Appeal court orders regulatory records to be made public

Published: Thursday, Sep. 19, 2013 - 8:36 pm

Over opposition from yet another government agency preferring to do public business in private, Sacramento judges have pried open records of regulatory actions targeting state services for developmentally disabled and mentally ill persons.

On Wednesday, a three-judge panel of the Sacramento-based 3rd District Court of Appeal was unwilling to give the Center for Investigative Reporting everything it wanted, but ordered the California Department of Public Health to cough up a lot more information than it has up to now.

Duffy Carolyn, the attorney for the reporters’ organization, acknowledged getting slightly less than sought, but noted, “In terms of where we were (before the suit), this is a significant victory. The client is really happy with this result.”

The department said in an email that it is pleased that the appellate court entered a new judgment, which the department characterized as “directing that citations issued to long term care facilities continue to be redacted to protect the privacy interests of intellectually disabled patients.”

The department is responsible for licensing, regulating and inspecting health care facilities, including five centers housing about 1,700 of the state’s most severely developmentally disabled and mentally ill patients. The centers provide treatment subject to citation and enforcement under the Long-Term Care Act.

More than two years ago, the reporters’ organization filed a Public Records Act request to obtain citations issued to the developmental centers for violations of the law and its implementing rules, and for records of punishment, including fines.

With minor exceptions, 55 citations turned over to the reporters “were completely redacted of all factual information, including ... the chronology and location of events giving rise to the citation, and the results of any investigation,” according to Sacramento Superior Court Judge Timothy M. Frawley.

The department argued the redactions were necessary to comply with the Lanterman Act, which, it argued, prohibits disclosure of all information and records compiled in providing the services.

Frawley decided that the Legislature considered the disclosure provisions of the Long-Term Care Act a “special exception” to Lanterman.

The purpose of public citations “is to promote the health and safety of mental health patients by providing information to the public about violations of statutes and regulations pertaining to patient care,” Frawley wrote.

He ordered the department to produce the citations without redaction, except “names of individuals other than investigating officers.”

In a split decision, the three-judge appellate panel essentially agreed with most of Frawley’s findings. However, a majority opinion, authored by Associate Justice M. Kathleen Butz and joined by Acting Presiding Justice Harry E. Hull Jr., says a patient’s condition, history of mental disability or disorder, and the risk a violation posed to a specific patient are covered by Lanterman’s nondisclosure edicts.

In a dissent, Associate Justice Andrea Lynn Hoch wrote that Frawley’s ruling should remain intact.

Call The Bee’s Denny Walsh, (916) 321-1189.

Read more articles by Denny Walsh

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