City of San Jose v. Superior Court (San Jose Mercury News)
Cite as: 74 Cal.App.4th 1008


CITY OF SAN JOSE, Petitioner,

SAN JOSE MERCURY NEWS, INC., Real Party in Interest

No. H019262

Filed September 8, 1999

(Santa Clara County Superior Court No. CV773524, Honorable Jamie Jacobs-May)


Joan R. Gallo, City Attorney; George Rios, Assistant City Attorney; Robert Fabela, Deputy City Attorney, for Petitioner City of San Jose

No Appearance for Respondent

Edward P. Davis, Jr., James M. Chadwick, Skjerven, Morrill, MacPherson, Franklin & Friel, for Real Party in Interest San Jose Mercury News, Inc.

Louise H. Renne, City Attorney; Burk E. Delventhal, Deputy City Attorney; Amy S. Ackerman, Deputy City Attorney, for Amicus Curiae in Support of Petitioner City and County of San Francisco


This original proceeding concerns an issue of first impression under the California Public Records Act, Government Code section 6250 et seq. [FN 1] (the Act): whether a city may refuse to disclose the names, addresses, and telephone numbers of persons who have made complaints to the city about municipal airport noise. The City of San Jose (City) petitions for a writ of mandate directing respondent court to vacate its amended order and judgment, which (1) granted the petition of real party in interest, the San Jose Mercury News (Mercury News) for a writ of mandate; and (2) directed issuance of a writ compelling the City to disclose the names, addresses, and telephone numbers of all persons who made airport noise complaints in January 1998, with redaction only of the names, addresses, and telephone numbers of complainants where that information is protected by statute. [FN 2]

[FN 1] All statutory references hereafter are to the Government Code, unless otherwise noted.

[FN 2] We granted the application of City and County of San Francisco and 51 additional cities for leave to file amicus curiae brief in support of City's petition for writ of mandate. The additional cities on the brief are the cities of Albany, Alameda, Bakersfield, Benecia, Brentwood, Buelton, Burbank, Carlsbad, Carpinteria, Chula Vista, Del Rey Oaks, Exeter, Fremont, Hawaiian Gardens, Hollister, Huntington Beach, Lafayette, Lakewood, Lindsay, Los Altos, Marina, Millbrae, Modesto, Monterey, Napa, Needles, Newport Beach, Pacifica, Palm Desert, Pico Rivera, Port Hueneme, Porterville, Redlands, San Diego, San Pablo, Santa Paula, Santa Rosa, Sunnyvale, Thousand Oaks, Tiburon, Tracy, Tulare, Vacaville, Victorville, Walnut, Walnut Creek, Westminster, Whittier, Woodlake, and the Town of Atherton.

City contends that respondent court erred, because the public interest in disclosure of the names, addresses, and telephone numbers of persons who have made airport noise complaints is clearly outweighed by the public interest in protecting the complainants' privacy and in preventing a chilling effect on complaints. We agree. Under the facts of this particular case, where City makes public a monthly noise report and other records which provide a wealth of information about airport noise complaints, the public' s interest in disclosure of the complainants' identity and personal information is minimal. It is not necessary to disclose the names, addresses, and telephone numbers of the complainants for the public to have access to vital information about City' s performance of its state-mandated duty to record and report airport noise complaints. Accordingly, we find that the public interest in protecting the privacy of noise complainants and in preventing a chilling effect on complaints, clearly outweighs the public interest in disclosure of complainants' names, addresses, and telephone numbers. We therefore issue a peremptory writ of mandate as requested by City.

A. The Mercury News's California Public Records Act Request

City owns and operates the San Jose International Airport (Airport). In March 1998, the Mercury News, a daily newspaper of general circulation, sent a written request to Airport's director of aviation for disclosure of public records in accordance with the Act. In particular, the Mercury News sought access to the names, addresses, and telephone numbers of 215 individuals who had made written, telephonic, or e-mail complaints about airport noise during the month of January 1998. The Mercury News also sought disclosure of tapes and transcriptions of the January 1998 telephonic complaints.

City operates Airport under a noise variance from California's Airport Noise Standards, as set forth in the California Code of Regulations, title 21, section 5012. As a condition of maintaining the noise variance in effect, the California Department of Transportation requires City to implement a program for accepting, responding to, and reporting airport noise complaints. Members of the public may make complaints by telephoning Airport, and providing name, address, telephone number, and time and nature of complaint, either directly to Airport staff, or by leaving a recorded message. The complaints are made voluntarily, and Airport does not provide any assurances of confidentiality. City intends the noise complaint program to encourage complaints, which are then independently investigated by City.

As part of its program, City prepares monthly noise reports. These reports summarize the following complaint information for each month: (1) the total number of noise complaints; (2) how many persons made the complaints: (3) average complaints per day; (4) location of complaints by city area; (5) time of day of complaints; and (6) a breakdown of the nature of the complaints, including categorization of whether private or commercial planes were involved, and the type of complaints (intrusion, loud aircraft, overflight, frequency, or other).

City also maintains a computer data base which it describes as "contain[ing] the names, addresses, telephone numbers, the date and time of the actual event as reported by the complainant, the date and time the call was recorded, the complainant's reported zip code, the designated noise sensitive areas corresponding to specific zip codes, whether the complainant is a first time caller, whether the complaint regards a commercial or general aviation flight, the type of complaint (e.g. loud, frequency or intrusion related), and any additional comments made by the complainant and flight details regarding intrusions associated with the complaint." A printed summary of the complaint data base, excluding the names, addresses, and telephone numbers of the complainants, can be prepared by City.

In response to the Mercury News's request for disclosure under the Act, the San Jose City Attorney's office advised that City could not release the names, addresses and telephone numbers of the complainants because their privacy rights outweighed the public interest in disclosure. The city attorney also advised that City had no transcriptions of complaint calls. However, City provided the newspaper with a copy of its monthly noise report. City also offered to provide the Mercury News with a list indicating the date and time of each telephone call, and the nature of the airport noise complaint made during the call.

B. Writ Proceedings in the Trial Court

The Mercury News was not satisfied with the airport noise complaint information provided by City, and filed a petition for a writ of mandate in respondent court, pursuant to section 6258. [FN 3] The petition sought a writ of mandate compelling City to disclose the names, addresses and telephone numbers of the January 1998 airport noise complainants, as well as all tapes and transcriptions of their complaints. The Mercury News argued that it was entitled to disclosure of this information under the Act, because the information concerned a matter of significant public interest, airport noise, and therefore the public interest in disclosure was not outweighed by the complainants' privacy interest.

[FN 3] Section 6258 provides, in pertinent part, "Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter."
Specifically, the Mercury News contended in its petition that writ relief was necessary, because "[w]ithout the identity of the complainants or specifics regarding their complaints, the summary information offered by the City is next to useless. The validity of the complaints cannot be evaluated without access to those individuals doing the complaining. Understanding the extent of the noise problem -- and thereby providing information to the public so the positions of the City and those complaining about the noise can be evaluated -- is impossible without access to the details, e.g., the nature of the complaints themselves."

Respondent court issued an alternative writ of mandate and order to show cause in April 1998. City filed opposition to the petition for writ of mandate. In its opposition, City argued that the airport noise complainants' privacy interest in their personal information outweighed the public interest in disclosure of their names, addresses, and telephone numbers. If this personal information was disclosed, City asserted, the complainants would be subject to harassment and intimidation, and the public' s reporting of airport noise complaints would be chilled.

In support of its arguments in opposition, City submitted copies of a number of letters it had received from Jon Rodgers (Rodgers), representing an organization called Aircraft Pilots of the Bay Area, Inc. (Aircraft Pilots). In his letters, Rodgers requested that City comply with the Act by disclosing the names, addresses, and telephone numbers of airport noise complainants. City had refused to do so. Additionally, City submitted a copy of an article from a newsletter captioned "California Pilot, Official Publication of California Pilots Association[,] The Airport Defenders," dated May 1995. The newsletter article was entitled "The More You Complain, the More You Must Disclose" and discussed Rodgers's efforts to obtain disclosure of the identity of airport noise complainants. Included in the article was the following statement: "The effect of Rodgers' message on complaining homeowners and anti-airport groups has been salutary. . . . [¶ ] As reported last month, the latest shining example of how well the disclosure law works when anti-airport groups are given the message, is the success of the Tahoe Valley Airport. Noise complaints there fell from a high of 450 prior to 1994, to only 36 last year."

On June 5, 1998, respondent court held a hearing on the Mercury News's petition for a writ of mandate. The court granted the petition, explaining that the public interest in receiving information about airport noise complaints was very strong: "[T]he public has the right to know whether or not the governmental entity is doing a good job in taking care of the problems and what the nature and extent of the complaints are to hold the governmental entity accountable for decision making in that regard." The court concluded that this strong public interest was not outweighed by City's mere speculation that disclosure of complainants' names, addresses, and telephone numbers would chill further complaints, noting that City's evidence of potential harassment by pilots' organizations was based on old letters which lacked probative value, and because there was no evidence of pilots' organizations actually intimidating a noise complainant. On June 23, 1998, the court issued the writ of mandate as requested by the Mercury News.

Subsequently, City filed a motion for reconsideration pursuant to Code of Civil Procedure section 1008, contending that it had new evidence of the threat of intimidation of airport noise complainants by the Aircraft Pilots organization. The new evidence submitted by City included more recent letters from the Aircraft Pilots organization to the manager of the Van Nuys Airport, in which the organization requested disclosure of name, address and telephone number of a frequent airport noise complainant. City also submitted copies of letters from Aircraft Pilots to real estate brokers. The letters advised the real estate brokers of the risk that homeowners would expose themselves to fraud liability if they complained about airport noise, then later failed to disclose the noise problem to home buyers.

Respondent court granted the motion for reconsideration, and on September 24, 1998, issued an amended writ of mandate. As a result of the Mercury News' s concession during oral argument that certain complainants' personal information should be redacted, the writ stated, "Immediately upon receipt of this writ to permit public access to and provide copies of the complaints about Airport noise received by the City or the San Jose Airport, including, if any, transcriptions of the complaints, and the names, addresses, and phone numbers of the individuals who complained. You may within 20 days redact from the records provided pursuant to this order and judgment the names, addresses, and/or phone numbers of the individuals who have complained and whose names, addresses, and/or phone numbers are expressly made exempt from public disclosure by statute." The court stayed the execution of the amended writ of mandate until such time as this court issued a ruling on whether the writ would be stayed pending appellate review.

C. Writ Proceedings in the Appellate Court

City objected to the trial court's amended order and judgment directing issuance of the writ to City, and filed a writ petition in this court, seeking a peremptory writ of mandate directing respondent court to vacate its amended order and judgment, and to issue a new order denying the Mercury News's writ petition. City also requested a temporary stay of the amended order pending our consideration of its writ petition. We granted the temporary stay as requested, and issued an order to show cause why the relief sought by City in its petition for writ of mandate should not be granted.

A. The Standard of Review for Orders Under the California Public Records Act

Pursuant to section 6259, subdivision (c), an order of the trial court under the Act, which either directs disclosure of records by a public official or supports the official's refusal to disclose records, is immediately reviewable by petition to the appellate court for issuance of an extraordinary writ. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336 [hereafter Times Mirror].) The standard for review of the order is "an independent review of the trial court's ruling; factual findings made by the trial court will be upheld if based on substantial evidence." (Ibid.) In the present case, respondent court made a finding that City had not shown that any airport noise complainants were actually intimidated by the possibility of disclosure of their names, addresses, and telephone numbers, and we conclude that substantial evidence supports that finding. Keeping that finding in mind, we review respondent court's amended order and judgment de novo.

B. Disclosure of Public Records and the Right to Privacy

Section 6250 expressly sets forth the purpose of the Act: "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and 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." (See Times Mirror, supra, 53 Cal.3d at p. 1338; see also Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 1141.) Thus, the Act was passed "to ensure public access to vital information about the government's conduct of its business." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656 [hereafter CBS].)

The Act was modeled upon the federal Freedom of Information Act, (5 U.S.C. § 552 et seq., hereafter FOIA), and has a common purpose. (Times Mirror, supra, 53 Cal.3d at p. 1338; see also Department of Defense v. FLRA (1994) 510 U.S. 487 [hereafter Department of Defense]. FOIA's "'core purpose'" (id. at p. 495) is to contribute significantly to public understanding of government activities].) Accordingly, federal "legislative history and judicial construction of the FOIA" may be used in construing California's Act. (Times Mirror, supra, 53 Cal.3d at p. 1338.)

Disclosure of public records has the potential to impact individual privacy. The Act defines "public records" broadly to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." (§ 6252; Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 81.) Public records can include "personal details about private citizens," and disclosure may infringe upon privacy interests. (U.S. Dept. of Justice v. Reporters Committee (1989) 489 U.S. 749, 764, 766 [hereafter Reporters Committee]; see also Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 651 [hereafter Black Panther Party] ["societal concern for privacy focuses on minimum exposure of personal information collected for governmental purposes"].)

Disclosure of public records thus involves two fundamental yet competing interests: (1) prevention of secrecy in government; and (2) protection of individual privacy. (Black Panther Party, supra, 42 Cal.App.3d at p. 651.) Consequently, both the FOIA and the Act expressly recognize that the public' s right to disclosure of public records is not absolute. [FN 4] In California, the Act includes two exceptions to the general policy of disclosure of public records: (1) materials expressly exempt from disclosure pursuant to section 6254 [FN 5]; and (2) the "catchall exception" of section 6255, which allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure. [FN 6] (CBS, supra, 42 Cal.3d at p. 652.)

[FN 4] An FOIA example is exemption 6, which protects personnel and medical and similar files when disclosure would constitute a clearly unwarranted invasion of personal privacy (5 U.S.C. § 552(b)(6)). (Department of Defense, supra, 510 U.S. at pp. 494-495.)

[FN 5] Personal information expressly protected from disclosure under the Act, as set forth in section 6254, include library circulation records (subd. j), statements of personal worth or financial data collected by a licensing agency (subd. n), information contained in applications to carry concealed weapons (subd. (u)(1)), home addresses and telephone numbers of peace officers, judges, court commissioners set forth in applications or licenses to carry concealed weapons (subds. (u)(2), (3)), and financial data in applications for registration as a service contractor (subd. (x)). Other personal information also expressly exempted from disclosure by the Act includes home addresses and telephone numbers of registered voters (§ 6254.4), home addresses, telephone numbers and usage data of utility customers (§ 6254.16), home addresses and telephone numbers of elected or appointed officials (§ 6254.21), home addresses and telephone numbers of state, school district, and county office of education employees (§ 6254.3), residence addresses in Department of Housing and Community Development records where confidentiality requested (§ 6254.1, subd. (a)), and residence or mailing addresses in DMV records (§ 6254.1).

[FN 6] Section 6255 provides, "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."

A similar balancing test is utilized in FOIA cases, when an issue of disclosure versus privacy arises: "[I]n evaluating whether a request for information lies within the scope of an FOIA exemption, such as Exemption 6, that bars disclosure when it would amount to an invasion of privacy that is to some degree 'unwarranted,' a 'court must balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect.'" (Department of Defense , supra, 510 U.S. at p. 495.) The public interest in disclosure which must be weighed, is the interest in whether disclosure would contribute significantly to public understanding of government activities. (Ibid.)

The burden of proof is on the proponent of nondisclosure, who must demonstrate a "clear overbalance" on the side of confidentiality. (§ 6255; Black Panther Party, supra, 42 Cal.App.3d at 657.) The purpose of the requesting party in seeking disclosure cannot be considered. (§ 6257.5; Connell v. Superior Court (1997) 56 Cal.App.4th 601, 616; see also Department of Defense, supra, 510 U.S. at p. 495.) This is because once a public record is disclosed to the requesting party, it must be made available for inspection by the public in general. (Black Panther Party, supra, 42 Cal.App.3d at p. 656.) It is also irrelevant that the requesting party is a newspaper or other form of media, because it is well established that the media has no greater right of access to public records than the general public. (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 476.) Nor is the convenience of researchers a factor to be considered. (Reporters Committee, supra, 489 U.S. at p. 772, fn. 20 ["'it was never suggested that the FOIA would be a boon to academic researchers, by eliminating their need to assemble on their own data which the government has already collected'"].)

Continued in Part Two