst. Code, § 5328, added by Stats. 1972, ch. 1058, § 2, pp. 1960-1961; Gilbert v.
Superior Court (1987) 193 Cal.App.3d 161, 168-169 (Gilbert).) For our purposes, a later
nonsubstantive statutory division kept the mentally ill (and chronically alcoholic) in the
Lanterman-Petris-Short Act, and placed the developmentally disabled in the parallel
companion statutory scheme of the Lanterman Developmental Disabilities Services Act;
the confidentiality provisions of both acts are quite similar. (See, e.g., Welf. & Inst.
Code, §§ 4500, 4514, 5328; Gilbert, supra, at pp. 168-169.)
11
course of providing services under Division 4 (commencing with Section 4000 [mental
health]), Division 4.1 (commencing with Section 4400 [developmental services]),
Division 4.5 (commencing with Section 4500 [the Lanterman Developmental Disabilities
Services Act]), Division 5 (commencing with Section 5000 [the Lanterman-Petris-Short
Act]), Division 6 (commencing with Section 6000 [admissions and judicial
commitments]), or Division 7 (commencing with Section 7100 [mental institutions]), to
either voluntary or involuntary recipients of services shall be confidential. . . .
Information and records shall be disclosed only in any of the following cases.” (Welf. &
Inst. Code, § 5328.) Presently, section 5328 has 25 exemptions to its general rule of
confidentiality, covering service provider communications, patient consent, insurance
claims, research purposes, courts, law enforcement, senate and assembly rules
committees, patient‟s attorney, coroner, licensing and investigative agency personnel,
medical boards, and patient safety. (Welf. & Inst. Code, § 5328, subds. (a)-(y).) In
addition, additional exemptions are set out in successive code sections to section 5328.8
Section 4514 of the Lanterman Act—as noted, enacted as a nonsubstantive
amendment intended to move the confidentiality laws concerning the developmentally
disabled from the Lanterman-Petris-Short Act to the Lanterman Developmental
Disabilities Services Act—sets forth now the general confidentiality rule for the
developmentally disabled, and provides as pertinent: “All information and records
obtained in the course of providing intake, assessment, and services under Division 4.1
(commencing with Section 4400), Division 4.5 (commencing with Section 4500),
8 See Welfare and Institutions Code sections 5328.01 (particular law enforcement
investigation), 5328.02 (correctional authorities), 5328.04 (social workers/probation
officers), 5328.05 (elder abuse), 5328.06 (protection and advocacy agency), 5328.1
(patient‟s family), 5328.2 (Justice Department), 5328.3 (patient disappearance), 5328.4
(crimes by or against patients), 5328.5 (elder abuse), 5328.8 (patient death), 5328.9
(employer), and 5328.15 (authorized licensing personnel).
12
Division 6 (commencing with Section 6000), or Division 7 (commencing with Section
7100) to persons with developmental disabilities shall be confidential. . . . Information
and records shall be disclosed only in any of the following cases.” (Welf. & Inst. Code,
§ 4514; see Gilbert, supra, 193 Cal.App.3d at pp. 168-169.) Section 4514 has
exemptions to its general confidentiality rule that parallel those for section 5328. (Welf.
& Inst. Code, §§ 4514, subds. (a)-(v), 4514.3, 4514.5.)
“Services” is defined broadly in the Lanterman Act, as including, but not limited
to, “diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special
living arrangements, physical, occupational, and speech therapy, training, education, . . .
employment, mental health services, recreation, counseling . . . , protective and other
social and sociolegal services, information and referral services, follow-along services,
adaptive equipment and supplies, advocacy assistance, . . . assessment, assistance in
locating a home, child care, behavior training and behavior modification programs,
camping, community integration services, community support, daily living skills training,
emergency and crisis intervention, facilitating circles of support, habilitation . . . ,” and so
on and so forth, covering essentially anything “directed toward the alleviation of a
developmental disability [or a mental illness] or toward the social, personal, physical, or
economic habilitation or rehabilitation of an individual with a developmental disability
[or a mental illness] . . . .” (Welf. & Inst. Code, § 4512, subd. (b).)
We now turn to the application of this statutory language. Let reconciliation
begin, if it is possible.
III. Applying and Harmonizing the Lanterman Act’s Confidentiality Provisions
and the Long-Term Care Act’s Public Accessibility Provisions
A. Application of the Lanterman Act
We must first consider Public Health‟s threshold argument that “[t]he Long-Term
Care Act authorizes [PRA] requests for citations issued to long-term care facilities,
13
subject to the exceptions set forth in the [PRA]. (Health & Saf. Code, § 1439.) The
[PRA] does not require the disclosure of records whose disclosure is exempted or
prohibited under . . . state law. (Gov. Code, § 6254, subd. (k).) Under the Lanterman
Act, all information and records obtained in the course of providing services to mentally
ill and developmentally disabled patients shall remain confidential. (Welf. & Inst. Code,
[§§ 5328, 4514].)” “Hence, any request for [Long-Term Care Act] citations should not
result in the production of information or documents privileged by the Lanterman Act.”
“The [Long-Term Care Act] and the Lanterman Act are not in conflict, and Public Health
abided by both statutes when it produced heavily redacted citations [i.e., devoid of all
facts regarding the nature of the violation] to [News Center].”
The problem with this argument is that it uses the Long-Term Care Act to defeat
the Long-Term Care Act with respect to the mentally ill and the developmentally
disabled. Public Health‟s argument uses one of the Long-Term Care Act‟s public
accessibility provisions—PRA requests (Health & Saf. Code, § 1439)—to foreclose,
almost completely, public accessibility to Long-Term Care Act citations issued to state
facilities housing the mentally ill and the developmentally disabled. In making this
argument Public Health notes that, since nearly everything that happens to a patient in
one of the state facilities at issue happens “in the course of providing services” to that
patient, the Lanterman Act‟s general confidentiality rule conceivably applies to nearly all
patient-related mental health records. Through this argument, Public Health completes a
hat trick of public oversight denial, by effectively nullifying the public accessibility of
Long-Term Care Act citations via facility posting, public request, and PRA request; and
Public Health does so in the context of one of the most vulnerable populations protected
by the Long-Term Care Act. The Legislature did not exempt state facilities housing the
mentally ill and the developmentally disabled from the Long-Term Care Act‟s public
14
oversight protection through its public accessibility provisions. But Public Health‟s
argument does; so we reject it.9
As noted, “[w]hen construing the interaction of two potentially conflicting
statutes, we strive to effectuate the purpose of each by harmonizing them, if possible, in a
way that allows both to be given effect.” (Chavez, supra, 47 Cal.4th at p. 986.)
On the one hand, the case for confidentiality under the Lanterman Act is indeed
strong.
The Lanterman Act‟s confidentiality provisions are quite broad, given the
statutory definition of “services,” and use mandatory language—“[a]ll information and
records obtained in the course of providing services . . . shall be confidential” and “shall
be disclosed only in any of the following [statutorily identified] cases.” (Welf. & Inst.
Code, §§ 5328, 4514, 4512, subd. (b); Gilbert, supra, 193 Cal.App.3d at p. 169.)
In light of this mandatory language, Gilbert concluded that the Legislature
intended, in fact “intended precisely,” that these Lanterman Act records “be absolutely
confidential except for the specifically listed cases set forth in the several subdivisions
of” sections 5328 and 4514 (and in their companion statutes). (Gilbert, supra,
193 Cal.App.3d at p. 169; Welf. & Inst. Code, §§ 5328, 4514.) Gilbert held, for our
9 As an opposing aside to this point, News Center argues that information obtained in a
citation investigation is not information “obtained in the course of providing services.”
(Citing Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1585-1586 [in an
action for breach of Lanterman Act confidentiality, the court stated, “[w]here there is no
showing by the person claiming confidentiality of records under [Welfare and Institutions
Code] section 5328 that the records were generated in the course of receiving treatment
under the statutory sections therein specified, disclosure is not governed by section
5328”]; see also Tarasoff, supra, 17 Cal.3d at p. 443 [because the psychotherapy at issue
there was not provided under any of the mental health programs specified in the
Lanterman Act, that act‟s confidentiality provisions did not apply].) We agree with the
trial court that a citation for violating patient care standards still is likely to include
information obtained in the course of providing services to patients.
15
purposes, that an owner/operator of a facility for the developmentally disabled, in an
administrative license revocation proceeding, could not obtain records of three of its
former patients for possible use in impeaching complaining witnesses or in mitigating
any penalty. (Gilbert, at pp. 164-165, 169; see also County of Riverside, supra,
42 Cal.App.3d at pp. 480-481 [state chiropractic board, in license revocation proceeding,
could not obtain alcoholic treatment center records involving the accused chiropractor,
because the matter did not fall within any of the specific disclosure exceptions set forth in
Welf. & Inst. Code, § 5328 and succeeding sections]; People v. Gardner (1984)
151 Cal.App.3d 134, 140 [§ 5328 prohibited patient information disclosure to probation
officer preparing probation report for court, because the section (at that time) had no such
confidentiality exception].)
This strict interpretation of the confidentiality provisions of sections 5328 and
4514 of the Lanterman Act (and succeeding statutes) is further buttressed by a trio of
amendments to that act, including a very recent one:
(1) a 1980 enactment (Welf. & Inst. Code, § 5328.15, subd. (a)) and a 1982
enactment (Welf. & Inst. Code, § 4514, subd. (n)) authorizing disclosure of Lanterman
Act confidential information and records to authorized licensing personnel of Public
Health, as necessary to the performance of their duties to inspect, license, and investigate
health facilities to ensure that the standards of care are being met; and setting forth
measures to keep such information confidential in related criminal, civil, or
administrative proceedings (Stats. 1980, ch. 695, § 1, p. 2095; Stats. 1982, ch. 1141, § 1,
pp. 4111-4112);
(2) parallel amendments in 1985 to the two statutes listed in (1), broadening those
sections to also include authorized legal staff and special investigators of the Department
of Social Services, in connection with inspecting, licensing and investigating (Stats.
16
1985, ch. 994, §§ 1, 2, pp. 3190-3194, 3198-3199; see Gilbert, supra, 193 Cal.App.3d at
p. 172); and
(3) amendments to Welfare and Institutions Code sections 5328.15 and 4514,
adopted just last September (2012), that authorize protection and advocacy agencies—
i.e., private, nonprofit corporations created by statute to protect and advocate for the
rights of the mentally ill and the developmentally disabled (and other disabled persons)—
to obtain otherwise confidential Lanterman Act information and records incorporated
within unredacted citation reports, licensing reports, survey reports, statements of
deficiency, and plans of correction (Welf. & Inst. Code, §§ 5328.15, subd. (c), 4514,
subd. (v), Stats. 2012, ch. 664, §§ 3, 1, respectively; see §§ 4514.3, 5328.06, 4900 et seq.,
4901, subd. (a)).
The point is—if explicit statutory permission was needed for authorized licensing
personnel, legal staff, special investigators, and protection and advocacy agencies to fully
obtain the otherwise confidential Lanterman Act information and records—it is clear the
Legislature intends to maintain confidentiality in the Lanterman Act context.
Furthermore, if nearly all of this information could have been obtained through a simple
PRA request, these statutory enactments and amendments would have been unnecessary.
B. Application of the Long-Term Care Act
On the other hand, the case for public accessibility to Long-Term Care Act
citations is strong as well.
Through the Long-Term Care Act, the Legislature intended to establish an
inspection, citation and reporting system to ensure that long-term health care facilities
comply with patient care standards. (Health & Saf. Code, § 1417.1.) An integral part of
this system is public oversight—a public look behind the doors of these institutions—by
making citations for violations of patient care standards publicly available through
17
various statutory means, including facility posting, public request, and PRA request. (Id.,
§§ 1423, 1424, 1429, 1439.)
The Long-Term Care Act is designed to protect some of the “most vulnerable
segments of our population.” (California Assn., supra, 16 Cal.4th at p. 295; Kizer, supra,53 Cal.3d at p. 150.) The mentally ill and the developmentally disabled in the state
facilities comprise some of the most vulnerable of these most vulnerable—i.e., some of
those most in need of the safeguards provided by public oversight of patient care
standards as envisioned in the Long-Term Care Act.
Given the strong hands played by both the Lanterman Act‟s confidentiality
provisions and the Long-Term Care Act‟s public accessibility provisions, legislative
intention would best be served by harmonizing them, if possible, in a way that allows
both to be given effect. (See Chavez, supra, 47 Cal.4th at p. 986.)
As the trial court recognized, because the confidentiality provisions of the
Lanterman Act apply to mental health programs, any conflict between those
confidentiality provisions and the Long-Term Care Act‟s public accessibility provisions
occurs in the context of mental health records (including the developmentally disabled).
C. Common Purpose of Both Acts
The mentally ill and the developmentally disabled in state facilities comprise a
relatively small portion of the overall population protected by the Long-Term Care Act.
Significantly, with respect to the mentally ill and the developmentally disabled in state
facilities, the Lanterman Act and the Long-Term Care Act apply to the same population
and seek the same purpose—to promote and protect the health and safety of mental health
patients. But the two acts effectuate this common purpose from opposite directions. The
Lanterman Act effectuates this purpose by ensuring the confidentiality of mental health
records—this encourages persons with mental problems to seek, accept and undergo
treatment, and to be open and candid in treatment. The Long-Term Care Act effectuates
18
this purpose, as relevant here, by making citations for violations of patient care standards
publicly accessible, so the public can oversee what is happening in these facilities. This
congruence of population and purpose, and this effectuation of purpose from opposite
directions, creates a complementarity of method to effectuate the common purpose for
this common population. In this way, these confidentiality and public accessibility
provisions can be harmonized.10
That takes care of the theory supporting harmonization here. What does
harmonization mean in practical terms, in terms of the statutory language at issue?
D. Giving Effect to Both the Lanterman Act and the Long-Term Care Act
We have seen that a citation issued under the Long-Term Care Act (1) must
describe “with particularity the nature of the violation” (Health & Saf. Code, § 1423,
subd. (a)(2)), and (2) must set forth certain “[r]elevant facts” (id., § 1424, subd. (b)),
except for the names of the persons involved in the incident (other than specified
investigators and inspectors) (id., § 1439).
1. Names of involved persons.
We start, then, with the easiest harmonization concerning the Long-Term Care
Act‟s public accessibility provisions and the Lanterman Act‟s confidentiality
provisions—any names contained in the citations, other than those of the authorized
inspectors and investigators specified in section 1439 of the Long-Term Care Act, must
be deleted. (Health & Saf. Code, § 1439; Welf. & Inst. Code, §§ 5328, 4514.)
10 Moreover, this congruence of population and purpose also distinguishes the present
case from the strict view of Lanterman Act confidentiality taken in the Gilbert line of
decisions, where the competing legal interests did not involve such congruity. (See, e.g.,
Gilbert, supra, 193 Cal.App.3d at pp. 164, 168-169 [confidential records of
developmentally disabled patients sought by accused facility to assist its defense in
license revocation proceeding]; County of Riverside, supra, 42 Cal.App.3d at p. 481 [in
license revocation proceeding, chiropractic board sought confidential alcoholic treatment
records of the accused chiropractor]; see Welf. & Inst. Code, §§ 5328, 4514.)
19
2. Nature of the violation.
Turning to the description of the nature of the violation, Health and Safety Code
section 1423, subdivision (a)(2) of the Long-Term Care Act specifies that each citation
issued “shall be in writing and shall describe with particularity the nature of the violation,
including a reference to the statutory provision, standard, rule or regulation alleged to
have been violated, the particular place or area of the facility in which it occurred, as well
as the amount of any proposed assessment of a civil penalty. . . . The citation shall fix the
earliest feasible time for the elimination of the condition constituting the alleged
violation, when appropriate.”
The redacted citations provided by Public Health did properly cite and set forth
“the statutory provision, standard, rule or regulation [found] to have been violated”
(Health & Saf. Code, § 1423, subd. (a)(2)), “the amount of [the] assessment of a civil
penalty” (ibid.), and “the earliest feasible time for the elimination of the condition
constituting the alleged violation” (by specifying a deadline for compliance) (ibid.), as
well as the “classification” of the citation (in increasing severity, Class “B,” Class “A,”
and Class “AA” as required by Health & Saf. Code, § 1424). The citations also properly
listed the name and address of the facility.
The redacted citations that Public Health provided to News Center stated next to
nothing, however, regarding the nature of the violation; all that was said along those
lines, for example, was that the client was not kept free from harm or from abuse, or that
the facility failed to comply with the designated regulation, or that the facility simply
“failed to: . . .” In terms of describing the nature of the violation, the Long-Term Care
Act‟s public accessibility provisions can be harmonized with the Lanterman Act‟s mental
health-based confidentiality provisions, by having the citations describe with
particularity, for example, what was the harm, what was the abuse, what was the lack of
respect or dignity afforded, and what was the action that the facility did or failed to do.
In addition, Public Health must also identify “the particular place or area of the facility
20
in which [the violation] occurred.” (Health & Saf. Code, § 1423, subd. (a)(2), italics
added.)
One further point on this topic deserves mention. At oral argument, News
Center‟s counsel agreed that if a requested citation specifies facts that identify an
individual whose name is not to be disclosed (i.e., specifies facts that are the functional
equivalent of naming that individual), those facts may be redacted. At this stage of the
proceedings, we do not know if the (heavily redacted) requested citations contain any
such facts. On remand, if there is a disclosure issue in this regard, the trial court can
determine that issue by reviewing the challenged citation in camera.
That covers the issue of harmonizing the disclosure of “the nature of the
violation.” (Health & Saf. Code, § 1423, subd. (a)(2).) We turn to the issue of the
“relevant facts.”
3. Relevant facts.
Section 1424, subdivision (b) of the Long-Term Care Act states that “[r]elevant
facts considered by [Public Health] in determining the amount of the civil penalty shall
be documented by [Public Health] on an attachment to the citation and available in the
public record.” (Health & Saf. Code, § 1424, subd. (b).) These relevant facts include the
patient‟s or resident‟s mental condition, medical condition, and history of mental
disability or disorder, and the risk the violation presents to the patient‟s or resident‟s
mental and physical condition; as well as the facility‟s good faith efforts to prevent the
violation, and the licensee‟s history of regulatory compliance. (Id., § 1424, subd. (a)(1)-
(5).)
The patient‟s or resident‟s mental, physical, and medical conditions, history of
mental disability or disorder, as well as the risk the violation presents to that mental and
physical condition, are not disclosable in PRA-requested citations, in light of the mental
health-based confidentiality provisions of the Lanterman Act. (Health & Saf. Code,
21
§ 1424, subd. (a)(1)-(3); Welf. & Inst. Code, §§ 5328, 4514.) However, the Lanterman
Act‟s confidentiality provisions do not foreclose public disclosure of the “good faith
efforts exercised by the facility to prevent the violation from occurring” (Health & Saf.
Code, § 1424, subd. (a)(4)), and “[t]he licensee‟s history of compliance with regulations”
(id., § 1424, subd. (a)(5)); indeed, these disclosures to the public would further the Long-
Term Care Act‟s public oversight component.
E. Conclusion
Public Health argues that it properly harmonized the Lanterman Act‟s
confidentiality provisions with the Long-Term Care Act‟s public accessibility provisions
by redacting essentially all facts in the citation concerning the nature of the violation,
given the Lanterman Act‟s confidentiality provisions.
As we saw at the outset of this part of the Discussion, ante (pt. III.A.), though,
Public Health‟s position effectively writes public oversight of state facilities for the
mentally ill and the developmentally disabled out of the Long-Term Care Act. The
Long-Term Care Act is an integral, complementary part of the statutory protection
afforded to patients and residents of long-term health care facilities, including the state
facilities; indeed, the Long-Term Care Act provides the more efficient, more
preventative, less draconian citation-based protective system to the system of suspending
or revoking licenses. And an integral part of this integral act is the accessibility it affords
the public to the citations issued under it. The Long-Term Care Act is a remedial statute,
and as such, is to be liberally construed on behalf of the class of persons it is designed to
protect; as we have seen, a most vulnerable class here. (See California Assn., supra,
16 Cal.4th at p. 295.)
That said, News Center argues that the Long-Term Care Act‟s public accessibility
provisions trump the Lanterman Act‟s confidentiality provisions, and all that must be
22
redacted from the requested citations are the names of those involved in an incident
(except investigating and inspecting officers).
News Center‟s position, however, effectively dismisses the strong protections of
confidentiality afforded the mentally ill and the developmentally disabled under the
Lanterman Act in state facilities. The Legislature has determined that these protections
are necessary for the mentally ill to seek and accept treatment, and for that treatment to
be effective. The Legislature, just late last year, amended the Lanterman Act‟s
confidentiality provisions to allow protection and advocacy agencies to obtain, among
other information, information within unredacted citation reports; this amendment
recognized that the Legislature has long granted to mental health records a strong
protection of confidentiality. (Welf. & Inst. Code, §§ 5328.15, subd. (c), 4514, subd. (v),
Stats. 2012, ch. 664, §§ 3, 1, respectively.)11 We must keep in mind that what is before
11 News Centers also cites to three instances where later enacted, non-Lanterman statutes
were deemed to constitute exceptions to the Lanterman Act confidentiality provisions.
The first instance, Albertson v. Superior Court (2001) 25 Cal.4th 796, involved an
amendment to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6000 et
seq.), which permitted a district attorney in an SVPA proceeding to obtain otherwise
confidential treatment information in an updated mental evaluation of the inmate. As
Public Health notes, Albertson is distinguishable because the Legislature specifically
considered the confidentiality provision of section 5328 of the Lanterman Act in drafting
this SVPA amendment. (Albertson, supra, 25 Cal.4th at pp. 805-807.) The other two
instances involve Attorney General opinions, both of which concluded that a mandated
reporter‟s statutory duty to report child abuse supersedes the confidentiality provisions of
the Lanterman Act, because these reporting and confidentiality laws both promote the
safety of children and because the entire legislative scheme in the area of child
protection, as it has developed, has been directed toward discovering more abuse cases
and preventing serious harm by taking prompt remedial action. (65 Ops.Cal.Atty.Gen.
345 (1982); 58 Ops.Cal.Atty.Gen. 824 (1975).) The Attorney General opinions did not
encompass statutory reconciliation, but one statute trumping the other. Furthermore, we
must note the informational context presented here: a PRA request from the public for
Long-Term Care Act citations.
23
us is a PRA request from the public for Long-Term Care Act citations involving state
facilities for the mentally ill and the developmentally disabled.12
Because we have found that the Lanterman Act and the Long-Term Care Act can
be reconciled in the manner we have set forth in part III.D. of this Discussion, ante, we
need not consider the parties‟ arguments as to which statute is general or specific, and
which statute is earlier or later. (See Department of Fair Employment & Housing v.
Mayr (2011) 192 Cal.App.4th 719, 725.)13
12 We also note that the Long-Term Care Act has a consumer information service system,
under which the general public may obtain the following information, among other
information: a history of all citations and complaints for the last two full survey cycles
pursuant to a facility profile; substantiated complaints, including the action taken and the
date of the action; state citations assessed, including the procedural status of the citation
and the facility‟s plan or correction; state actions, including license suspensions,
revocations, and receiverships; and federal enforcement sanctions imposed. (Health &
Saf. Code, §§ 1422.5, 1439.5, subd. (b).) Under this system, Public Health must “ensure
the confidentiality of personal and identifying information of residents and employees
and shall not disclose this information . . . .” (Id., § 1422.5, subd. (e).) The disclosure of
this information under the Long-Term Care Act‟s consumer information service system
is, or can be made, compatible with our interpretation of the citation information publicly
available in the context of the state facilities at issue.
13 We grant News Center‟s November 5, 2012 request for judicial notice of certain
legislative history of Senate Bill No. 1377 (2011-2012 Reg. Sess.) chapter 664, sections 3
and 1, which added subdivision (c) to Welfare and Institutions Code section 5328.15, and
subdivision (v) to section 4514, respectively—concerning information available to
protection and advocacy agencies as exemptions to the Lanterman Act‟s confidentiality
provisions. (Evid. Code, §§ 452, 459.)
We also grant Public Health‟s October 26, 2012 request for judicial notice of certain
legislative history of Senate Bill No. 1377, and two incidents involving unique
circumstances akin to naming an otherwise confidential individual. (Evid. Code, §§ 452,
459.)
24
DISPOSITION
Having complied with the procedural requirements for issuance of a peremptory
writ in the first instance, we are authorized to issue the peremptory writ forthwith. (See
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) Let a peremptory writ of
mandate issue directing respondent Superior Court to vacate its judgment of October 22,
2012, and its ruling under submission of September 13, 2012, and to enter a new
judgment (1) that directs Public Health to produce to News Center the requested citations
in accordance with the standards set forth in this opinion, ante, at pages 19 to 22
(pt. III.D. of the Discussion), and (2) that grants declaratory relief to News Center to this
same extent (on News Center‟s parallel complaint for declaratory relief). Each party
shall pay its own costs in this writ review proceeding. (Cal. Rules of Court, rule
8.493(a)(1)(B); Gov. Code, § 6259, subd. (c).) To the extent the trial court determines
that News Center prevailed in this matter, News Center is entitled to recover, upon
appropriate application, reasonable attorney fees and court costs incurred in the trial
court. (Gov. Code, § 6259, subd. (d).)14 (CERTIFIED FOR PUBLICATION)
BUTZ , J.
I concur:
HULL , Acting P. J.
14 In this writ review proceeding, we have resolved the specific issue presented regarding
the potential conflict between the Lanterman Act‟s confidentiality provisions and the
Long-Term Care Act‟s public accessibility provisions in the context of the PRA request
here. Public Health also asks us, more generally, whether it is obligated to produce other
information and documents, and whether it is immune from sanctions for wrongful
disclosures. To the extent these two issues are not covered by our resolution here, we
decline to address them at this point. (See Filarsky v. Superior Court (2002) 28 Cal.4th
419, 432, 434-435 [public agency may not initiate declaratory relief action to determine
its duties under the PRA].)
25
I respectfully dissent. Implicitly recognizing that sections 5328 and 4514 of the
Lanterman Act conflict with sections 1423, 1424, and 1439 of the Long-Term Care Act,1
the majority “harmonizes” these provisions by holding that the Long-Term Care Act
controls over the Lanterman Act on the issue of “describ[ing] with particularity the nature
of the violation” (Health & Saf. Code, § 1423, subd. (a)(2)), but the Lanterman Act
controls over the Long-Term Care Act on the issue of setting forth other “relevant facts,”
including the patient‟s or resident‟s “medical” and “mental” conditions, his or her
“history of mental disability or disorder,” and “the risk that the violation presents to [his
or her] mental and physical condition.” (Health & Saf. Code, § 1424, subds. (a), (b)(1)-
(3).) Thus, under the guise of bringing harmony, the majority opinion does violence to
two statutory enactments―carving out of the Lanterman Act an exception allowing
public citations to include an unredacted description of the nature of the violation, and
severing from the Long-Term Care Act the requirement that the public record contain the
aforementioned “relevant facts.” As will be explained immediately below, I believe such
an approach runs contrary to established rules of statutory construction.
I
Principles of Statutory Construction
“„As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature‟s intent so as to effectuate the law‟s purpose.‟ [Citation.] We
begin by examining the statutory language because the words of a statute are generally
1 In this dissenting opinion, the Lanterman Act refers to the combined Lanterman-
Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) and Lanterman Developmental
Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.). The Long-Term Care Act
refers to the Long-Term Care, Health, Safety, and Security Act (Health & Saf. Code,
§ 1417 et seq.).
The petitioner, Department of Public Health, is referred to as Public Health.
1
the most reliable indicator of legislative intent. [Citations.] We give the words of the
statute their ordinary and usual meaning and view them in their statutory context.
[Citation.] We harmonize the various parts of the enactment by considering them in the
context of the statutory framework as a whole. [Citations.] „If the statute‟s text evinces
an unmistakable plain meaning, we need go no further.‟ [Citation.] „Only when the
statute‟s language is ambiguous or susceptible of more than one reasonable interpretation,
may the court turn to extrinsic aids to assist in interpretation.‟ [Citations.]” (In re C.H.
(2011) 53 Cal.4th 94, 100-101; San Leandro Teachers Assn. v. Governing Bd. of San
Leandro Unified School Dist. (2009) 46 Cal.4th 822, 831.)
“„A court must, where reasonably possible, harmonize statutes, reconcile seeming
inconsistencies in them, and construe them to give force and effect to all of their
provisions. [Citations.] This rule applies although one of the statutes involved deals
generally with a subject and another relates specifically to particular aspects of the
subject.‟” (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55
Cal.4th 783, 805, quoting Hough v. McCarthy (1960) 54 Cal.2d 273, 279.) However,
“[i]f conflicting statutes cannot be reconciled, later enactments supersede earlier ones
[citation], and more specific provisions take precedence over more general ones
[citation]. Absent a compelling reason to do otherwise, we strive to construe each statute
in accordance with its plain language. [Citation.]” (Collection Bureau of San Jose v.
Rumsey (2000) 24 Cal.4th 301, 310; see also People v. Moody (2002) 96 Cal.App.4th
987, 993.)
II
Conflict Between the Lanterman Act and the Long-Term Care Act
Reading sections 5328 and 4514 of the Lanterman Act (confidentiality provisions)
and sections 1423, 1424, and 1439 of the Long-Term Care Act (citation provisions) in
accordance with the plain meaning of the words used therein, I conclude the two statutory
2
enactments are in conflict and no reasonable interpretation will give force and effect to all
of their provisions.
First, some context. This case involves a request for citations under the Public
Records Act. (Gov. Code, § 6250 et seq.) The Public Records Act “embodies a strong
policy in favor of disclosure of public records (see Gov. Code, §§ 6250 & 6252, subds.
(a), (b)), and any refusal to disclose public information must be based on a specific
exception to that policy.” (Lorig v. Medical Board (2000) 78 Cal.App.4th 462, 467.)
One such exception applies to “[r]ecords, the disclosure of which is exempted or
prohibited pursuant to federal or state law.” (Gov. Code, § 6254, subd. (k).) However,
“[s]ince disclosure is favored, all exemptions are narrowly construed. [Citations.] The
agency opposing disclosure bears the burden of proving that an exemption applies.
[Citation.]” (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301,
1321.)
The Lanterman Act, the majority opinion correctly observes, is a “comprehensive
state law directed at the evaluation, supervision, protection, care and treatment of persons
who are mentally ill, developmentally disabled or impaired by chronic alcoholism.
(Welf. & Inst. Code, § 5001.)” (Maj. Opn. at p. 11.) The enactment‟s confidentiality
provisions make all information and records obtained in the course of providing services
under that enactment (and other specified enactments) confidential, subject to defined
statutory exceptions. (Welf. & Inst. Code, §§ 5328, 4514; see also id., § 5328.01 et seq.
[setting out additional exceptions to the general rule of confidentiality].) The enactment
defines “services” broadly to cover essentially anything “directed toward the alleviation
of a developmental disability [or a mental illness] or toward the social, personal, physical,
or economic habilitation or rehabilitation of an individual with a developmental disability
[or a mental illness].” (Welf. & Inst. Code, § 4512, subd. (b).) The majority opinion also
correctly notes the legislative purpose for confidentiality is “to encourage persons with
3
mental or severe alcohol problems or developmental disabilities to seek, undergo and
accept treatment, and to be candid and open in such treatment.” (Maj. Opn. at p. 11.)
However, the Lanterman Act as a whole must be construed to, among other things,
“guarantee and protect public safety” and “protect mentally disordered persons and
developmentally disabled persons from criminal acts.” (Welf. & Inst. Code, § 5001,
subds. (c), (g).)
The Long-Term Care Act, the majority opinion again correctly observes, applies
to long-term health care facilities, including the state facilities for the mentally ill and the
developmentally disabled at issue here. (Maj. Opn. at p. 7.) The enactment “authorizes
[Public Health] to inspect such facilities for compliance with statutes and regulations on
patient care and to issue citations to noncomplying facilities. [Citations.] [Public Health]
is authorized to enter any facility for inspection . . . . When [Public Health] observes a
violation of a statute or regulation, it issues a citation to the facility. [Citation.] Citations
are classified according to the seriousness of the violation, and a penalty range is
prescribed for each class.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 142.)
This system of inspection and citation “is to be liberally construed on behalf of the class
of persons it is designed to protect,” e.g., nursing care patients, the mentally ill, and the
developmentally disabled, who are some of “the most vulnerable segments of our
population.” (California Assn. of Health Facilities v. Department of Health Services
(1997) 16 Cal.4th 284, 295.)
Section 1423 of the Long-Term Care Act provides, in relevant part, that “[e]ach
citation shall be in writing and shall describe with particularity the nature of the
violation, including a reference to the statutory provision, standard, rule, or regulation
alleged to have been violated, the particular place or area of the facility in which it
occurred, as well as the amount of any proposed assessment of a civil penalty. The name
of any patient jeopardized by the alleged violation shall not be specified in the citation in
4
order to protect the privacy of the patient. However, at the time the licensee is served
with the citation, the licensee shall also be served with a written list of each of the names
of the patients alleged to have been jeopardized by the violation, that shall not be subject
to disclosure as a public record. The citation shall fix the earliest feasible time for the
elimination of the condition constituting the alleged violation, when appropriate.”
(Health & Saf. Code, § 1423, subd. (a)(2), italics added.)
Section 1424 of the enactment directs Public Health to consider “all relevant facts”
in determining the amount of the civil penalty, “including, but not limited to, the
following: [¶] (1) The probability and severity of the risk that the violation presents to
the patient’s or resident’s mental and physical condition. [¶] (2) The patient’s or
resident’s medical condition. [¶] (3) The patient’s or resident’s mental condition and his
or her history of mental disability or disorder. [¶] (4) The good faith efforts exercised
by the facility to prevent the violation from occurring. [¶] (5) The licensee‟s history of
compliance with regulations.” (Health & Saf. Code, § 1424, subd. (a), italics added.)
This section also provides: “Relevant facts considered by [Public Health] in determining
the amount of the civil penalty shall be documented by [Public Health] on an attachment
to the citation and available in the public record.” (Health & Saf. Code, § 1424,
subd. (b), italics added.)
Section 1439 of the enactment provides: “Any writing received, owned, used, or
retained by [Public Health] in connection with the provisions of [the Long-Term Care
Act] is a public record within the meaning of [the Public Records Act], and, as such, is
open to public inspection pursuant to the provision of Sections 6253, 6256, 6257, and
6258 of the Government Code. However, the names of any persons contained in such
records, except the names of duly authorized officers, employees, or agents of the state
department conducting an investigation or inspection in response to a complaint filed
pursuant to [the Long-Term Care Act], shall not be open to public inspection and copies
5
of such records provided for public inspection shall have such names deleted.” (Health &
Saf. Code, § 1439; see also id., § 1429, subds (a), (b) [requiring posting of class “AA”
and class “A” citations “in plain view of the patients or residents in the long-term health
care facility, persons visiting those patients or residents, and persons who inquire about
placement in the facility,” and requiring class “B” citations that have become final to be
“retained by the licensee at the facility cited until the violation is corrected” and “made
promptly available by the licensee for inspection or examination by any member of the
public who so requests”].)
Thus, the Long-Term Care Act makes citations (containing a description of the
nature of the violation) and their attachments (containing the relevant facts surrounding
the violation, including the patient‟s or resident‟s medical and mental conditions, his or
her history of mental disability or disorder, and the risk that the violation presents to his
or her mental and physical condition) public records under the Public Records Act. The
Lanterman Act, however, makes confidential, and therefore not subject to disclosure
under the Public Records Act, all information obtained in the course of providing services
to the mentally ill and developmentally disabled under the Lanterman Act and other
specified enactments. Accordingly, unless the Long-Term Care Act‟s requirements that
the citation contain a description of the nature of the violation and the attachment contain
a statement of the relevant facts surrounding the violation can be reasonably interpreted
to not require inclusion of information obtained in the course of providing services within
the meaning of the Lanterman Act, the two statutory enactments conflict. I see no way to
so construe the citation provisions of the Long-Term Care Act. Nor do my colleagues in
the majority offer such an interpretation of these provisions. Indeed, the majority opinion
acknowledges the conflict by holding that “[t]he patient‟s or resident‟s mental, physical,
and medical conditions, history of mental disability or disorder, as well as the risk the
violation presents to that mental and physical condition, are not disclosable . . . in light of
6
the mental health-based confidentiality provisions of the Lanterman Act.” (Maj. Opn. at
p. 21.)
Simply put, the Long-Term Care Act and the Lanterman Act conflict because the
Long-Term Care Act requires public disclosure of information the Lanterman Act
requires to remain confidential, and vice versa.
III
Resolution of the Conflict
I conclude the Long-Term Care Act‟s citation provisions, in addition to making
citations public records, also created an exception to the Lanterman Act‟s exemption
from disclosure under the Public Records Act.
“„It is the general rule that where the general statute standing alone would include
the same matter as the special act, and thus conflict with it, the special act will be
considered as an exception to the general statute whether it was passed before or after
such general enactment.‟” (In re Williamson (1954) 43 Cal.2d 651, 654; see also
Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 924-925; Code Civ. Proc.,
§ 1859 [“when a general and particular provision are inconsistent, the latter is paramount
to the former”].) Moreover, “[i]t is well settled that a later statute may supersede,
modify, or so affect the operation of an earlier law as to repeal the conflicting earlier law
by implication. [Citations.]” (Orange County Air Pollution Control Dist. v. Public Util.
Com. (1971) 4 Cal.3d 945, 954, fn. 8.)
In Albertson v. Superior Court (2001) 25 Cal.4th 796 (Albertson), our Supreme
Court held the Legislature created “an exception to [the Lanterman Act‟s] general rule of
confidentiality of treatment records” by a subsequent and more specific statutory
enactment amending the Sexually Violent Predators Act (SVPA). (Id. at p. 805.) There,
prior to the petitioner‟s release from prison, the district attorney filed a petition for
commitment under the SVPA. The trial court found probable cause to believe the
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petitioner was a sexually violent predator and set the matter for trial. Nearly a year and a
half after the petitioner‟s initial interviews and evaluations by mental health experts, the
district attorney sought an order directing him to undergo an updated mental health
interview and evaluation. The district attorney also sought access to the petitioner‟s
mental health treatment files. (Id. at pp. 798-800.) The trial court granted these requests.
(Id. at pp. 800-801.) Issuing a writ of mandate directing the trial court to deny the district
attorney‟s requests, the Court of Appeal held, as relevant here, that the trial court‟s order
granting access to mental health treatment files violated section 5328 of the Lanterman
Act. (Id. at p. 801.) Our Supreme Court reversed based on “newly enacted amendments
to the SVPA,” specifically, Welfare and Institutions Code section 6603, subdivision (c).
(Id. at p. 803.) The court explained that this provision “sets out express authority for the
updated evaluations” and “provides that „[t]hese updated or replacement evaluations shall
include review of available medical and psychological records, including treatment
records, consultation with current treating clinicians, and interviews of the person being
evaluated . . . .‟ [Citation.] By this language, the current provision clarifies within the
SVPA an exception to [the Lanterman Act‟s] general rule of confidentiality of treatment
records, and allows the district attorney access to treatment record information, insofar as
that information is contained in an updated evaluation.” (Id. at p. 805.)
Thus, while sections 5328 and 4514 of the Lanterman Act provide that
“[i]nformation and records shall be disclosed only in any of the following cases” (italics
added), followed by several exceptions to the general confidentiality rule (both in
subsequent subdivisions within sections 5328 and 4514, and also in separate sections
immediately following section 5328), none of which applies in this case, our Supreme
Court made clear in Albertson, supra, 25 Cal.4th 796 that exceptions to this general rule
may be found in other statutory enactments, there, the SVPA. Similarly, the Attorney
General‟s office has issued opinions concluding that specific reporting statutes supersede,
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and therefore create exceptions to the general confidentiality provisions of the Lanterman
Act. (65 Ops.Cal.Atty.Gen. 345 (1982) [duty to report child abuse under the Child Abuse
Reporting Law supersedes the confidentiality provisions of the Lanterman Act]; see also
58 Ops.Cal.Atty.Gen. 824 (1975).)
The same reasoning applies to the citation provisions of the Long-Term Care Act.
These citation provisions are the more specific provisions because the Lanterman Act‟s
confidentiality provisions, standing alone, include the citations at issue in this case, but
also broadly cover any “[i]nformation and records obtained in the course of providing
services” under the Lanterman Act and other specified statutory enactments. (Welf. &
Inst. Code, § 5328.) The citation provisions, on the other hand, deal specifically with
citations and precisely mandate the contents of these citations. As the more specific
statutes, the Long-Term Care Act‟s citation provisions take precedence over the
Lanterman Act‟s general confidentiality provisions.2
2 I am not persuaded by Public Health‟s argument that the Lanterman Act is the
specific statute that trumps the Long-Term Care Act because the Lanterman Act pertains
to a subclass of mentally ill and developmentally disabled patients, while the Long-Term
Care Act applies to all patients/residents of long-term care facilities. Public Health relies
on two cases I find distinguishable: McDonald v. Conniff (1893) 99 Cal. 386; and In re
Ward (1964) 227 Cal.App.2d 369. The 1893 case involved an action to foreclose a lien
of a street assessment. The Supreme Court held that an assessment statute making certain
documents prima facie evidence of the regularity of the proceedings did not contravene
the constitutional provision prohibiting the legislature from passing special or local laws
“regulating the practice of courts of justice.” The court explained it is not necessary that
a law shall affect all the people of the state or concern a procedure applicable to every
court action to be considered a general law. (McDonald, supra, 99 Cal. at pp. 390-391.)
Thus, there were no conflicting statutes in McDonald.
The 1964 case involved two sentencing statutes that conflicted when applied to the
defendant who was convicted of selling marijuana. One statute (former Health and
Safety Code section 11531) provided that every person who sells any marijuana shall be
punished by imprisonment in state prison from five years to life and shall not be eligible
for parole or release until he or she has served not less than three years. Another statute
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Moreover, like the reporting laws at issue in the Attorney General‟s opinions, the
Long-Term Care Act‟s citation provisions are in essence reporting statutes that are
designed to protect the patients/residents in long-term health care facilities by requiring
inspection and reporting of inadequate care (via issuing citations). By posting these
citations at the facilities and making them public records (with specific names removed),
the information is made available to the patients/residents, their families, employees, and
the general public. This informs and protects the public and patients/residents from
facilities that provide inadequate treatment of patients/residents who are vulnerable and
dependent upon the facilities for good care. (Health & Saf. Code, §§ 1422.5, 1422.6,
1422.7, 1429.) Thus, treating the Long-Term Care Act‟s citation provisions as an
exception to the Lanterman Act‟s confidentiality rule comports with the legislative
purpose of the Lanterman Act, which must be construed to “guarantee and protect public
(former Penal Code section 1202b) provided that for any person who was under the age
of 23 years at the time of committing a felony or felonies, the court may, notwithstanding
any other provision of law fixing or affecting the penalty for the felony or felonies,
specify that the minimum term of imprisonment shall be six months. The Court of
Appeal concluded former Penal Code section 1202b was the more specific provision that
created an exception to the general sentencing rule of former Health and Safety Code
section 11531 for persons under the age of 23 years at the time of committing the crime.
This was because former Health and Safety Code section 11531 began with the “generic”
phrase “„[e]very person,‟” while former Penal Code section 1202b applied only to
persons under the age of 23 years at the time of committing the crime and used the phrase
“„notwithstanding any other provision of law fixing or affecting the penalty for the
offense.‟” (In re Ward, supra, 227 Cal.App.2d at pp. 374-375.) Here, unlike former
Penal Code section 1202b, the Lanterman Act‟s confidentiality provisions were not made
to apply notwithstanding any other provision of law. Indeed, these provisions have been
held to be general in nature and subject to numerous exceptions, both within the
Lanterman Act and outside of that enactment. (See Welf. & Inst. Code, §§ 5328,
subds. (a)-(y), 5328.01 et seq.; Albertson, supra, 25 Cal.4th at p. 805.) Nor are the Long-
Term Care Act‟s citation provisions phrased in generic terms. Instead, as already
explained, they specifically mandate the content of citations.
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safety” and “protect mentally disordered persons and developmentally disabled persons
from criminal acts.” (Welf. & Inst. Code, § 5001, subds. (c), (g).)
Additionally, the citation provisions of the Long-Term Care Act, enacted in 1973
(Stats. 1973, ch. 1057, § 1, pp. 2088-2095), were enacted after the confidentiality
provisions of the Lanterman Act, which were originally enacted in 1972 (Stats. 1972,
ch. 1058, § 2, pp. 1960-1961).3 As mentioned, “[i]t is well settled that a later statute may
supersede, modify, or so affect the operation of an earlier law as to repeal the conflicting
earlier law by implication. [Citations.]” (Orange County Air Pollution Control Dist. v.
Public Util. Com., supra, 4 Cal.3d at p. 954, fn. 8.) Nor am I persuaded by Public
Health‟s argument that the enactment, in 1980, of an exception to the Lanterman Act‟s
confidentiality provisions (Welf. & Inst. Code, § 5328.15; Stats. 1980, ch. 695, § 1,
p. 2095) makes the confidentiality provisions the later-enacted statutes simply because
this exception reiterated the general rule of confidentiality before setting forth the
exception.
In sum, the Long-Term Care Act makes citations and their attachments public
records under the Public Records Act. (Health & Saf. Code, §§ 1423, subd. (a), 1424,
subd. (b), 1439.) The Lanterman Act, prohibiting disclosure of information obtained in
the course of providing services under that enactment (and other specified enactments),
subject to defined statutory exceptions (Welf. & Inst. Code, §§ 5328, 4514; see also id.,
§ 5328.01 et seq.), creates an exemption from disclosure under the Public Records Act.
3 While Welfare and Institutions Code section 4514 was enacted in 1982 (Stats.
1982, ch. 1141, § 1, pp. 4108-4112), as mentioned in the majority opinion, this was part
of a “nonsubstantive statutory division [that] kept the mentally ill (and chronically
alcoholic) in the Lanterman-Petris-Short Act, and placed the developmentally disabled in
the parallel companion statutory scheme of the Lanterman Developmental Disabilities
Services Act; the confidentiality provisions of both acts are quite similar.” (Maj. Opn. at
p. 11, fn. 7.) Accordingly, the Lanterman Act‟s confidentiality provisions were originally
enacted in 1972.
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However, as also mentioned, this exemption must be narrowly construed. (County of
Santa Clara v. Superior Court, supra, 170 Cal.App.4th at p. 1321.) By specifically
setting forth the required contents of the citations and attachments, some of which would
be confidential under the Lanterman Act, the Legislature created “within the [Long-Term
Care Act] an exception to [the Lanterman Act‟s] general rule of confidentiality.”
(Albertson, supra, 25 Cal.4th at p. 805.) This is what the trial court concluded. I would
deny the petition for writ of mandate.
HOCH , J.
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