International Federation of Professional & Technical Engineers, Local 21 v. Superior Court

CHIN, J., Concurring and Dissenting.

Except as to peace officers, I agree with the majority’s conclusion that names and salaries of public employees earning $100,000 or more per year are not exempt from public disclosure under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.).1 As explained below, however, my analysis of this question is somewhat different from the majority’s and I do not endorse all of the majority’s reasoning. Regarding peace officers, I agree with the majority’s conclusion that salary information is not exempt from disclosure. However, as explained in my dissenting opinion in Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278, 306 [64 Cal.Rptr.3d 661, 165 P.3d 462] (dis. opn. of Chin, J.), I believe that peace officers’ names are “[p]ersonal data” *350within the meaning of Penal Code section 832.8, subdivision (a). Thus, I would hold that where, as here, a request is made for disclosure of names linked to salary, officers’ names may not be disclosed to the extent the source of that information is a “file maintained under [the peace officer’s] name by his or her employing agency.” (Pen. Code, § 832.8.) I dissent to the extent the majority holds otherwise.

I. The Names and Salaries of Public Employees Other Than Peace Officers Are Not Exempt From Disclosure.

The CPRA makes all “[p]ublic records . . . open to [public] inspection . . . except as” expressly provided by statute. (§ 6253, subd. (a).) Because, as the parties agree, the records in question are “public records” within the meaning of the CPRA (§ 6254, subd. (d)), they are subject to inspection unless some statutory exception applies. As the majority explains (maj. opn., ante, at p. 329), the exception principally at issue here is found in section 6254, subdivision (c), which provides that nothing in the CPRA requires disclosure of “[personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”

In the 40 years since the Legislature enacted this CPRA disclosure exception, we have said little about it. However, that fact does not leave us without significant guidance. The federal Freedom of Information Act (FOIA) (5 U.S.C. § 552) contains an almost identical disclosure exception. Known as exemption 6, the FOIA exception provides for nondisclosure of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. § 552(b)(6).) “Because the FOIA provided a model for the [CPRA], and because they have a common purpose,” they “ ‘should receive a parallel construction.’ [Citation.] Therefore, federal decisions under the FOIA may be used to construe the [CPRA]. [Citations.]” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1350 [283 Cal.Rptr. 893, 813 P.2d 240].)

• Giving the CPRA a construction parallel to the FOIA’s, I first conclude that the records at issue constitute “[personnel ... or similar files” under section 6254, subdivision (c). Based on evidence of congressional intent, the high court has broadly interpreted the scope of the term “personnel and medical files and similar files” in exemption 6 (5 U.S.C. § 552, subd. (b)(6)) to “ ‘cover [all] detailed Government records on an individual [that] can be identified as applying to that individual.’ [Citation.]” (Department of State v. Washington Post Co. (1982) 456 U.S. 595, 602 [72 L.Ed.2d 358, 102 S.Ct. 1957] (Washington Post).) The records sought here—the name of each employee of the City of Oakland (the City) who earned at least $100,000 in fiscal year 2003-2004 linked to the employee’s gross salary—clearly qualify *351under that definition. I see no basis for reaching a different conclusion in applying section 6254, subdivision (c). Indeed, in seeking disclosure, Contra Costa Newspapers, Inc. (the Newspapers), has never argued that the requested records are not “[personnel ... or similar files” under section 6254, subdivision (c); on the contrary, the Newspapers’ assertion in its brief that the trial court “employed the proper ‘statutory balancing analysis’ ” implicitly concedes that the requested records are “[personnel ... or similar files” to which the balancing test applies. (§ 6254, subd. (c).) For the reasons stated above, I agree with this view, and thus will now proceed to the balancing the statute requires.2

Like the high court in applying exemption 6,1 begin the balancing inquiry under section 6254, subdivision (c), by considering “the privacy interest at stake.” (Department of State v. Ray (1991) 502 U.S. 164, 175 [116 L.Ed.2d 526, 112 S.Ct. 541] (Ray).) As the majority correctly notes (maj. opn., ante, at p. 330), almost 40 years ago, we held that “the protection of one’s personal financial affairs . . . against compulsory public disclosure is an aspect of the [protected] zone of privacy . . . .” (City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268 [85 Cal.Rptr. 1, 466 P.2d 225].) A person’s salary generally falls within this protected category of information. (See Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313 [187 Cal.Rptr. 4].) As we have explained, “the newspaper publication of a [person’s] assets . . . can be expected to bring unwanted solicitation from a variety of [salespeople] and others, could well encourage harassment lawsuits or demands of like nature, and could expose the [person] ... to various criminal elements in our society.” (City of Carmel, supra, 2 Cal.3d at p. 270.) The high court, in applying exemption 6, has similarly recognized “the individual privacy interest” at stake when disclosed information makes a person an inviting target of “commercial advertisers and solicitors.”3 (Department of Defense v. FLRA (1994) 510 U.S. 487, 501 [127 L.Ed.2d 325, 114 S.Ct. 1006] (FLRA); see also Painting Industry of Hawaii v. Dept. of Air Force (9th Cir. 1994) 26 F.3d 1479, 1483 [“invasion of privacy . . . can result from release of a list of names and addresses coupled with a characteristic susceptible to commercial exploitation”]; National Ass’n of Retired Federal Emp. v. Horner (D.C. Cir. *3521989) 879 F.2d 873, 878 [“there is a substantial probability that the disclosure will lead to the threatened invasion: one need only assume that business people will not overlook an opportunity to get cheaply from the Government what otherwise comes dearly, a list of qualified prospects for all the special goods, services, and causes likely to appeal to financially secure retirees”]; Aronson v. U.S. Dept. of Housing & Urban Dev. (1st Cir. 1987) 822 F.2d 182, 186 [“[w]hen it becomes a matter of public knowledge that someone is owed a substantial sum of money, that individual may become a target for those who would like to secure a share of that sum by means scrupulous or otherwise”].)

I find the majority’s analysis of the privacy interest at stake unpersuasive in several respects. To begin with, for the most part, the majority asks not whether there are privacy interests at stake, but whether a public employee’s “expectation of privacy” is “reasonable.” (Maj. opn., ante, at p. 331.) The two questions are not the same; notably, the high court, in applying both exemption 6 and another FOIA exemption that looks to whether disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” (5 U.S.C. § 552(b)(7)(C)), has consistently considered only the nature of the privacy interest at stake, and has never considered whether a reasonable expectation of privacy exists.4 (National Archives and Records Admin. v. Favish (2004) 541 U.S. 157, 160 [158 L.Ed.2d 319, 124 S.Ct. 1570] [public interest must be balanced against any “personal privacy interest recognized by the statute”]; FLRA, supra, 510 U.S. at p. 497 [analysis requires court to “weigh the privacy interest”]; Ray, supra, 502 U.S. at p. 175 [proper to begin analysis “by considering the significance of the privacy interest at stake”]; Washington Post, supra, 456 U.S. at pp. 602-603 [remanding for lower court “to consider the effect of disclosure upon . . . privacy interests”]; Reporters Committee, supra, 489 U.S. at p. 762 [court must “balance the privacy interest . . . against the public interest in” disclosure]; Dept. of Air Force v. Rose (1976) 425 U.S. 352, 381 [48 L.Ed.2d 11, 96 S.Ct. 1592] [discussing “the risk to . . . privacy interests”].)

I also question the majority’s conclusion that public employees have no reasonable expectation of privacy in their salary information. (Maj. opn., *353ante, at p. 331.) Nongovernmental employees most certainly have a reasonable expectation of privacy regarding this information and, as we have stated, “[t]he mere status of being employed by the government should not compel a citizen to forfeit his or her fundamental right of privacy. Public employees are not second-class citizens within the ken of the Constitution, [f] . . . [L]egal distinctions between public and private sector employees that operate to abridge basic rights cannot withstand judicial scrutiny unless justified by a compelling governmental interest. [Citation.] However much public service constitutes a benefit and imposes a duty to uphold the public interest, a public sector employee, like any other citizen, is bom with a constitutional right of privacy. ... A citizen cannot be said to have waived that right in return for the ‘privilege’ of public employment, or any other public benefit, unless the government demonstrates a compelling need. [Citation.]” (Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 951-952 [227 Cal.Rptr. 90, 719 P.2d 660].) Moreover, although the majority cites evidence and authorities supporting the view that disclosure of the salaries of public employees is widespread (maj. opn., ante, at pp. 331-332), there is published authority in California and elsewhere recognizing that public employees have at least some reasonable expectation of privacy in their personnel records, including salary information.5 Notably, in a decision involving exemption 6, the high court held that the “privacy interest” of federal employees in nondisclosure of their home addresses “outweigh[ed] the relevant public interest” in disclosure, even though that information was “publicly available through sources such as telephone directories and voter registration lists (FLRA, supra, 510 U.S. at p. 500.)

Ultimately, I need not resolve this question because I agree with the majority that “any cognizable [privacy] interest . . . public employees may *354have” is insufficient to justify nondisclosure. (Maj. opn., ante, at p. 333.) Section 6254, subdivision (c), does not preclude all “invasion[s] of personal privacy,” only “unwarranted” ones. Borrowing again from the high court’s discussion of exemption 6, whether an invasion of privacy would be “unwarranted” within the meaning of section 6254, subdivision (c), depends on “the extent to which disclosure of the information sought would ‘shed light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’ [Citation.]” (FLRA, supra, 510 U.S. at p. 497.) “[T]he public has a legitimate interest in knowing how public funds are spent” (Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 376 [74 Cal.Rptr.2d 69]), and the names and compensation paid to public employees directly relate to that issue. Disclosure of this information would directly reflect on the City’s management of public funds and its employees’ performance of public duties. I therefore conclude that any invasion of privacy from disclosure of this information would not be “unwarranted” within the meaning of section 6254, subdivision (c), and that the information therefore is not exempt from disclosure under that provision.

Like the majority, but for a different reason, I reject the view that balancing under section 6254, subdivision (c), must be done on a case-by-case basis, taking into account the particular privacy interests of each public employee. (Maj. opn., ante, at pp. 336-338.) As the high court has explained in construing the FOIA, “categorical decisions” regarding disclosure of records “may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction.” (Reporters Committee, supra, 489 U.S. at p. 776.) Regarding salary information of public employees, for the reasons stated above, the balance characteristically tips in the direction of disclosure. Thus, as to this information, case-by-case balancing under section 6254, subdivision (c), is unnecessary.

The claim that disclosure of public employees’ names linked to their salaries violates the state constitutional right to privacy (Cal. Const., art. I, § 1) fails for similar reasons. The state constitutional right to privacy is not absolute; “it is subject to a balancing of interests.” “ ‘Invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest.’ [Citation.].” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 961 [56 Cal.Rptr.3d 477, 154 P.3d 1003].) For the reasons discussed above, I conclude that any invasion of a public employee’s privacy interest that would result from disclosure of the requested information would be justified by the public’s competing interest in knowing what the government is up to and how the government is spending *355public funds.6 Thus, as to public employees other than peace officers, I agree with the majority’s holding that the names and salaries of public employees earning $100,000 or more per year are not exempt from disclosure under the CPRA.

II. The Names and Salaries of Peace Officers.

The Oakland Police Officers Association (Police Officers Association), which intervened in this action, does not object to disclosure of the actual salary paid to each peace officer, so long as the officers are identified only by job title. It does, however, object to disclosures that link the actual salary paid to the officer’s name. It asserts that the latter disclosure would violate Penal Code section 832.7, subdivision (a), which provides in relevant part that “[pjeace officer . . . personnel records ... or information obtained from these records, are confidential and shall not be disclosed” except as otherwise provided by statute. According to the Police Officers Association, individually identifiable salary information constitutes either a confidential “personnel record[]” or “information obtained from” personnel records within the meaning of Penal Code section 832.7, subdivision (a), by virtue of Penal Code section 832.8. The latter defines the term “personnel records” in Penal Code section 832.7, subdivision (a), as “any file maintained under [a peace officer’s] name by his or her employing agency and containing records relating to any of the following: [][] (a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. [][] (b) Medical history. [][] (c) Election of employee benefits, [f] (d) Employee advancement, appraisal, or discipline, [f] (e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, [f] (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.”7 (Pen. Code, § 832.8.)

In making its argument, the Police Officers Association first emphasizes that an officer’s actual pay is based on the following information that is expressly included within the term “personnel records” in Penal Code section 832.7: “educational and employment history” (id., § 832.8, subd. (a)), and “[e]mployee advancement” and “appraisal” (id., § 832.8, subd. (d)). Because of this fact, the Police Officers Association asserts, an officer’s actual pay constitutes “information obtained” from personnel records within the meaning *356of Penal Code section 832.7. It also qualifies independently as a confidential personnel record under Penal Code section 832.7, subdivision (a), because it is, in the words of Penal Code section 832.8, “relat[ed] to” the information specified elsewhere in the section. I agree with the majority’s analysis and rejection of these arguments. (Maj. opn., ante, at pp. 343-344, 345-346.)

The Police Officers Association also argues that individualized salary information qualifies for protection because it “constitutes ‘[p]ersonal data’ or ‘other similar information’ under Penal Code section 832.8[, subdivision] (a).” It asserts that anything “unique to the person . . . qualifies]” as “[p]ersonal data” under Penal Code section 832.8, subdivision (a), and that a particular officer’s salary is unique because it depends on the officer’s years of service, performance, education and specialties.

Like the majority, I reject this argument. As the majority explains, because all of the information specified in subdivisions (b) through (e) of Penal Code section 832.8 also is unique to the individual officer, those subdivisions would be unnecessary were we to construe the term “[p]ersonal data” in subdivision (a) to include everything that is unique to the person. (Maj. opn., ante, at p. 342.) Well-established canons of statutory construction preclude us from interpreting statutory language so as to render other parts of the statute unnecessary. (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 [41 Cal.Rptr.2d 220, 895 P.2d 56].) As the majority also explains, that the Legislature expressly specified another form of compensation— “[ejection of employee benefits”—in a separate subdivision of the statute (Pen. Code, § 832.8, subd. (c)) counsels against adopting an interpretation of the term “[p]ersonal data” in subdivision (a) that includes an officer’s salary. (Maj. opn., ante, at pp. 342-343.) For these reasons, I agree that salary information does not constitute “[p]ersonal data” within the meaning of section 832.8, subdivision (a).8

Amicus curiae Operating Engineers Local Union No. 3 argues that individualized salary information regarding peace officers qualifies for protection under subdivision (f) of Penal Code section 832.8, because disclosure of this information “would constitute an unwarranted invasion of personal privacy.” I reject this argument because, as explained above in connection with Government Code section 6254, subdivision (c), I do not believe that any invasion of privacy from disclosure of the requested salary information would be unwarranted.

*357Regarding the names of peace officers, as explained in my dissenting opinion in Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278, 306 [64 Cal.Rptr.3d 661, 165 P.3d 462] (dis. opn. of Chin, 1), I believe that peace officers’ names are “[p]ersonal data” within the meaning of Penal Code section 832.8, subdivision (a). Thus, I would hold that where, as here, a request is made for disclosure of names linked to salary, officers’ names may not be disclosed to the extent the source of that information is a “file maintained under [the peace officer’s] name by his or her employing agency.” (Pen. Code, § 832.8.) Where, however, the request identifies officers by name and asks for disclosure of their salaries, Penal Code section 832.7 does not preclude disclosure.

The majority merely assumes, without deciding, that the records are “[personnel ... or similar files” under section 6254, subdivision (c). (Maj. opn., ante, at p. 329.)

The majority acknowledges the “interest” of public employees “in avoiding unwanted solicitations or marketing efforts,” but finds that interest “comparatively weak” absent disclosure of other contact information, such as home address or telephone number. (Maj. opn., ante, at p. 339.) Given that publicly available databases on the Internet make it easy to link a name to an address or telephone number, I find the absence of disclosure of contact information to be of little, if any, significance. (See Sheet Metal Workers Local No. 9 v. U.S. Air Force (10th Cir. 1995) 63 F.3d 994, 998 [“redaction of addresses alone, leaving names on the payroll records and thereby directly linking detailed financial information about workers ... to those workers, does not materially lessen the substantial privacy interest involved”].)

The majority’s “reasonable expectation of privacy” inquiry derives from the test we announced in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633] for determining whether a person’s constitutional right of privacy has been violated. (See maj. opn., ante, at pp. 330, fn. 3, 331, 338-339.) However, the issue under section 6254, subdivision (c), is not whether disclosure would violate the constitutional right of privacy, but whether it would be “an unwarranted invasion of personal privacy” under section 6254, subdivision (c). (Cf. U. S. Dept. of Justice v. Reporters Committee (1989) 489 U.S. 749, 762, fn. 13 [103 L.Ed.2d 774, 109 S.Ct. 1468] (Reporters Committee) [“[t]he question of the statutory meaning of privacy under the FOIA is . . . not the same as . . . the question whether an individual’s interest in privacy is protected by the Constitution”].)

People v. Mooc (2001) 26 Cal.4th 1216, 1220 [114 Cal.Rptr.2d 482, 36 P.3d 21] (statutory scheme recognizes a peace officer’s “legitimate expectation of privacy in his or her personnel records”); BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 756 [49 Cal.Rptr.3d 519] (“[p]ublic employees have a legally protected interest in their personnel files”); Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 821 [26 Cal.Rptr.3d 92]; Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500, 1516 [5 Cal.Rptr.3d 847] (public employees have “a legally protected privacy interest” in their personnel files, including “salary details”); City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 892 [3 Cal.Rptr.3d 915] (disclosure of peace officer’s payroll records, including his salary, “would constitute one of the greatest ‘unwarranted invasions of personal privacy’ ”); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 [105 Cal.Rptr.2d 476] (“personnel records ... are within the scope of the protection provided by the state and federal Constitutions”); East Bank Cons. Spec. Serv. Fire v. Crossen (La.Ct.App. 2004) 892 So.2d 666, 670; Beck v. Department of Justice (D.C. Cir. 1993) 997 F.2d 1489, 1494 (“A government employee has at least some privacy interest in his own employment records . . .”); Campbell v. United States Civil Service Commission (10th Cir. 1976) 539 F.2d 58, 62 (disclosure of federal employees’ salary “would be a serious invasion of privacy”); Columbia Packing Co., Inc. v. U. S. Dept. of Agri. (D.C. Mass. 1976) 417 F.Supp. 651, 655 (recognizing “privacy interest in nondisclosure" of federal employees’ “earnings statements reflecting” their “remuneration”).

In light of this conclusion, I need not decide whether public employees have a reasonable expectation of privacy regarding their specific salaries.

Penal Code sections 832.7 and 832.8 establish a disclosure exception under the CPRA by virtue of Government Code sections 6254, subdivision (k), and 6276.34. (See Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1283 [48 Cal.Rptr.3d 183, 141 P.3d 288].)

Except as expressly noted above, I do not join the majority’s analysis of this issue.