Untitled California Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 90-303
of :
: August 23, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
______________________________________________________________________________
THE STATE BOARD OF CORRECTIONS has requested an opinion on the
following question:
Are plans and specifications of local detention facilities required to be disclosed
to members of the public under the Public Records Act?
CONCLUSION
Plans and specifications of local detention facilities are generally not required to
be disclosed to members of the public under the Public Records Act.
ANALYSIS
The State Board of Corrections ("Board") reviews the plans and specifications of
local detention facilities at the time of construction, reconstruction, remodeling, or repair. It
gives advice, recommendations, and applies its constructions standards for local jail facilities
throughout the state. (See Pen. Code, §§ 4497.10, 6029; Stats. 1984, ch. 1133, § 3.)
The question presented for resolution is whether the Board must allow public
inspection and copying of the local jail plans and specifications in its possession. We conclude
that the plans and specifications are generally exempt from disclosure to the public.
The Public Records Act (Gov. Code, §§ 6250-6265; "Act")1 requires state and
local agencies to make their "public records" (§ 6252, subd. (d)) available for public inspection
(§ 6253) and for copying (§ 6256) unless a particular record is "exempt" from disclosure (§ 6254)
or the agency demonstrates that "the public interest served by not making the record public
clearly outweighs the public interest served by disclosure of the record" (§ 6255). (See generally
CBS, Inc. v. Block (1986) 43 Cal. 3d 646; American Civil Liberties Union Foundation v.
1
All references hereafter to the Government Code are by section number only.
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Deukmejian (1982) 32 Cal. 3d 440; New York Times Co. v. Superior Court (1990) 218 Cal. App. 3d
1579.) Subdivision (a) of section 6253 provides the basic disclosure requirement:
"Public records are open to inspection at all times during the office hours
of the state or local agency and every person has a right to inspect any public
record, except as hereafter provided. . . ."
Section 6255 states the grounds for withholding disclosure:
"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."
We are informed that members of the Prisoners Union have questioned the
application of the Public Records Act to the local jail plans and specifications in the Board's
possession. The Board has previously treated the plans and specifications as having been
received in confidence, and the local authorities have requested that the confidentiality of the
plans and specifications be maintained. No members of the general public have had access to
these records in the past.
The Board and local authorities do not object to the release of some of the plans
and specifications. However, it has been determined by the Board and local officials that
disclosure of most of the records would jeopardize the safety and security of the staff, prisoners,
and community in which the jails are located. The plans and specifications detail the security
locking system operations, the communication and surveillance systems, and the strength of the
construction materials used throughout the jails. The plans and specifications could be used by
prisoners to determine the best possible means of escape, as well as possible hiding places for
weapons and other contraband.
Section 6255 allows the withholding of any record when "the public interest
served by not making the record public clearly outweighs the public interest served by disclosure
of the record." We believe that a court would uphold the Board's withholding of the plans and
specifications the release of which would jeopardize the safety and security of the staff, prisoners,
and communities in which jails are located. (See CBS, Inc. v. Block, supra, 42 Cal 646, 653
["any information on the applications and licenses that indicates times or places when the
licensee is vulnerable to attack may be deleted"]; Eskaton Monterey Hospital v. Myers (1982)
134 Cal. App. 3d 788, 793 ["disclosure of law enforcement materials which when revealed assist
in thwarting and circumventing the law is not in the public interest"].)
In Procunier v. Superior Court (1973) 35 Cal. App. 3d 211, disapproved on another
point in Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 124, the court ruled that disclosure
of the building plans, lay-out plats, maps and diagrams depicting the Correctional Training
Facility at Soledad were not required to be disclosed; it found "an overwhelming public and
governmental interest [in] the security of the prison system and the safety of the citizens of this
state." (Id., at p. 212.) The interest in preserving the confidentiality of local jail plans and
specifications is similarly "overwhelming."
Accordingly it is not enough that the jail plans at issue may be sought for some
laudable purpose. In American Civil Liberties Union Foundation v. Deukmejian, supra, 32
Cal. 3d 440, 451, the Supreme Court observed:
2. 90-303
" . . . the Act imposes no limits upon who may seek information or what
he may do with it. In the present case the ACLU seeks information . . . to
determine if . . . police intelligence systems are being misused. In other cases,
however, information may be sought for less noble purposes. Persons connected
with organized crime may seek to discover what the police know, or do not know,
about organized criminal activities . . . . In short, once information is held subject
to disclosure under the Act, the courts can exercise no restraint on the use to
which it may be put. [Citation.]"
Even though the Prisoners Union may have a legitimate interest in reviewing the jail plans and
specifications, the "overwhelming public and governmental interest [in] the security of the prison
system and the safety of the citizens of this state" (Procunier v. Superior Court, supra, 35
Cal. App. 3d 211, 212) justifies the Board's withholding of the records under the terms of section
6255.
Having determined that the "public interest" provision of section 6255 would be
applicable to the plans and specifications in question, we need not consider the individual
exemption provisions of section 6254. We note, however, that subdivision (k) of section 6254
exempts "[r]ecords the disclosure of which is exempted . . . pursuant to . . . provisions of the
Evidence Code relating to privilege." Evidence Code section 1040, subdivision (b)(2) grants "a
privilege to refuse to disclose official information" acquired in confidence if "there is a necessity
for preserving the confidentiality of the information that outweighs the necessity for disclosure
in the interest of justice." This exemption privilege involves a weighing of interests that is quite
similar to the "public interest" analysis and evaluation made under section 6255. (See CBS, Inc.
v. Block, supra, 42 Cal. 3d 646, 656; American Civil Liberties Union Foundation v. Deukmejian,
supra, 32 Cal. 3d 440, 446-447, fn. 6; Note, The California Public Records Act: The Public's
Right of Access to Governmental Information (1976) 7 Pacific L.J. 105, 123-125.) We believe
this exemption provision is fully supportive of our construction and application of section 6255
to the local jail plans and specifications.
In summary, then, the Board has determined that the jail plans and specifications
in its possession must not be disclosed to members of the public because "the public interest
served by not making the record public clearly outweighs the public interest served by disclosure
of the record." (§ 6255.) The plans and specifications were acquired in confidence and have not
been previously made public. (See § 6254.5; American Civil Liberties Union Foundation v.
Deukmejian, supra, 32 Cal. 3d 440, 451.) Those portions of the plans and specifications that do
not compromise the safety and security of the jail operations and that are "reasonably segregable"
(§ 6257; see CBS, Inc. v. Block, supra, 42 Cal. 3d 646, 652-653; Braun v. City of Taft (1984) 145
Cal. App. 3d 332, 344; Northern Cal. Police Practices Project v. Craig (1970) 90 Cal. App. 3d 116,
124) from the remainder would be subject to disclosure. While the burden is upon the Board to
justify withholding the plans and specifications (see CBS, Inc. v. Block, supra, 42 Cal. 3d 646,
652; New York Times Co. v. Superior Court, supra, 218 Cal. App. 3d 1579, 1584; Braun v. City
of Taft, supra, 154 Cal. App. 3d 332, 345), we believe that a court would uphold the Board's
determination in any proceeding seeking judicial resolution of the issue (see §§ 6258-6259).
In answer to the question presented, therefore, we conclude that plans and
specifications of local detention facilities are generally not required to be disclosed to members
of the public under the Act.
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