- . Department 29 Superior Court of California County of Sacramento 720 Ninth Street Timothy M. Frawley, Judge - Frank Temmerman, Clerk Friday, September 7, 2012, 1 :30 p.m. CENTER FOR INVESTIGATIVE Case Number: 34-2012-80001044 REPORTING vl I CALIFORNIA DEPARTMENT OF - PUBLIC HEALTH Proceedings: Petition for Writ of Mandate and Complaint for Declaratory and injunctive Relief Filed By:_ Duffy Carolan, of Davis Wright Tremalne LLP, Attorneys for PetitionerIPIaintiff - On Friday, September 7, 2012, at 1:30 this matter came on for hearing with counsel present as indicated on the record. The matter was argued and submitted. Having taken the matter under submission, the court now rules as follows: RULING UNDER SUBMISSION Petitioner.'Plaintiff Center for Investigative Reporting ("Petitioner") has filed a petition for a peremptory writ of mandate and complaint for declaratory and injunctive relief against Respondent/Defendant California Department of Public Health Petitioner seeks in its petition to compel DPH to produce, in unredacled or minimally-redacted form, any citations issued by DPH to state-run developmental centers from January 1, 2002, to the present, and a declaration of its constitutional and statutory rights of access to these records under the Califomia. Public Records Act and Section 3(b) of the California Constitution. For the reasons described below,_lhe Court shall grant the petition and complaint for declaratory relief. Background and Progedure Petitioner in this case is a non-profit news organization. Respondent DPH is a state agency operating within the California Health and Human Services Agency. Paget of 11 - DPH is responsible for licensing, regulating, and inspecting health care facilities in California, including the state-run developmental centers at issue in this case. The Department of Developmental Services which is not a party to this lawsuit, is the state agency responsible for providing services to people with developmental disabilities. lt presently operates tive developmental centers, which house about 1,700 of the State's most severely developmentally?disabIed patients. Those centers are Sonoma Developmental Center, Fairview Developmental Center, Porterville Developmental Center, Canyon Springs Developmental Center, and Lanterman Developmental Center. It also formerly operated two other developmental centers -- Agnews Developmental Center and Sierra Vista Developmental Center -- but both of those centers have since closed. All seven of these state~run developmental centers (collectively, the "Developmental Centers") arelwere long--term_ health care facilities subject to citation and enforcement provisions of the Long--Term Care, Health, Safety, and Security Act of 1973 (the "Long-Term Care Act"). On May 6, 2011, Petitioner made a written California Public Records Act request to DPH. The request sought records relating to citations issued by DPH from - January 1, 2002, to the present, for the Developmental Centers. On or about May 15, 2011, a representative from DPH responded to Petitioner's request, stating that it is only required to maintain citations for four years and that any citations produced would be redacted pursuant to Welfare and Institutions Code section 5328 to remove any and all confidential information obtained in the course of_providing services to developmentally disabled persons. On June 1, 2011, Petitioner called DPH to check on the status of the request. On June 2, 2011, DPH emailed Petitioner stating that DPH had located fifty-five - -citations responsive to Petitioner's request and that DPH was in the process of redacting them. On June 13, 2011, DPH produced the citations on a disk. Fifty-five citations were produced, all for the years 2007-2011. No citations were produced for the years 2002-2006. Each of the fifty-tive citations produced was extensively redacted to remove nearly all factual information from the citation. ln essence, the only information not redacted were general statements about the nature of the violation -- such as, "The facility failed to keep Client 1 free from hamw" - and references to the statutorylregulatory provisions allegedly violated. Otherwise, with minor exceptions, the citations were completely redacted of all factual information, including the names of the persons involved, the chronology and location of events giving rise to the citation, and the results of any investigation . into the incident. After DPH's production, Petitioner requested DPH to justify its aggressive redactions. DPH responded that the redactions were necessary to comply with . Page 2 of 11 the requirements of section 5328 of the Lanterman-Petris--Short Act and section 4514 ofthe Lanterman Developmental Disabilities Service Act of 1978 On January 19, 2012, Petitioner filed the instant action seeking a declaration of . i its rights of access and an order compelling DPH to disclose in unredacted or minimally-redacted form the requested citations. I Rguests for Judicial Notice The Court grants Petitioners Request for Judicial Notice filed June 29, 2012, and Respondent DPH's Request for Judicial Notice tiled August 13, 2012. - Standard of Review . The California Public Records Act (CPRA) provides for the inspection of public records maintained by state and local agencies. (See Gov. Code 6250 et seq.) The purpose of the CPRA is to fulfill the "fundamental and necessary right of every person in this state" to have access to information concerning the conduct ofthe people's business. (See Gov. Code 6250; Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 901.) As stated by _the California Supreme Court in CBS, Inc. v. Block: 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 tiles. Such access pemwits checks against the arbitrary exercise of official power and secrecy in the political process. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) To advance this purpose, the CPRA embodies a strong policy in favor of disclosure. (See Gov. Code 6253.) Support for a claim of nondisclosure must be found, if at all, among the speciric exemptions enumerated in the Act. (Register Div. of Freedom Newspapers, supra, 158 CaI.App.3d at p.901,) Under the CPRA, records may be exempted from disclosure in two ways. First, materials may be exempt from disclosure pursuant to one of the express categorical exemptions set forth in section 6254 et seq. (Gov. Code 6254.) Second, materials may be exempted from disclosure under the residual exemption set forth in section 6255, which allows a government agency to - withhold records if it can demonstrate, on the facts of a particular case, that the public interest served by withholding the records clearly outweighs the public . - interest served by disclosure. (Gov. Code 6255.) These exemptions are . narrowly construed. and the burden of establishing an exemption is on the public agency. (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 476; Cal. Const. - art. l, Page 3 of 11 - I Except as othenlvise prohibited by law, a public agency has the discretionary authority to override a statutory exemption and open its records to public inspection. However, the CPRA does not allow public officials to engage in selective disclosure, favoring one citizen with disclosures denied to another. Records are either completely public or completely conhdential. (See Black - Panther Party v. Kehoe (1 Cal.App.3d 645, 656 [consumer complaints against private collection agencies became public records available for public inspection when defendants elected to supply copies of the complaints to the affected agencies].) - Arguments of the Parties - In this case, DPH has refused to produce any citation issued prior to 2007 and it has heavily redacted those that it did produce to remove nearly all factual I information about the incident giving rise to the citation. I DPH contends that it is not required to produce records pre--dating 2007 because . it has a document retention policy that records shall only be maintained for four years. (See Dickfoss Declaration, 113, Ex. A.) DPH further contends its redactions are proper because the CPRA does not require disclosure of records where disclosure is exempted or prohibited by law. (Cal. Gov. Code Here, DPH contends its redactions are necessary to comply with the confidentiality provisions of the Lanterman-Petris-Short Act and Lanterman Developmental Disabilities Service Act. According to DPH, those acts prohibit disclosure to the public of any information or records obtained in the course of providing services to persons with mental or developmental disabilities. (See Cal. Welf. Inst. Code 5328, 4514.) Under the legal- maxim that when a statute expresses certain exceptions to a general rule, other exceptions are necessarily excluded, DPH argues that the only exceptions to the general prohibition against disclosure are those exceptions specifically enumerated in the Lanterman-Petris-Short and Lanterman Developmental Disabilities Service Acts (hereinafter referred to collectively as the "Lanterman Act"). (See Cal. Welf. Inst, Code 4514(n), 4514.3, 5328.15, 5328.06.) - DPH contends that the redacted information consists of confidential information obtained in the course of providing services to developmentally or mentally disabled individuals, and that none of the specifically enumerated exceptions apply. Thus, while the citations themselves can be disclosed, DPH contends it is strictly prohibited from disclosing the underlying facts. DPH also contends that even if Government Code section 6254(k) does not apply, disclosure of the requested information should not be required because it . would constitute an unwarranted invasion of the patient's private medical tiles under Government Code 6254(c), and because the public interest served by 1 7 I . Page 4 of 11 not making the record public clearly outweighs the public interest served by disclosure of the record under Government Code 6255. With regard to the citations from 2002-2006, Petitioner argues that DPH has . failed to establish any basis for refusing to locate and disclose the requested records. According to Petitioner, DPH has, at most, established that it was not "required" to retain citations issued prior to 2007, but it has not established, or even claimed, it did not retain citations issued prior to 2007. ln the absence of such a showing, Petitione_r argues that DPH should be ordered to search for and . produce any citations from 2002-2006 that it still has in its possession. With regard to the redacted information, Petitioner relies on the provisions of the . Long Term Care Act, which mandates that citations issued to facilities found to be in violation of the law be posted or otherwise made accessible to the public. (See Cal. Health Saf. Code 1417.1, 1423, 1424, 1429, 1439.) While the names of patients affected by the alleged violations are not open to public inspection, the particular underlying facts giving rise to the citation are required to be made available to the public. (See Cal. Health Saf- Code 1423(a)(2), 1424(b), 1439.) Thus, to the extent the citations include any information that othenivise might be protected as confidential under the Lanterman Act, Petitioner contends the two Acts are in conflict, and the Long Term Care Act should be treated as a special exception to the Lanterman Act's general rule of confidentiality. To do othenivise, Petitioner contends, would seriously undermine the purposeof the Long Term Care Act's citation system. - . Moreover, even if the Court were to adopt DPH's construction of the Lanterman Act, Petitioner contends the Court should grant the requested relief because DPH's aggressive redactions go well beyond what is required by the Lanterman - Act. Finally, Petitioner contends DPH has waived any right to assert exemptions from the CPRA by providing minimally--redacted citations to other members of the public. Discussion The Court is called upon in this case to resolve an apparent conflict between the Lanterman Act's prohibition against disclosure of records obtained in the course of providing mental health or developmental services, and the Long Term Care Act's requirement that citations issued to long-term health care facilities be open to public inspection. Ultimately, this presents a question of statutory interpretation. - Page 5 of 11 The paramount goal of statutory interpretation is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (Meaney v. Sacramento Housing Redevelopment Agency (1993) 13 Cal.App.4th 566, 580-581.) To detem1ine legislative intent, the court first examines the words of the statute, applying their usual, ordinary, and common sense meaning based upon the languageused and the evident purpose for which the statute was adopted. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 164.) lf the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning govems, (Sheppard v. North Orange County Regional - Occupational Program (2010) 191 Cal.App.4th 289, 299.) lf two potentially conflicting statutes are contained in different legislative acts, courts will strive to effectuate the purpose of each by harmonizing them, if possible, in a way that allows both to be given effect. (Chavez v. City of Los . Angeles (2010) 47 Cal.4th 970, 986.) - However, where the statutes cannot be reconciled, later and more specific . enactments prevail, pro tanto, over earlier and more general ones. (Department of Fair Employment Housing v. Mayr(2011) .192 Cal.App.4th 719, 725.) lf earlier and later enactments conflict, the most recent expression of legislative will prevails. (California Correctional Peace Ofncers Assn. v. Department of Corrections (1999) 72 Cal.App.4th 1331, 1340.) When a special and a general statute are in conflict, the specific provision govems, whether it was passed before or after the general statute. (Nunes Turfgrass v. Vaughan-Jacklin Seed Co. (1988) 200 CaI.App.3d 1518, 1539; Consumers Union of U. S., inc. v. Califomia Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446.) ln this case, the Court concludes that the competing statutory provisions cannot be reconciled. On the one hand, the Welfare and Institutions Code requires that all information obtained in the course of providing mental health or developmental services shall - remain "com1dential," subject only to the legislative exceptions listed under those sections. (See Cal. Welf. lnst. Code. 4514, 5328.*) According to DPH, 1 California Welfare and institutions Code section 4514 provides that, subject lo certain exceptions: All information and records obtained in the course of providing intake, assessment, and services under Division 4.1 (commencing with Section 4400). Division 4.5 (commencing with Section 4500), Division 6 (commencing with Section 6000), or Division 7 (commencing with Secllon 7100) to persons with developmental disabilities shall be confidential Information and records shall only in any of the following cases: "(Cal. Welf. lnst. Code California Welfare and institutions Code section 5328 provides that, subject to certain exceptions: Page 6 of 11 since nearly everything that happens to a patient in a developmental center happens "in the course of providing services" to that patient. this general prohibition against disclosure conceivably applies to nearly all patient-related mental health records.: On the other hand, the Health and Safety Code provides for an inspection and . reporting system to ensure that long-term health care facilities are in compliance with state_ statutes and regulations pertaining to patient care. (See Cal. Health Saf. Code 1417.1.) When DPH observes a violation of a statute or regulation. it authorizes DPH to issue citations to the non-complying facility. (See Cal. - Health Saf. Code 1423.) When a citation is issued, the citation is required to describe "with particularity" the nature of the violation and the "relevant facts," - except for the names of the persons involved in the incident? (See Cal. Health . Saf. Code 1423(a)(2), 1424(b), 1439.) Further, once issued, the citation is . required to be open and available to the public. (See Cal. Health 8i Saf. Code 1429, 1439.) . The statutes are not always in conflict. Where citations do not concern mental health records, there is no conflict, and_the citations can be publicly disclosed without breaching the confidentiality provisions of the Lanterman Act. All information and records obtained ln the course of providing services under Division 4 (commencing with Section 4000), Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500). Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100), to either voluntary or involuntary recipients of services shall be confidential information and records shall be disclosed only in any of the following cases: (Cal. Welt. 8. Inst. Code I 5328.) 2 Petitioner argues that a citation issued as part of a complaint investigation is not information "obtained in the course of providing services." The Court agrees, but the citation still is likely to include information obtained in the course of providing services. Petitioner also argues that certain types of violations, like patient abuse, cannot be deemed to have occurred in the course of providing "services" to the patient since abuse is not a "service" to the patient. While lt is axiomatic that abuse is not a "service," the Court rejects the suggestion that patient abuse does not occur in the course of providing services to the patient for purposes of - the confidentiality provisions ofthe Lanterman Act. Putting aside the accessibility provisions of the Long Term Care Act, if a patients right to privacy extends to intake and treatment records, it also should extend to records of patient abuse since disclosing such records would reveal not only that the person is receiving mental health services, but also that the person was subjected to abuse. 3 The clear purpose in excluding the names of the persons involved (other than the investigating . officers) ls to protect the privacy rights of such persons. The statute reflects the Leglslature's determination of the proper balancing of those privacy rights against the need for disclosure. The balance struck is to exciude "names," but the Intent cleariy is to prevent members of the pubiic who do not know the persons involved from being able to identify them from the citation. lt is therefore possible that, to achieve the purpose of the Act, DPH could, in appropriate circumstances, redact personal descriptions from citations if such descriptions would be akin to - "naming" the individual. However, since this case does not present such issue, the Court need not and does not- so decide here. Page 7 of 11 However, where mental health records are involved, a conflict exists. DPH cannot make the citation publicly available and simultaneously shield it from public disclosure. Recognizing this conflict, DPH's solution was to disclose the fact that a citation was issued, but to redact all factual information from the citation. This . construction cannot stand since it -vioIates both the letter and spirit ofthe accessibility provisions ofthe Long Temt Care Act. The purpose of requiring citations to be publicly accessible is to promote the health and safety of mental health patients by providing infomation to the public - about violations of statutes and regulations pertaining to patient care. Such disclosure not only encourages facilities to prevent violations, but also allows mental health patients to protect themselves. To achieve this purpose, the Long Term Care Act requires citations to describe with particularity the nature ofthe violation and the relevant facts ofthe incident giving rise to the violation, except for the names of the persons involved,' and it requires citations to be posted in an area accessible by the public or made available to the public upon request. Under DPH's construction, redacting factual information from -the citation, the public knows a violation has occurred, but cannot ascertain how the violation occurred, whether it has been corrected, or whether it is likely to be repeated. The purpose of making the citation public is defeated. Thus, the Coun concludes that DPH's construction violates both the letter and spirit ofthe Long Term Care Act. Where mental health records are involved, there is an irreconcilable conflict between the Lanterman Act's confidentiality provisions and the Long Term Care I Act's accessibility provisions. The statutes cannot be harmonized by disclosing the citation denuded of all the underlying factual information giving rise to the citation. Having concluded that the provisions cannot be harmonized, the Court next must decide which provision prevails where there is a conflict. ln making this determination, it must be remembered that the paramount goal of statutory interpretation is to ascertain the intent ofthe Legislature so as to effectuate the purpose of the law. To protect the privacy of the persons involved, the Act requires that the names of patients and other individuals involved, other than the investigating officers, be redacted from the citations. (See cal. Health 8. Saf. code 55 1429, 1439.) Page 8 of 11 ln this case, the Court is persuaded that the Legislature intended the accessibility provisions of the Long Term Care Act to prevail as a special exception to the Lanterman Act's general rule of confidentiality. First, when earlier and later enactments are in conflict, the most recent enactment generally prevails. (California Correctional Peace Officers Assn. v. Department of Corrections (1999) 72 Cal.App.4th 1331, 1340.) Relevant here is that the confidentiality provisions of the Lantennan Act were first enacted in 1967, approximately one year before the Legislature adopted the accessibility provisions as part of the Long Term Care Act. (Gilbert v. Superior Court (1987) 193 CaI.App.3d 161, 168-169.) This supports the view that the Legislature intended the accessibility provisions to serve as an exception to the general rule of confidentiality? Second. it is settled law that when a special and a general statute are in conflict, the special act will be considered as an exception to the general statute, whether it was passed before or after the general enactment. (Nunes Turfgrass v. - Vaughanalacklin Seed Co. (1988) 200 CaI.App.3d 1518, 1539.) The provisions of the Long Term Care Act are special statutes governing accessibility of citations issued to long-term health care facilities, and therefore they prevail over the Lanterman Act's general limitation on d_isclosure of mental health records. Third, legislative policy favors the conclusion that the Legislature intended the accessibility provisions of the Long Tem1 Care Act to be an exception to the confidentiality provisions of the Lanterman Act. ln reaching this determination, the Court notes that the ultimate purpose of both the confidentiality and the accessibility statutes is the same: to promote and protect the health and safety of mental health patients. It follows that publicly disclosing the basis for citations is consistent with the ultimate purpose ofthe Lanterman Act to promote the health and safety of patients. The converse is not true. Withholding such information undermines the pubIic's interest in protecting patients. - Finally, opinions issued by the California Supreme Court and the California Attorney General support the conclusion that public reporting or accessibility . obligations enacted outside the Lanterman Act may trump the Act's general rule . of confidentiality. (See Albertson v. Superior Court (2001) 25 CaI.4th 796, 800 [provisions of Sexually Violent Predators Act constitute an exception to 5328's general rule of confidentiality]; 65 Ops. Cal. Atty. Gen. (1982) [Child Abuse Reporting Law supersedes confidentiality provisions of Lanterman Act]; 58 Ops. - 5 The Coun recognizes that Welfare and institutions Code 4514 was not added until 1982. However, prior to the enactment of 4514, the same level and coverage of confidentiality was afforded by Welfare and Institutions Code 5328 which, as originally enacted, applied to treatment information and records for both mentally and developmentally disabled persons. Now - 4514 applies only to developmentally disabled persons, while 5328 protects the mentally disabled. (Gilbert v. Superior Courf(1987) 193 CaI.App.3d 161, 188-169.) Accordingly, the date of enactment of 4514 does not affect the Court's analysis. Page 9 of 11 Cal. Atty. Gen. (1975) obligation to report child abuse under - Penal Code 11161.5 trumps confidentiality provisions of Lanterman Act].) The Court rejects DPH's argument that because the Legislature later enacted some exceptions to the general confidentiality rule - Welfare and institutions Code sections 4514(n) and 5328.15) - this shows the Legislature intended no other exceptions. To the contrary, the later enacted exceptions show that the general rule of confidentiality is not absolute and must yield to special legislative exceptions. (See, Cal. Welf. lnst. Code 5328.1, 5328.3, 5328.4, . 5328.8, 5328.9 [other later-enacted exceptions to the general rule of confidentiality in 5328].) Moreover, the, Court agrees with Petitioner that Welfare and Institutions Code . sections 4514(n) and 5328.15 were intended to authorize disclosure to licensing personnel conducting licensing duties, and not to supersede the public inspection provisions of the Long Term Care Act's citation system? . DPH has failed to carry its burden of proving that the withheld information is exempt from disclosure under Government Code section 6254(k). To the contrary, the Long Term Care Act requires the information to be made public.? - This also disposes of DPH's argument that the information can be withheld under Government Code 6254(c). ln enacting the accessibility provisions of the Long Term Care Act, the Legislature already has made the determination that disclosure of the citations does not constitute an unwarranted invasion of personal privacy. DPH cannot seriously contest this point, since it already discloses this information in relation to citations issued to other long-term health care facilities. (See, Gabrielson Declaration, Ex. 4; see also . For similar reasons, the Court rejects DPH's argument that the information can be withheld under Government Code 6255. As discussed above, the public . interest served by disclosure of the record outweighs the public interest in not making the record public. Finally, the Court agrees with Petitioner that DPH cannot rely on its internal retention policy to exempt it from the disclosure obligations under the Long Term Care Act and CPRA. If DPH still has responsive documents, it is obligated to produce them. Repeals by implication are not favored. (Consumers Unrbn of U.S., inc. v. California Milk . Producers Advisory Bd. (1978) 82 CaI.App.3d 433, 446.) 7 ln this sense, this proceeding properly could be construed as a petition to enforce DPH's statutory duties under the Long Term Care Act, rather than the CPRA. Page 10 of 11 - Disposition The petition and complaint for declaratory relief are granted. The Court shall grant declaratory relief in favor of Petitioner CIR clarifying that citations issued to the Developmental Centers are public records subject to disclosure in accordance with the provisions of sections 1423, 1424, 1429, and 1439 of the California Health Safety Code. The Court shall issue a peremptory writ of mandate commanding Respondent DPH to produce the requested citations without redaction, except as to the names of individuals other than investigating officers, which can and must be withheld. I Respondent DPH to make and file a retum within 90 days after issuance of the `writ setting forth what Respondent has done to comply with the writ. Petitioner shall be entitled to recover its costs of suit upon appropriate application. The Court reserves jurisdiction to determine the amount ofthe award of attorney fees pursuant to a proper and timely motion by Petitioner. . /2 Qi? 4 Dated: September 13, 2012 Signed: Q3 n. Timot M. Frawley M. . - Sacramento Superior Court Ju ge Page 11 of 11 Case Number: 34-2012-80001044 Department: 29 Case Title: Center for Investigative Reporting v. CA Dept. of Public Health CERTIFICATE OF SERVICE BY MAILING (C.C.P. Sec. 1013a(4)) I, the Clerk of the Superior Court of California, County of Sacramento, certify that I am not a party to this cause, and on the date shown below I served the foregoing RULING by depositing true copies thereof, enclosed in separate, sealed envelopes with the postage fully prepaid, in the United States Mail at Sacramento, Califomia, each of which envelopes was addressed to: DUFFY CAROLAN PFEIFFER DAVIS WRIGHT TREMAINE LLP Supervising Deputy Attorney General I 505 Montgomery Street, Suite 800 Slate Bar No. 154216 - San Francisco, Califomia 94111 1300 I Street, Suite 1_25 . - . Sacramento, CA 94244-2550 CARRIE CAMARENA I Dept. of Public Health, Staff Counsel . I 1501 Capitol Ave., Ste. 71.5001 I I Sacramento, CA 95899-7377 I, the undersigned deputy clerk, declare under penalty of perjury that the foregoing is true and correct. Dated: September 13, 2012 Superior Court of Califomia, County of Sacramento By: F. Temmerman, .- Deputy Clerk . . I . I