Opinion
For Opinion on Rehearing see, 177 Cal.Rptr. 106.
Opinions on pages 900-925 omitted.
REHEARINGS GRANTED
[114 Cal.Rptr. 726]Fred J. Hiestand, Jo Ann Chandler, Sidney M. Wolinsky, by Fred J. Hiestand, Public Advocates, Inc., San Francisco, for plaintiffs and appellants.
Evelle J. Younger, Atty. Gen., by Anthony S. DaVigo and William Goode, Deputy Attys. Gen., Sacramento, for defendants and respondents.
FRIEDMAN, Acting Presiding Justice.
Plaintiffs are the Black Panther Party and the California Legislative Council for Older Americans, both unincorporated associations. Defendants are the Director of the State Department of Consumer Affairs and the Chief of the Bureau of Collection and Investigative Services. Plaintiffs seek judicial enforcement of their demand for inspection of letters of complaint from individuals, charging unethical or abusive practices by licensed collection agencies. The trial court held these complaints exempt from disclosure under the Public Records Act (Gov.Code, § 6250 et seq.) and denied relief. Plaintiffs appeal.
Within the Department of Consumer Affairs are a number of agencies which license and regulated a wide variety of professions and businesses. (See Bus. & Prof.Code, § 101.) One of these agencies is the Bureau of Collection and Investigative Services, which licenses collection agencies. Several statutes deal, with citizen complaints which charge licensees with wrongdoing. After receiving a complaint each licensing agency within the department must keep the complainant informed of its action; if appropriate, it may notify the licensee and meet and confer with the licensee and complainant in order to mediate the complaint. (Bus. & Prof.Code, § 129.) The Director of Consumer Affairs is also charged with receiving 'complaints from consumers.' (Bus. & Prof.Code, § 325.) Upon receipt of a complaint the director may notify the licensee and request relief for the consumer; or he may transmit the complaint to an appropriate enforcement or regulatory agency. (Bus. & Prof.Code, § 326.) The director must make an annual report to the Governor and Legislature, showing the number and disposition of consumer complaints. (Bus. & Prof.Code, § 327.) With specific regard to licensed collection agencies, any person aggrieved by a collection agency's action may file a written complaint with the bureau chief, who must refer 'all such statements . . . for investigation and report; . . ..' The chief may also initiate investigations of licensees on his own motion. (Bus. & Prof.Code, § 6925.)
[114 Cal.Rptr. 727]Plaintiffs allege that their membership are primarily people of low income who are vulnerable to oppressive activities on the part of some collection agencies; that the Black Panther Party publishes a weekly newspaper to inform the community of matters of common interest. Plaintiffs contend that written complaints against collection agencies in the files of the department or bureau are public records, made available for inspection by the California Public Records Act, specifically Government Code section 6253. Subdivision (a) of that section declares: 'Public records are open to inspection at all times during the office hours of the state or local agency and every citizen has a right to inspect any public record, except as hereafter provided. . . .'
See Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 101 Cal.Rptr. 745, 496 P.2d 817; Czap v. Credit Bureau of Santa Clara Valley (1970) 7 Cal.App.3d 1, 86 Cal.Rptr. 417.
The declaration of the Legislature's purpose of enacting the Public Records Act is found in Government Code section 6250, which states that: 'In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.'
Defendants assert that these complaints are exempted from disclosure by another provision of the Public Records Act, Government Code section 6254, subdivision (f).
Section 6254 provides in part: '[N]othing in this chapter shall be construed to require disclosure of records that are:
I
Plaintiffs' demand is limited to complaints regarding collection agencies, but the disclosure problem raised by the lawsuit extends to consumer complaints in the files of licensing agencies generally. Unfortunately, subdivision (f) of section 6254 (fn. 2, supra) is ambiguous and requires interpretation. It contains two separate clauses describing disclosure-exempt papers, but each clause is characterized by variant language:
(a) The first clause exempts 'records of complaints to or investigations conducted by, or records of intelligence information or security procedures of' the Attorney General (who is head of the state Department of Justice) or by police agencies.
(b) The second clause exempts 'any such investigatory or security files' compiled by other public agencies for correctional, law enforcement or licensing purposes.
The present case pivots on the second clause, which deals with investigatory files compiled for licensing purposes. Just as the first clause exempts the investigatory files of police agencies, so the second clause exempts investigatory files of licensing agencies. The first clause expressly exempts 'records of complaints,' but the second clause does not. A letter of complaint may or may not have enough substance to warrant investigation of the licensee. A document does not gain exempt status as part of an investigatory file until there is some concreted prospect of an investigation. (Uribe v. Howie (1971) 19 Cal.App.3d 194, 212-213, 96 Cal.Rptr. 493.) Thus a written complaint is not per se part of an investigatory file. As the California statute is drawn, nondisclosure of a written complaint requires special statutory authority. (Cf. Evans v. Dept. of Transportation of United States (5 Cir. 1971) 446 F.2d 821.)
Arguably, this authority comes from the specification in the second clause of 'any such' investigatory files. To all appearances, the quoted phrase refers to a previously described antecedent, its purpose being the avoidance of unnecessary repetition of the preceding description. The words 'any such' would be surplusage did [114 Cal.Rptr. 728] they not embrace the same records as the preceding clause. Had the draftsman meant to exclude 'records of complaints' from the second clause, he need only have exempted investigatory files without inserting the phrase 'any such.' A statute should be construed to give force to all its words and to avoid surplusage. (People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.) The phrase 'any such investigatory or security files' in the second clause of subdivision (f) was apparently designed as a condensed description of all the records described in the first clause, including records of complaints.
Textual analysis is not enough. Statutory ambiguities should be resolved, if possible, to carry out the fundamental legislative purpose as gathered from the whole act. (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918, 80 Cal.Rptr. 89, 458 P.2d 33; Ingram v. Justice Court (1968) 69 Cal.2d 832, 839, 73 Cal.Rptr. 410, 447 P.2d 650.) In Government Code section 6250, the Public Records Act supplies a direct declaration of legislative purpose.
Government Code, section 6250: 'In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.'
In the decades of American history since the New Deal, extensions of social, regulatory and tax legislation have enormously expanded the mass of personal revelations in government files. Government files hold massive collections which are roughly divisible into public business and private revelations. Statutory and decisional law on the disclosure of public records reveals two fundamental if somewhat competing societal concerns--prevention of secrecy in government and protection of individual privacy. The rubric 'the people's right to know' often accompanies disclosure legislation. The 'right to know' demands public exposure of recorded official action. A narrower but important interest is the privacy of individuals whose personal affairs are recorded in government files. Societal concern for privacy focuses on minimum exposure of personal information collected for governmental purposes. The California courts have equated the right of privacy with the right 'to be let alone,' which must be balanced against public interest in the dissemination of information demanded by democratic processes.
Gill v. Hearst Publishing Co., (1963) 40 Cal.2d 224, 228, 253 P.2d 441; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 745, 20 Cal.Rptr. 405; see generally, Brenton, The Privacy Invaders (1964); Packard, The Naked Society (1964); Westin, Privacy and Freedom (1967); Miller, Personal Privacy in the Computer Age: The Challenge of a New Technology in an Information-Oriented Society (1969) 67 Mich.L.Rev. 1089; Karst, 'The Files': Legal Controls Over the Accuracy and Accessibility of Stored Personal Data (1966) 31 L. & Contemp.Prob. 342; Harrison, The Problem of Privacy in the Computer Age: An Annotated Bibliography (Rand Corp., 1967).
Disclosure statutes form an area of confluence for the conflicting demands of public exposure and personal privacy. Statutory formulae often fail to resolve the conflict. The 'right to know' which affects records documenting the activities of public officers applies with less force to reports and returns of personal data supplied by private citizens. The latter too may fall within the spotlight of disclosure needs. Although personal information supplied to government by private persons may not itself reveal official action, it may have sharp relevance to inquiries into official conduct.
See, e. g., Samish v. Superior Court (1938) 28 Cal.App.2d 685, 83 P.2d 305. Two years following the 1968 enactment of the Public Records Act, a California Legislative committee observed: '. . . many who have championed the cause of privacy leave unclear the statutory boundary where the personal right of privacy and the public's right to know the workings of its government meet. Those who know the complexity of government records policy and practice will realize that these values do not always remain separate and distinct.' (Final Report, California State Assembly Statewide Information Policy Committee, p. 21, Appendix to Journal of the Assembly, California Legislature, Reg.Sess. 1970.)
[114 Cal.Rptr. 729]In section 6250 (fn. 3, supra) the California Public Records Act bespeaks legislative concern for individual privacy as well as disclosure 'concerning the conduct of the people's business.' The same dual concern appears throughout the act. Subdivision (f) of section 6254 is one of 14 subdivisions of that section, all describing exemptions from the general disclosure requirement. In large part, these exemptions are designed to protect the privacy of persons whose date or documents come into governmental possession. For example, subdivision (c) exempts personnel and medical files 'the disclosure of which would constitute an unwarranted invasion of personal privacy.' Subdivision (d) protects financial information supplied under legislation regulating financial institutions and securities sales. Subdivision (e) protects such matters an plant production date, markets and crop reports 'which are obtained in confidence from any person.'
The Public Records Act recognizes that fixed statutory categories do not always respond to real-life situations. Thus, aside from the 14 exempt categories listed in section 6254, section 6255 provides a residual exemption where, on the facts of the particular case, the public interest served by not making the record public clearly outweighs the public interest served by its disclosure.
Government Code section 6255 provides: '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 making the record public clearly outweighs the public interest served by disclosure of the record.'
It is apparent that the objectives of the Public Records Act include preservation of islands of privacy upon the broad seas of enforced disclosure. Recognition of privacy as a distinct statutory objective fully confirms the interpretation of section 6254, subdivision (f), reached through textual analysis. Both complaining citizens and the public have an interest in the confidentiality of complaints of wrongdoing prior to the inception of formal enforcement or disciplinary proceedings. Effective enforcement of penal laws depends to no small extent upon the readiness of citizens to complain of alleged crime. Complainants often demand anonymity. Immediate public exposure discourages complaints and inhibits effective enforcement. Similarly, effective policing of licensed occupations depends heavily on citizens' readiness to complain of wrongdoing by licensees. (See Evans v. Dept. of Transportation, supra, 446 F.2d at p. 823.)
In the formulation of a statutory policy governing disclosure of citizen complaints, public concern extends to the alleged wrongdoer as well as the alleged victim. Many a reputation has been lost, many a life irretrievably damaged, by unfounded accusations of wrongdoing. Complaints of crime often turn out to lack substance. Complaints against licensees of the Department of Consumer Affairs-collection agencies, doctors of medicine, real estate brokers, building contractors-may be equally unjustified. The public has an ethical interest in protecting private reputations against notoriety emanating from 'crank' or malicious accusations.
The first clause of subdivisions (f) gives concrete recognition to these policy concerns by exempting complaints to police agencies from disclosure. Identical concerns characterize complaints lodged with licensing agencies. Construed in the light of statutory objectives, the second clause of subdivision (f) embraces the same kinds of records in the hands of licensing agencies as does the first clause in relation to police agencies. Statutory objective, as well as syntax, impels construction of the phrase 'any such investigatory files' to embrace records of complaints as well as records of investigations maintained for licensing purposes by agencies of the Department of Consumer Affairs.
[114 Cal.Rptr. 730]II
Plaintiffs seek a broad construction favoring disclosure and a strict construction against confidentiality. The California Public Records Act was apparently modeled after the 1966 federal statute known as the Freedom of Information Act (5 U.S.C. § 552), although with selected divergences. Neither statute directs broad interpretation of some provisions or narrow interpretation of others. A federal court has held that the congressional plan 'creates a liberal disclosure requirement, limited only by specific exemptions which are to be narrowly construed.' (Bristol-Myers Co. v. F.T.C. (1970) 138 U.S.App.D.C. 22, 424 F.2d 935, 938; Getman v. N.L.R.B. (1971) 146 U.S.App.D.C 209, 450 F.2d 670, 672, 674.)
We discern no interpretive mandate in the California law other than unreserved fulfillment of the statutory objectives. The California Public Records Act evidences a legislative policy of disclosure, yet one which is mindful of individual privacy. (Gov.Code, § 6250.) It mandates a general rule of disclosure 'except as hereafter provided.' (Gov.Code, § 6253.) In Government Code section 6255 (fn. 6, supra) it permits rejection of disclosure demands only under express exemptions or where the public interest in disclosure is 'clearly' outweighed. Thus section 6255 entails a balancing of interests by the administering agency and reviewing court. (See, e. g., Yarish v. Nelson (1972) 27 Cal.App.3d 893, 901-903, 104 Cal.Rptr. 205.) In contrast, subdivision (f) of section 6254 permits no balancing of interests.
Here we do not balance interests but inquire--what does the law mean? The balancing process occurred in the legislature; it resulted in an express exemption whose meaning must now be discerned by a process of judicial construction. The task is to construe the exemption neither broadly nor narrowly, but according to the court's understanding of the legislature's 'real accord.' (Redevelopment Agency v. Malaki (1963) 216 Cal.App.2d 480, 486-487, 31 Cal.Rptr. 92.) Section 6254 expresses a number of legislative choices between two competing policies--disclosure of recorded official action and nondisclosure of recorded citizen communications. Construction of subdivision (f) to permit nondisclosure of the documents in suit fully serves a discerned legislative objective.
Plaintiffs cite Uribe v. Howie, supra, 19 Cal.App.3d at pages 212-213, 96 Cal.Rptr. 493, in support of their claim to disclosure. There the court held that information in public files became exempt as 'investigatory' material only when the prospect of enforcement proceedings became concrete and definite. (See also, Bristol-Myers Co. v. F.T.C., supra, 424 F.2d at p. 939.) Plaintiffs point out that many complaints in the hands of the Bureau of Collection and Investigative Services are not the subject of current investigations. In Uribe, the record in question was not a complaint but a routine report in a public file. It could gain exemption not because of its content but because of the use to which it was put, that is, when and if it became part of an investigatory file. Here, by their very content, the documents are independently entitled to exemption as 'records of complaints;' their exemption is not dependent upon the creation of an investigatory file.
III
Plaintiffs assert a constitutional right to disclosure, immune from the statutory exemptions enumerated by the Public Records Act. They bottom their constitutional claim upon the First Amendment as applied to the state via the Fourteenth Amendment.
The guarantees of the First Amendment encompass not only freedom to communicate but peripheral rights to 'the spectrum of available knowledge.' (Griswold v. Conn. (1965) 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510.) There is an undoubted connection between First Amendment freedoms and access to government files, particularly those which record or illuminate [114 Cal.Rptr. 731] official action. Nevertheless, judicial decisions have not yet assigned a constitutional ground for this right of access. In a recent major test the federal Supreme Court upheld a government claim of secrecy on statutory grounds without inquiry into possible constitutional counterclaims. (Enviromental Protection Agency v. Mink (1973) 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119.) A concurring opinion simply stated that the 'case presents no constitutional claims.' (Id. at p. 94, 93 S.Ct. 827.)
A number of writers have suggested constitutional theories as possible grounds for disclosure decisions: Hennings, Constitutional Law: The People's Right to Know (1959) 45 A.B.A.J. 667; Parks, The Open Government Principle: Applying the Right to Know Under the Constitution (1957) 26 Geo.Wash.L.Rev. 1; Comment, Access to Official Information: A Neglected Constitutional Right (1952) 27 Ind.L.Rev. 209.
Access to government records is doubtless a fundamental interest of citizenship. Legislative and judicial vigor in the protection of this interest may have played a role in postponing delineation of a constitutional right of access. This delineation may await a future clash of claims to disclosure and executive secrecy, both posited on constitutional grounds. (See Warren, Governmental Secrecy: Corruption's Ally (1974) 60 A.B.A.J. 550.) At any rate, plaintiffs have apparently been unable to uncover any judicial authority for the contention that the First Amendment precludes reasonable legislative demarcation of islands of nondisclosure.
If citizenship in a functioning democracy requires general access to government files, limited but genuine interests also demand restricted areas of non-access. Decisional law on the subject accepts the assumption that a statute calling for general disclosure may validly define reasonably restricted areas of nondisclosure, provided that the latter are justified by genuine public policy concerns. One concern is the privacy of citizens whose information gets into government files.
Overbroad claims to disclosure may threaten the privacy of individual citizens and accelerate the advent of the Orwellian state. As we have noted, subdivision (f) of section 6254 (fn. 2, supra) reflects a genuine legislative concern for the privacy of citizen complaints. The legislature has balanced competing interests and demarcated a limited area of permissive nondisclosure. First Amendment considerations do not preclude this limited area of legislative choice. We find no constitutional invalidity in Government Code section 6254, subdivision (f).
IV
Plaintiffs urge a special basis for disclosure, namely, that the Bureau of Collection and Investigative Services routinely discloses complaints to the affected collection agencies. Included in the record on appeal is a 'complaint form' issued by the bureau, prepared for the signature of the complainant, revealing the complainant's name, address and a description of the complaint, together with the prepared statement: 'A copy of this communication may be made available to the licensee concerned.'
In a declaration utilized in the trial court as part of the evidence, the chief of the bureau acknowledged a 'common practice' to disclose complaints to the licensee with the complainant's permission for the purpose of permitting a response. The declaration made no mention of the prepared complaint form issued by the bureau; did not reconcile the complainant's alleged option of privacy with the prepared form's unconditional warning of revelation to the licensee; failed to state whether the complainant's completion of the prepared form was a fixed prerequisite to inquiry into the collection agency's alleged wrongdoing.
The trial court entered findings of fact which omit any finding concerning the bureau's practice of revealing complaints to the affected licensees. The findings' silence on this score is signficant, because, as we view the Public Records Act, [114 Cal.Rptr. 732] the practice of disclosing complaints to the affected licensees destroys the privilege of confidentiality otherwise permitted by section 6254, subdivision (f).
As we have observed, section 6254 lists 14 categories of disclosure-exempt material. According to the last sentence of section 6254 (fn. 2, supra), these exemptions do not prevent an agency from opening its records to public inspection (unless some other statute forbids it). The last sentence of section 6254, as we view the legislative scheme, endows the agency with discretionary authority to override any of the 14 statutory exemptions when some dominating public interest favors disclosure. The 14 exemptions, then, are permissive, not mandatory; they permit disclosure but do not prohibit it. When the agency exercises its permissive disclosure authority, public inspection follows.
The term 'public inspection' in the last sentence of section 6254(fn. 2, supra) necessarily implies general, nonselective disclosure. When a record loses its exempt status and becomes available for public inspection, section 6253, subdivision (a), endows 'every citizen' with a right to inspect it. These statutes do not allow official custodians of public files to indulge in selective disclosure, exhibiting to some citizens and withholding from others.
Commenting on analogous provisions of the Federal Freedom of Information Act, Professor Kenneth C. Davis observes:
Although plaintiffs are critical of the bureau's disclosure of complaints to the affected collection agencies, the practice is consistent with Business and Professions Code sections 129 and 326 (described earlier) which authorize the licensing agencies to disclose and mediate consumer complaints. These statutes manifest a legislative policy to permit voluntary compliance as a preliminary or alternative to formal discipline. Although in different codes, these provisions and the Public Records Act should construed as a harmonious whole. (Pesce v. Dept. of Alcoholic Bev. Control (1958) 51 Cal.2d 310, 312, 333 P.2d 15.) From the licensing agency's standpoint, there is no antagonism between the mediation policy expressed in the Business and Professions Code and the policy of the Public Records Act favoring general, nonselective disclosure of the agency's records. When, in seeking voluntary compliance, the licensing agency discloses the complaint to the accused, the agency cannot argue that the complaint's public disclosure hampers its enforcement program. Attainment of voluntary compliance is itself a form of law enforcement. As one court has declared: 'Information which merely enables an individual to conform his actions to an agency's understanding of the law applied by that agency [114 Cal.Rptr. 733] does not impede law enforcement. . . . Far from impeding the goals of law enforcement, in fact, the disclosure of information clarifying an agency's substantive or procedural law serves the very goals of enforcement by encouraging knowledgeable and voluntary compliance with the law.' (Hawkes v. Internal Revenue Service, supra, 467 F.2d at p. 795.)
V
The Public Records Act (Gov.Code, § 6258) supplies 'any person' with standing to seek injunctive or declaratory relief to enforce his access to public records. The trial court erred in failing to consider the selective disclosure policy of the Bureau of collection and Investigative Services as a factor supporting plaintiffs' disclosure demand. It is appropriate that the trial court reconsider that demand in the light of the statutory interpretation advanced in this opinion.
In providing injunctive relief the Public Records Act utilizes the equity jurisdiction of the courts. In shaping its decree equity considers the interests of the general public (Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 588, 39 Cal.Rptr. 708, 394 P.2d 548.) Because the issue is one of public law affecting a number of licensing agencies, these agencies, including defendants, should have an opportunity to reappraise their disclosure policies in the light of this opinion. The trial court should provide defendants that opportunity.
The judgment is reversed and the cause remanded to the trial court for further proceedings.
JANES, J., concurs.
REGAN, Associate Justice (dissenting).
I dissent. The facts are not in dispute. The plaintiffs have made demand on the Bureau of Collection Agencies for access to all customer complaints filed with the bureau against licensed collection agencies. Plaintiff's stated purpose is the access to the consumer complaints is required so they can publish this information in the Black Panther newspaper, rating the collection agencies according to the number and seriousness of the complaints.
The request of plaintiffs to make available to them all complaints against collection agencies was refused by the Bureau of Collection and Investigative Services on the ground that the complaints, together with investigative material appurtenant thereto, are not public records; that such is specifically exempt from disclosure under Government Code section 6254, subdivision (f). The deputy chief further advised plaintiffs that where a complaint has resulted in formal disciplinary proceedings, the documents relating to those proceedings are a matter of public record and are available to plaintiffs.
The bureau does not disclose the complaints to the public because many of those filing complaints indicate they are submitted in confidence and that before disclosing the contents of the complaint to the collection agency for purposes of response to the allegations, they obtain the expressed written consent of the complainant. From previous experience, the bureau learned that the premature disclosure of information contained in a complaint while the investigation was in progress afforded the licensee the opportunity to suppress evidence, and that many consumer complaints are false and malicious.
Government Code section 6253 provides that 'Public records are open to inspection at all times during the office hours of the state or local agency and every citizen has a right to inspects any public record, except as hereafter provided.' 1
[114 Cal.Rptr. 734]Government Code section 6254 lists various documents, records, and other items that are exempt from disclosure under the Public Records Act. The controversy in issue is whether consumer complaints against collection agencies are exempt under subdivision (f) of section 6254, which provides that 'Records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of, Justice, and any state or local police agency, or any such investigatory or security files compiled by any other state or local agency for correctional, law enforcement or licensing purposes . . .' are exempt from requirement of disclosure. If not, can the bureau withhold these consumer complaints from plaintiffs under the alternative provision in Government Code section 6255 which provides that '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 making the record public clearly outweighs the public interest served by disclosure of the record.'
The trial court determined that the consumer's complaints were exempt from public disclosure under section 6254, subdivision (f), of the Government Code.
Business and Professions Code section 6925 provides that any person aggrieved may file with the Bureau of Collection and Investigative Services a written statement alleging acts of misconduct or violations of collection agencies which shall be referred by the chief of the bureau for investigation and report. Section 6947 of the Business and Professions Code lists various acts which a collection agency is prohibited from doing. Section 6863 of the Business and Profession Code authorizes the chief to enforce such rules and regulations as may be reasonable to or necessary for the protection of the public. The wilful violation of any rules and regulations established for the conduct of a licensee is sufficient ground for the revocation of his license or other disciplinary action. (Bus. & Prof.Code, §§ 6863, 6930.) Additionally, the director of Consumer Affairs, one of the named defendants, is authorized to transmit any complaint he considers to be a valid charge of a violation of law to any appropriate law enforcement agency, or request the Attorney General to undertake appropriate legal action. (Bus. & Prof. Code, § 326.)
Thus, under the above provisions, a consumer's complaint initiates an investigation by the bureau of a collection agency which could result in the revocation of the agency's license after an administrative hearing as provided in the Administrative Procedure Act. (Gov.Code, § 11500 et seq.) Presumably the original written consumer's complaint would be included in the investigatory file of the bureau. Even if the initial investigation establishes that there is no foundation or basis for the complaint, until this conclusion is reached, the bureau is, pursuant to section 6925 of the Business and Professions Code, investigating the matter so that file too would be considered an investigatory file within the meaning of Government Code section 6254, subdivision (f).
It has been said that an investigatory file exists whenever information is collected actively or passively for the purpose of determining whether or not a license should be revoked or whether disciplinary proceedings should be initiated. (53 Ops. Cal.Atty.Gen. 136, 150.)
Plaintiffs in urging a special basis for disclosure, namely, that the Bureau of Collection and Investigative Services routinely disclose complaints to the affected collection agencies, points to a statement accompanying the bureau's 'complaint form' stating 'A copy of this communication may be made available to the licensee concerned.' The majority concludes that Government Code Section 6254 lists 14 categories of disclosure-exempt material; that such exemptions are permissive, not mandatory; they permit disclosure but do not prohibit it; and, that when the agency exercises its permissive disclosure authority, [114 Cal.Rptr. 735] public inspection follows. (Gov.Code, § 6254, subd. (f).) I cannot so conclude. The practice of disclosing complaints to affected licensees is an integral and necessary procedure to properly investigate the charges in the complaint filed. How else can this state agency process the claim of an unlawful practice perpetrated upon an individual unless the factual situation in each case is checked, which necessitates, in effect, a confrontation of the licensee with the charge made against it. Such practice should not of itself cause the record to lose its exempt status and become at that point available for public inspection. The mere filing of a consumer complaint containing charges, true or false, should not trigger the publication thereof.
Even if it be deemed that consumers' complaints do not fall within the exemption of section 6254, subdivision (f), I believe the bureau has sustained its burden in justifying the nondisclosure of the consumers' complaint it receives by showing that the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.
As the bureau claims, it would be a deterrent to those who may have a legitimate complaint if they knew that their complaint was to be made public. (See Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 567-569, 7 Cal.Rptr. 109, 354 P.2d 637.) Moreover, to disclose a consumer's complaint that alleges an offense or violation of a rule or law which later is proven to be unfounded is unjust to the agency subject to the complaint.
In the instant case, the public interest served by not making the consumers' complaints public clearly outweighs the public interest served by disclosure of the record. (See Chronicle Pub. Co. v. Superior Court, supra, 54 Cal.2d at pp. 566-569, 7 Cal.Rptr. 109, 354 P.2d 637. See also Yarish v. Nelson (1972) 27 Cal.App.3d 893, 901-903, 104 Cal.Rptr. 205, in which the court denied the news media the right prison files.)
I would affirm the judgment.
'. . .
'(f) Records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, and any state or local police agency, or any such investigatory or security files compiled by any other state or local police agency for correctional, law enforcement or licensing purposes; . . ..
'. . .
'Nothing in this section is to be construed as preventing any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.'
'The Act's sole concern is with what must be made public or not made public. The Act never provides for disclosure to some private parties and withholding from others. The main provisions of section 3 says that information is to be made available 'to the public' and the central provision of subsection (c) requires availability of records to 'any person.'
'. . .
'One consequence is legislative departure from the customary practices of normal people, who often disclose to those having a special reason for knowing and withhold from those who do not. . . . Under the Act, Uncle Sam's information is either made public or not made public. The Act never requires it to be protected from all except those who have a special need for it.
'Another consequence of limiting the Act's provisions to disclosures 'to the public' and 'to any person' is to preclude the balancing of the interest of one private party against the interest of another private party. . . . Under the Act such a balancing is inappropriate. All parties are equal in satisfying the words 'any person." (Davis, Administrative Law Treatise (1970 Supp.) § 3A.4, pp. 120-121.)
At another point he states: 'The exemptions protect against required disclosure, not against disclosure.' (Id., p. 122.)
The federal statute exempts from disclosure 'investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.' (5 U.S.C. § 552(b)(7).) Under this provision the agency's disclosure of investigatory material to the person or firm under investigation requires it to make the material publicly available. (Hawkes v. Internal Revenue Service (6 Cir. 1972) 467 F.2d 787, 794-795; Ditlow v. Volpe (D.C.1973) 362 F.Supp. 1321, 1325; Wellford v. Hardin (D.C.1970) 315 F.Supp. 175, 178.)