*1 S134253. Aug. [No. 2007.]
INTERNATIONAL OF AND FEDERATION PROFESSIONAL ENGINEERS, al., Petitioners, TECHNICAL LOCAL AFL-CIO et COUNTY, THE SUPERIOR COURT OF ALAMEDA Respondent; NEWSPAPERS, al., INC., CONTRA COSTA et Real in Interest. Parties *6 Counsel
Davis & Reno and Duane W. Reno for Petitioners. Yank,
Carroll, M. David M. Rice and Troy Burdick & Ronald McDonough, Curiae on behalf of Petitioners and Yoshino for CDF as Amicus Firefighters Police Association. Real Interest Oakland Officers’ Party *7 Rosenfeld, Ruiz & Antonio and M. Suzanne for Weinberg, Roger Murphy Local Union No. 3 as Amicus Curiae on behalf of Engineers Operating and Real in Petitioners Interest Oakland Police Officers’ Association. Party Holstedt, Amick, Miller, Uhrhammer, Johnsen & David E. Mastagni, M.Will Yamada and Stesha R. for California Correctional Mastagni, Hodges Association, Peace Fund of the Peace Officers Defense Officers’ Legal California, Research Association of CAUSE-Statewide Law Enforcement Association, Sheriffs’ Association of Alameda Placer Deputy County, County Association, Sheriffs’ Sacramento Sheriffs’ Deputy County Deputy Association, Association, Sacramento Police Officers’ Stockton Police Association, Officers’ San Mateo Sheriffs’ Association and San County Deputy Francisco Sheriffs’ Association as Amici Curiae on behalf of Deputy Petitioners and Real in Interest Oakland Police Officers’ Association. Party No for appearance Respondent. Olson, Ram & Karl Olson and Erica L. Craven for Real in Interest
Levy, Party Contra Costa Inc. Newspapers,
Rains, Allison Lucia & Wilkinson and Wilkinson for Real in Berry Party Interest Oakland Police Officers’ Association.
Davis Tremaine and R. Wright Thomas Burke for Coalition of University as Amicus Curiae on behalf Real in Interest Contra Costa Employees Party Inc. Newspapers, Grimm,
Trevor A. Jonathan M. A. Bittle for Timothy Howard Coupal Jarvis Association as Amicus Curiae on behalf of Real Party Taxpayers Interest Contra Costa Inc. Newspapers,
Law Alexander Office of Alexander for ANG Judy Judy Newspapers, Californian, Association, Bakersfield California Publishers Newspaper Gannett, Press, Inc., Embarcadero Hearst Copley Publishing Company, LLC, Los Times Communications Angeles McClatchy Corporation, Company, Times, Metro New York The Press Orange County Register, Newspapers, San Amici Curiae on Jose News as behalf Enterprise Company Mercury of Real in Interest Contra Costa Inc. Party Newspapers, Schlosser, Alan Mark Peter Law Offices of Amitai Schlosberg; Eliasberg; L. Schwartz, Schwartz, Sitkin; Amitai Lisa and Jordan C. Budd for ACLU of California, California and ACLU Northern ACLU Foundation of Southern & as Amici Curiae on behalf of Foundation of San Counties Diego Imperial Real Contra Costa Inc. Interest Party Newspapers,
327 Opinion the names and the whether
GEORGE, This case question C. presents J. $100,000 including or more year, earning per salaries officers, California Public disclosure under the are from exempt Code, Court of concluded (Gov. et The Appeal Records Act 6250 seq.).1 and not, norms of California public policy because “well-established they names and salaries exclude employee American public employment the reasons For explained from the zone of financial privacy protection.” below, the Court of we affirm the judgment Appeal.
I. (the Contra Costa Inc. Newspapers), Reporters employed Newspapers, (the Act) Act that the City under the California Public Records requested names, titles, (the the and salaries job gross Oakland them with City) provide 2003-2004, $100,000 earned or more in fiscal year of all who city employees exceeded that whose salaries including those individuals base equaled $100,000 or amount and who earned a lower base but were salary paid those to disclose salary because of overtime work. The City agreed more classification, salary overtime information for each but refused job provide identi- individually information linked to individual employees, claiming a The sought fied information is from disclosure. salary exempt Newspapers the court to to disclose City writ of mandate in the superior compel records. salary requested At least during
The refusal was a from its City’s departure past practice. director disclosed years through City’s names, titles, and this information was and salaries of all job city employees, The its changed May in a local City policy published newspaper. court decisions as factors this decision two citing appellate supporting (Teamsters recognized right public-employee Priceless, (2003) 112 1500 Cal.Rptr.3d Local 856 v. LLC Cal.App.4th [5 847] (2003) 111 (Priceless) City Angeles Superior Cal.App.4th Los (2) increased concerns Los (City Angeles)); 915] from to its strong prior policy financial regarding privacy; opposition addition, because the has City In two unions that represented city employees. the salaries disclosing it concluded that a merit-based compensation system, members of name each would year permit of public employees by calculating evaluation of each employee to construct performance would which year, in his or her from year increase percentage invade employee’s privacy. Code unless otherwise noted. statutory references are to the Government All further unions, court leave to intervene to two superior granted employee
International Federation of Professional and Technical Local Engineers, (Local 21), (the AFL-CIO and the Oakland Police Officers Association Police Association). Officers The court the superior granted Newspapers’ petition and ordered the to disclose the City information. The court requested salary concluded the that and the unions had that City intervening failed to establish $100,000 city who earn or more have employees any protected privacy interest in information related to their and found that such salary, salary information had been consistently disclosed in the both the by past, City federal, state, and other local by governments. the and some Although City other cities had refused to recently disclose identified individually information, the court concluded that these refusals to reflect appeared “uncertainty about the in of recent proper interpretation light [Act] court decisions.” that,
The court also concluded even superior assuming privacy existed, that interest is the outweighed interest in disclosure. The by court found “extremely the fears two speculative” declarants expressed that fraud and unwanted solicitations in the identity would ensue event Furthermore, information their salaries were to be disclosing released. the found, court the evidence superior presented by Newspapers supports their contention that disclosure of the names of in with connection their individual salaries is “in cases many disclose necessary inefficiency, favoritism, and fraud with to the nepotism, use of respect government’s funds for salaries.” The court also the Police employee rejected Officers Association’s contention that a different result is under Penal required Code sections 832.7 and 832.8 with to its members because those regard confidential, statutes render officer the court conclud- information ing is included within the definition of “personnel records” under the latter statute.
The chose not to City from the rendered appeal judgment superior court. Local 21 and the Police Officers Unions) Association (collectively, filed a for writ of mandate in the Court petition After an issuing Appeal. cause, order to show denied court the Unions’ then Unions petitions. review in this court. successfully sought
II.
A. in is essential to the of a democ Openness government functioning in the democratic the notion that racy. government should “Implicit process be accountable for actions. In order to verify its individuals accountability, against checks access permits files. Such to government
must have access (CBS, in the process.” and secrecy political exercise of official arbitrary power 470], P.2d Cal.Rptr. 42 Cal.3d Block Inc. v. Act, that “access declared Legislature omitted.) fn. In adopting fundamental is a business the conduct of the people’s concerning an result of (§ 6250.) As the this state.” every necessary right person enshrined in is now this the voters principle initiative adopted by access to information right have the Constitution: “The people state therefore, business, ... the conduct of the people’s concerning (Cal. scrutiny.” shall be agencies open officials and writings *10 3, Const., I, (b)(1).) art. subd. § of individuals to privacy.” “mindful of right has been
The Legislature of to the requirement the Act are numerous (§ 6250.) exceptions Set forth in disclosure, individual privacy. are designed protect of which many public addition, facts of the if “on the a catchall (See 6254.)2 applies In exception § clearly the record not disclosing interest served by case the public particular 6255, (§ record.” of the interest served disclosure outweighs public is in the Act applies, stated (a).) Unless one of exceptions subd. relating containing to “any writing entitled to access owned, used, by any or retained business prepared, conduct public’s 6253, 6252, (a).) subd. (§ (e); subd. see state or local agency.” § of meet the definition the records at issue The parties agree 6253, 6252, (a).) The subd. (§ (d); subd. contained in the Act. § records exceptions of the statutory be disclosed unless one records therefore must bears the burden records to withhold seeking party applies. is the 6255.) At issue here (See that an demonstrating exception applies. § files, medical, of which the disclosure or similar for exemption “[personnel, 6254, (§ privacy.” unwarranted invasion of personal would constitute an named (c).) public employees contend that the salaries of subd. The Unions an constitutes their disclosure files” and that ... or similar “personnel under this exception. privacy” “unwarranted invasion personal a entity’s payroll the records of public not decide whether We need because, for assuming files” or similar constitute “personnel... expenditures do, does not apply; the exemption that they of discussion purposes invasion personal an “unwarranted here does not constitute two 6254, us to balance (c).) requires This (§ exemption subd. privacy.” interests, public’s the Act seeks protect—the of which both competing access to right to include amended the state Constitution initiative that The 2004 I, Const., (Cal. art. statutory exceptions. preserves such explicitly (b)(5).) interest in disclosure and the individual’s interest in personal Balanc- privacy. interests, these ing we conclude that disclosure of the information at issue in the case would present not constitute an unwarranted invasion of personal privacy.
“A
class of
particular
information is
when well-established
private
social norms
the need
recognize
to maximize individual control over its
dissemination and use to prevent unjustified embarrassment or indignity.”
(Hill v.
National Collegiate
Athletic Assn.
7 Cal.4th
35 [26
834, 865 P.2d
(Hill).)3 The
parties agree
633]
individuals
have a legally recognized privacy interest in their
financial informa
personal
tion. Even before the
explicit
incorporation
right
into our
privacy
Constitution,
state
we
that “the
recognized
of one’s
protection
personal
financial affairs and
(or her)
those of his
and children
spouse
against
disclosure is an
compulsory public
of the zone of
which
aspect
the Fourth
protected by
Amendment and which also falls within that penum
bra of constitutional rights into which the government
may
intrude absent
showing
need and that
compelling
the intrusion is not
broad.”
overly
(City
Carmel-by-the-Sea
2 Cal.3d
Young
Cal.Rptr.
*11
466 P.2d
(City Carmel).) The financial
225]
disclosure statute at issue in
of
City Carmel required every
officer and
public
candidate for
every
state or
of
local office to disclose the nature and extent of his or her investments in
$10,000
excess of
as well as those of
or
his
her
and their minor
spouse
children. We held that the law was an overbroad intrusion into the
of
right
and
privacy
thereby invalidly restricted the right to seek or hold
office
public
or employment.
of
right
concerns one’s
and
privacy
“[T]he
one’s
feelings
[citation],
own
of mind
and
peace
one’s
certainly
financial affairs are
personal
an essential
Carmel,
element of such
(Ibid.)
of mind.”
In City
we
of
balanced the
minimize
need to
government’s
conflicts of interest
against
individual’s
affairs,
to maintain
right
in his or her
privacy
financial
personal
that the financial
concluding
disclosure statute at issue was unconstitutional
because it made no
to link the
attempt
disclosure
to the
requirements
dealings
269;
assets that
be
might
rise to a
expected
give
(Id.
conflict.
at
but
p.
County
see
(1974)
345,
Nevada v. MacMillen
financial matters contrast, related to case, directly of financial matters involves disclosure course, many we that recognize Of the individual’s public employment. individuals, be uncomfortable with may including public employees, that of these individuals many their and knowing salary of others prospect basis, even within that information on selective only would share that disclosure of an individual’s Nor do we question workplace. Nonetheless, in light or embarrassment. cause discomfort salary may an individual’s in government, strong transparency public policy supporting is signifi- in a earned in employment expectation privacy income earned in the less than the expectation regarding cantly privacy sector. private their salaries to may
To the extent some public employees expect is, matter, reasonable one and remain a is not a private expectation we entitled to diminished in the test accordingly, weight balancing apply “customs, (c). under section The practices, physical create or inhibit reasonable activities settings surrounding particular may (Hill, 36.) “A ‘reasonable’ 7 Cal.4th expectations privacy.” is an entitlement founded on based objective broadly expectation (Id. based widely “broadly norms.” accepted community widely community government employee accepted applicable norm[]” information is disclosure. “the Well before the Act was General stated that Attorney adopted, name of officer and as well as the amount of his every public employee, Act, (State a matter record.” Retirement Employees’ salary, retirement ben- [concluding state-paid Ops.Cal.Atty.Gen. *12 Act, records].) the the General Attorney efits are of public Following adoption (See Payroll has maintained that same Records consistently County position. Records, (1977) records as Public 60 110 Ops.Cal.Atty.Gen. [county payroll records]; are Records of names and amounts received retirees public for Awards, (1985) 73 68 Ops.Cal.Atty.Gen. [records Performance and awards to executive granted managers amounts reasons for performance Act].) of a are to disclosure under city subject that government payroll The General’s Attorney long-standing position federal, information is is consistent with the of practice widespread state, to the court by and local Evidence submitted governments.4 superior 4 cases, analogous provisions 21 a federal decided under of the federal Local cites line of (5 (FOIA) 552), recognized privacy of Act U.S.C. that have § Freedom Information (See, e.g., paid with funds. employees private companies in the salaries of of who 1479, 1483-1484; Industry Dept. (9th 1994) Painting Hawaii v. Air Force Cir. 26 F.3d of of 332 demonstrates that disclosure of information has been Newspapers salary of both the state and of local not practice governments, including only of Oakland itself but also the
City
of
and
nearby City
Berkeley,
City
Francisco,
of San
as well as Contra Costa
County
County.
Newspapers’
evidence also establishes that it is a
of
State Controller to consider
policy
the name and
of
salary
a matter of
record and
every public employee
to disclose this information to
member of the
any
public upon request.
rates,
federal
Additionally,
regulations
require
salary
including
bonuses,
awards and
of most of its
be made
special performance
case,
(5
(2007).)
C.F.R.
293.311
The Court of
in the
public.
Appeal
present
review
of case law from other
undertaking
jurisdictions, observed
“disclosure of
names and salaries is
public employee
overwhelmingly
”5
norm.
1300, 1303;
(D.C.
Painting
Drywall
1991)
and
WorkPreservation Fund v.
Cir.
F.2d
HUD
936
81, 87-88;
(2d
1991)
Hopkins
Dept. Housing
v. U.S.
& Urban Dev.
Cir.
F.2d
929
Sheet Metal
of
(3d
1998)
903;
Dept.
Campbell
Workers v.
Veterans
Cir.
135 F.3d
see also
v.
of
Affairs
(10th
1976)
58, 62.)
United States Civil Service Commission
Cir.
F.2d
539
These cases are
distinguishable
present
they
from the
one
public employees.
because
do not involve
5
Appeal
following
Municipality Anchorage
The Court of
cited the
1264
cases: Local
v.
of
(Alaska 1999)
(disclosure municipal employees’
P.2d 1132
of
973
names and salaries does
right
not violate their
municipal
provision exempting
constitutional
of
code
disclosure);
personnel
County
(1984)
records from
Richmond
Corp.
&c. v. Southeastern &c.
252 Ga.
(county hospital authority required
19
S.E.2d
and
[311
806]
disclose names
salaries
$28,000
employees earning
per year); Magic ValleyNewspapers
or more
v. Medical Center
(2002)
(names
333 may interest that public employees Counterbalancing any cognizable in is the strong public disclosure of salaries avoiding have in their in the we have observed its As money. how the knowing government spends documents, to court of access right proceedings context public’s “ ‘to for members of the public expose access makes it possible public ” (NBC and favoritism.’ inefficiency, prejudice, corruption, incompetence, 1178, 1211, (KNBC-TV), (1999) Subsidiary Inc. v. Superior 20 Cal.4th Estate (1977) 337], 67 fn. 28 P.2d quoting 980 [86 of Hearst 821].) 777 Cal.Rptr. Cal.App.3d [136 laws, a has been context of distinction analogous open meeting
In
matters,
in
closed
drawn between
which
be discussed
sessions
may
(San
salaries,
in
which must be discussed
session.
open
public,
45].)
Union v.
Council
(1983)
Diego
City
146
947
Cal.Rptr.
Cal.App.3d
[196
law,
(Brown Act)
Act
California’s
M. Brown
meetings
Ralph
open
bodies be
(§
et
that the
of local
meetings
legislative
54950
seq.), requires
)6
(§
The Brown Act
to the
as otherwise
open
public, except
provided.
54953.
a closed session for the consideration of “the appointment, employ
permits
ment,
or dismissal of a
em
evaluation of performance, discipline,
the San
Union
case
Diego
(§
(b)(1).)
. . . .”
Accordingly,
ployee
discuss,
session,
in closed
held that the Brown Act
council to
city
permitted
discus
of various
but that
management
any
performance
city
employees,
must take
sion or decision about
increases for those
employees
place
1980)
records);
(Utah
Redding Brady
(hospital required
payroll
Legislature compensation paid public employees viewed the amount of in the context of employment contracts as matter of so substantial it could not be (under (c)) (under outweighed by any other claim subd. interests § (a)).
335 disclosure, the trial court’s order Court In the upholding requiring Priceless, supra, declined to follow expressly Cal.App.4th Appeal that, above, to the of Oakland’s decision to a case as noted contributed City the salaries of its disclosing employees. discontinue its historical practice the we Priceless to Like Court of find be Appeal, unpersuasive. cities, case, a disclosure of
In that a from number newspaper requested, the names and salaries of The court a trial city upheld employees. appellate a a number of em- sought by court order granting preliminary injunction, unions, the to withhold such records resolu- cities ployee requiring pending context, tion of the case. In that and limited the procedural posture appellate the court concluded that the unions were to on their claim that likely prevail (c). records were from disclosure under section exempt The that Court of in Priceless the Appeal rejected newspaper’s argument had no the their individu- right control dissemination of public employees identified information. The that Act ally court the appellate reasoned (c); (§ in one’s files. recognizes right privacy personnel Priceless, 1514—1515.) at Because the had supra, Cal.App.4th pp. parties that the of the details salaries were maintained stipulated city employees’ files, confidential the for “the trial found Appeal support court’s that a was at stake that the recognition interest privacy expecta- (Priceless, tion of was reasonable under the privacy circumstances.” omitted.) at fn. the Cal.App.4th Weighing individual’s privacy disclosure, against interests the the court found no public’s right appellate evidence in the trial record to the that contention support newspaper’s “revealing the individuals’ names would shed on light government conduct.” (Id. it, 1522.) at The reviewing court concluded that on the record before the interest in how is and in knowing money being spent informed of the met earnings of various levels was government employees the bare the disclosure of staff of the set for positions compensation each need the without the to disclose the names of position, employees the those court characterized as occupying positions. “speculative” contention disclose might names of newspaper’s revealing but also noted that both would sides improprieties, “opportunity have 1522-1523.) (Id. Ultimately, additional evidence” on the issue. present pp. court “in of the limited injunction light appellate upheld preliminary (Id. evidence before the trial court.” at p. case,
Because of the value procedural posture precedential Priceless is In contrast to the limited record available to the court slight. above, Priceless, the As hearing. case was decided after full present noted evidence that disclosure demonstrating Newspapers presented substantial serve the of the names and salaries of would public employees also evidence to be Act. The sought protected by Newspapers presented entities, which historic concerning practices sup- governmental other that public employees the conclusion ported any expectation have that their salaries will be reasonable. may confidential the extent be read to stand for the may To the decision in Priceless *16 to that entities in refusing the of proposition practice particular governmental in that disclose information can create interest those records salary a privacy Act, court in must be under the The recognized appellate we disagree. Priceless that because the in that case kept concluded cities that, parties were confidential, in their information the salary expectation privacy employees’ on narrowly was reasonable. court’s focused salary The decision information whose;, in that the of the cities were practice particular being sought records case, ones in evidence. because those were apparently practices only The the not, however, of a cities a based “broadly few does demonstrate practice norm[].;”.(Hill, 7 Cal.4th at The widely accepted community Act should in the same maintained way by to records apply comparable of record entities. not á comparable governmental type br Whether particular is should not of the government exempt depend upon the.peculiar practice , issue—otherwise, into an could transform records entity agency a of time. ones to over private simply by refusing period disclose them informa- Local 21 also contends that before identified individually disclosed, 6254, a (c) be must be on tion section subdivision may applied basis, to into . interest the case7by-case taking peculiar account privacy the in- in being individual as well as the interest employee particular, public 21 formed the of that Local by employee.8 approach The proposed records would reverse the in the Act. The presumption openness contained 8 (tie States argument, upon In decision of the United support this Local relies Admin, Archives and v. Favish National Records in 541 U.S. Supreme Court below, (Favish); 319, explained the EOIA. As interpreting L.Ed.2d S.Ct. 1570] 6254, to provision interpreted because the of the FOIA is dissimilar section Favish . (c), inapposite. that case is subdivision Favish denied relief seeking compel production of death-scene to an individual the .to. counsel, an deputy whose death resulted from photographs body of the of the President’s high exemption ‘.‘records or information apparent The court the FOIA’s for suicide. considered when, reasonably expected be “could compiled purposes” production law enforcement their for (5 552(b)(7)(C), personal privacy.” unwarranted invasion italics constitute an § U.S.C. added.) privacy recognizing surviving family that the In deceased’s had members body, high concept personal photographs the of his the court took an view expansive language the used in the law privacy. specifically upon It relied the that circumstance an unwarranted exemption—“ reasonably expected ‘could be to constitute enforcement records the used in the personal privacy’ language ”—was “in marked to” invasion of contrast “ records, ‘would constitute applies only which when exemption for the ” (Favish, supra, quoting privacy.’ 541 U.S. at clearly personal unwarranted.invasion of ) ) 552(b)(6), (7 5 U.S.C. . by law enforcement high [the The court held concerns “[w]here addressed person requesting exemption] present, exemption requires “information
at issue are because contain they relating presumptively open (§ (e).) the conduct of the The on subd. burden is public’s business.”. the records to demonstrate that the record in agency maintaining question (§ 6255.) and the Unions failed to evidence exempt. City present any that the its establishing City’s disclosing consistent past practice employ- ees’ salaries created or for safety those ány privacy problems would interest in disclosure. outweigh
Claims for
facts and circumstances
an
exemption
upon
peculiar
based
could,
course,
individual and his or her duties
be considered either under
(c)
section
under the catchall
which
exemption,
applies
when “on the facts of the
case the
interest served
particular
disclosing
record
clearly, outweighs
interest served
disclo
sure of the
(§
(a).)
record.”
For
the Police
example,
Officers
*17
officers,
Association contends that
who are
undercover often receive
working
amounts of overtime
large
and that
of their
pay,'
disclosure
names and salaries
could reveal their identities and
their
If an
endanger
safety.
officer’s anonym
ity
essential to his or her
the need to
the
safety,
officer would
protect
the
outweigh
interest in disclosure and would
the
justify withholding
Standards,
(Commission
officer’s name.
on Peace
42 Cal.4th at
supra,
Officer
301.) “The
a
p.
has
interest in
strong
the
maintaining
safety
enforcement,
of its law
efficacy
But
agencies,
that somehow
prospect
‘[t]he
hands,
this information in the
of the
will increase the
press
to some . . .
danger
cannot alone
a
in favor
support
finding
(CBS,
of nondisclosure as to all.’
Inc. v.
;
Block[,
supra,]
.)
652 . . The means for
p.]
such
protecting
[at
Cal.3d.
officers is to
the
segregate
information
to them from the
relating
records that
(Commission
Standards,
are disclosed.”
oh Peace
42 Cal.4th at
supra,
Officer
301;
Code,
6257;
see
p.
also Gov.
American Civil Liberties Union
440, 453,
Foundation v.
32 Cal.3d
Deukmejian
fn. 13
Cal.Rptr.
235,
Local 21 that even if the salaries argues employees record, of that “limitations on the method of disclosure matter of public constitutionally intrusions upon information ... appropriate prevent mass, indiscriminate Local 21 contends that the privacy rights.” protected related to all of Oakland City employees disclosure of $100,000 more constitutes an invasion of their right privacy or earning Constitution, I, because under article section 1 of the California providing contribute to the accumulation of information information in that form could interests. be commercial might these individuals concerning exploited employees Local 21 asserts that database of government For example, “[a] $100,000 commercial or more would be of obviously great who make year of certain kinds of investments and insurance policies,” interest to marketers numbers, addresses, this information with who could phone supplement to solicit the Internet and contact e-mail addresses obtainable on Therefore, the salaries of business. Local 21 the issue whether argues, their be decided on a case-by- must be disclosed should government employees basis, of the individual into account the interest taking case particular in the disclosure of that individual’s and the asserted involved *18 salary. of the constitutional right privacy a violation claiming
The party I, Constitution must establish in section 1 of the California established article interest, a (2) reasonable (1) expectation a legally protected privacy circumstances, of the a serious invasion privacy under the privacy above, we 39-40.) Cal.4th at As discussed (Hill, interest. supra, pp. not have a reasonable expectation that do conclude public employees Furthermore, no Local 21 offered in of their salaries. the amount privacy at that the information court its assertion evidence in the supporting superior a manner commercial interests in was to be likely exploited issue observed, court As the superior would invade the privacy employees. resulting adverse introduced evidence of any consequences Local 21 has not the information although information in the past, the disclosure of this from in a local newspaper. was regularly published that the in asserting that Local 21 is correct were we to assume
Even commercial be enterprises, at issue might exploited information information here of the not render disclosure circumstance alone would to determine In order constitutional right privacy. a violation of the issue whether an invasion of alleged privacy serious to constitute a sufficiently violation of that constitutional right, competing privacy nonprivacy (Hill, interests must be balanced. 37.) 7 Cal.4th at “Invasion of a interest is not a violation privacy of the state constitutional if right privacy the invasion is a justified by (Id. interest.” competing above,
As discussed
has a
well-established
strong,
interest in the
amount of
Indeed,
salary paid
Local 21 does not
employees.
dispute
that the job classifications of individual
and the
employees
range
pay
associated with those classifications should be available to the
public.
interest of
in
avoiding unwanted
or
solicitations marketing efforts
is,
hand,
on
other
comparatively weak. The City has not been asked to
disclose
contact
any
information for these
such as home
employees,
addresses
(Cf.
telephone numbers.
San Jose v.
Superior
(1999) 74 Cal.App.4th
1008, 1021
Cal.Rptr.2d
names,
not
[city
[88
to disclose
required
552]
addresses, and
numbers of
telephone
who made
persons
about
complaints
noise,
airport
because invasion of
not
outweighed by
6255];
disclosure under
see also Department
v. FLRA
of Defense
340 right concluded that the “state constitutional of
The court Westbrookalso of crimi extends to defendants from unauthorized disclosure privacy protect 165-166, (Westbrook, 27 nal records.” pp. history Cal.App.4th 76-77 Craig Municipal Court citing Cal.App.3d [161 conclusion, 19].) Dept. In cited U. S. of this Westbrook support Cal.Rptr. of U.S. L.Ed.2d Justice v. Committee Reporters 1468], did the disclosure of which held that the FOIA not require S.Ct. an of Justice. The by individual citizen’s sheet rap compiled Department “can be reasonably in that case concluded that such disclosure high court and that when the seeks no request to invade citizen’s expected privacy, but records that the agency, merely ‘official information’ about a Government ” of to be the invasion is ‘unwarranted.’ storing, Government happens privacy (Id. Committee protect The decisions in Westbrook Reporters not, records that does when sensitive information contained in governmental those contribute to the under from records and separated compiled, public’s of standing government operations. of Association
The California Rules Court cited Police Officers by contained in serve to of information private similarly prevent compilation of) to (and court The rules limit Internet access bulk distribution records. records, calendar, actions, of electronic court for register except id., Court, 2.503, (b), (Cal. (f) subds. & but see rule (g); index. Rules rule 2.503, criminal (f) on internet access to case [exception prohibition designed files limitations are extraordinary].) in which is These records in manner that courts from their prevent distributing permits document, from information culled “personal any paper, compilation Court, com., Com. Cal. Rules of rule exhibit filed in a lawsuit.” (Advisory Otherwise, 2.503, information (f), (g).) type aggregate may subds. “[t]his to the be for commercial or other unrelated purposes operations exploited courts, (Ibid.) of individuals.” at the expense rights case, in information in the Newspapers present sought Westbrook, Reporters addressed in contrast to the type Court, Committee, is information that and the California Rules of not private Rather, it of a entity. to be collected in the records happens an the disclosure of government operations, information regarding aspect of those understanding oversight to the which contributes public’s of public interested monitor the by allowing expenditure operations parties under the Act does not violate the The disclosure such information funds. Constitution. the California right of privacy protected C. *20 officers, Associa the Police Officers
As to who are peace bars of the amount of that Penal Code section 832.7 tion contends an officer’s The Act “the from disclosure records salary. exempts any disclosure of which is or to federal or state exempted prohibited pursuant (Gov. law.” (k).) Code subd. Penal Code section 832.7 provides § , officer . . . records . . . or information obtained from “[p]eace personnel records, these are confidential . . . .” Because officer records peace and information obtained from such records are made confidential Penal 832.7, Code section from they disclosure under Government Code exempt (k). Standards, section (Commission subdivision Peace on Officer 286; Press, supra, Cal.4th at Copley Inc. v. p. Superior Cal.4th 288]; 1284-1286 6276.34.) 141 P.3d § The records” phrase “personnel is defined in Penal Code section to 832.8 include file maintained under “any that individual’s name her his or employing agency of the containing relating any following: [][] data, (a) status, members, Personal marital including family educational and addresses, home employment history, (b) or similar information. Medical [][] benefits, []Q(c) history. advancement, Election of (d) employee Employee [f] (e) or appraisal, or discipline. Complaints, investigations of [][] complaints, an event concerning or transaction in which he or she or which participated, he or she perceived, the manner in which he or pertaining she duties, his her performed (f) or other information the Any disclosure of [f] which would constitute an unwarranted invasion of personal privacy.” Police Officers Association contends that information constitutes salary “per- 832.8, sonal data” under Penal Code section (a). subdivision It argues salary is it “personal” because relates to the individual and because most view their persons as a matter. We private disagree. We begin with the ordinary meaning word in question.
“ ‘Personal’ is defined generally to mean ‘of or to a relating particular (Webster’s 1686; 3d person.’ New Internat. Dict. American p. Heritage (4th 2000) however, Dict. ed. 1311.) The word p. also carries a ‘personal,’ concerns,’ connotation of or ‘private,’ meaning ‘peculiar proper private ‘not (Webster’s Dict., or general’ 1686), 3d New Internat. supra, p. or business, interests, ‘[concerning and his or her particular person private activities; Dict., (American intimate’ 1311).” Heritage supra, (Commission Standards, on Peace 42 Cal.4th at [names Officer officers are not information within the of Pen. personal meaning Code, 832.8, (a)].) A to a relates employee’s particular but, above, as discussed it person, is a matter of interest and not a matter of the primarily individual’s business. private
Furthermore, 832.8, considering language of Penal Code section whole, (a) as a we conclude that the did intend Legislature the words data” to their “personal carry broadest encom possible meaning, and all information passing any related to a officer. Because particular *21 342 data”—followed a (a) general term—“personal
subdivision includes status, members, family of nonexhaustive list specific examples—“marital addresses”—the principle home history, educational and employment intent. the discerning Legislature’s ejusdem generis provides guidance in a follow words general whether words “Ejusdem generis applies specific event, term or category In either general statute or vice versa. are enumerated that are similar to those which ‘restricted to those things ” 1142, Cal.3d (1991) XIV 52 (Harris v. Growth Investors Capital specifically.’ 614, that if 1160, 873].) “The canon presumes 805 P.2d fn. 7 Cal.Rptr. [278 sense, unrestricted it word to be used in its intends a Legislature general since things or classes things not also offer as examples peculiar does (Kraus Trinity Management v. then would be surplusage.” those descriptions 485, 718]; Services, 116, P.2d 999 (2000) 23 Cal.4th 141 Inc. [96 Code, those which are qualify Civ. 3534 expressions see also § [“Particular & Housing Dist. v. Fair Community College Employment Peralta general”]; 114, 40, P.2d 46 801 (1990) Com. 52 Cal.3d Cal.Rptr. 357] [statute [276 effectuate the action” as it believes will commission to take “such authorizing (§Act 12900 Housing the California Fair Employment purposes to, reinstatement or but not limited hiring, upgrading et “including, seq.), in any back and restoration membership with or without pay, employees, commission to award does not authorize labor organization,” respondent Sears, Dist. County & Co. v. San Diego Roebuck damages]; compensatory 330-331 Cal.Rptr. 25 Cal.3d Carpenters [158 Council of “ including that is unlawful reference to ‘conduct P.2d 599 676] [statute’s conduct, of access or the unlawful blocking disorderly breach of peace, exists, unlawful or other similar where a labor dispute egress premises ” which, unlike the listed does not to peaceful picketing, activity’ apply substantially rights involve violence or impair “does not examples, others”].) 832.8, Code section data” listed in Penal of “personal examples information, from the arising as (a) salary, not include such do his or her file. that maintains with the agency
officer’s employment “Rather, that commonly are they types personal either during her to his or employer, an employee supplied (Commission on Peace or upon employment.” application process Officer omitted; Standards, Police cf. Garden Grove fn. Cal.4th County Cal.App.4th Orange Superior Department data” officer is date of peace “personal Cal.Rptr.2d 642] [birth contrast, 832.8, of information Code, In (a)].) categories under Pen. advancement, ap- relationship—employee that arise out of employment (d) in subdivisions listed separately, and complaints—are praisal, discipline, the word intended Legislature 832.8. Had the (e) of Penal Code section sense, listing examples in its broadest to be employed “personal” (a) indeed, subdivision would have been there would unnecessary; have been *22 no need (b) to include (e), items each through of which relates to the individual officer.
In view of the foregoing history of disclo widespread practice information, sure of had the salary intended Penal Legislature Code section 832.7 to the change law in that we would to see respect expect to that effect specific language in the The statute. Legislature could easily have added to the list of “salary” records personnel set forth in Penal Code Indeed, section 832.8. the Legislature’s inclusion of one form of compensa tion—“election of a employee benefits”—is indication strong that the omis sion of was “salary” deliberate. the enumeration Ordinarily, of one item in a statute that the implies Legislature intended to exclude others. v. (People 577, (2005) 761, 35 Cal.4th Guzman 860].) 107 P.3d Cal.Rptr.3d [25 this Although is not if principle the result would applied be contrary legislative intent or when no manifest reason for appears one excluding matter and (see including another (1999) People 19 Cal.4th Anzalone 160]; Cal.Rptr.2d 969 P.2d [81 Estate of Banerjee (1978) 21 Cal.3d 527, 539, fn. 10 657]), 580 P.2d Cal.Rptr. [147 in the context present there is an obvious rationale for the Legislature’s decision to include election of benefits but not as salary of a part officer’s confidential peace personnel circumstances, record. Absent unusual an employee’s selection of benefits— such as the insurance, type medical the number of family members covered, and the choice whether to obtain life or disability insurance—reveals information the concerning individual’s life and personal financial decisions little, but if about the anything, operations government agency would not be revealed by making benefits offered types generally to its agency The employees. amount of to a salary paid individual, particular hand, on the other does information provide concerning the governmental in which the agency has a and tradition legitimate ally recognized interest.
The Police Officers Association contends that alternatively officers’ peace salary information is “obtained from” information in records. In personnel the Police support, Officers Association (1) observes that of Oakland City employs merit-based compensation system, and the amount of salary paid based on an education, of the appraisal (2) officer’s performance; training, and special abilities such as also can bilingualism result in an increase in compensation; timesheets, of overtime payment is based on wages which assertedly also are (see records protected personnel v. State Guthrey fn. 5 Cal.App.4th 27]). Because California information in a file is personnel used to establish a officer’s rate of peace and, earnings rate, thereby, calculate his or her salary Police Officers Association contends that is “obtained from” the personnel file.
The Police Officers Association’s proposed interpretation sense, In informa “obtained is strained. its to obtain ordinary from” phrase Internat. (See of it. Webster’s 3d New tion means come into possession Dict., “information obtained from phrase personnel most read to information that was acquired files” is reasonably encompass Thus, maintained Penal Code sections from file employer. reflecting 832.7 and 832.8 do not mandate city payroll excluded because some officer information be from merely facts relied the amount of be recorded determining salary may upon in the files. agency’s personnel *23 3 curiae Union No. that Engineers argues peace
Amicus Local Operating (f) falls under of Penal Code section salary officers’ information 832.8, which other information the disclosure of which would includes “[a]ny the an invasion of We privacy.” reject constitute unwarranted personal the for the that to conclude above that same reasons led us argument of does constitute an information public-employee (§ under the Act. “unwarranted invasion of personal privacy” context, (c).) In this we that officers in reject general subd. notion peace their that have a interest in the amount of salaries than greater privacy interest other and we observe employees, possessed is as officers and other in disclosure between equally strong peace officers, above, working As individual such those noted as employees. peace undercover, in their may legitimate maintaining anonymity, have a interest under and that interest would warrant their names from disclosure exempting however, circumstance, the Act. This does not the conclusion support a identity officers as have a interest in their category peace general 832.8, render under Penal sufficient to records confidential Code section (f) individually records include identified officers. subdivision whenever those Standards, 301.) (See Commission on Peace Cal.4th at supra, p. Officer Angeles, We with the conclusion reached Los disagree contrary City of case, In that a officer’s wife subpoenaed 883. Cal.App.4th peace husband’s records in a marital dissolution proceeding, requesting her payroll reason, his for records of any information all sums to him concerning paid in any in a retirement or stock interest savings plan, plan, any plan, union, savings held in a credit any insurance sums plan program, plan, (Id. 886.) at The husband deferred or elsewhere. compensation p. plan, confidential officer claiming records were challenged subpoena, peace and 832.8 and to Penal Code sections 832.7 pursuant personnel could be of cause only upon showing good pursuant therefore disclosed The 1045. in Evidence Code sections 1043 and established procedures that a Angeles payroll of Los officer’s City agreed peace Court Appeal of 832.8, Code but as defined in Penal section records are records” “personnel in a dissolution officer not marital required, held that of a is spouse peace with Code in order those Evidence sections to obtain proceeding, comply information, such because owe their same fidu- officers “peace spouses to reveal financial information as other citizen of this state.” ciary duty any (City 885.) Angeles, Los court in that the City Angeles Los concluded records at appellate records,
issue came within the definition of officer because constituted “information the would they disclosure of which constitute an Code, 832.8, (Pen. unwarranted (f).) invasion personal privacy.” The court is “Payroll stated: information Ask personal. any ordinary reason- able if or she he would want their person routinely payroll disclosed to involved in and one hear a would parties litigation resounding, ‘No.’ Even scale though pay public employees generally [Citation.] record, matter of it is different quite a to know with thing precision benefits, another selection person’s salary, retirement income. potential Few records are deemed more Of all records it personal. kept by employers, is the disclosure payroll records that would one of the constitute greatest ” personal privacy.’ (City Angeles, supra, ‘unwarranted invasions Los Cal.App.4th *24 Because Los City Angeles ultimately the of the upheld officer’s subpoena of records, financial the comments in that foregoing are dicta. In opinion addition, the records issue in case far that more than encompassed the peace officer’s included salary; they information his concerning selection of benefits, insurance and plans, investments. Because such records reveal information to the little, related individual’s financial decisions but if personal about anything, the of the the operations court employing entity, appellate could conclude that reasonably their disclosure would constitute an unwar- ranted invasion of The said personal same cannot be the privacy. regarding amount of a The salary. court in employee’s appellate City Los of Angeles did not consider the and long-standing widespread practice disclosing government salary did not address the expenditures question whether any invasion privacy resulting from the disclosure of such information be warranted in of the in might light the knowing salary we expenditures government entities. do not consider Accordingly, Court, City Los Angeles Superior supra, 111 Cal.App.4th persuasive and, to the is extent it inconsistent this with it is opinion, disapproved. The Police Officers Association us to that even if is urges conclude not included of the any within information enumerated in Penal categories 832.8, Code that section statute nevertheless renders confidential not the only of information but “related to” the types specified, any also information types of information in 832.8. enumerated section The Police Officers Association relies in the upon language defining statute records” to include “personnel name his her employing file maintained under that individual’s “any to” the enumerated items. relating Specifically, containing agency information is confidential argues, salary Police Association Officers Code, (Pen. in such as benefits it is related to matters listed the statute because (id., 832.8, (d)). (c)) subd. performance and employee § Court of below that “this reading with the agree Appeal We It confidential only overbroad. would make demonstrably statute is also but Legislature, any kinds of information specified We file item to’ confidential information. any any ‘relating from containing with so broad a brush. believe the intended to Legislature paint do not Penal Code the kinds of information specified term ‘records relating’ a reference to records reasonably is more understood as section 832.8 items.” do not salary expenditures reflect enumerated Records actually Thus, statute. Penal Code sections reflect items enumerated any officer information be and 832.8 do not mandate 832.7 the Act. from under excluded disclosure
III. above, of the Court of judgment Appeal For the reasons stated affirmed. J., J.,* Moreno, J., and concurred. Kriegler,
Werdegar, KENNARD, J., holds that The majority Concurring Dissenting. are records that are subject and salaries of employees names Code, (Gov. Public Records Act. under the California serving with the that public et I And I agree. agree majority seq.) *25 their names officers have no of statutory right prevent as peace salaries; I would on simply rely plain but unlike the majority that conclusion. reaching Penal 832.7 and 832.8 in of Code sections language I officer’s informa- personal of accorded a confidentiality The scope peace schemes as well as statutory two construing determined by tion properly law discuss the state Constitution. I briefly pertinent certain of our provisions below. (Gov. 1968, Public Act enacted California Records
In Legislature Code, Californian’s affirming et scheme statutory every seq.), § District, Five, Justice, assigned by Division Appeal, Appellate Second *Associate VI, Constitution. section 6 of the California pursuant Justice to article the Chief fundamental right “access the conduct of the concerning Code, (Gov. 6250, people’s 1968, 1473, 39, business.” added Stats. by ch. § § 2945, 2946.) But pp. access is not unlimited. The act does require disclosure of records that are or to . . . “exempted prohibited state pursuant Code, 6254, (Gov. law.” (k), 1968, 39, subd. 1473, added by Stats. ch. § § 2945, 2947; 6254, see pp. (c) also subd. § from disclosure [exempting files, “[personnel ... or similar the disclosure of which would constitute an unwarranted 1968, 1473, invasion of added personal privacy”], Stats. ch. by 39, 2945, 2946.) pp. § later, 1978,
A decade in the Legislature enacted Penal Code sections 832.7 832.8, as of a part statutory scheme mandating confidentiality peace officer (Added 1978, 630, 5, 6, records. by Stats. ch. 2083.) p. §§ Peace officer records” made “personnel confidential (a) by Penal Code section statute, 832.7 are defined in a companion section 832.8. Code, (Pen. 832.8, (a)-(e), subds. 1978, 630, 6, § added Stats. by ch. § 2083, 1990, amended Stats. ch. (a) Subdivision § Penal Code section 832.8 defines personnel record as any file kept the employing agency under the name of the officer and containing data, relating “[p]ersonal status, members, marital including family educational and addresses, employment history, home or other similar information.”
Thereafter, voters, November initiative, through power passed Proposition which amended the affirm California Constitution to the “right of access to information the conduct concerning of the people’s Const., (Cal. I, 3, business.” art. (b)(1).) subd. Added to the § state Constitution was this provision: “Nothing this subdivision . . . affects the construction of any statute ... to the extent that it protects state right [the Constitution’s] to privacy, including any statutory procedures governing or disclo- discovery sure of information concerning official performance professional qualifications Const., of a (Cal. I, 3, officer.” art. (b)(3).) subd. § statute, initiative also directed: “A . . . including those in effect on the subdivision, effective date of this shall be construed if broadly it furthers the access, people’s right construed it narrowly if limits the right (Cal. Const., I, 3, access.” art. (b)(2).)
n *26 outset, As I stated at the I have no with the quarrel majority’s reasoning and its conclusion that the California Public Records Act does not shield from disclosure the salaries to named paid I public employees. also with the agree majority such disclosure to officers as applies peace well. But unlike the I majority would reach the latter conclusion based on the of plain language 832.8, the of Penal which govern confidentiality Code sections 832.7 officer records. peace personnel the salaries of named disclosing public employ- reasons majority no reasonable expectation
ees is because have permissible public employees I, the to in of article section 1 of California as their salaries privacy light ante, contrast, observes, 338.) at In Constitution. (Maj. majority opn., officers do created statute. protections have peace 832.7, (a), the “person- Penal Code section makes confidential (a) Penal section nel records” of officers. Subdivision Code 832.8 peace data, status, family states that files marital containing “[pjersonal including addresses, members, or home similar history, educational employment a claim that information” are records. to officer personnel Responding peace data,” within definition of the majority salaries fall that provision’s “personal to the they that the definition to as come pertains job. concludes ante, is, within That fall “the (Maj. salary types does not opn., an to his or information that commonly supplied by employee personal her either during process upon employment.” employer, application (Commission Training Superior on Peace Standards and Officer 661, 462], omitted.) P.3d fn. (2007) 42 Cal.4th contrast, observes, officer salary being In to majority paid peace ante, than relates to current rather employment. (Maj. opn., prior 342-343.) My differs. pp. analysis in
I would the mandate of initiative the voters passed follow simply to, other direct amending among things, California Constitution limiting courts to construe statute access narrowly any people’s right Const., I, (Cal. Code sections (b)(2).) art. subd. Penal records. public § But do officer records. 832.7 and 832.8 limit access public peace salaries, officer do not make they are silent on the they question peace Therefore, is confidential. an officer’s not from exempt officer names Code, (Gov. under the California Public Records Act. §§ disclosure of a (b), (k).) subd. And the interest in disclosure named subd. public in is interest withhold- clearly outweighed by any officer’s public Code, 6255, (a).) the annual (Gov. Accordingly, pay subd. ing disclosure. § officers is disclosure. subject public peace names, in officer I find Penal nothing
With to disclosure respect peace would that information within the bring category Code section 832.8 that section; do I find any confidential under that nor data” deemed “personal Non- such information from disclosure. statutory exempting provision names when the interest only disclosure of officer permissible disclo- outweighs withholding “clearly” Code, 6255, that the (Gov. (a).) I with the agree majority sure. *27 officers, interest to disclosure exception to certain undercover but may apply that, rule, as a general officers do not have a interest in the peace of their confidentiality names in outweighs disclosing ante, the names. 344.) (Maj. opn., p. Except as
BAXTER, J., officers, Concurring to I Dissenting. peace with the that the agree names and majority salaries of public employees $100,000 earning or more year are not from per disclosure exempt Code, under the California Public (CPRA) (Gov. Records Act 6250 et seq.). § officers, With regard I also with peace conclusion agree majority’s $100,000 that the salaries of officers or peace earning more as a per year, matter, are general from disclosure under the CPRA. exempt However, I have joined Justice Chin’s in Commission dissenting on opinion Peace Standards and Training Court Superior Cal.4th Officer 278, 661, Chin, (dis. which, 165 P.3d Cal.Rptr.3d J.), opn. [64 462] case, to the contrary view in that majority recognizes officers’ peace names fall data,” themselves into the of confidential category “[p]ersonal within 832.8, meaning Penal Code section (a), subdivision when the names are recorded in officer peace records.1 I Accordingly, agree with Justice Chin here that where a for made disclosure of request peace officers’ names in connection with a for disclosure of request officer peace information, “names not be may disclosed to the extent the source of that information is a ‘file maintained under name peace his [the officer’s] Code, her (Pen. employing 832.8.)” (Conc. agency.’ & dis. opn. § Chin, J., 350.) post, Except as
CHIN, J., Concurring officers, I Dissenting. peace agree with the conclusion majority’s that names and salaries of public employees $100,000 earning or more year are not from per exempt under the Code, California Public (CPRA) (Gov. Records Act 6250 et seq.).1 below, however, As explained my analysis this is somewhat different question from the majority’s and I do not endorse all of the majority’s reasoning. officers, Regarding I with the peace agree conclusion that majority’s However, information is not from disclosure. as exempt explained my dissenting Commission on opinion Peace Standards and Training v. Officer Superior (2007) 42 Cal.4th 165 P.3d 462] Chin, (dis. J.), I opn. believe that officers’ names are data” peace “[p]ersonal 1 Penal Code sections 832.7 and 832.8 are part statutory mandating scheme confidentiality (Stats. 5, 6, officer personnel records. ch. §§ Peace officer “personnel (a) records” made confidential Penal Code section (a) 832.8, statute, 832.7 are defined in subdivision of section companion any kept by as file employing agency under containing relating name of the officer and data, starns, members, “[p]ersonal including family marital employment educational addresses, history, home or other similar information." 1 All further statutory unlabeled references are to the Government Code. *28 350 Thus, 832.8, (a). I subdivision Penal Code section
within the meaning where, here, of names made for disclosure request would hold that as the extent the source be officers’ names disclosed may linked to salary, name under is a “file maintained officer’s] of that information [the Code, 832.8.) I to the extent (Pen. dissent her agency.” § his or employing holds otherwise. majority Employees Than of Public Other The Names and Salaries
I. Exempt Disclosure. Are Not From Peace Officers . . . inspection records . . . open [public] The CPRA makes all “[p]ublic Because, 6253, (a).) as the (§ subd. statute. as” except expressly provided within the meaning are records” the records in agree, question “public parties some 6254, unless (§ (d)), they subject inspection of the CPRA subd. ante, at (maj. opn., As the majority explains statutory exception applies. 6254, in section at issue here is found 329), the principally exception disclosure in the CPRA (c), nothing requires which subdivision provides medical, files, of which would or similar the disclosure of “[personnel, an invasion of personal privacy.” constitute unwarranted enacted this CPRA since the years Legislature In the 40 However, does not leave us it. that fact we have said little about exception, (FOIA) Information Act The federal Freedom of without significant guidance. as almost Known 552) an identical disclosure (5 exception. U.S.C. contains § 6, for nondisclosure “personnel the FOIA exception provides exemption constitute a of which would files the disclosure and medical files similar 552(b)(6).) (5 U.S.C. § unwarranted invasion personal privacy.” clearly have [CPRA], they and because a model for the “Because the FOIA provided “ construction.’ ‘should receive they parallel [Cita- a common purpose,” to construe Therefore, the FOIA be used may decisions under federal tion.] (1991) 53 (Times Superior Mirror Co. the [CPRA]. [Citations.]” 893, 1325, 240].) 813 P.2d Cal.Rptr. Cal.3d [283 (cid:127) FOIA’s, I first conclude to the a construction parallel the CPRA Giving files” under ... or similar constitute “[personnel that the records at issue intent, the 6254, evidence of (c). congressional Based on subdivision section of the term “personnel the scope has broadly interpreted court high 552, (b)(6)) (56 U.S.C. files” in exemption medical files similar “ can be records on an individual Government [that] to ‘cover detailed [all] State v. (Department to that individual.’ identified as [Citation.]” applying 102 S.Ct. L.Ed.2d U.S. Co. Post Washington of each here—the name Post).) The records sought (Washington 1957] $100,000 in at least (the who earned City) of Oakland of the City employee qualify gross salary—clearly to the linked employee’s fiscal 2003-2004 year under that definition. I see no basis for a different reaching conclusion Indeed, (c). disclosure, section applying subdivision in seeking Contra Costa Inc. (the Newspapers, has never that the Newspapers), argued requested records are not ... or similar files” under section “[personnel (c); on the contrary, assertion in its brief that the Newspapers’ *29 ” trial court “employed proper ‘statutory balancing analysis’ implicitly concedes that the records are requested ... or similar to “[personnel files” 6254, which the (§ balancing (c).) test For applies. the reasons stated above, view, I agree with this and thus will now to the proceed balancing statute requires.2 6,1
Like the
court in
high
applying
begin
exemption
balancing inquiry
6254,
under section
(c),
subdivision
“the
interest at
considering
privacy
stake.”
164,
(Department
(1991)
State v. Ray
502 U.S.
175
L.Ed.2d
[116
of
526, 112 S.Ct.
(Ray).)
ante,
As the
*30
ante,
331.) The two
at
(Maj. opn.,
p.
of
is “reasonable.”
“expectation
privacy”
court,
both
same;
in
the
notably,
high
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are not the
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6 and another FOIA exemption
exemption
invasion of
an unwarranted
to constitute
be
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(5
552(b)(7)(C)),
consistently
has
U.S.C.
personal privacy”
stake,
a
never considered whether
at
and has
interest
the nature
privacy
and Records
(National Archives
of
exists.4
reasonable expectation
privacy
319,
157,
L.Ed.2d
124 S.Ct.
U.S.
160
(2004)
1570]
Favish
541
Admin. v.
[158
interest
any
privacy
be balanced against
“personal
interest must
[public
FLRA,
[analysis
at
497
statute”];
510 U.S.
supra,
p.
the
recognized
at
175
interest”];
502 U.S.
Ray, supra,
p.
the
court to “weigh
privacy
requires
of the privacy
the
considering
significance
analysis “by
to begin
[proper
Post,
U.S. at
602-603
stake”];
456
supra,
pp.
[remand
interest at
Washington
. . . privacy
the effect of disclosure upon
lower court “to consider
for
ing
Committee,
must
U.S. at
762
interests”];
489
[court
Reporters
disclosure];
in”
the
the
interest . . . against
public
“balance
privacy
11,
352,
96 S.Ct.
L.Ed.2d
(1976) 425 U.S.
381
Air Force v. Rose
[48
Dept. of
interests”].)
“the risk to . . .
[discussing
privacy
1592]
no
have
employees
conclusion
majority’s
public
I also question
(Maj.
information.
opn.,
in their salary
of
reasonable expectation
privacy
4
the test we
inquiry derives
from
privacy”
of
majority’s
expectation
“reasonable
834,
(1994)
Collegiate
Athletic Assn.
Cal.4th 1
v. National
[26
7
Hill
in
announced
has been
right
privacy
of
determining
person’s
a
constitutional
for
whether
ante, have reason- certainly most Nongovernmental employees stated, and, as we have this information regarding able expectation privacy a should compel mere being government status employed “[t]he Public employees to forfeit or her fundamental right privacy. citizen his Constitution, . [L]egal . . citizens within the ken of not second-class [f] that operate distinctions between sector private employees public aby unless judicial scrutiny justified basic cannot withstand abridge rights much service interest. However public governmental compelling [Citation.] interest, a a benefit and duty constitutes imposes uphold citizen, a constitutional right like other is bom with any sector employee, for have waived that in return right ... A citizen cannot be said to privacy. benefit, unless the other any ‘privilege’ public employment, City need. Beach (Long demonstrates government compelling [Citation.]” Assn. v. Beach 41 Cal.3d 951-952 City Long Employees Moreover, 660].) cites evidence although majority P.2d Cal.Rptr. the view that disclosure of the salaries of public authorities supporting ante, 331-332), there is (maj. published employees widespread opn., pp. have California and elsewhere authority recognizing public employees records, at least some in their reasonable expectation information.5 in a decision including salary Notably, involving exemption court held that the interest” of federal high “privacy nondisclosure of their home addresses the relevant “outweigh[ed] disclosure, interest” in even that information was available though “publicly such and voter lists through registration sources as directories telephone *31 (FLRA, 500.) 510 U.S. at supra, p. I with the agree I need not resolve this because
Ultimately, question may interest . . . majority “any cognizable public employees [privacy] 5 482, 1216, People (2001) (statutory v. Mooc Cal.Rptr.2d 36 P.3d 26 Cal.4th 1220 21] [114 personnel her recognizes peace “legitimate expectation privacy officer’s of in his or scheme BRV, 742, Superior records”); (2006) Inc. v. Court Cal.Rptr.3d Cal.App.4th 519] 143 756 [49 v. files”); Versaci legally personnel in their (“[p]ublic employees protected have interest 805, Local 856 v. 92]; Superior Court Teamsters (2005) Cal.App.4th Cal.Rptr.3d 127 821 [26 Priceless, 1500, (2003) LLC (public employees have Cal.App.4th Cal.Rptr.3d 112 1516 [5 847] details”); City files, “salary legally including in their protected privacy “a interest” 883, (disclosure Angeles Superior (2003) Los Court Cal.App.4th Cal.Rptr.3d 111 915] v. 892 [3 records, greatest including salary, constitute one of the payroll officer’s his “would Diego Trolley, Superior Inc. Court ”); San v. personal privacy’ ‘unwarranted invasions of 1083, scope ... are within the Cal.App.4th Cal.Rptr.2d (“personnel records 87 1097 [105 476] Spec. Constitutions”); East Bank Cons. Serv. protection provided the state and federal 666, 670; (D.C. Department 2004) Fire v. Crossen Beck v. Justice Cir. (La.Ct.App. So.2d 892 1489, (“A 1993) government privacy at in his employee F.2d has least some 997 1494 (10th Campbell United Civil Service Commission .”); Cir. States . . employment own records 58, 1976) (disclosure employees’ salary “would be a serious invasion of F.2d 62 of federal 539 Co., 1976) Dept. Agri. (D.C. Packing Columbia Inc. v. U. S. F.Supp. 417 privacy”); Mass. 651, “earnings employees’ federal (recognizing “privacy interest in nondisclosure" “remuneration”). reflecting” their statements ante, have” is insufficient 333.) nondisclosure. justify (Maj. opn., p. 6254, (c), Section subdivision does not all preclude personal “invasion[s] “unwarranted” ones. privacy,” only from court’s Borrowing again high 6, discussion of whether an invasion of would be “unwar- exemption privacy 6254, ranted” within the (c), of section subdivision on “the meaning depends extent to which disclosure of the information would ‘shed on an sought light of its duties’ or otherwise let agency’s performance statutory citizens know ‘what their (FLRA, to.’ 510 U.S. at government up supra, [Citation.]” 497.) ahas interest in how funds public legitimate knowing “[T]he Press, Inc. v. spent” (Copley Superior 63 Cal.App.4th 69]), and the names and compensation paid relate directly issue. Disclosure of this information would reflect on the directly City’s management of funds and its employees’ I duties. therefore conclude that invasion of performance any from disclosure of this information would not be “unwarranted” within the (c), of section subdivision and that the meaning therefore is not from disclosure under that exempt provision. reason,
Like the but for a different majority, I the view that reject balancing basis, (c), under section subdivision must be done on a case-by-case into account the taking interests of each particular privacy public employee. ante, 336-338.) (Maj. opn., As court has pp. high explained FOIA, construing decisions” “categorical regarding disclosure be “may individual circumstances when a case appropriate disregarded fits into a in which the genus balance in one direction.” characteristically tips Committee, U.S. at (Reporters informa- Regarding salary above, tion of for the reasons stated the balance character- public employees, Thus, information, in the istically direction of disclosure. as to this tips (c), under section case-by-case balancing is unnecessary. The claim that disclosure of names linked to their public employees’ *32 Const., I, (Cal. salaries violates the state constitutional to art. right privacy 1) fails for similar reasons. The state constitutional to is not right privacy § “ absolute; “it is to a ‘Invasion of a subject balancing of interests.” privacy interest is not a violation of the state constitutional to if the right privacy (Jacob invasion is B. justified by County interest.’ competing [Citation.].” 1003].) Shasta 40 Cal.4th 154 P.3d above, For the reasons discussed I conclude that invasion of a any interest that would result from of the disclosure employee’s privacy requested information would be interest in by knowing justified public’s competing what to and how the is government government up spending officers, Thus, than I agree funds.6 as to other peace public employees that the names and salaries of public employees
with the majority’s holding $100,000 under the are not from disclosure or more earning per year exempt CPRA.
II. The Names and Salaries of Peace Officers. (Police Association), The Oakland Police Officers Association Officers action, of the actual which intervened in this does not object officer, are identified only by to each so as officers salary paid peace long does, however, title. that link the actual salary It to disclosures job object paid Penal to the officer’s name. It asserts that the latter disclosure would violate 832.7, (a), which in relevant Code section subdivision provides part from these officer . . . records ... or information obtained “[pjeace personnel records, confidential and as otherwise shall not be disclosed” except Association, by individually statute. Police Officers provided According identifiable either a confidential salary information constitutes “personnel or “information obtained from” records within the mean- personnel record[]” 832.7, Code (a), of Penal Code section subdivision virtue of Penal ing section in Penal Code 832.8. latter defines term records” “personnel 832.7, (a), section as file maintained under “any [a name and his or her employing agency containing officer’s] data, (a) marital relating any following: including Personal [][] status, members, educational and home ad- family history, employment dresses, (b) (c) or similar information. Medical Election of history. [][] [][] benefits, advancement, (d) or employee Employee appraisal, discipline, [f] (e) or an event or investigations concerning Complaints, complaints, [f] transaction in which he or he or she which she participated, perceived, duties, to the manner in which he or she his or her pertaining performed [f] (f) other information the which would constitute an Any disclosure of Code, (Pen. 832.8.) unwarranted invasion of personal privacy.”7 § In its the Police Officers Association first making argument, emphasizes an that is officer’s actual is based on the following pay Penal section included within the term records” in Code expressly “personnel 832.8, (a)), subd. history” 832.7: “educational employment § (id., 832.8, (id., (d)). advancement” and Because “[e]mployee “appraisal” fact, asserts, actual of this the Police Officers Association an officer’s pay the meaning “information obtained” from records within constitutes conclusion, light employees have a reasonable In of this I need not decide whether regarding specific their salaries. expectation *33 under the CPRA exception Penal Code sections 832.7 and 832.8 establish a disclosure Press, 6254, (k), (See Copley virtue of Government Code sections subdivision and 6276.34. 183, 288].) Superior Cal.Rptr.3d 141 P.3d Inc. v. Court 39 Cal.4th 1283 [48 of Penal Code section It 832.7. also as a confidential qualifies independently 832.7, record under Penal (a), Code section subdivision because it is, 832.8, words of Penal Code section to” information “relat[ed] elsewhere in the I specified section. with the agree majority’s analysis ante, 343-344, of these rejection 345-346.) at arguments. (Maj. opn., pp. The Police Officers Association also that individualized argues salary information for it qualifies because “constitutes data’ or protection ‘[p]ersonal 832.8[, ‘other similar information’ under Penal Code section subdivision] (a).” It asserts that to the . . . as anything “unique person qualifies]” 832.8, (a), data” under Penal Code section “[p]ersonal subdivision and that a officer’s because it particular salary on officer’s unique depends years service, education and performance, specialties. Like the I this As the majority, reject because argument. majority explains, all of the (b) (e) information in subdivisions of Penal specified through Code officer, section 832.8 also is to the individual those unique subdivisions would be were we to construe the term unnecessary data” in “[p]ersonal (a) subdivision to include that is to the everything (Maj. unique person. opn., ante, Well-established canons of construction us statutory preclude from so as to render other interpreting statutory language statute parts unnecessary. Ins. Co. v. (Manufacturers 10 Cal.4th Superior Life 56].) P.2d As also majority explains, that the Legislature another form of expressly specified compensation— “[ejection of benefits”—in a subdivision of the statute employee separate Code, 832.8, (Pen. (c)) counsels an against adopting interpretation (a) the term data” in subdivision that includes an officer’s “[p]ersonal salary. ante, reasons, 342-343.) (Maj. For these I opn., pp. agree information does not constitute data” within the “[p]ersonal meaning 832.8, section (a).8 subdivision curiae
Amicus Local Union No. 3 that indi- Operating Engineers argues vidualized officers for regarding peace qualifies protection 832.8, (f) under subdivision of Penal Code section because disclosure of this information “would constitute an unwarranted invasion of personal privacy.” because, I this reject as above in connection with argument explained (c), Government Code section I do not believe that any invasion of from disclosure of the salary information would requested be unwarranted. above, Except expressly join majority’s analysis as noted I do not of this issue. *34 officers, as in my dissenting the names explained
Regarding peace Training Superior Commission on Peace Standards opinion Officer (dis. P.3d (2007) 42 Cal.4th 462] Chin, data” 1), I officers’ names “[p]ersonal believe opn. Thus, 832.8, (a). I of Penal Code section meaning within where, here, is made for disclosure names would hold that as request the extent the not be disclosed to source may linked to officers’ names salary, under is a “file maintained name that information peace officer’s] [the Code, Where, however, (Pen. 832.8.) his or her employing agency.” salaries, of their identifies officers name and asks for disclosure request 832.7 Penal Code section does disclosure. preclude notes majority correctly 541] (maj. opn., 330), at almost 40 p. years we held that ago, “the of protection one’s personal financial affairs . . . against compulsory an of aspect zone [protected] of . . . .” privacy (City Carmel-by-the-Sea Young v. of 259, 2 1, Cal.3d 268 225].) 466 P.2d A Cal.Rptr. person’s salary [85 generally falls within this (See of protected category information. v. Moskowitz Superior (1982) 137 4].) 313 Cal.App.3d As we have Cal.Rptr. [187 “the explained, newspaper publication of a . . . [person’s] assets can be to unwanted expected bring solicitation from a of variety [salespeople] others, could well encourage nature, harassment lawsuits or demands of like and could expose ... to [person] various criminal elements in our Carmel, society.” (City 2 270.) court, Cal.3d at The p. high 6, applying has exemption “the similarly recognized individual privacy interest” at stake when disclosed information makes a an person inviting target of “commercial advertisers and solicitors.”3 (Department of Defense 487, FLRA 325, 510 U.S. 501 (FLRA); L.Ed.2d 114 S.Ct. 1006] see also Painting Industry (9th 1994) Hawaii v. Air Force Dept. Cir. 26 1479, F.3d 1483 . . . can privacy result from release of a list of [“invasion names and addresses awith characteristic coupled to susceptible commercial National exploitation”]; Ass’n Retired (D.C. Federal v. Horner Cir. Emp. 2 assumes, The majority merely deciding, without “[personnel that the records are ... or ante, similar (c). files” under section (Maj. 329.) opn., at 3 majority acknowledges the “interest” of public employees avoiding “in unwanted efforts,” marketing solicitations or but “comparatively finds interest weak” absent disclo information, sure ante, of other contact such as home telephone (Maj. opn., address or number. at publicly Given that available databases easy on Internet make it to link a name number, to an telephone address or I find the absence of disclosure of contact information to be little, (See any, significance. if (10th Sheet Metal Workers Local No. 9 v. U.S. Air Force Cir. 1995) alone, 63 F.3d leaving 998 of addresses payroll [“redaction names on the thereby directly linking workers, detailed financial information about workers ... to those materially involved”].) does not privacy lessen the substantial interest the disclosure is a substantial 1989) probability F.2d [“there that business need assume only threatened invasion: one will lead to the the Government to from get cheaply an will not overlook opportunity people for all special comes a list dearly, qualified prospects what otherwise retirees”]; services, secure financially and causes likely appeal goods, 1987) 822 F.2d (1st Dev. Cir. & Urban Housing Aronson v. U.S. Dept. of that someone is owed knowledge becomes a matter of public it [“[w]hen for those become a target that individual may sum of money, a substantial of that sum means scrupulous a share who would like secure otherwise”].) stake unpersuasive majority’s analysis privacy I find the with, asks not the majority for the most part, To begin in several respects. stake, whether a employee’s but there are interests whether