Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2007-00069500- CU-WM-CTL Michael M. Anello, Judge. Appeal treated as a petition for writ of mandate. Petition granted.
McINTYRE, J.
Rodney L. Dyche appeals from an order of the superior court denying his petition for a writ of mandate, by which he sought to require the City of San Diego (the City) to provide him, pursuant to the California Public Records Act (Gov. Code, § 6250 et seq. (the Act), with complete and unredacted contracts of a limited liability company of which it was a partial owner (San Diego Medical Services Enterprise, LLC (Enterprise and collectively with the City, the Respondents)). (All further statutory references are to the Government Code except as otherwise noted.) He contends that the superior court erred in finding that (1) pursuant to Code of Civil Procedure section 1085, he bore the burden of establishing the propriety of writ relief; (2) Enterprise was not a "public agency" subject to the requirements of the Act; and (3) the contracts were not "public records" for purposes of the Act. The Respondents contend in part that the court's order was not appealable, but challengeable only by writ petition, and that Dyche's appeal should be dismissed. We treat the appeal as a petition for writ of mandate and grant the requested relief.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to an agreement with the County of San Diego, the City is responsible for providing emergency medical services and transportation within its boundaries and in adjacent jurisdictions through mutual and automatic aid agreements. After a competitive bidding process that occurred in late 1996 and early 1997, the City accepted a collaborative proposal from its Fire & Life Safety Services Department and a private company, Rural/Metro Corporation (Rural/Metro), to carry out its contractual obligation to provide such services.
The City entered into certain contracts with Rural/Metro and created Enterprise as a new limited liability company, to be jointly owned by them. In accordance with those agreements, Enterprise's management board consisted of five members, three of whom were to be appointed by the City and the other two appointed by Rural/Metro, and the City and Rural/Metro shared equally in Enterprises' profits and losses.
Rural/Metro and the City were each responsible for various aspects of the collaborative project, including the provision and maintenance of the ambulances and the provision of fuel, certain personnel, and insurance. The City was obligated to pay Enterprise an annual subsidy, plus another amount for losses, subject to an overall cap on its financial commitment of $6.5 million over the five-year contract period. (That period was later extended and the City's annual subsidy obligation was eliminated, although the cap on its overall financial commitment to cover losses was increased.)
Enterprise was also authorized to enter into contracts to provide emergency transportation services to private third parties without the City's approval and to adjust patient charges for such services with the City's consent. In accordance with this authorization, Enterprise in fact entered into third party contracts with area hospitals, ambulance services, the Chargers football team and others. These third party contracts were apparently lucrative and, according to a report by the Office of the Independent Budget Analyst, Enterprise generated approximately $12.1 million in profits ($4.6 million of which were distributed to the City) from 1997 to 2005.
In March 2007, Dyche made a request to the City that it provide him with copies of all of Enterprise's contracts. The City apparently provided Dyche with copies of its contracts with Enterprise (there is no dispute in this proceeding about such contracts) and, after obtaining copies of the third party contracts from Enterprise, made such copies (which had certain pricing information redacted) available to him as well. Dyche objected to the redactions, but the City maintained that the third party contract information was not subject to disclosure under the Act. In November 2007, Dyche filed a petition for writ of mandate in the superior court to compel disclosure of the redacted information.
After full briefing by the parties and oral argument, the court denied Dyche's petition on the grounds that (1) he had not met his burden under Code of Civil Procedure section 1085 to establish that Enterprise was a public agency; (2) Enterprise was not a "public agency" and not subject to the Act; (3) even if Enterprise was subject to the Act, its third party commercial contracts were not "public records" under the Act; and (4) even if the contracts otherwise qualified as "public records," they were exempt from disclosure pursuant to section 6254, subdivisions (c), (k), (n) and (x) and section 6255. Dyche filed a notice of appeal from the resulting order.
DISCUSSION
The Act requires full disclosure by a public agency of "public records" that are not statutorily exempt from its provisions. (§ 6253; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338.) The Act is based on the principles that "[i]mplicit in the democratic process is the notion that government should be accountable for its actions" and that, "to verify accountability, individuals must have access to government files" as a check against the arbitrary exercise of official power and secrecy in the political process. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651; see § 6250 [declaring that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state"].) The Act is applied so as to further the public's right of access, meaning that its disclosure requirements are broadly construed and its exemptions narrowly construed. (Cal. Const., art. I, § 3, subd. (b), par. (2); BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750-751.)
If a public agency denies a request for public records, the requesting party may file a verified petition for injunctive or declaratory relief in the trial court seeking to compel disclosure of the requested documents. (§§ 6258, 6259.) The agency bears the burden of proving that the withholding of the record is justified by demonstrating that under the circumstances the public interest served by not disclosing the record clearly outweighs the public interest served by the disclosure of the record. (Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1071 (Michaelis).) If the court finds that the public agency has not met this burden, it must order disclosure of the record. (§ 6259, subd. (b); Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759, 767.)
1. Appealability
An order of the superior court compelling or denying disclosure is not appealable, but is subject to immediate review by a petition to the appellate court for the issuance of an extraordinary writ. (§ 6259, subd. (c); Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1296; see generally Powers v. City of Richmond (1995) 10 Cal.4th 85, 110.) The Respondents thus contend that we should dismiss Dyche's appeal from the court's order.
Although the Respondents are correct that a writ petition rather than an appeal is required here, we have the discretion to treat an appeal from a nonappealable order as a petition for writ relief, and thus determine the merits of the challenge to the order, under limited circumstances. (Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367 [the court's power "should be exercised only in unusual circumstances"].) Such discretion will generally be exercised to allow review where the briefs and the record contain in substance all the elements prescribed by the California Rules of Court for an original mandate proceeding and extraordinary circumstances justify the exercise of that power. (H.D. Arnaiz, Ltd. v. County of San Joaquin, supra, 96 Cal.App.4th at pp. 1366-1367 .)
Here, the record before us complies, in substance, with the requirements of the applicable rule. (See Cal. Rules of Court, rule 8.490.) Under these circumstances we exercise our discretion to treat the appeal as a petition for an extraordinary relief since a refusal to exercise such discretion will leave Dyche without any remedy at all (cf. Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806-807 [allowing a writ petition to proceed on the merits where the plaintiffs could not directly appeal from the disputed order]), other than to propound another request for the same documents from the Respondents and initiate yet another round of litigation to reach the issues that are fully briefed and currently before us. Our exercise of discretion in this manner does not contravene, but in fact is consistent with, the policies underlying the general requirement for writ review rather than appellate review of orders compelling or denying disclosures under the Act because it facilitates expedited proceedings to determine the public agency's obligation to disclose records within the purview of the Act. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426-427.)
2. The Burden of Proof
Dyche contends that the superior court erred in denying his writ petition on the ground that he failed to meet his burden to establish that Enterprise was a "public agency" subject to the Act. The law is clear that a public agency subject to the Act bears the burden to establish the propriety of its withholding of documents from public disclosure. (§§ 6255, subd. (a) [providing that the agency "shall justify withholding any record by demonstrating that the record in question is exempt" from disclosure], 6259, subd. (a) [providing that upon the filing of a writ petition seeking disclosure, the court "shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so"]; Michaelis, supra, 38 Cal.4th at p. 1071.) This does not mean, however, that a petitioner need not first establish that the Act applies to the agency in question before the burden shifts to the agency to show that the withholding of the documents is proper.
In fact, the authorities support that the petitioner must make such a showing. (See San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771 [acknowledging a petitioner's burden under the Act to show that the public agency had a duty to perform]; also San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1411-1413 [rejecting the petitioner's contention that there was "unrebutted evidence" of a violation of the Act, implicitly recognizing that the petitioner had an initial burden to establish that the Act applied]; compare California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 167 [recognizing that, in considering a claim that a public record is exempt from disclosure, the burden is on the public agency to show that the records should not be disclosed].) In accordance with these authorities, the superior court did not err in finding that Dyche had the initial burden of proving that the Act was applicable to Enterprise and its records as a prerequisite to the issuance of writ relief.
3. "Public Agency"
By its own terms, the Act applies only to "public agencies" as defined therein. (§ 6253.) Here, as Enterprise emphasizes, Dyche submitted his record request to the City, not to Enterprise, arguably making the relevant question whether the City is a public agency. (The answer to that arguable question is unequivocally yes. (§ 6252, subd. (a)).) However, the City responded to Dyche's request on the merits rather than informing him that he had filed his request with the wrong entity. Moreover, the parties have provided extensive briefing, below and in this proceeding, on the issue of whether Enterprise is a "public agency" for purposes of the Act. Under these circumstances, we conclude that the Respondents have essentially waived any contention that Dyche's failure to serve Enterprise directly with his request for information under the Act is fatal to his request for relief from this court.
For purposes of the Act, a "public agency" includes a city, any board, commission or agency thereof or, as relevant here, any entity that is a "legislative body" of a local agency pursuant to subdivisions (c) and (d) of section 54952. (§ 6252, subd. (a); see also § 54952, subds. (c), (d).) The term "legislative body" is defined as:
"[a] board... or other multimember body that governs a private corporation, limited liability company, or other entity that... [¶] [i]s created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity. (§ 54952, subd. (c)(1)(A).)
Dyche contends that Enterprise is a legislative body in accordance to this definition because the City created it for the purpose of exercising authority that the City could lawfully delegate.
Dyche, however, misreads the statute. Although Enterprise was undeniably created by the City to carry out its delegable authority to provide emergency transportation and similar services, this renders Enterprise's governing board (rather than Enterprise itself) a "legislative body" under the statutory definition. (See Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 864 [concluding that the board of directors of a property owners' association created by the City of Los Angeles to collect assessments from property owners in its district was a "legislative body" pursuant to § 54952, subd. (c)(1)(A)]; International Longshoremen's & Warehousemen's Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 295 [board of directors of a private corporation formed by the City of Los Angeles to design, construct, and operate a coal export facility on City land].) The provision of the operating agreement between the City and Enterprise, which specifies that the meetings of Enterprise's management board is subject to section 54950 et seq., is consistent with this conclusion.
Perhaps in tacit recognition of this problem, Dyche urges us to liberally construe the statutory definition of "public agency." However, to accomplish what Dyche wants, we would have to excise part of the statute's express language ("[a] board... or other multimember body that governs"). (§ 54952, subd. (c)(1)(A).) This is not appropriate, even under the guise of liberal construction. (See Mason v. Department of Real Estate (2002) 102 Cal.App.4th 1349, 1354 [a court may not use the maxim of liberal construction to construe words to have other than their plain meanings]; see generally Smith v. Superior Court (2006) 39 Cal.4th 77, 83.)
Although Enterprise is not itself a "public agency" for purposes of the Act, its managing board clearly is. As the parties have made no distinction between Enterprise and its board in these proceedings or below, we will not do so either, but will accept that a request made of Enterprise is essentially tantamount to a request to its board.
4. "Public Record"
The Act defines "public record" as "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency...." (§ 6252, subd. (e).) Although this definition is broadly worded so as "to cover every conceivable kind of record that is involved in the governmental process" (Coronado Police Officers Assn. v. Carroll, supra, 106 Cal.App.4th at p. 1006), it is nonetheless clear that the requested information must "relat[e] to the conduct of the public's business" to be subject to the mandatory disclosure requirements. (§ 6252, subd. (e); see generally Smith v. Superior Court, supra, 39 Cal.4th at p. 83 [in applying the Act, a court's fundamental task is to ascertain the Legislature's intent, as expressed in the language of the statute, so as to effectuate the statutory purpose].)
Here, the Respondents assert in part that the private contracts between Enterprise and third parties "do not relate to the City's or the public's business." This argument assumes, however, that the City is the only public agency involved here; for the reasons discussed above, that assumption is misplaced. Because Enterprise, through its board, is also a public agency, its contracts with third parties do relate to "public business" and thus are subject to disclosure under the Act unless exempted therefrom pursuant to express statutory exceptions.
The Respondents argue, and the trial court agreed, that the third party contractual provisions relating to service pricing were exempted from disclosure pursuant to section 6254, subdivisions (c), (n) and (x). Those provisions exempt the following records from disclosure:
1. "[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy" (§ 6254, subd. (c));
2. "[s]tatements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license, certificate, or permit applied for" (§ 6254, subd. (n)); and
3. "[f]inancial data contained in applications for registration, or registration renewal, as a service contractor filed with the Director of Consumer Affairs... for the purpose of establishing the service contractor's net worth, or financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor" (§ 6254, subd. (x)).
However, the third party contracts constitute neither personnel or similar files, nor documents filed with a licensing agency or the Director of Consumer Affairs, and thus these exemptions are simply inapplicable here. Moreover, although the Respondents appear to suggest that we should accord Enterprise's third party contracts exempt status because the financial privacy interests implicated by the redacted portions of those contracts are analogous to the privacy rights protected from disclosure by these provisions, such an expansive application of these statutory exemptions would contravene the constitutional mandate that the Act's exemptions are to be narrowly construed. (Cal. Const., art. I, § 3, subds. (a), (b)(2); BRV, Inc. v. Superior Court, supra, 143 Cal.App.4th at pp. 750-751.)
The Respondents also suggest that the redacted pricing information is exempt from disclosure pursuant to section 6254, subdivision (k), which protects "[r]ecords, the disclosure of which is exempted or prohibited pursuant to state or federal law...," because the pricing information constitutes privileged trade secret information pursuant to Evidence Code section 1060. That statute recognizes a qualified privilege for information that "[d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use and... [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy." (Civ. Code, § 3426.1, subd. (d); Evid. Code, § 1061, subd. (a)(1).)
Here, the Respondents have offered no explanation as to how, nor have they cited any evidence in the record or persuasive case authority to establish that, the pricing information at issue here had actual or potential independent economic value as a result of its secrecy. (See GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 428-429 [recognizing that merely showing that information was secret does not simultaneously establish economic value], disapproved on other grounds by Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1153-1154.) Accordingly, they have not met their burden to show that the pricing information was exempt from disclosure by section 6254, subdivision (k).
Finally, the Respondents rely on section 6255 (which is commonly referred to as the "catchall exception") as a basis for nondisclosure of the pricing information. (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1045.) Pursuant to that exemption, an agency may withhold public records if it can demonstrate "that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." (§ 6255, subd. (a).) Again, however, the Respondents have not shown that there is a public interest that is served by withholding the redacted pricing information, much less that such interest substantially outweighs the public interest that is served by disclosing such information and thus they have not met their burden to justify such withholding under the Act.
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its order denying Dyche's petition for a writ of mandate and to issue a new order granting that petition. Dyche is awarded his costs in this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
I CONCUR: NARES, J.
BENKE, J.
I dissent.
As the majority now recognizes (see majority opn., p. 5), an order of the superior court compelling or denying disclosure under the California Public Records Act (Gov. Code,, § 6250 et seq. (Act)) is not appealable, rather it is subject to immediate review by an original proceeding, a petition to the appellate court for issuance of an extraordinary writ. (§ 6259, subd. (c); see also Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426 (Filarsky); Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1296 ["review of Public Records Act order by extraordinary writ only"].)
The majority previously addressed the appealability of a judgment under section 6259, subdivision (c), in Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001. There it concluded this statute "provides that an order granting or denying a request for disclosure of public records is generally reviewable by writ rather than appeal." (Id. at p. 1006, italics added.) However, the language of section 6259, subdivision (c), is plain and unambiguous (see Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818 [stating under "well established principles" of statutory construction, "[i]f the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls"]), and provides the exclusive means to challenge an order granting or denying disclosure under the Act—by writ petition and not by appeal. (Cf. People v. Hull (1991) 1 Cal.4th 266, 268 [concluding Code of Civil Procedure section 170.3, subdivision (d), which provides the "determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate," "prescribes the exclusive means of appellate review of an unsuccessful peremptory challenge"], italics added.)
All statutory references are to the Government Code unless otherwise specified.
The reasons for the requirement of writ review, rather than by appeal, have been fully set forth by our Supreme Court in Filarsky: "The court's order either directing disclosure by a public official or supporting the decision to refuse disclosure 'is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ' filed within 20 days after service of the notice of entry of the order, or within an additional 20 days as the trial court may allow for good cause. [Citation.] The purpose of the provision limiting appellate review of the trial court's order to a petition for extraordinary writ is to prohibit public agencies from delaying the disclosure of public records by appealing a trial court decision and using continuances in order to frustrate the intent of the Act [Citation.] The legislative objective was to expedite the process and make the appellate remedy more effective. [Citation.] Indeed, the Act's provision regarding a public agency's obligation to act promptly upon receiving a request for disclosure [citation], the provision directing the trial court in a proceeding under the Act to reach a decision as soon as possible [citation], and the provision for expedited appellate review [citation] all reflect a clear legislative intent that the determination of the obligation to disclose records requested from a public agency be made expeditiously." (Filarsky, supra, 28 Cal.4th at pp. 426-427.)
Under only "extraordinary" circumstances may we exercise our discretion to treat an appeal from a non-appealable order as a petition for writ relief, and determine the merits. (Coronado Police Officers Assn. v. Carroll, supra, 106 Cal.App.4th at p. 1006; H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.)
No such circumstances have been offered by appellant in support of this court bypassing the mandatory procedural process set out by the Legislature in section 6259, subdivision (c). Indeed, appellant's opening brief does not address the issue. Nor does appellant respond in his reply brief to the argument made by respondent San Diego Medical Services Enterprises, LLC, that the case should be dismissed for failure to file an extraordinary writ instead of an appeal. In short, appellant has made no written argument that extraordinary circumstances excuse his compliance with the law.
Moreover, at oral argument before this court, when asked directly what extraordinary circumstances exist, appellant's express reply was that it was less costly to proceed by way of appeal. With all due respect, this is not a showing of extraordinary circumstances. If anything, it demonstrates appellant understood the procedural requirements set forth in section 6259, subdivision (c), and elected to disregard them. The failure to defend on appeal the procedural choice made underscores the lack of unique and exceptional circumstances requiring this court set aside the writ requirement under the statute.
Nor have my colleagues made a case for finding extraordinary circumstances where none have been offered by appellant. They conclude appellant will be left without a remedy if they do not consider the substance of the case. I would note, however, that appellant will be left without a remedy solely because he consciously decided not to follow the law, including the requirement under subdivision (c) of section 6259 that review of the disclosure order be made within 20 days after service upon him of a written notice of entry of the order. Appellant, however, filed his notice of appeal more than 30 days after he was served with notice of the court's ruling denying his request for disclosure of records under the Act.
As a second ground of uniqueness, my colleagues contend the public policy underlying section 6259, subdivision (c)—expedited proceedings to determine a public agency's obligation to disclose records within the purview of the Act—will actually be furthered here if the appeal is treated as a petition for extraordinary writ because otherwise appellant will have to propound yet another request for the same documents from the respondents and initiate yet another round of litigation to reach the issues that are now fully briefed and pending in this appeal. (Majority opn., p. 6.)
Putting aside the issue of whether res judicata and/or collateral estoppel would apply to such a (second and subsequent) document request by appellant, the majority's justification for extraordinary circumstances turns section 6259, subdivision (c), on its proverbial head. The majority's decision allows a party, and candidly, a court, to ignore the express limitations of appellate jurisdiction imposed by the Legislature merely because a case is fully briefed and pending on appeal. With all due respect, it will always be more expeditious to resolve a fully briefed case pending on appeal than to dismiss the appeal. By no means are such circumstances extraordinary or unusual.
In my view, the majority's decision is an unwarranted expansion of a reviewing court's discretionary authority to treat an appeal as an extraordinary writ. Up to now, this authority was exercised only in limited circumstances, such as when a party seeks review of a nonappealable order (see, e.g., H. D. Arnaiz, Ltd. v. County of San Joaquin, supra, 96 Cal.App.4th at pp. 1366-1367 [order granting motion to vacate voluntary dismissal treated as a petition for writ of mandate because no statutory right of appeal exists for such an order]) or when a party otherwise complies with the requirements of a statutory right of review but seeks relief through the wrong procedural vehicle (see, e.g., Coronado Police Officers Assn. v. Carroll, supra, 106 Cal.App.4th at p. 1006 [extraordinary circumstances justified treating appellant's appeal as a petition for writ relief, inasmuch as appellant filed his appeal within the statutory time period for writ review set forth in section 6259, subdivision (c)]).
Because appellant knowingly chose not to follow the law and seek review by writ petition, and because no extraordinary circumstances exist here, as appellant tacitly admitted during oral argument when he conceded he did not file a writ petition because it was too costly, I would dismiss the appeal.