City cries ‘privacy’ over naming names – News Analysis


The activist group “Malibu Homeowners for Reform,” which wants to reform the city’s code enforcement system, and the city bureaucracy that carries out that code enforcement seemed to be at loggerheads again.

The reform group made a public records demand on the city March 1, pursuant to the California Public Records Act, demanding all of the closed enforcement files from Feb. 1, 1999 to March 1, 2000. They indicated they wanted the first page of the enforcement letters, which includes names and addresses, so they could investigate how the city was carrying out enforcement, explained spokeswoman Anne Hoffman.

Initially, the group met with City Code Enforcement Officer Gail Sumpter, who indicated later in a letter she estimated there were nine boxes of closed files with about 50 files in each box. She added, “I also want to repeat that I’m concerned about the privacy of the property owners who have been subject to some type of code enforcement action. It appears that you are entitled to these records so I can only hope that those names will not become public.” She said they couldn’t have unsupervised access to city files; that would have to be done by city staff at $21.50 per staff hour and 50 cents per page copied. She estimated eight to 15 staff hours would be required.

In a later letter, Sumpter wrote to Hoffman, “Due to the fact that closed code enforcement files contain confidential material not subject to a public records request (e.g. attorney-client communications and notes reflecting opinions and work product), we cannot allow you to have free access to these records. As you and I agreed previously, I will begin making documents available one box at a time with an outside due date of March 25.”

City Manager Harry Peacock told The Malibu Times Interim City Attorney Richard Terzian had advised the city it could not legally disclose the names, addresses and phone numbers of the people involved in the closed files because their right to privacy was protected by the California Constitution; however, Peacock indicated other parts of the record would be discoverable.

But when that same question was posed to attorney Jim Ewert, legal council to California Newspaper Publishers Association in Sacramento, he said, “I am unaware of any case law that allows a city to withhold this kind of information based upon a tenuous right of privacy argument. If this were the case, we’d be unable to discover who owns a particular parcel of property or to verify an identity using a birth record. It would completely undermine the California Public Records Act.”

Because there seemed to be a split of opinion, we next contacted Terry Francke, general counsel to the California First Amendment Coalition, a writer and speaker, and an acknowledged legal authority to many journalists. He said, “There is no privacy right in this situation. It’s analogous to court records of prosecutions. Those are public records.

Perhaps if the city wants to, they could send a letter to all people where the code complaint was not sustained and advise them they intend to disclose. In fact, under the California Public Records Act, if there is any exempt material such as attorney work product or attorney-client communications in a file, the city is actually required to segregate out the exempt material, but that can’t be used as a basis for concealing who was cited or complained about. I think there is a bedrock First Amendment issue here, which includes access to information to be able to associate effectively with other victimized people and together to petition for the redress of grievances,” Francke said.