Opinion
D041277.
7-2-2003
JAMES E. HOLMAN dba THE SAN DIEGO READER, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE CITY OF SAN DIEGO, Real Party in Interest.
Petitioner James Holman dba The San Diego Reader (Reader) invoked the California Public Records Act, Government Code section 6250 et seq. (CPRA) to obtain from respondent City of San Diego (City) seven categories of documents allegedly possessed by City that relate to Elena Christiano (Christiano), a former City employee. City provided access to some, but not all, of the documents and stated its reasons for declining access to the documents not produced. Reader filed this action seeking an order compelling disclosure of the documents it requested. The trial court denied the order, and Reader filed this petition (§ 6259, subd. (c)) seeking a writ directing the trial court to order that all requested documents be made available for inspection.
All further statutory references are to the Government Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Inquiry
In 2002 Readers weekly news magazine was preparing an article about Christiano, who had been hired as a press secretary for the Mayor of San Diego in 2000 but left the Citys employment in the spring of 2002. Reader requested, pursuant to the CPRA, seven categories of documents in the possession of City relating to Christiano created during calendar year 2002. Among the documents sought by Reader were (1) all claims for benefits filed by Christiano with City, (2) all correspondence to and from Christiano, (3) all e-mails to and from Christiano, and (4) all telephone and cellular telephone bills paid by the City for telephones used by Christiano.
Reader also sought telephone logs relating to Christiano but was informed by City that it did not maintain those records; that category of documents is not in dispute in this proceeding. Reader also sought all press releases written or edited by Christiano, and all speeches written or prepared by Christiano, or in which she assisted. City provided those documents and those categories are not in dispute in this proceeding.
City declined to provide Reader with claims for workers compensation or long-term disability benefits filed by Christiano with City, citing section 6254, subdivision (c)s exemption for "personnel, medical, or similar files." City declined to provide Reader with copies of all correspondence to and from Christiano because the request did not reasonably describe an identifiable document within the meaning of section 6253, subdivision (b) and was overly broad; however, City agreed it would provide otherwise nonexempt records if Reader provided a more focused or specific request, including correspondence to and from an identified party or pertaining to a particular subject matter. City declined to provide copies of all e-mails to and from Christiano, asserting the request did not reasonably describe an identifiable record within the meaning of section 6253, subdivision (b)), was overly broad, and might include records exempt from disclosure under the "deliberative process" privilege. Finally, although City provided copies of bills for telephones or cellular telephones used by Christiano, it first redacted the telephone numbers of the parties to whom Christiano placed a call or from whom she received a call, citing the "deliberative process" exemption and the exemption for the disclosure of files that "would constitute an unwarranted invasion of personal privacy."
The parties apparently met in an attempt to hone the request into a more particularized identification of documents but their efforts were unsuccessful.
B. The Litigation
Reader filed this action under section 6258 seeking an order to compel City to provide the requested documents not voluntarily disclosed. At trial, Mr. Kern (chief of staff for the Mayor) explained the request for all correspondence to and from Christiano did not provide a sufficiently focused or specific request. Kern testified there were at least 50 file drawers in Citys central file system and the files are indexed by person or by subject matter, and therefore a minimum starting point for a search of those records would be a request describing the topic of the correspondence or identifying the person from whom the correspondence emanated or to whom it was addressed. Kern also explained that there are additional files maintained by and kept in the offices of individual members of the Mayors staff (as well as files maintained by other departments) that could contain correspondence to or from Christiano and, absent a more focused request, Readers request as framed required searches by each person of his or her own files to determine whether they contained any correspondence to or from Christiano.
Kern also explained the reason for declining to provide documents that revealed the parties e-mail addresses and telephone numbers. He testified there is a high volume of incoming and outgoing contacts between the Mayors office and the public, both by telephone and by e-mail, and most of these contacts were necessarily routed to and handled by staff members rather than being handled directly by the Mayor. In his opinion, these daily contacts between the Mayors office and the public, which involved the exchange of information and opinions, would "dry up" if the persons knew their telephone numbers, e-mail addresses and names would become public record, because they expected confidentiality for this information.
C. The Trial Courts Ruling
The trial court ruled information in the claims filed by Christiano for workers compensation or long-term disability benefits was exempt from disclosure under section 6254, subdivisions (c) and (k), and, because the public interest served by not disclosing the information outweighed the public interest served by disclosure, under section 6255.
The court ruled City properly refused to produce copies of all correspondence to and from Christiano because the request did not describe a reasonably segregable portion of the public record within the meaning of section 6253, subdivision (a), and also imposed an unreasonable burden on City.
The court ruled that the request for copies of all e-mails to or from Christiano, although describing a reasonably segregable portion of the record, included records exempt from disclosure under section 6254, subdivision (k), because disclosure would invade the privacy interests of the parties who sent e-mails to or received e-mails from Christiano. The court also concluded the information was exempt under section 6255 because the public interest served by not disclosing the e-mail information outweighed the public interest served by disclosure; disclosure would chill the public and media from communicating with City.
In response to Readers requests for telephone bills, the court distinguished between bills for cellular telephones used by Christiano and bills for "land lines" that Christiano may have used. The court ruled the request for land line bills did not describe a reasonably segregable portion of the public record within the meaning of section 6253, subdivision (a), because they included calls placed by persons other than Christiano.
The court ruled the request for cellular telephone bills did describe a reasonably segregable portion of the public record. However, the court concluded the cellular telephone bills contained information exempt from disclosure under two provisions. First, the information was exempt from disclosure under section 6254, subdivision (k), because the bills included the telephone numbers of parties called from (or calling to) the cellular telephone number and these parties had a reasonable expectation of privacy as to their telephone numbers and identities. Second, the information was exempt from disclosure under section 6255 because the public interest served by not disclosing these telephone numbers outweighed the public interest served by disclosure: the public and media would be deterred from communicating with City if they knew their telephone numbers could be obtained and used by the media to contact them as part of a journalistic investigation.
II
ANALYSIS
A. Overview
CPRA was intended to safeguard the accountability of government to the public ( San Gabriel Tribune v. Superior Court (1983) 143 Cal. App. 3d 762, 771-772, 192 Cal. Rptr. 415). Because CPRA serves this important public interest by securing public access to government records, it is construed broadly in favor of access, and exemptions from disclosure are construed narrowly. ( Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 476.) However, the Legislature expressly declared CPRA was enacted "mindful of the right of individuals to privacy" (§ 6250), a right expressly recognized by the California Constitution as an "inalienable" right of the citizens of this state. (Cal. Const., art. I, § 1.) Our Supreme Court in CBS, Inc. v. Block (1986) 42 Cal.3d 646, 230 Cal. Rptr. 362, 725 P.2d 470 (CBS), addressing the competing interests of personal privacy and access to public records, stated at page 651 that: "Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process. However, a narrower but no less important interest is the privacy of individuals whose personal affairs are recorded in government files." (Fns. omitted.)
The burden is on the public agency to show the records should not be disclosed. ( San Gabriel Tribune v. Superior Court, supra, 143 Cal. App. 3d at p. 773.) On appeal, we review de novo the trial courts ruling, deferring only to its express or implied factual findings. ( Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 173-174.)
B. Disclosure of Workers Compensation and Long-term Disability Claim Forms
City provided its workers compensation and long-term disability claim forms to the court for purposes of an in camera inspection. The court examined the forms and found they contained individual identifying information from a health care provider regarding a patients medical history and mental or physical condition or treatment. Based on this factual finding, the court held the claims Christiano filed against City for workers compensation and long-term disability were exempt from disclosure under section 6254, subdivisions (c) and (k).
The court also found applicable the so-called "catch-all" exemption provided by section 6255 ( Poway Unified School Dist. v. Superior Court (Copley Press) (1998) 62 Cal.App.4th 1496, 1505) (hereafter Poway), holding the public interest served by not disclosing the claim forms clearly outweighed the public interest served by disclosure. We need not reach this issue because we conclude the section 6254, subdivisions (c) and (k) exemptions were properly applied.
Section 6254, subdivision (c) exempts from disclosure "personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." Section 6254, subdivision (k) exempts from disclosure "records, the disclosure of which is exempted or prohibited pursuant to [provisions of] federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." The courts have recognized that the right of privacy expressly secured by the California Constitution (Cal. Const., art. I, § 1) includes the details of an individuals medical history, complaints of physical ills, state of mind and emotional overtones. (Cutter v. Brownbridge (1986) 183 Cal. App. 3d 836, 842, 228 Cal. Rptr. 545.) Indeed, California has a detailed statutory scheme that limits the circumstances under which confidential medical information may be disclosed (see Civ. Code, § 56 et seq.; Loder v. City of Glendale (1997) 14 Cal.4th 846, 859-862, 927 P.2d 1200), and Reader cites nothing in that scheme suggesting that a CPRA request may obviate the confidentiality of medical information.
There are no California cases directly addressing whether workers compensation or long term disability claim forms are exempt from disclosure under section 6254, subdivisions (c) and (k). However, in Plain Dealer Pub. Co. v. U.S. Dept. of Labor (D.D.C. 1979) 471 F. Supp. 1023, the court evaluated a request, made under the federal Freedom of Information Act (FOIA), for documents contained in workers compensation claims files. The Plain Dealer court, examining an analogous FOIA provision that exempts from disclosure "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" (5 U.S.C § 552(b)(6)), held these documents were exempt from disclosure under the FOIA. (471 F. Supp. at pp. 1026-1029.) CPRA is modeled on the FOIA and receives a parallel construction to the FOIA ( Rogers v. Superior Court, supra, 19 Cal.App.4th at p. 478, fn. 7). Readers request for Christianos claims against City sought personnel, medical, or similar information, disclosure of which would constitute an invasion of Christianos personal privacy interest in her medical information. The medical information contained in the claims is facially exempt from disclosure pursuant to state law. We conclude the trial court properly found that section 6254, subdivision (c) exempted the claim information from disclosure. It is unnecessary to decide whether section 6254, subdivision (k) also exempted the claim information from disclosure.
Reader argues the information sought here should be disclosed under this courts decision in Poway, supra, 62 Cal.App.4th 1496, in which this court concluded claims filed under the Tort Claims Act (section 910 et seq.) were properly disclosed pursuant to a CPRA request. In Poway, a student was sodomized during a hazing by fellow students, and one of the participants submitted a claim to the school district that included a description of the details of the attack. Although the victim did not submit a formal Tort Claims Act claim, he did seek and obtain a settlement with the school district in an agreement ordered sealed by the superior court. (Poway, at pp. 1499-1500.) The media sought the claim information and the only CPRA exemptions considered by the Poway court were section 6254, subdivision (b) (exempting records pertaining to pending litigation), section 6255s "catch-all" exemption, and the exemption for educational records under federal and state law. The Poway court concluded the purpose underlying the "pending litigation" exemption was inapplicable to the claim information, and also concluded the claim was not an educational record protected by state or federal law. (Poway, at pp. 1502-1505, 1506-1507.) The Poway court also concluded the catch-all exemption of section 6255 was inapplicable because any privacy interests furthered by nondisclosure were minimal and were outweighed by the public interests of ending hazing and of encouraging public scrutiny of proceedings involving serious juvenile offenders.
In Poway, the victims identity had already been disclosed in open court during earlier proceedings, and the details of the attack had been revealed in other venues. Additionally, the court concluded the victim had no reasonable expectation of privacy because (1) filing the Claims Act claim effectively tendered the issue of his injury for litigation purposes and waived any claim to privacy as to the tendered issue and (2) the fact of settlement was announced by the victims attorney at a press conference. ( Poway, supra, 62 Cal.App.4th at pp. 1499-1501, 1505-1506.)
Poway is not controlling because it did not consider the type of claim filed here and had no occasion to consider the applicability of the section 6254, subdivisions (c) and (k) exemptions. Additionally, Poway is distinguishable because the nature and purposes of a Tort Claims Act claim differ markedly from the nature and purposes for a workers compensation or long-term disability claim. Section 6254, subdivision (c)s exemption provides confidentiality for sensitive personal information that an individual must submit to the agency in furtherance of the agencys goals or purposes. ( San Gabriel Tribune v. Superior Court, supra, 143 Cal. App. 3d at 777.) This exemption does not cover a Tort Claims Act claim because a Tort Claims Act claim is a pre-litigation filing that a third party files only if he voluntarily elects to pursue his own interests in litigating against the agency. ( Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92.) However, the workers compensation system, which furthers the interest of the governmental employer (as well as its employees) by providing the exclusive remedial system for injured employees ( Hisel v. County of Los Angeles (1987) 193 Cal. App. 3d 969, 974-975, 238 Cal. Rptr. 678), compels the injured employee to file the claim. (Lab. Code, § 5400.) Although a workers compensation claim filed by an employee against his governmental employer may seek payment from the public fisc, that fact does not transmogrify it from a compulsory workers compensation claim into an optional Tort Claims Act claim. (See § 905, subd. (d).)
C. The Request for Correspondence
The court ruled that City properly declined Readers request for all correspondence to and from Christiano because the request (1) did not describe a reasonably segregable portion of the public record within the meaning of section 6253, subdivision (a) and (2) posed an unreasonable burden on City.
When a CPRA request is sufficiently specific and focused to permit the agency to determine whether it possesses writings described in the request ( California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 165), the agency must produce a reasonably segregable portion of the record for inspection. ( § 6253, subd. (a).) The test for whether a request reasonably describes an identifiable record depends not on the size or bulk of the documents requested; instead, the test is whether the request is sufficiently focused and specific to allow the agency to locate the requested records with reasonable effort. ( State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1186.)
The issue of unreasonable burden "raises a separate issue. A clearly framed request [that] requires an agency to search an enormous volume of data for a needle in the haystack or, conversely, a request [that] compels the production of a huge volume of material may be objectionable as unduly burdensome. [Citation.] Records requests, however, inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort." (California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at p. 166.)
The court, based in large part on the testimony of Kern regarding the indexing, maintenance and volume of the correspondence files, concluded the request for "all correspondence" to or from Christiano was insufficiently definite to comply with the requirement for describing a reasonably segregable portion of the record. The evidence supports this ruling because Christianos correspondence is not filed under her name; instead, the filing system is apparently indexed by subject matter or by the person who sent the letter to (or received the letter from) the City agency. Accordingly, the request was not sufficiently focused and specific to allow City to locate the requested records with reasonable effort.
Reader argues the requirement for specificity must be tempered by the recognition that a "requester, having no access to agency files, may be unable to precisely identify the documents sought" (California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at pp. 165-166), and Reader was unable to more particularly describe the materials it sought because it only knew that Christiano worked for City, but did not know what her job encompassed. The California First Amendment Coalition court, acknowledging that a precise description of the records sought might be unattainable, did not wholly excuse the requester from any particularity because the court concluded it would be permissible for the writing to be described by its content. ( Id. at p. 166.) Citys response to Readers request asked for such a narrowing of the request, seeking a description by subject matter or by person, but Reader provided no additional description to enable City to locate the requested records with reasonable effort.
The courts conclusion that the request was unduly burdensome is also supported by Kerns description of the filing systems. City could not locate "all correspondence" to or from Christiano without assigning a person to search the entirety of its central filing system (as well as having each staff member likewise comb through his or her own files) to look for the proverbial needle in the haystack. Although record requests are not improper merely because there is some burden inevitably associated with searching and responding ( California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th 159), there was substantial evidence to support the finding that the request for correspondence—as formulated—required such an extensive search for responsive documents that the request was unduly burdensome. (Ibid.)
Reader argues that, even assuming the request for correspondence lacked precision or was unduly burdensome, there was no evidence to support the trial courts conclusion that City complied with the mandate of section 6253.1, subdivision (a), which requires the agency to assist the requester to formulate a focused and effective request. However, there was evidence that City representatives met with Reader representatives and explained how Reader could generate a more focused, content-based description to provide City with a starting point for searching the public records for responsive correspondence. Because Kerns description of the filing system showed that subject-or identity-based inquiries were necessary to provide some focus for a search, and City apparently informed Reader of this necessity, City complied "to the extent reasonable under the circumstances" (§ 6253.1, subd. (a)) with the requirement that it assist Reader to focus its request.
Section 6253.1, subdivision (a) provides:
"(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought."
D. E-Mails
The court upheld Citys denial of the request for copies of all e-mails to or from Christiano. The court ruled that the request for copies of all e-mails to or from Christiano described a reasonably segregable portion of the record and was not an unreasonably burdensome request, and City does not challenge those conclusions in this proceeding. However, the court found disclosure would invade the privacy interests of the parties who sent e-mails to or received e-mails from Christiano and, under section 6255, the public interest served by not disclosing the e-mail information clearly outweighed the public interest served by disclosure because disclosure would chill public and media communications with City. The court also ruled that these documents were exempt from disclosure under section 6254, subdivision (k) for the additional reason that disclosure could invade the reasonable expectation of privacy held by parties in those e-mails and in their identities, which we presume to mean the partys e-mail address. To the extent this aspect of the trial courts order merely incorporates or restates the balance it struck under section 6255 to hold that the parties privacy interests outweighed the public interest in disclosure in this case, then the application of the section 6254, subdivision (k) exemption appears to be duplicative of the application of the section 6255 "catch-all" exemption. However, to the extent the court intended by its ruling to hold that section 6254, subdivision (k) provides an independent basis for nondisclosure, we disagree. Section 6254, subdivision (k) provides for nondisclosure only of information that is "exempted [from disclosure] pursuant to federal or state law." There is no absolute privilege exempting private identifying information from disclosure (see, e.g., CBS, supra, 42 Cal.3d at pp. 656-657), although personal information protected by Californias constitutionally guaranteed right of privacy can be exempted from CPRA disclosure under the balancing test set forth in section 6255. ( City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1019-1025.) Numerous courts have concluded that personal information of private citizens contained in government records can be disclosed ( CBS, supra, 42 Cal.3d at pp. 656— 657 [names, home addresses and applications of persons who obtained concealed weapon permits must be disclosed]; New York Times Co. v. Superior Court (1990) 218 Cal. App. 3d 1579, 1585-1586, 268 Cal. Rptr. 21 [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 sheriffs deputies who fired weapons must be disclosed ]), and we therefore view the privacy privilege as one to be resolved under section 6255s balancing approach rather than under section 6254, subdivision (k)s exemption approach.
We disagree with the trial courts conclusion, and hold that neither the privacy interests of the e-mail correspondents nor the public interest served by not disclosing the e-mail information clearly outweighs the public interest served by disclosure.
Section 6255 provides a catch-all provision that enables an agency to withhold a public record that would not be exempt under any of the specific exemptions delineated in section 6254. ( Poway, supra, 62 Cal.App.4th at p. 1501.) Section 6255 states: "The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record."
Before balancing the competing interests of disclosure versus privacy, we first identify the extent to which such privacy concerns are transgressed by disclosure. ( City of San Jose v. Superior Court, supra, 74 Cal.App.4th at pp. 1018-1020.) To evaluate whether any privacy interest exists in the particular case, we examine whether a legally protected privacy interest exists and whether there is a reasonable expectation of privacy under the circumstances. ( Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40, 865 P.2d 633.) Numerous courts have concluded, in various contexts, that persons who use e-mail to communicate do not have any reasonable expectation of privacy in those communications (see, e.g., TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 450-452; United States v. Charbonneau (S.D. Ohio 1997) 979 F. Supp. 1177, 1184 ["an e-mail message, like a letter, cannot be afforded a reasonable expectation of privacy once that message is received" ]), and recent amendments to section 6252, subdivision (f) make clear that e-mails retained by any local agency become government records. (Stats. 2002, ch. 945, pp. 4631— 4632.)
In this case, disclosing the content of the e-mails, at least insofar as the e-mails were shorn of information revealing the partys e-mail address, would not offend any legally protected privacy interest of the parties. (See City of San Jose v. Superior Court, supra, 74 Cal.App.4th at pp. 1023.) The only arguable privacy concerns implicated by disclosure would be that the e-mail addresses of parties would be revealed. However, we reject the notion that a party, having sent an e-mail to or received an e-mail from a government official, may nevertheless claim to have retained a reasonable expectation of privacy as to the e-mail address from which the communication emanated. After an e-mail is sent, the sender has no control over its distribution. The sender usually cannot determine whether anyone has received the message, the number or identity of persons that have accessed the message, the locale in which the message was received, or whether the recipient has forwarded the message to others. ( Am. Libraries Assn. v. Pataki (S.D.N.Y. 1997) 969 F. Supp. 160, 167; McDonald, Dissemination of Harmful Matter to Minors Over the Internet (2001) 12 Seton Hall Const. L.J. 163, 165-169.) The message necessarily includes the senders e-mail address. Considering these characteristics of e-mail, there is minimal privacy interest in an e-mail address to be balanced against the interest of disclosure.
The trial court struck its balance against disclosure because it perceived there was a corollary public interest served by not disclosing the e-mail: the concern that communications from the public and the media to government employees would be inhibited if the public or the media knew their e-mail addresses could be disclosed. Although the deleterious impact of chilling communications may in some cases clearly outweigh the public interest in disclosure of those communications, our de novo evaluation here compels us to strike a different balance in this case. The interest furthered by disclosure here involves the access to "vital information about the governments conduct of its business" ( CBS, supra, 42 Cal.3d at p. 656): the activities of a person hired as a staff member of the Mayors office for which she may have had no prior experience or training, and who was allegedly connected to an entity (the San Diego Padres) with whom City was then engaged in a controversial project. On the disclosure-interest side of the scales, it appears the only feasible way to investigate the governments conduct of its business insofar as it hired and paid Christiano was to determine what her daily activities included, which necessarily includes examining her contacts (both in person and by e-mail) in her role as a staff member. On the nondisclosure-interest side of the scales, the chilling effect associated with revealing e-mail addresses of those she dealt with appears minimal. We therefore conclude the public interest served by not disclosing the e— mail information does not clearly outweigh the public interest served by disclosure under section 6255.
In City of San Jose v. Superior Court, supra, 74 Cal.App.4th 1008, the court concluded the names, addresses and telephone numbers of complainants should not be revealed because it could chill citizens from reporting noise complaints and thereby hinder the ability of the agency charged with monitoring noise problems to fulfill its duties. However, the type of information withheld in City of San Jose was different because the type of intrusion that such information could have allowed (direct and personal contacts at home) seems substantially more intrusive than the type of intrusion that would occur by contacting a person through his or her e-mail address. Additionally, the City of San Jose noted the media had alternative means of contacting and interviewing persons who lodged complaints ( id. at pp. 1024-1025); we cannot imagine any alternative less intrusive methods of identifying the class of persons with whom Christiano dealt in discharging her duties with City.
Although the record is sparse, Reader contends Christiano had little or no experience qualifying her for the position of a press secretary, but instead had an employment history that included waitressing at a local sports-oriented restaurant and being a member of the "Pad Squad," a group associated with the San Diego Padres. She also allegedly had a close personal and financial relationship with a Padres executive. At the time she was hired, City and the San Diego Padres were engaged in efforts to construct a controversial downtown redevelopment project that included a new ballpark for the Padres. (See City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 389-390.)
E. Unredacted Cellular Telephone Bills
We finally examine the courts conclusion that telephone numbers are exempt from disclosure under a privacy privilege (§ 6254, subd. (k)) and under section 6255s balancing approach. We conclude there is no blanket exemption for telephone numbers and Christianos cellular telephone bills are therefore not exempt from disclosure. However, the trial court correctly ruled against disclosure of the telephone bills for the land lines used by Christiano because the requested land line bills did not describe a reasonably segregable portion of the public record within the meaning of section 6253, subdivision (a).
1.Private Telephone Numbers
As a preliminary matter, we conclude that, as with e-mail, the private telephone numbers here are not privileged under section 6254, subdivision (k) but may be exempt from disclosure as privacy interests if privacy interests are found to outweigh disclosure interests under section 6255s balancing test. Although Californias interest in protecting the residential zone of privacy may under some circumstances outweigh the countervailing interest in obtaining the telephone numbers of private citizens (see, e.g., Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 360-369), we are cited no authority that the telephone numbers of private citizens are entirely privileged from disclosure under a CPRA request. Instead, California cases recognize the disclosure interest will sometimes outweigh the privacy interest of citizens (see, e.g., CBS, supra, 42 Cal.3d at pp. 656-657; New York Times Co. v. Superior Court, supra, 218 Cal. App. 3d at pp. 1585-1586), and the courts in other states have specifically concluded the privacy interest of maintaining the confidentiality of a private telephone number can be overcome by the interest in ensuring governmental accountability that would be served if the telephone numbers were disclosed. (See, e.g., DR Partners v. Bd. of County Commrs (Nev. 2000) 116 Nev. 616, 6 P.3d 465, 472; PG Pub. Co. v. County of Washington (Pa. Cmwlth. 1994) 162 Pa. Commw. 196, 638 A.2d 422, 428.)
Private telephone numbers might be privileged under section 6254, subdivision (k) to the extent there are statutorily conferred protections for such information. (See, e.g., Civ. Code, § 1798 et seq.) However, City does not assert the telephone numbers qualify for any statutory privilege.
City relies on Rogers v. Superior Court, supra, 19 Cal.App.4th 469 for the proposition that records reflecting the telephone numbers of private citizens who contact their elected representatives, although a public record within the meaning of the CPRA ( id. at p. 476, fn. 5), are privileged from disclosure. However, Rogers concluded the "deliberative process privilege" was implicated by the request because the articulated purpose for requesting the telephone records in Rogers was that the telephone records could be used to demonstrate that decisions by the elected officials were being unduly influenced by contacts with particular persons or groups. ( Id. at p. 477.) Rogers noted the deliberative process privilege is designed to encourage the free flow of information to elected officials by ensuring that neither the interested party nor the public official is dissuaded from communicating with the other by the specter having their contacts exposed. Rogers employed the balancing test of section 6255 and concluded the deliberative process interest outweighed the disclosure interest, and therefore specifically declined to determine whether disclosure was also barred by privacy interests or under section 6254, subdivision (k). (Rogers, at pp. 477-481.) Rogers is factually distinguishable because the purpose of the Rogers request was to explore the deliberative process ( id. at pp. 477, 481), and the purpose of the request here was apparently to explore why a purportedly unqualified person was on the government payroll. More importantly, Rogers has no application because the trial court here specifically found City had not established the factual predicates to application of the deliberative process privilege as to Christianos communications. Accordingly, Rogers does not provide support for Citys argument against disclosure of the telephone records.
We therefore examine whether, under section 6255, the public interest served by not disclosing the telephone numbers of persons who received calls from (or persons who placed calls to) Christiano clearly outweighed the public interest served by disclosure.
2. The Disclosure Interests and Countervailing Interests
We first identify the interests militating against disclosure. (City of San Jose v. Superior Court, supra, 74 Cal.App.4th at pp. 1018-1020.) The first interest identified by the trial court to justify nondisclosure was the interests of parties in maintaining a reasonable expectation of privacy in their telephone numbers. However, we are cited no California authority holding that persons who use the telephone to contact government employees or who are contacted by government employees by telephone retain a reasonable expectation in the privacy of their telephone numbers, and courts in other states have reached a contrary conclusion. In DR Partners v. Bd. of County Commrs, supra, 6 P.3d 465, the government contended that disclosure of unredacted records would violate the privacy of persons with telephone numbers reflected on the billing statements. The court rejected that argument because it concluded neither the government employee nor the party who contacts a public official has any reasonable expectation of privacy in the information contained on the bills. (Id . at p. 472; see also City of Elkhart v. Agenda: Open Govt. (Ind. App. 1997) 683 N.E.2d 622, 627; Dortch v. Atlanta Journal (Ga. 1991) 261 Ga. 350, 405 S.E.2d 43, 45.)
The cellular telephone bills sought in this proceeding disclose the telephone numbers of only those telephones to which Christiano directed calls. Presumably, those telephone numbers consist of other cellular telephones, land-based home telephones and business telephones. Generally, a person has a minimal privacy interest in a business telephone number. Although a person presumably has a higher expectation of privacy in cellular and land-based home telephone numbers, that expectation is tempered by the fact that the telephone call was placed by a government employee. Furthermore, a cellular telephone number does not identify any person and privacy interests are infringed only when the number is linked to a person. The most obvious way to connect that link is to call the number and ask for the identity of the person who answers. That person can maintain anonymity (and privacy) by declining to respond with his or her identity. The link may similarly be inhibited in land-based residential telephones, although perhaps less effectively if the number is on a reverse directory.
In another context, the court in Doe v. Alaska Superior Ct., Third Jud. Dist. (Ala. 1986) 721 P.2d 617 evaluated whether letters and postcards sent by constituents, which presumably contained private identifying information analogous to telephone numbers, were confidential and not subject to disclosure under a government records request. The court rejected the argument that privacy interests barred disclosure, reasoning that although a citizen "has a fundamental right to freely communicate his or her views to a public official concerning a public issue[,] . . . we do not believe that Alaskas privacy amendment was intended to guarantee the confidentiality of such communications or permit citizens to escape responsibility for comments so expressed." ( Id. at p. 629, fn. omitted.) California courts have similarly recognized that when private citizens choose to inject themselves into the public arena, their right to be left alone or to keep certain matters private is correspondingly diminished. (See Stryker v. Republic Pictures Corp. (1951) 108 Cal. App. 2d 191, 194, 238 P.2d 670; Mosesian v. McClatchy Newspapers (1991) 233 Cal. App. 3d 1685, 1700-1701, 285 Cal. Rptr. 430.) We conclude that our balancing of the disclosure interests against the privacy interests must recognize, to the extent that parties contacted Christiano or were contacted by her to espouse a viewpoint or influence the public dialogue, the parties reasonable expectation of privacy they may have previously held in the privacy of their telephone numbers was to the same extent diminished.
The second interest identified by the trial court to justify nondisclosure is a corollary of the privacy interest: if third persons know that under some circumstances their telephone numbers can be obtained through a CPRA request, communications between the public and the media and City employees could be chilled. The court in Doe v. Alaska Superior Ct., Third Jud. Dist., supra, 721 P.2d 617 rejected a similar argument that the communications must remain confidential to avoid the chilling effect on citizens contacts with their government, reasoning that "both state and federal courts have recognized that the strong public interest in open government and an election process free of taint justifies certain restrictions on free speech. Thus, laws requiring disclosure of campaign contributions, reporting requirements for lobbyists, conflict-of-interest reports by public officials, and open public meetings have been upheld despite the potential to chill speech." ( Id. at pp. 628-629.) We similarly conclude that, although disclosure may create some incremental disincentive to contacting government employees, that factor does not bar disclosure but only provides an additional consideration to be weighed against the interests furthered by disclosure of the telephone records.
On the other side of the scales, we consider the interests supporting disclosure, mindful of the admonition that "implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process." ( CBS, supra, 42 Cal.3d at p. 651.) Thus, to the extent that public access to records will enable the press and the public to ensure that public officials are acting properly in conducting the business of government, there is a strong public interest in disclosure. (Ibid.) As the court in Connell v. Superior Court (1997) 56 Cal.App.4th 601 explained:
We have determined the [government] has demonstrated on the facts of this case no more than a slight public interest in the nondisclosure of the data . . . . On the other side of the balance, the [government] argues there is no public interest in disclosure of these records, so even a slight interest in nondisclosure should be determinative. [P] . . . [P] [However,] If the records sought pertain to the conduct of the peoples business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate. [Quoting Citizens for a Better Environment v. Department of Food & Agriculture (1985) 171 Cal. App. 3d 704, 715, 217 Cal. Rptr. 504, italics added by Connell.] The existence and weight of this public interest are conclusions derived from the nature of the information." ( Connell v. Superior Court, supra, 56 Cal.App.4th at p. 616.)
Here, the governmental function the information sought to illuminate was a sharply focused one: what functions were being performed at government expense by a person who allegedly had little or no experience and training for the position for which she was being paid. Additionally, the nature of the information sought by Reader satisfies the directness element because it would be difficult to assess whether and how well Christiano discharged her publicly-funded job without examining her contacts with members of the public.
We conclude the parties who called or were called by Christiano in her governmental capacity had a correspondingly diminished interest in retaining the privacy of those contacts, and the limited scope of the disclosure here—the telephone numbers of those contacting a specific governmental employee for a limited period of time—will have a de minimus chilling impact on future communications. Because the disclosure here sought appears necessary (or even indispensable) to furthering the particularized governmental accountability concerns raised by Reader, the twin considerations supporting nondisclosure do not clearly outweigh the substantial public interest in ensuring governmental accountability.
3. The Cellular Telephone Records
The trial court found that, as to the cellular telephone bills, Readers request for records of telephone calls to and from Christiano did describe a reasonably segregable portion of the public record. Because the evidence supports the conclusion that the bills for cellular telephones assigned to Christiano would have reflected only calls she placed or received, and would not have included the telephone numbers of persons with no involvement with Christiano, those bills must be disclosed without redaction.
4. The Land Line Bills
The articulated public interest supporting the balance in favor of disclosure requires a different conclusion as to Readers requests for bills for "land lines" used by Christiano. Reader does not challenge the trial courts finding that bills for land lines would not be limited to records of calls placed by Christiano, but would also include calls placed by others who made use of that land line. Although we accord the same weight to the privacy and chilled communication concerns that supported nondisclosure as to the cellular telephone bills, the weight attributable to the countervailing interest favoring disclosure is substantially diluted because the information contained in land line bills has no direct nexus to assessing Christianos job performance. There is apparently no way to determine which calls reflected on those bills were placed by Christiano, rather than by others whose job performance is not under scrutiny. Accordingly, the particularized governmental accountability concerns that outweighed the privacy concerns as to the cellular telephone bills have no application as to the land line bills. We agree with the trial court that the request for land line bills did not describe a reasonably segregable portion of the public record within the meaning of section 6253, subdivision (a). We also conclude that, even insofar as those bills might contain calls placed by Christiano, the public interest served by not disclosing the telephone numbers of persons unconnected to Christiano clearly outweighs the public interest served by disclosure.
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate the portion of its order of November 15, 2002, denying disclosure of Christianos e-mail correspondence and her cellular telephone bills and to enter a new order requiring City to disclose those categories of information in accordance with this opinion. In all other respects the petition for writ relief is denied. Each party shall bear its own costs in this writ proceeding. The stay issued by this court on January 8, 2003, directing the City to cease further destruction of records will be vacated 15 days after the opinion is final as to this court.
WE CONCUR: KREMER, P. J., and HALLER, J.