American Civil Liberties Union Foundation of Northern California, Inc. v. Deukmejian , 32 Cal. 3d 440 ( 1982 )

BIRD, C. J., Concurring and Dissenting.

I respectfully dissent from that portion of the court’s decision which denies disclosure of the LEIU cards.

James Madison once said, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” (Letter to W. T. Barry, Aug. 4, 1822, 9 The Writings of James Madison (Hunt ed. 1910) p. 103, quoted in EPA v. Mink (1973) 410 U.S. 73, 110-111 [35 L.Ed.2d 119, 145, 93 S.Ct. 827] (dis. opn. of Douglas, J.).)

Like James Madison, the California Legislature is of the view that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 6250.)¹ Thus, the California Public Records Act (or Act) was passed for the precise purpose of “increasing freedom of information” by giving the public “access to information in possession of public agencies.” (See Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 668 [135 Cal.Rptr. 575].) The Act is “intended to be construed liberally in order to further the goal of maximum disclosure in the conduct of governmental operations.” (Final Rep., Assem. Statewide Info. Policy Com. [hereafter Final Report] (Mar. 1970) p. 145, appen. G, setting forth opn. Cal. Atty. Gen. No. 67/144 (1970).)

In approving the government’s efforts in the present case to keep the LEIU cards wholly secret, today’s majority concludes that (1) the cards contain much information that is exempt from disclosure under section 6254, subdivision (f); (2) segregation of the exempt material from the nonexempt would be a substantial burden on the government; and (3) this administrative inconvenience justifies withholding even the nonexempt portions of the LEIU cards, pursuant to section 6255.

The first two of these conclusions find no support whatsoever in the record. The government has never sought to demonstrate how much, if any, of the information on the LEIU cards is exempt from disclosure nor what the inconvenience or cost of deleting this information might be. Although the Public Records Act clearly places the burden of justifying nondisclosure on the agency desiring secrecy,² a majority of this court somehow waives this requirement and finds in favor of the government on these issues.

The court’s third conclusion—that administrative inconvenience is dispositive of these plaintiffs’ claim of access to the records of their government—threatens the very foundations of the Act. It represents a major triumph for bureaucratic inertia and secrecy, and it permits— and even encourages—state agencies to undermine the broad disclosure policies of the Act. Yet, as the Court of Appeal has held, the Public Records Act is “suffused with indications of a contrary legislative intent.” (Northern Cal. Police Practices Project v. Craig (1979) 90 Cal.App.3d 116, 123 [153 Cal.Rptr. 173].)

The federal Freedom of Information Act (or FOIA)³ provides a right of public access to records of federal agencies, and, as today’s majority agrees, the state and federal enactments “should receive a parallel construction. ” (Ante, at p. 451.) However, the majority chooses to ignore the unanimous interpretation of the FOIA that “equitable considerations of the costs, in time and money, of making records available for examination do not supply an excuse for non-production.” (See, e.g., Sears v. Gottschalk (4th Cir. 1974) 502 F.2d 122, 126, and cases cited.)

I remain unpersuaded.

I.

The California Public Records Act was enacted against a “background of legislative impatience with secrecy in government .... ” (53 Ops.Cal.Atty.Gen. 136, 143 (1970).) The Legislature had long been attempting to “formulate a workable means of minimizing secrecy in government.” (Id., at p. 140, fn. omitted.) The basic law “was vague and had been interpreted by the courts in a restrictive fashion.” (Final Report, supra, p. 7.)

Moreover, it “appeared ... to be creating (or perhaps merely reinforcing) an attitude of reluctance on the part of various administrative officials to make records in their custody available for public inspection.” (53 Ops.Cal.Atty.Gen., supra, p. 143.) Those limited reform efforts that managed to become law—such as the Brown Act of 195 3⁴— were insufficient to address the problems. What was needed was a comprehensive statute governing access to information. (Schaffer et al., A Look at the California Records Act and Its Exemptions (1974) 4 Golden Gate L.Rev. 203, 212.)

Such an enactment was the California Public Records Act. (§§ 6250-6265.) The tone of the Act was set by the broad language used to define “public records.” (§ 6252, subd. (d).) “This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed.” (Final Report, supra, p. 9.)

Like the federal Freedom of Information Act upon which it was modeled, “the general policy of the [Public Records Act] favors disclosure. Support for a refusal to disclose information ‘must be found, if at all, among the specific exceptions to the general policy that are enumerated in the Act.’” (Cook v. Craig (1976) 55 Cal.App.3d 773, 781 [127 Cal.Rptr. 712], citation omitted, quoting State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778, 783 [117 Cal.Rptr. 726].) The burden of establishing that an exception applies lies with the agency resisting disclosure. (See ante, fn. 2.)

Even where the Public Records Act permits nondisclosure, it does not require withholding the requested information. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 656 [117 Cal.Rptr. 106].) The Act sets forth “the minimum standards” for access to government information, and generally “a state or local agency may adopt requirements for itself which allow greater access to records.” (§ 6253.1; see also Final Report, supra, p. 9.)

Moreover, the fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document. (Northern Cal. Police Practices Project v. Craig, supra, 90 Cal.App.3d at p. 123.) Section 6257 of the Act specifically provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt by law.”

Relying on the Public Records Act, plaintiff ACLU has sought to examine a random sampling of the LEIU cards⁵ maintained by the California Department of Justice (or Department) ostensibly in connection with its function of “[gathering, analyzing and storing intelligence pertaining to organized crime.” (§ 15025, subd. (a).) The ACLU’s concern stems from mid-1970’s revelations on the national level of law enforcement abuses in the acquisition and maintenance of information for surveillance purposes. The fears expressed at that time have increased as a result of the Department’s recent publication of a report purportedly relating to organized crime and terrorism. (Rep.Cal.Atty.Gen. (May 1981) Organized Crime in Cal.—1980, pt. 2, Terrorism.) The report suggests that the Department views its duty to monitor organized crime activities as covering “activities of domestic extremist groups in the form of rallies and demonstrations.” (Id., p. 1.)

Thus, the goals of the ACLU suit include testing the degree to which units in the Department of Justice engage in political surveillance under the guise of obtaining information pertaining to law enforcement and “determining whether the conduct of [the Department] complies with law .... ”

The Department has refused to disclose any portion of the LEIU cards. It asserts that two provisions of the Public Records Act authorize its actions. Primary reliance is placed on subdivision (f) of section 6254 (Exemption (f)), which permits the withholding of “records of intelligence information ... of . .. the office of the Attorney General and the Department of Justice, and any state or local police agency . ... ” The Department also seeks to invoke the provision of section 6255 authorizing nondisclosure when “on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”

Throughout these proceedings, the Department has taken the position that these exemptions protect the LEIU cards in toto. It has adduced no evidence to establish a confidential source for any specific information on any of the cards. Moreover, while occasionally asserting that segregation of exempt from nonexempt information would be “burdensome,” the Department has offered no testimony, affidavit, or other evidence of the extent of this alleged burden.

Following meticulously conducted proceedings in camera—including examination of the LEIU cards themselves—the trial court ruled in favor of disclosure except for “those portions [of the cards] which show and disclose personal identifiers and confidential sources.” It found that disclosure of the nonexempt material “will inform interested members of the public of the type of information which the [Department] develop^] and gather[s].” It further found the public interest served by disclosure to be “the need to insure that [the Department is] complying with the Constitution and laws of the United States and the State of California ... and to defend and protect constitutional rights by guarding against unlawful invasions of privacy and personal security by over-zealous spying, surveillance and covert activities.”

I agree with the majority that the trial court’s interpretation of the Public Records Act’s exemption for “records of intelligence information” was too narrow. Exemption (f) permits withholding not only information which might identify confidential sources but also “confidential information furnished only by the confidential source” to “a criminal law enforcement authority in the course of a criminal investigation.” (See 5 U.S.C. § 552 (b)(7)(D) [hereafter Exemption 7(D) of the FOIA].)

This conclusion is supported by a close reading of Exemption (f). By the plain wording of the Public Records Act, the Legislature sought to protect confidential “information,” not merely the identity of confidential sources. Moreover, in providing within the same subdivision for disclosure of certain facts to victims or their representatives, the Legislature specifically exempted the “statements” and “names and addresses” of confidential informants. This indicates that the Legislature was aware of a distinction between statements and identity and that its choice of the broad term “intelligence information” was intended to encompass more than either of these two ideas separately.

Reading Exemption (f) as protecting confidential sources and information brings this portion of the California Act into close alignment with Exemption 7(D) of the FOIA. (See, e.g„ Duffin v. Carlson (D.C. Cir. 1980) 636 F.2d 709, 712.) I agree that the two exemptions should normally receive a “parallel construction.” (Maj. opn., ante, at p. 451.)

However, I am perplexed by one reason tendered by the majority for interpreting Exemption (f) in this fashion. Here, it is asserted that the Public Records Act should be interpreted in light of the “fact” that “information may be sought for less noble purposes” than those of the ACLU in this case. (Ante, p. 451.) This reasoning is completely untenable.

The majority conjures up the possibility that a disclosure request may be made for ignoble purposes and yet fails even to consider that bureaucracies may have improper reasons of their own for refusing disclosure.

Secrecy is not required by the Public Records Act; disclosure is virtually always permitted. (§ 6253.1.) Thus, it is well recognized that disclosure may be resisted not because of a genuine need for secrecy, but out of fear of “arous[ing] public opinion against the policies the agency is determined to employ.” (See Schaffer et al., supra, 4 Golden Gate L.Rev. at p. 209.) A governmental agency may resist disclosure merely because “from a bureaucratic standpoint, a general policy of revelation could cause positive harm, since it could bring to light information detrimental to the agency and set a precedent for future demands for disclosure.” (Vaughn v. Rosen (D.C.Cir. 1973) 484, 820, 826.) In entirely ignoring these obvious teachings of history, the majority blinds itself to the very need for a Public Records Act in the first place.

Moreover, the majority thwarts one of the Legislature’s avowed purposes in passing the Act, i.e., to “invalidate[]” court decisions which had interpreted the prior law “in a restrictive fashion.” (Final Report, supra, p. 7.)

In an Attorney General’s opinion incorporated into the Final Report, it was said to be “clear” that the Act “is intended to be construed liberally in order to further the goal of maximum disclosure in the conduct of governmental operations.” (53 Ops.Cal.Atty.Gen., supra, at p. 143; Final Report, supra, at p. 145.) This source also indicated that the “same historical evidence which compels the conclusion that the ... Act should be construed broadly also compels the conclusion that [the exemptions] must be construed strictly so as not to interfere with the basic policy of the act.” (53 Ops.Cal.Atty.Gen., supra, p. 143; Final Report, supra, at p. 145.)

The federal cases interpreting the FOIA are all in agreement with our Legislature and our Attorney General. The federal courts have universally accepted the proposition that the FOIA “creates a liberal disclosure requirement, limited only by specific exemptions which are to be narrowly construed.” (Bristol-Myers Company v. F. T. C. (D.C.Cir. 1970) 424 F.2d 935, 938, fn. omitted, cert. den., 400 U.S. 824 [24 L.Ed.2d 52, 91 S.Ct. 46]; see also Dept. of Air Force v. Rose (1976) 425 U.S. 352, 361, 366 [48 L.Ed.2d 11, 21, 24, 96 S.Ct. 1592]; Vaughn v. Rosen, supra, 484 F.2d 820, 823, cert. den., 415 U.S. 977 [39 L.Ed.2d 873, 94 S.Ct. 1564].) This, of course, is the very same Freedom of Information Act whose “judicial construction and legislative history ... serve to illuminate the interpretation of its California counterpart.” (Maj. opn., ante, at p. 447.)

While I agree with the majority as to the scope of Exemption (f), I cannot subscribe to the dictum which would construe the disclosure provisions of the Act in a one-sided manner, blind to the countervailing considerations. Such statutory construction might accord with those justices’ view of good policy, but it does not conform to that which is supposed to be paramount—the Legislature’s intent.

II.

Having determined the proper scope of Exemption (f), the majority proceeds to uphold the Department’s claim of secrecy under the balancing test of section 6255. (See ante, fn. 2.) It rules that the cost and administrative inconvenience of segregating exempt from nonexempt information on the LEIU cards justify the refusal to disclose any information contained in these public records. This conclusion is absurd. It violates the terms and basic concerns of the Public Records Act, the prior court decisions of this state, the “parallel” Freedom of Information Act and the cases interpreting it, as well as common sense.

It is inconceivable that the Legislature, in enacting the section 6255 balancing test, intended to permit administrative cost and inconvenience to be dispositive of a request for access to public records. Nowhere in section 6255 or the Act as a whole is such an intention manifested.

The specific exemptions of section 6254 are of considerable aid in ascertaining the Legislature’s conception of “the public interest served by not making [a] record public .as used in section 6255.⁶ However, none of these provisions displays a solicitude for the inconvenience or cost to bureaucracies of affording access to public records. The concerns articulated relate to protection of personal privacy, confidential information, and agency deliberative processes, not bureaucratic convenience.

Further evidence in this regard can be found in the final sentence of section 6257. There, it is required that "[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt by law.” (Italics added.) It is difficult to see how the Legislature could have been clearer in requiring the production of any such nonexempt material.⁷

The Legislature clearly was aware that some requests for information under the Public Records Act would require an agency to (1) “search for and collect ... records from ... establishments that are separate from the office processing the request”; (2) “search for, collect, and appropriately examine a voluminous amount of separate and distinct records”; and (3) consult with “another agency ... or among two or more components of the agency.” (See § 6256.1.) The only concession granted to a bureaucracy by the Legislature in this regard was that such “unusual circumstances” would permit the agency a maximum of 10 extra working days within which to respond to the request. (Ibid.) There is not the slightest suggestion that such circumstances ipso facto justify a refusal to disclose.

If any further evidence of legislative intent is necessary, it can be found in section 6250, where the Legislature “declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Today’s majority attributes to the Legislature an intent to permit this “fundamental and necessary right” to be overcome by a mere allegation of bureaucratic inconvenience and cost. Once again, this is patently absurd.

In addition to these direct indications of legislative intent, simple logic and experience dictate that the public’s right to know not be overriden by claims of bureaucratic inconvenience. The history of freedom of information laws, both in this state and on a national level, is largely the history of bureaucratic resistance to revealing agency operations. If a disclosure request may be defeated by an agency’s showings of administrative cost and burden, then the very foundations of the Public Records Act are undermined.

Initially, uncertainty is injected by this court into an act where clarity was intended. The result will surely be that agencies will be emboldened to resist disclosure requests. This is contrary to the Legislature’s intent. Compliance was to be encouraged. The likely result of today’s decision is the multiplication of contested court proceedings and the end of voluntary settlements.

Even more important, the bureaucracy—rather than the Legislature, the courts, or the people—will be empowered to determine what records will be revealed. It is the bureaucracy that decides in what form and where to keep its records. By commingling exempt and nonexempt information and spreading out responsibility for the compilation and storage of records, the agency can be assured of a tenable claim of exemption under section 6255. At the very least, already wary agencies are discouraged from creating “internal procedures that will assure that disclosable information can be easily separated from that which is exempt.” (See Vaughn v. Rosen, supra, 484 F.2d at p. 828; see also Irons v. Gottschalk (D.C.Cir. 1976) 548 F.2d 992, 996, cert. den., 434 U.S. 965 [54 L.Ed.2d 451, 98 S.Ct. 505].)

Finally, as modern society becomes more complex, so do the issues which confront us and the agencies that are supposed to serve us. At the same time, our demands and expectations of government continue to expand. Thus, colorable claims of administrative burden will increase. As a result, constrained by this court’s holding that access to public records may be denied because of bureaucratic burdens, the Public Records Act will be reduced to an anachronism, applicable to trivialities or events no longer important, but incapable of ensuring the public knowledge necessary to the proper functioning of a democracy.

It is, therefore, not surprising that the courts have unanimously taken a position contrary to that of today’s majority. “Undoubtedly, the requirement of segregation casts a tangible burden on governmental agencies and on the judiciary. Nothing less will suffice, however, if the underlying legislative policy of the [Act] favoring disclosure is to be implemented faithfully. If the burden becomes too onerous, relief must be sought from the Legislature.” (Northern Cal. Police Practices Project v. Craig, supra, 90 Cal.App.3d at p. 124.)

The federal cases are in complete accord. “[E]quitable considerations of the costs, in time and money, of making records available for examination do not supply an excuse for non-production.” (Sears v. Gottschalk, supra, 502 F.2d at p. 126.) “Allowing such a defense would undercut the Act’s broad policy of disclosure.” (Ferguson v. Kelly (N.D.Ill. 1978) 455 F.Supp. 324, 326.) Even a cursory sampling of cases involving the Freedom of Information Act reveals that the federal act is used to obtain access to enormous quantities of documents from which an agency must segregate exempt information. The request in the present case for access to 100 small LEIU cards pales by comparison. (See, e.g., Pratt v. Webster (D.C.Cir. 1982) 673 F.2d 408 [FOIA used to obtain access to edited versions of over 1,000 documents, totalling thousands of pages]; Reporters Committee for Freedom of the Press v. Sampson (D.C.Cir. 1978) 591 F.2d 944, 949, fn. 17 [FOIA available to obtain access to the “massive volume of materials” in the presidential papers of former President Nixon]; Diapulse Corp. of Am. v. Food & D. Admin. of Dept. of H.E.W. (2d Cir. 1974) 500 F.2d 75 [FOIA used to obtain access to thousands of documents, the collection and editing of which would take four to six days].)

These federal practices and cases should be highly persuasive to those members of this court who have signed today’s majority opinion. Their opinion is replete with statements acknowledging that the Public Records Act “was modeled upon” the federal act and “should receive a parallel construction.” (See, e.g., ante, at pp. 449, 451.) Yet, federal authority is conspicuously absent when they decree that bureaucratic inconvenience may prevail over the people’s “fundamental and necessary right” to know.

I am constrained once again to disagree.

III.

Even if the administrative burden to an agency could be dispositive of a request for information under the Act, I would be hard pressed to comprehend the conclusion of the majority that as a matter of law, the LEIU cards are exempt from disclosure. The majority reasons that (1) “much of the information of the LEIU cards ... is ... exempt from disclosure”; (2) the “burden of segregating exempt from nonexempt information on the 100 cards would be substantial”; and (3) on balance “the public interest predominates against requiring disclosure” of the nonexempt information. (Maj. opn., ante, at pp. 451-453.) The first two of these conclusions are wholly unsupported by the record; the third is a serious misapplication of the law.

The Department has never even attempted to establish how much, if any, of the information on the LEIU cards is exempt from disclosure under a proper interpretation of Exemption (f). Rather, it has consistently taken the position that all of the information on those cards per se constitutes “records of intelligence information.” Since this court has correctly rejected this extremé position (ante, at pp. 449-450), I am at a loss to discover the source of its conclusion that “much of the information of the LEIU cards” is exempt under a proper interpretation of Exemption (f). Indeed, the only evidence on this point suggests there is little “intelligence information.” A high ranking Justice Department official testified in passing that, “L.E.I.U. is just an index anyway .... It does not have hard intelligence. L.E.I.U. does not contain that.”⁸ (Italics added.)

There are similar problems with the court’s conclusion regarding the “substantial” burden of segregation. Here, at least, the Department has proffered an allegation that segregation is “burdensome,” but its claim is conclusory and supported by no facts. “[B]are conclusory allegations [do] not suffice to establish an essential fact concerning the applicability of an FOIA exemption.” (Irons v. Bell (1st Cir. 1979) 596 F.2d 468, 471.) Agency claims that an exemption applies “may or may not be accurate.” (Vaughn v. Rosen, supra, 484 F.2d at p. 824.) Thus, “courts will simply no longer accept conclusory and generalized allegations of exemptions . ...” (Id., at p. 826, fn. omitted.)

It is the court, not the agency, which finally determines the applicability of an exemption. (See § 6259; Black Panther Party v. Kehoe, supra, 42 Cal.App.3d at p. 657; see also, e.g., Lame v. United States Dept. of Justice (3d Cir. 1981) 654 F.2d 917, 922.) Without evidence, however, a court obviously cannot make that determination. Neither this court nor the trial court has been presented with such evidence.

Given this state of the record and the fact that the agency bears the burden of establishing the applicability of an exemption (see ante, fn. 2), it is hard to fault the trial court for ordering disclosure. How this court manages to arrive at a contrary conclusion as a matter of law remains a mystery.

It bears noting that the interpretation given today to Exemption (f) was not the interpretation used at the trial proceedings below. Moreover, the Department, relying on its erroneous reading of Exemption (f), tendered no evidence as to how much information on the LEIU cards would disclose or is attributable to a confidential source, as this court today construes those terms. The proper disposition of this aspect of the appeal would be to remand the case for further proceedings in light of the interpretation today given Exemption (f) and section 6255.

One final point. The section 6255 balancing test permits the withholding of records only when “the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.” (§ 6255, italics added.) The word “clearly” is significant. The Assembly Information Policy Committee itself emphasized the word in its Final Report: “A public agency may only refuse tó disclose the contents ... of a public record, if it can . .. show that the public interest clearly is on the side of non-disclosure .... ” (Final Report, supra, p. 12; accord 53 Ops. Cal.Atty.Gen., supra, at p. 148.).

In light of this heavy burden on those who seek to justify nondisclosure, the majority’s conclusion that the public interest predominates against disclosure is even more indefensible. It represents no more than lip service to the test of section 6255. It seems to present yet another example of the roughshod manner in which the majority ride over the commands of the Legislature and the “fundamental and necessary right of every person in this state” to information about his or her government. (See § 6250.)

Respondent’s petition for a rehearing was denied November 15, 1982, and the opinion was modified to read as printed above. Newman, J., and Reynoso, J., did not participate therein. Bird, C. J., was of the opinion that the petition should be granted.

1 All statutory references hereafter are to the Government Code, unless specified otherwise.

2 “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.” (§ 6255, italics added; see also Final Report, supra, p. 12; EPA v. Mink, supra, 410 U.S. at p. 93 [35 L.Ed.2d at p. 135].)

3 5 United States Code section 552.

4 Statutes 1953, chapter 1588, page 3269.

5 The ACLU agrees that all information on the LEIU cards which identifies an individual should be deleted prior to disclosure.

The ACLU also sought a similarly edited sampling of entries in the now-defunct IOCI system. Since I agree with the majority that this information should be released to plaintiff, I do not discuss that aspect of the case further.

6 See Note, The California Public Records Act: The Public’s Right of Access to Governmental Information (1976) 7 Pacific L.J. 105, 119.

7 The majority opinion hints in a footnote that nonexempt information is not “reasonably segregable” if the burden of segregation is great. (Ante, fn. 13, p. 453.) This suggestion does not withstand analysis.

The “reasonably segregable” provision of the California Act was lifted nearly verbatim from the federal Freedom of Information Act. (Cf., final sentence of 5 U.S.C. § 552(b).) The federal provision, in turn, has been interpreted to require disclosure of any nonexempt material “if it is at all intelligible—unintelligibility indicating, of course, that it is not- ‘reasonably’ segregable from the balance.” (U.S. Dept. Justice, Atty. Gen. Memo, on 1974 Amends, to Freedom of Information Act (Feb. 1975), in Sourcebook: Legislative History, etc., Freedom of Information Act and Amendments of 1974 (94th Cong., 1st Sess., 1975) pp. 524-525.)

As will be shown hereafter, the federal cases have uniformly rejected the position of the majority that administrative burden can be dispositive of a disclosure request under the FOIA.

8 The bulk of this official’s testimony, like that of the other witnesses below, involved merely the authentication of documents to be examined by the court.