                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                       OFFICE OF THE ATTORNEY GENERAL
                                 State of California

                                 DANIEL E. LUNGREN
                                   Attorney General



                                             :
                 OPINION                     :                 No. 98-901
                                             :
                     of                      :             December 17, 1998
                                             :
          DANIEL E. LUNGREN                  :
            Attorney General                 :
                                             :
         CLAYTON P. ROCHE                    :
         Deputy Attorney General             :
                                             :




        THE HONORABLE THOMAS F. CASEY, III, COUNTY COUNSEL, SAN
MATEO COUNTY, has requested an opinion on the following question:

              Are claims for senior citizens’ exemptions from assessment of a parcel tax
levied by a school district subject to inspection by members of the general public?


                                     CONCLUSION

              Claims for senior citizens’ exemptions from assessment of a parcel tax levied
by a school district are subject to inspection by members of the general public.




                                            1                                       98-901
                                              ANALYSIS

              We are informed that in 1991, a school district began imposing a parcel tax
pursuant to an initiative measure approved by the voters of the district. The measure
contains an exemption from the tax for the primary residence of homeowners who are over
65 years of age. Tax exemption claims must be filed annually with the school district, giving
the names, addresses, and ages of the homeowners. The question presented for resolution
is whether the exemption claims filed with the school district are subject to inspection by
members of the general public. We conclude that they are.

               The California Public Records Act (Gov. Code, §§ 6250-6270; “Act”)1
generally requires state and local agencies to allow members of the public to inspect all
records in their custody and obtain copies thereof. (§§ 6250, 6252, 6253, 6257; Register
Div. Freedom Newspaper, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 901.) This
public right of access, however, is not absolute. The Legislature has recognized that
conflicting interests may arise which would require certain government records to remain
confidential. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338-1339; CBS,
Inc. v. Block (1986) 42 Cal.3d 646, 651-652; Rogers v. Superior Court (1993) 19
Cal.App.4th 469, 476; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579,
1584-1585.) As stated in Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 653:
“The objectives of the Public Records Act thus include preservation of islands of privacy
upon the broad sea of enforced disclosure.”

              In section 6254 the Legislature has enumerated various categories of records
that may be claimed by a public agency as exempt from disclosure.2 One exemption of
potential applicability here is subdivision (k) of the statute which 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.”

We know of no specific statute that would prohibit the disclosure of a senior citizen’s tax
exemption claim, unlike certain voter records (Elec. Code, §§ 2166, 2194), driving records
(Veh. Code, §§ 1808.4-1808.7, 1808.21-1808.23), and income tax returns (Rev. & Tax.
Code, § 19542).

       1
           All references hereafter to the Government Code are by section number only.
       2
          These exemptions are permissive, not mandatory. (CBS, Inc. v. Block, supra, 42 Cal.3d at 652;
Black Panther Party v. Kehoe, supra, 42 Cal.App.3d at 656.) The Act grants a public agency discretionary
authority to override the statutory exceptions. (§§ 6253.1, 6254.)

                                                     2                                          98-901
               We note that subdivision (k) of section 6254 expressly refers to exemptions
from disclosure contained in “provisions of the Evidence Code relating to privilege.” It has
been suggested that the tax exemption claims in question could fall within the so-called
“official information” privilege found in Evidence Code section 1040, subdivision (b)(2),
which provides:

             “(b) A public entity has a privilege to refuse to disclose official
       information . . . if . . .

               “(2) Disclosure of the information is against the public interest because
       there is a necessity for preserving the confidentiality of the information that
       outweighs the necessity for disclosure in the interest of justice; but no
       privilege may be claimed under this paragraph if any person authorized to do
       so has consented that the information be disclosed in the proceeding. In
       determining whether disclosure of the information is against the public
       interest, the interest of the public entity as a party in the outcome of the
       proceeding may not be considered.”

However, we need not further discuss subdivision (k) here, since the balancing test necessary
under Evidence Code section 1040 is essentially equivalent to that set forth for nondisclosure
under the terms of section 6255 (CBS, Inc. v. Block, supra, 42 Cal.3d at 656; see Times
Mirror Co. v. Superior Court, supra, 53 Cal.3d at 1339, fn. 9), which we will examine below
in detail.

                The only other disclosure exemption contained in section 6254 that might
arguably apply here is subdivision (c), which exempts from disclosure “[p]ersonnel, medical,
or similar files the disclosure of which would constitute an unwarranted invasion of personal
privacy.” While a person’s age may be “personal” information, the tax exemption claims at
issue are not similar to personnel or medical files. As the courts have concluded with respect
to subdivision (c): “The purpose of the exemption is to ‘protect information of a highly
personal nature which is on file with a public agency . . . [to] typically apply to public
employee’s personnel folders or sensitive personal information which individuals must
submit to government.’ [Citation.]” (San Gabriel Tribune v. Superior Court (1983) 143
Cal.App.3d 762, 777; accord, City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th
1083, 1091; Register Div. Of Freedom Newspapers, Inc. v. County of Orange, supra, 158

Cal.App.3d at 902.) Property tax exemption claims do not meet the terms and purposes of
subdivision (c) of section 6254.

              Having examined the Act’s express exemptions from public disclosure, we turn
to the general “public interest” provision of section 6255. Section 6255 states:

                                              3                                            98-901
              “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.” (Italics added.)

Similar to Evidence Code section 1040, section 6255 allows withholding a document from
disclosure when the public interest so requires. The courts have examined this statutory
language in a variety of situations: American Civil Liberties Union Foundation v.
Deukmejian (1982) 32 Cal.3d 440, 467 [Department of Justice index cards withheld as too
burdensome]; Register Div. Of Freedom Newspaper, Inc. v. County of Orange, supra, 158
Cal.App.3d at 908-910 [county case settlement documents ordered disclosed]; Braun v. City
of Taft (1984) 154 Cal.App.3d 332, 345-346 [city employee’s employment records ordered
disclosed]; San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d at 780 [city
contractor’s financial data ordered disclosed]; Eskaton Monterey Hospital v. Myers (1982)
134 Cal.App.3d 788, 792-794 [Medi-Cal audit manual withheld]; Johnson v. Winter (1982)
127 Cal.App.3d 435, 438-439 [employee applicants’ personnel data given with assurance of
confidentiality withheld]; American Federation of State etc. Employees v. Regents of
University of California (1978) 80 Cal.App.3d 913, 915-919 [university audit report
withheld]; Procunier v. Superior Court (1973) 35 Cal.App.3d 211 [prison building plans and
security information withheld]; Yarish v. Nelson (1972) 27 Cal.App.3d 893, 902 [certain
prison records of inmates withheld]; Uribe v. Howie (1971) 19 Cal.App.3d 194, 209-211
[pesticide applicator’s spray reports ordered disclosed].)

              Under section 6255’s balancing test, the courts have emphasized that the
primary benefit of disclosing agency records to the public is to promote government
accountability. The public and the media have a legitimate need to know whether
government officials are performing their duties in a responsible manner. (Times Mirror Co.
v. Superior Court, supra, 53 Cal.3d at 1344; CBS, Inc. v. Block, supra, 42 Cal.3d at 651,
656.) Here, property owners have a significant interest in knowing whether other property
owners are complying with the law and whether public officials are fairly performing their
duties in granting exemptions from the tax.

               On the other hand, if the information in question is not disclosed, the rights of
privacy of the senior citizens in the district would be protected. Arguably, they would not
be subject to unwanted solicitations directed to them due solely to their having surpassed the
age of 65. Such speculation, however, is not a basis for denying disclosure under the terms
of section 6255. (See CBS, Inc. v. Block, supra, 42 Cal.3d at 652; New York Times Co. v.
Superior Court, supra, 218 Cal.App.3d at 1585-1586.) Also noteworthy is that inspection
of the tax exemption claims would not subject the senior citizens to any “social stigma” or
reveal “intimate information concerning [the person’s] own or his family’s medical or

                                               4                                           98-901
psychological history.” (CBS, Inc. v. Block, supra, 42 Cal.3d at 654-655.) Rather, the senior
citizens here have volunteered the information in order to get a tax benefit not available to
other property owners. (See id., at p. 654; City of Los Angeles v. Superior Court, supra, 41
Cal.App.4th at 1092; New York Times Co. v. Superior Court, supra, 218 Cal.App.3d at 1585;
Register Div. of Freedom Newspapers, Inc. v. County of Orange, supra, 158 Cal.App.3d at
902; Gallagher v. Boller (1964) 231 Cal.App.2d 482, 494.) Following these cases,
particularly City of Los Angeles v. Superior Court, supra, 41 Cal.App.4th 1083, and Register
Div. of Freedom Newspapers, Inc. v. County of Orange, supra, 158 Cal.App.3d 893, we find
no legitimate basis for withholding public inspection of these tax exemption claims pursuant
to section 6255.

               Consistent with this determination, we note that in Gallagher v. Boller, supra,
231 Cal.App.2d 482, the court ruled that records in a county assessor’s office relating to a
claim of exemption from property taxes filed by a church were open to public inspection.
In 48 Ops.Cal.Atty.Gen. 78 (1986), we concluded that affidavits in a county assessor’s office
relating to claims of exemption from property taxes filed by veterans were open to public
inspection. In a 1982 informal opinion (Cal. Atty. Gen., Indexed Letter, No. IL 82-601 (June
16, 1982)), we concluded that records in a county assessor’s office relating to claims of
exemption from property taxes filed by timber owners were subject to public inspection. The
Legislature has specifically directed county assessors to “maintain records which shall be
open to public inspection to identify those claimants who have been granted the
homeowners’ exemption.” (Rev. & Tax. Code, §§ 408, subd. (a), 408.2, subd. (a).) As
indicated above, various statutory provisions protect the confidentiality of specified public
records. If the Legislature wished to keep the records in question confidential, it easily could
have so provided. (See State Farm Mut. Auto. Ins. Co. v. Department of Motor Vehicles
(1977) 53 Cal.App.4th 1076, 1082; 73 Ops.Cal.Atty.Gen. 13, 23 (1990).)

               Finally, we point out that under the Act, an agency may elect to withhold
disclosure of any information, but such decision is subject to court review. (§§ 6258, 6259.)
Subdivision (b) of section 6259 provides:

               “If the court finds that the public official’s decision to refuse disclosure
       is not justified under section 6254 or section 6255, he or she shall order the
       public official to make the record public. If the judge determines that the
       public official was justified in refusing to make the record public, he or she
       shall return the item to the public official without disclosing its content with
       an order supporting the decision refusing disclosure.”

When a court undertakes the weighing process pursuant to section 6255, “[t]he burden of
demonstrating a need for nondisclosure is upon the agency claiming the right to withhold the
information. . . .” (Braun v. City of Taft, supra, 154 Cal.App.3d at 345.) “Each case must

                                                5                                             98-901
undergo an individual weighing process.” (Id., at p. 346.) Upon appellate review, the court
determines whether there was substantial evidence to uphold the trial court’s findings.
(Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at 1336; CBS, Inc. v. Block, supra,
42 Cal.3d at 650-651.)

               We conclude that claims for senior citizens’ exemptions from assessment of
a parcel tax levied by a school district are subject to inspection by members of the general
public.

                                         *****




                                             6                                       98-901
