City of San Jose v. Superior Court (concluded)



Thus, in determining whether public records which are not expressly exempted from disclosure must be disclosed over the government's objection, California courts apply the section 6255 balancing test for the catchall exception on a case-by-case basis. Where the public interest in disclosure of the records is not outweighed by the public interest in nondisclosure, courts will direct the government to disclose the requested information. (See CBS, supra, 42 Cal.3d at p. 656-657 [names, home addresses and applications of persons who obtained concealed weapons permits must be disclosed]; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1585-1586 [disclosure of names and addresses of excessive water users ordered]; New York Times Co. v. Superior Court (1997) 52 Cal.App.4th 97, 104 [names of sheriff' s deputies who fired weapons must be disclosed].)

Conversely, courts have upheld the government's refusal to release public records when the public interest in nondisclosure clearly outweighed the public interest in disclosure. (See Reporter's Committee, supra, 489 U.S. at pp. 774-775 [no disclosure of FBI rap sheet when disclosure would serve curiosity rather than public interest]; Times Mirror, supra, 53 Cal.3d at p. 1345-1346 [governor's appointment schedules and calendars properly withheld to protect public interest in decisionmaking process and governor's security]; Wilson v. Superior Court, supra, 51 Cal.App.4th at p. 1141 [no disclosure of applications for appointment to county board of supervisors due to chilling effect on applications and negative impact on decisionmaking process].)


C. Disclosure of the Identities and Personal Information of Complainants

As the decisions noted above indicate, requests for disclosure of public records which contain personal information about individuals often trigger litigation under the Act and the FOIA. However, no decisions have been cited by the parties or located through our own research, which address the issue of whether a city must disclose identities of airport noise complainants. Public records decisions in other contexts, which concern the disclosure of addresses and telephone numbers, and/or the identity of complainants, provide a helpful framework for deciding the issue at hand.


1. Disclosure of Names and Addresses

First, we note that the United States Supreme Court has stated that, "disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind." (Reporters Committee, supra, 489 U.S. at p. 749.) Courts have scrutinized requests for disclosure of names and home addresses contained in public records, because individuals have a substantial privacy interest in their home addresses and in preventing unsolicited and unwanted mail. (Department of Defense, supra, 510 U.S. at p. 500-501 ["We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions"].)

In determining whether the public interest in nondisclosure of individuals' names and addresses outweighs the public interest in disclosure of that information, courts have evaluated whether disclosure would serve the legislative purpose of "'shed[ding] light on an agency's performance of its statutory duties.' " (Voinche v. FBI (D.D.C. 1996) 940 F. Supp. 323, 330 [hereafter Voinche].) Where disclosure of names and addresses would not serve this purpose, denial of the request for disclosure has been upheld. (Department of Defense, supra, 510 U.S. at p. 502 ["privacy interest of bargaining unit employees in nondisclosure of their home addresses substantially outweighs the negligible FOIA-related public interest in disclosure" ]; Painting Industry of Hawaii v. Dept. of Air Force (9th Cir. 1994) 26 F.3d 1479, 1486 [hereafter Painting Industry] [no disclosure of names and addresses on employee payroll when disclosure only marginally useful in uncovering "'what government is up to'"]; Voinche, supra, 940 F.Supp. at p. 330 [workings of agencies not better understood by disclosure of identity of employees and private citizens who wrote to government officials]; Local 1274, Ill. Fed. of Teachers v. Niles (Ill.App.1997) 287 Ill.App.3d 187, 193 [678 N.E.2d 9, 13] [names and addresses of school district parents had "nothing to do with the duties of any public servant"].) Courts have also recognized that the public interest in disclosure is minimal, even when the requester asserts that personal contact is necessary to confirm government compliance with mandatory duties, where the requester has alternative, less intrusive means of obtaining the information sought. (See, e.g., Painting Industry, supra, 26 F.3d at p. 1485.)

However, where the disclosure of names and addresses is necessary to allow the public to determine whether public officials have properly exercised their duties by refraining from the arbitrary exercise of official power, disclosure has been upheld. (CBS, supra, 42 Cal.3d at p. 656 [revealing identity of concealed weapons permit holders permits public ascertainment of whether law applied evenhandedly]; New York Times v. Superior Court, supra, 52 Cal.App.4th at pp. 104-105 [disclosure of names of sheriff's deputies who fired fatal shot permits check against arbitrary exercise of official power]; New York Times v. Superior Court, supra, 218 Cal.App.3d at p. 1585 [disclosure of excess water users will ensure individuals do not receive special privileges].)


2. Disclosure of the Identity of Complainants

The privacy rights of those who complain to their government has also been recognized when courts evaluate requests for disclosure of personal information from public records. With regard to complaints of criminal wrongdoing, it has been stated, "Complainants often demand anonymity. The prospect of public exposure discourages complaints and inhibits effective enforcement." (Black Panther Party, supra, 42 Cal.App.3d at p. 653.) In determining that letters of complaint to the Federal Aviation Agency about a pilot were exempt from disclosure under the FOIA, the federal appeals court noted the President's statement when signing the FOIA into law: "'A citizen must be able in confidence to complain to his Government and to provide information.... I know the sponsors of this bill recognize these important interests and intend to provide for both the need of the public for access to information and the need of Government to protect certain categories of information.'" (Evans v. Department of Transportation of United States (5th Cir. 1971) 446 F.2d 821, 824, fn. 1.)

Similarly, a New York state appeals court judge remarked, "I do not believe that a citizen who complains to or inquires of his government expects that his correspondence revealing among other things his identity and home address will come into the hands of private entrepreneurs who seek to solicit his business." (Goodstein v. Shaw (N.Y.App. 1983) 119 Misc.2d 400 [463 N.Y.S.2d 162] [hereafter Goodstein] [denying under New York Freedom of Information Law an attorney's request for names and addresses of complainants to the state' s Division of Human Rights].) This decision and others recognize that disclosure of names and addresses of complainants may have the indirect effect of creating a specialized mailing list which is then available to anyone for any purpose. (Goodstein, supra, 119 Misc.2d at pp. 400-401; see also Center for Auto Safety v. NHTSA (1993) 809 F. Supp. 148, 149-150 [hereafter Center for Auto Safety].)

In Center for Auto Safety, the privacy rights of complainants under the FOIA were considered by a federal district court. (809 F. Supp. 148.) In this case, a private consumer group called the Center for Auto Safety requested disclosure under FOIA of the names and addresses of individuals who had complained to the National Highway Traffic Safety Administration (NHTSA) about auto safety problems. The Center for Auto Safety argued that the government agency's summaries of complaints were not sufficient, because the group needed to contact the complainants individually. (Center for Auto Safety, supra, 809 F. Supp. at p. 149.)

The court upheld NHTSA's refusal to disclose the names and addresses of the complainants, on grounds of the public interest in the rights of citizens to complain to their government in privacy and to be left alone. (Center for Auto Safety, supra, 809 F.Supp. at p. 150.) The court concluded, "Since the consequences of a general mailing list of complainants concerned with auto safety are clearly and foreseeably intrusive, complainants will have forfeited a degree of privacy because they chose to alert the proper agency of government to circumstances suggesting tighter auto safety controls . . . a specialized list [of complainants], by its very nature, will be used by individuals and concerns that do not necessarily share the same concerns of those listed but see a commercial or private advantage in exploiting them." (Id. at p. 149.) Further, the court found that no ascertainable public interest would be served by disclosure of the identities of the auto safety complainants, and therefore the public interest in disclosure was outweighed by the privacy interests of the complainants. (Id. at p. 150.)

As discussed below, application of the balancing test in the present case also compels the conclusion that the public interest in protecting the privacy interests of the complainants outweighs the public interest in disclosure.


D. The Public Interest in Nondisclosure of Airport Noise Complainants' Personal Information Clearly Outweighs the Public Interest in Disclosure Under the Particular Facts of this Case

While no appellate courts have addressed the issue of whether a city must disclose the names, addresses, and telephone numbers of airport noise complainants, the California Attorney General has issued an opinion on the issue. (78 Ops.Cal.Atty.Gen. 103 (1995).) Utilizing the balancing test for the section 6255 catchall exception, the Attorney General concluded, "the names, addresses and telephone numbers of persons who have filed noise complaints concerning the operations of a city airport are subject to public disclosure unless the city can establish in particular circumstances that the public interest served by not making the information public clearly outweighs the public interest served by disclosure." (78 Ops.Cal.Atty.Gen., supra, at p. 110.) We agree that disclosure of the names, addresses, and telephone numbers of airport noise complainants is determined by application of the section 6255 balancing test.

City contends that the trial court erred in ordering disclosure, because City prevails when the section 6255 balancing test is properly applied. In City' s view, the public interest in protecting airport noise complainants' privacy outweighs the Mercury News's arguments that disclosure is in the public interest. While City acknowledges that there is a keen public interest in airport noise, City asserts that disclosure of complainants' personal information will not assist the public to determine if City is properly performing its state-mandated noise monitoring functions. Instead, City believes that its ability to perform its duties with respect to airport noise will be harmed by disclosure of complainants' identities, because, as shown by the activities and correspondence of groups such as Airport Pilots, disclosure will have a chilling effect and reduce the number of complaints.

In opposition, the Mercury News argues two main points: (1) City has not met its burden to show a clear overbalance on the side of confidentiality; and (2) City' s arguments of a chilling effect on citizen complaints are based on speculation, as City lacks evidence of any citizen actually being harassed or deterred from making a complaint as a result of the disclosure of his or her name, address, and telephone number.

Specifically, the Mercury News argues that airport noise is an important public interest, and the public is entitled to determine whether city is meeting its obligations under state law to handle airport noise complaints. According to the Mercury News, it is only by obtaining the identity of airport noise complainants that the public and the media can ascertain whether city officials are performing their duties, since "the validity of those complaints cannot be evaluated because secrecy prevents contact of complainants in order to verify the complaints and learn more about their concerns. The dry statistics offered by the City are not enough. The public is entitled to raw data, i.e., information that can be confirmed through interviews and observation."

Additionally, the Mercury News contends that the public would benefit from disclosure of complainants' identity, because disclosure would deter false or frivolous complaints. The Mercury News asserts as well that the complainants' privacy interest is minimal because complainants provide their names, addresses, and telephone numbers voluntarily and without any guarantees of confidentiality.

In response, City contends that the Mercury News's own arguments reveal that disclosure of the identity of airport noise complainants will have a chilling effect on complaints, because the newspaper's purpose in obtaining their identity is to contact complainants directly. According to City, citizens who wish to make an airport noise complaint will have no choice but "to remain silent while maintaining their privacy, or else register their complaints at the risk of being questioned in their homes by the press or other persons as to whether they are telling the truth." Also, City points out that the Mercury News has alternative means of contacting airport noise complainants other than by invading their privacy. City suggests that the newspaper could contact and interview complainants by locating them at City Council meetings, through anti-airport noise community groups and their web sites, or by canvassing the city areas in which noise complaints are most concentrated.

We agree with City that, applying the section 6255 balancing test to the particular facts of this case, the public interest in the nondisclosure of airport complainant's personal information clearly outweighs the public interest in disclosure. Therefore, the trial court erred in ordering City to disclose the names, addresses, and telephone numbers of the January 1998 airport noise complainants. In so ruling, we recognize the Mercury News's argument that it is in the public interest for the newspaper to be able to contact the complainants individually in order to confirm that their complaints have been properly recorded and reported by City as required by its state noise variance. We also understand the Mercury News' s implied argument that City may be motivated to underreport airport noise complaints and thereby prevent any negative impact on airport expansion.

However, in this particular case, City discloses a substantial amount of detailed information about public complaints of airport noise. This information provides the public with data to analyze City's performance of its duty to record, investigate and report airport noise complaints. We also find that airport noise complainants have a significant privacy interest in their names, addresses, telephone numbers as well as in the fact that they have made a complaint to their government, and that disclosure of this information would have a chilling effect on future complaints.

Courts have not required evidence that an individual was actually deterred from making a complaint by the prospect of public disclosure. Instead, courts have based their recognition of the likely effect of disclosure on human experience. (See, e.g., Black Panther Party, supra, 42 Cal.App.3d at p. 653 ["The prospect of public exposure discourages complaints"]; Times-Mirror, supra, 53 Cal.3d at p. 1345 ["To disclose every private meeting or association of the Governor and expect the decisionmaking process to function effectively, is to deny human nature and contrary to common sense and experience [italics omitted]" ]; Center for Auto Safety, supra, 809 F. Supp. at p. 149 ["[T]he consequences of a general mailing list of complainants concerned with auto safety are clearly and foreseeably intrusive"].) Therefore, "like the United States Supreme Court, our perception that 'those who expect public dissemination of their remarks may well temper candor with a concern for appearance,' is based upon 'human experience . . . .'" (California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 173, quoting United States v. Nixon (1974) 418 U.S. 683, 705.)

Accordingly, it may be fairly inferred, on the basis of human experience, that it is likely that public disclosure of airport complainants' names, addresses and telephone numbers will have a chilling effect on the number of complaints made. Public disclosure will subject the complainants to the loss of confidentiality in their complaints, and also to direct contact by the media and by persons who wish to discourage complaints. It also may be presumed that a reduction in airport noise complaints will impede City in its ability to comply with its airport noise monitoring duties.

In contrast, the public interest in disclosure of personal information about airport noise complainants is minimal, because City has made available all the information it has concerning airport noise complaints, except for the names, addresses, and telephone numbers of the complainants. The information provided by City in its monthly noise report and data base printout is extensive, and indicates the date, time and nature of each complaint, as well as the city area where the complaint originated. Not only does the monthly noise report provide a comprehensive overview of City' s performance of its state-mandated duty to report airport noise complaints, the report also provides the Mercury News with information which will aid it in further investigation of the complaints.

As City notes, the Mercury News has alternative means of contacting and interviewing the complainants other than by intruding on their privacy through forced disclosure of their identities from government records. The newspaper may directly contact complainants who have made their identities public, for example, by appearing at city council meetings, by joining anti-airport noise community groups, or by disclosing themselves on the group's web site. The Mercury News may also identify from the monthly noise reports those neighborhoods from which complaints originate, and canvass those neighborhoods for complainants who are willing to be interviewed.

We recognize that a mailing and telephone list of airport complainants would greatly facilitate the Mercury News' s investigation. However, facilitating research is not the purpose of public access to government records. (See Reporters Committee, supra, 489 U.S. at p. 772.) While media research may serve the public interest by accessing public records which show how the government conducts its business, investigations at the expense of individual privacy cannot be allowed for the sole purpose of media convenience. Where, as here, the media and members of the public can obtain the identity of complainants through less intrusive means, disclosure of complainants' personal information is likely to chill future complaints. Because alternative information is available regarding the city's complaint-related operations, the public interest in protecting the privacy of complainants clearly outweighs the public interest in disclosure of their names, addresses and telephone numbers from government records.


IV. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its amended order and judgment of September 24, 1998, and to enter a new and different order denying the San Jose Mercury News's petition for writ of mandate. Each party is to bear its own costs in this original proceeding.

Cottle, P.J.

We concur: Premo, J., and Elia, J.