CBS, INC., Plaintiff and Appellant, v. SHERMAN BLOCK, as Sheriff, etc., et al., Defendants and Appellants, 42 Cal. 3d 646

Opinion BIRD, C. J. Are the press and public prohibited from obtaining the information contained in the application for and the license to possess a concealed weapon under the California Public Records Act (Gov. Code, § 6250 et seq., hereafter the PRA or the Act) even though this information was open to public inspection from 1957-1968 and the Act did not specifically exempt this information from disclosure? I.

This case arose when CBS, Inc. (CBS) filed a request under the PRA, in July of 1983, to inspect and copy the applications submitted to and licenses issued by the Los Angeles County Sheriff authorizing the possession of concealed weapons. CBS sought the information in connection with an investigation of possible abuses by officials in the exercise of their statutorily delegated discretion to issue licenses for concealed weapons. (See Pen. Code, § 12050.) According to the reporter’s transcript and the court records it appears that only 35 concealed weapon licenses were issued in Los Angeles County.

There are approximately 7 million residents of Los Angeles County. All of the applications made were for a renewal. For the majority of these, no reason for issuance was given or a one sentence explanation— “Needed for protection of life and property”—was used. The sheriff refused to release any of the applications or licenses. In response, CBS filed a motion for a preliminary injunction detailing the reasons it desired the requested material. The hearing on CBS’s motion was held in August of 1983.

After reviewing the records in camera, the trial judge noted that the reasons stated for desiring a license were essentially “pro forma” and, therefore, ordered disclosure of most of the licenses then in effect with the proviso that the home addresses of the licensees be deleted. The court denied CBS’s request for copies of the applications. Both sides have appealed. II. The question presented by this appeal is whether the trial court erred in granting partial relief to CBS on its motion for disclosure under sections 6258 and

Section 6259 provides in pertinent part: “(

a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (

b) of

section 915 of the Evidence Code, papers filed by the parties and such oral argument and additional evidence as the court may allow. [I] (

b) If the court finds that the public official’s decision to refuse disclosure is not justified under the provisions of

Section 6254 or 6255, he shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.” (Italics added.) Although

section 6258 speaks in terms of injunctive relief (see, ante, p. 649, fn. 2) and the application contemplated by the statute may be one for a preliminary injunction, there is nothing “preliminary” about the trial court’s order here. As the italicized phrase of

section 6259 indicates, the Act does not provide for a trial on the merits. These conclusions are buttressed by the 1984 amendment to

section 6259, effective as to actions filed on or after January 1, 1985, which provides that such orders are not appealable, but are subject to immediate writ review. Sections 6250 to 6265, which govern disclosure of public records, provide little guidance on the question of the standard of review on appeal. The cases are similarly silent on this point. However, the analysis in this court’s decision in American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440 [186 Cal.Rptr. 235, 651 P.2d 822] (hereafter ACLU) clearly indicates that the standard is one of independent review.

In that decision, this court reexamined the records, balanced the burdens and costs of disclosing the requested information, and affirmed in part the trial court’s judgment requiring disclosure of nonexempt information. (ACLU, supra, 32 Cal.3d 440, 443-444.) Accordingly, this court must conduct an independent review of the trial court’s statutory balancing analysis. Factual findings made by the trial court will be upheld if based on substantial evidence. III. Government files hold huge collections of information.

These files can be roughly divided into two categories: (1) records detailing public business and official processes; and (2) records containing private revelations. Statutory and decisional authority on public record disclosure reveals two fundamental and frequently competing societal concerns that result from the commingling of public and personal information. Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files.

Such access permits checks against the arbitrary exercise of official power and secrecy in the political process. However, a narrower but no less important interest is the privacy of individuals whose personal affairs are recorded in government files. When the PRA was enacted in 1968, “‘[t]he Legislature had long been attempting to “formulate a workable means of minimizing secrecy in government.”’” (San Gabriel Tribune v.

Superior Court (1983) 143 Cal.App.3d 762, 772 [192 Cal.Rptr. 415]; quoting ACLU, supra, 32 Cal.3d 440, 457.) The PRA was modeled on the federal Freedom of Information Act (5 U.S.C. § 552 et seq.; Cook v. Craig (1976) 55 Cal.App.3d 773, 781 [127 Cal.Rptr. 712]) and was passed for the explicit purpose of “increasing freedom of information” by giving the public “access to information in possession of public agencies” (Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 668 [135 Cal.Rptr. 575]).

Maximum disclosure of the conduct of governmental operations was to be promoted by the Act. (53 Ops.Cal.Atty.Gen. 136, 143 (1970).) Two exceptions to the general policy of disclosure are set forth in the Act.

Section 6254 lists 19 categories of disclosure-exempt material. These exemptions are permissive, not mandatory. The Act endows the agency with discretionary authority to override the statutory exceptions when a dominating public interest favors disclosure. (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 656 [117 Cal.Rptr. 106].) In addition to these express exceptions,

section 6255 establishes a catchall exception that permits the government agency to withhold a record if it can demonstrate that “on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.” (Italics added.) Defendants contend that they have met the burden of proving that the records of applications and licenses for concealed weapons fall within the catch-all exception.

They argue that releasing this information will allow would-be attackers to more carefully plan their crime against licensees and will deter those who need a license from making an application. Defendants’ concern that the release of the information to the press would increase the vulnerability of licensees is conjectural at best. The prospect that somehow this information in the hands of the press will increase the danger to some licensees cannot alone support a finding in favor of nondisclosure as to all.

A mere assertion of possible endangerment does not “clearly outweigh” the public interest in access to these records. Moreover,

section 6257 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.” Thus, any information on the applications and licenses that indicate times or places when the licensee is vulnerable to attack may be deleted. 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 (1979) 90 Cal.App.3d 116, 123-124 [153 Cal.Rptr. 173].) Defendants’ contention that disclosure would discourage the filing of applications is also unpersuasive. This court respects the people’s right to know and will not limit that right based on an inchoate fear that some will violate the law rather than have their names disclosed. Next, defendants argue that the licensees’ constitutional right of privacy would be violated by disclosing the concealed weapons information. To support this contention, they cite this court’s decision in ACLU, supra, 32 Cal.3d 440.

ACLU concerned the disclosure of information on persons suspected of maintaining an association with organized crime. The information had been compiled by a network of law enforcement departments. This court held that documents listing individuals’ names, physical traits, family members, residences, occupations, and associates in crime were protected from disclosure under the exemption for “intelligence information” (§ 6254, subd. (f)). (ACLU, supra, 32 Cal.3d 440, 449-450.) The court stated that the exemption was required, “if not by the express terms of the Act, [then] by the right of privacy established in

article I,

section 1 of the California Constitution.” (Id., at pp. 449-450.) Defendants also cite this court’s decision in White v. Davis (1975) 13 Cal.3d 757 [120 Cal.Rptr. 94, 533 P.2d 222]. This case is inapposite. It concerned police officers, posing as students, who engaged in the covert recording of class discussions. These recordings were used by the police officers as “intelligence” reports about professors and students.

This court held that the complaint stated a prima facie violation of the state constitutional right of privacy, observing that “a principal aim of the constitutional provision is to limit the infringement upon personal privacy arising from the government’s increasing collection and retention of data relating to all facets of an individual’s life.

The alleged accumulation in ‘police dossiers’ of information gleaned from classroom discussions or organization meetings presents one clear example of activity which the constitutional amendment envisions as a threat to personal privacy and security.” (Id., at p. 761.) Neither of these cases supports defendants’ claims for the wholesale suppression of records of the granting of licenses to carry a weapon.

The concern in ACLU was for the harm that might result from the public revelation of the names or associates of individuals listed in an organized crime index. (ACLU, supra, 32 Cal.3d at pp. 449-450.) That information was in essence an allegation that the individual was a participant in criminal activity. None of these allegations had been substantiated in a court of law. In contrast, the information sought here would not inflict the kind of immediate social stigma that arises from having one’s name included on a list of suspected members of organized crime.

Moreover, the information contained in the records here was voluntarily given to the sheriff by the applicants. It is sworn to be factually true. Thus, the substantial privacy concerns implicated in ACLU are not present here. While some of the holders of concealed weapon licenses may prefer anonymity, it is doubtful that such preferences outweigh the “fundamental and necessary” right of the public to examine the bases upon which such licenses are issued. It is a privilege to carry a concealed weapon.

Furthermore, there is a clear and legislatively articulated justification for disclosure—the right of the public and the press to review the government’s conduct of its business. Public inspection of the names of license holders and the reasons the licenses were requested enables the press and the public to ensure that public officials are acting properly in issuing licenses for legitimate reasons. Defendants’ conclusion that White v.

Davis precluded disclosure would obliterate the fundamental right of the press and the people to have access to “information concerning the conduct of the people’s business.” (§ 6250.) It is possible, of course, that certain information supplied by individual applicants may under certain circumstances entail a substantial privacy interest. For example, the records may contain intimate information concerning an applicant’s own or his family’s medical or psychological history. In such special cases, the confidential information may be deleted.

The interest of society in ensuring accountability is particularly strong where the discretion invested in a government official is unfettered, and only a select few are granted the special privilege. Moreover, the degree of subjectivity involved in exercising the discretion cries out for public scrutiny. For example, the Sheriff of Orange County has issued over 400 licenses; in Los Angeles County only 35 licenses have been issued. Ostensibly, both sheriffs are applying the same statutory criteria for granting or denying these licenses. The apparent discrepancy indicates that something may be amiss.

If the information on which the decision to grant can be kept from the public and the press, then there is no method by which the people can ever ascertain whether the law is being fairly and impartially applied. Further, the historical treatment of concealed weapons licenses undermines the defendants’ claim that the holders have an expectation of privacy regarding such records. From 1957 to 1968, these licenses were open to public inspection pursuant to Penal Code

section 12053. In the year following the enactment of the PR A, Penal Code

section 12053 was amended to delete this language. The change was made to ensure that these public records would be governed by the new Act. (See Stats. 1969, ch. 371, § 44, pp. 904-905 in conjunction with 62 Ops.Cal.Atty.Gen. 595, 600 (1979).) It is important to note that the Legislature did not create an exemption, express or implied, for concealed weapons licenses. It did so for many other types of public records. (§ 6254.) Finally, defendants point to

section 6254, subdivision (

k) as authority for nondisclosure of this information.

Section 6254, subdivision (

k) exempts “[rjecords the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” As several courts considering the scope of this exemption have noted, subdivision (

k) is not an independent exemption. It merely incorporates other prohibitions established by law. (Cook v. Craig, supra, 55 Cal.App.3d 773, 783; see San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 775.) Here, the defendants assert that Evidence Code

section 1040 shields the sheriff from any duty to disclose. Evidence Code

section 1040 creates a privilege for official information acquired in confidence if “[disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . .” (Evid. Code, § 1040, subd. (b)(2).) This privilege must be “applied conditionally on a clear showing that disclosure is against the public’s interest.” (San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 777.) The weighing process mandated by Evidence Code

section 1040 requires review of the same elements that must be considered under

section 6255 (ACLU, supra, 32 Cal.3d 440, 446-447, fn. 6). Therefore, it is consistent with the PR A. Under this privilege, the burden of demonstrating a need for nondisclosure is on the agency claiming the right to withhold the information. (San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 780.) Thus, this court’s rejection of the claim of exemption under

section 6255 on the ground that the public interest weighs in favor of disclosure similarly requires rejection of the claims of exemption under

section 6254, subdivision (

k) and Evidence Code

section 1040. (See ACLU, supra, 32 Cal.3d 440, 446-447, fn. 6.) IV. Disclosure statutes such as the PRA and the federal Freedom of Information Act were passed to ensure public access to vital information about the government’s conduct of its business. If the press and the public are precluded from learning the names of concealed weapons’ licensees and the reasons claimed in support of the licenses, there will be no method by which the public can ascertain whether the law is being properly applied or carried out in an evenhanded manner.

The trial court granted injunctive relief permitting access to most of the licenses. This relief is inadequate in light of the purpose for which the information was sought. Without the applications which accompany the licenses and which set forth the reasons why a license is necessary, the public cannot judge whether the sheriff has properly exercised his discretion in issuing the licenses. Therefore, this cause is remanded to the trial court for further proceedings consistent with this opinion. The costs on appeal are to be borne by the defendants.

Broussard, J., Reynoso, J., Grodin, J., and McClosky (Eugene), J., concurred. Unless otherwise indicated, all statutory references are to the Government Code.

Section 6258 provides in pertinent part that: “Any person may institute proceedings for injunctive or declarative relief in any court of competent jurisdiction to enforce his right to inspect or to receive a copy of any public record or class of public records under this chapter. ’ ’ Appellants have conceded that the applications and licenses in question fall within the broad definition of “public records.” (§ 6252, subd. (d).) However, we note that traditionally, when deciding whether or not to issue a preliminary injunction, trial courts must evaluate two interrelated factors. (Cohen v.

Board of Supervisors (1985) 40 Cal.3d 277, 286 [219 Cal.Rptr. 467, 707 P.2d 840].) “ ‘The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]”’ (Cohen v. Board of Supervisors, supra, 40 Cal.3d 277, 286, quoting IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70 [196 Cal.Rptr. 715, 672 P.2d 121]; accord Robbins v.

Superior Court (1985) 38 Cal.3d 199, 206 [211 Cal.Rptr. 398, 695 P.2d 695].) The ruling on an application for a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy. (Robbins v. Superior Court, supra, 38 Cal.3d at p. 218.) Consequently, on appeal the question becomes whether the trial court abused its discretion when it considered both factors. If the appellate court finds that the trial court correctly determined at least one of the two factors, it may affirm the trial court’s order. (Cohen v.

Board of Supervisors, supra, 40 Cal.3d at pp. 286-287.) Two years after the enactment of the PRA, a California legislative committee observed “. . . many who have championed the cause of privacy leave unclear the statutory boundary where the personal right of privacy and the public’s right to know the workings of its government meet. Those who know the complexity of government records policy and practice will realize that these values do not always remain separate and distinct.” (Assem. Statewide Info. Policy Com., Final Rep. (Mar. 1970) p. 21, 1 Assem. J.

Appen. (1970) (hereafter Final Report).) In California, access to government records has been deemed a fundamental interest of citizenship.

Section 6250 of the PRA states in pertinent part: “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Recognition of the importance of preserving individual privacy is also evident in

section 6250. The PRA begins with the phrase: “In enacting this chapter, the Legislature [is] mindful of the right of individuals to privacy ....’’ (§ 6250.) The penultimate sentence of

section 6254 states: “Nothing in this

section is to be construed as preventing any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.” (See also, Final Report, supra, p. 11.) In addition,

section 6253.1 provides in pertinent part that “a state or local agency may adopt requirements for itself which allow greater access to records . . . .”

Section 6255 provides in full: “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.” (Italics added.) It is by no means clear, however, that public identification of “celebrity” license holders would subject them to increased risk of violent attack. Such disclosure cannot make the figure any more “public” and, in fact, may discourage an attack by a publicity seeking assailant who would forego notoriety for his own personal safety.

In addition, the trial court impliedly found that, subject to the two exceptions, merely releasing the names of license holders posed no undue risk to them and that there was substantial evidence to support that finding. (See discussion, infra, at p. 654.) A similar procedure was recently approved in People v. Memro (1985) 38 Cal.3d 658 [214 Cal.Rptr. 832, 700 P.2d 446], That case involved an attempt by an accused to discover information contained in police officers’ personnel files in connection with a claim that his confession had been coerced. The court held that Evidence Code

section 1045 permitted an in camera examination of the records to determine whether disclosure should be ordered “in the interests of justice” and whether disclosure would not “unnecessarily] annoy[], embarrass!] or oppress!]” the individuals involved. (Id., at pp. 688-689; see also Evid.

Code, § 1045, subd. (d).) The court did not order excision of the exempt information because it determined that segregation would “so reduce the utility of disclosing the documents to the ACLU, that the public interest [would] not be served by requiring disclosure” of the documents. (ACLU, supra, 32 Cal.3d at p. 444.) In the present case, defendants do not argue that segregation would be unduly burdensome.

Even more significant is the fact that the reason for issuance proffered in the majority of the current applications is the blanket statement: “For protection of life and property.” The current licenses are primarily renewals. Contrary to the policy promulgated by the sheriff, these applications for renewal do not provide “convincing evidence of a clear and present danger to life or great bodily harm to the applicant.”

Section 12053 stated in pertinent part: “When any such license is issued a record thereof shall be maintained in the office of the licensing authority which shall be open to public inspection. ” (Italics added.) In their supplemental briefs to this court, defendants argue for the first time that the exemption contained in

section 6254, subdivision (

c) for “[pjersonal, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy” applies to the present case. The information relating to holders of concealed weapons permits is not in any way comparable to personnel or medical records. (See 62 Ops.Cal.Atty.Gen. 595, 600 (1979).) Moreover, in light of the importance of the press and the public’s right to know the workings of its government, disclosure here cannot be considered an unwarranted invasion of privacy.

It is important to note that no statement of confidentiality is included in the statutory criteria for issuing the licenses or in the policy guidelines distributed by the police department. Associate Justice, Court of Appeal, Second District, assigned by the Chairperson of the Judicial Council.