SF Neighborhoods

“Rule of Reason” to the Inspection of Public Records

(Not anti-trust “rule of reason” the more commonly known “rule of reason”)

Index

How did Bruce v. Gregory (1967) define the “rule of reason”

How the City of San Francisco Applies the “Rule of Reason” Discussion

Use of “Rule of Reason” by Other Agencies

Sunshine Ordinance Task Force (SOTF) past attempts to tackle “Rule of Reason”


Bruce v. Gregory , 65 Cal.2d 666

Good Government Guide (July 2021) Rule of Reason Sections

Other mentions of “rule of reason” with SOTF

In Bruce v.Gregory (1967) 65 Cal2d 666, at 676 [California Supreme Court]), the court created the “rule of reason” for the physical inspection of public records. 1967 was long before the possibility of digital records was in most people’s minds. This is also true for Rosenthal v. Hansen (1973) 34 Cal.App.3d 754,761, which deals with the making of physical copies of public records.

How does Bruce v. Gregory (1967) define the “rule of reason”:

“[6a] We therefore hold that the rights created by section 1892 of the Code of Civil Procedure and section 1227 of the Government Code, are, by their very nature, not absolute, but are subject to an implied rule of reason. Furthermore, this inherent reasonableness limitation should enable the custodian of public records to formulate regulations necessary to protect the safety of the records against theft, mutilation or accidental damage, to prevent inspection from interfering with the orderly function of his office and its employees, and generally to avoid chaos in the record archives.”

“The public inspection statutes in most states specifically reserve to the custodian the power to make rules and regulations respecting inspection. (See, e.g., statutes construed in Chambers v. Kent (Sup.Ct.) 201 N.Y.S.2d 439; Butcher v. Civil Service Com., 163 Pa.Super. 343 [61 A.2d 367]; State ex rel. Youmans v. Owens, 28 Wis.2d 672 [137 N.W.2d 470, mod. 139 N.W.2d 241].) Nevertheless, the California Legislature did not include such language in our inspection statutes. [6b] We should not imply powers in the custodian of records to limit inspection that are any broader than is strictly essential to prevent inefficiency or chaos in public offices.”

“He may not restrict inspection now because he fears that at some future date proliferation of extended searches by the public may burden his office.”

“Inspection may be denied or restricted if (1) records are needed by the staff of the tax collector's office or other officials; (2) the adequate space for inspection which the tax collector, in his regulations, has undertaken to provide is, at a particular moment, occupied by other members of the public; (3) he has valid reasons to fear defacement or other damage to the records, and supervision of inspection is, at the moment, impossible; (4) a person is monopolizing certain records to the detriment of other members of the public who wish to inspect them.”

“[8c] The amended rules regulating public inspection are to be construed in favor of the broadest exercise by the public of the right of inspection. Based on that premise the judgment is affirmed.”

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How the City of San Francisco Applies the “Rule of Reason” Discussion

Good Government Guide (July 2021) https://www.sfcityattorney.org/wp-content/uploads/2021/08/GGG-July-2021-FINAL.pdf

The city’s “rule of reason” in the Good Government Guide seems to only apply to physical inspection with no mention of digital records or digital copies which would be in keeping with Bruce v. Gregory (1967) “rule of reason”. Language like “to assign staff to oversee the requester’s inspection of records to protect the integrity of the records, and whether the department is actively using responsive records” speaks to physical records.

The city’s “rule of reason” in the Good Government Guide is an outline guide more than formulated regulations. Bruce v. Gregory (1967) “rule of reason” requires “the custodian of public records to formulate regulations” and “We should not imply powers in the custodian of records to limit inspection that are any broader than is strictly essential to prevent inefficiency or chaos in public offices.” Furthermore, Bruce v. Gregory (1967) “rule of reason” spells out the criteria for these formulated regulations when it states: “Inspection may be denied or restricted if (1) records are needed by the staff of the tax collector's office or other officials; (2) the adequate space for inspection which the tax collector, in his regulations, has undertaken to provide is, at a particular moment, occupied by other members of the public; (3) he has valid reasons to fear defacement or other damage to the records, and supervision of inspection is, at the moment, impossible; (4) a person is monopolizing certain records to the detriment of other members of the public who wish to inspect them.” This the city’s “Good Government Guide” omits. Of the 4 points listed, all are reasons for denial of physical inspection of records and are not problems faced with the inspecting of digital record copies.

I have yet to see any custodian of public record’s formulated regulations.

Important, it needs to be pointed out that throughout Bruce v. Gregory (1967) the word “inspection” is used and not “request”. The “rule of reason” “formulated regulations” are for the inspection of public records, not the request for copies of public records.

The Sunshine Ordinance incremental and “rolling basis” is applicable to both the physical and digital inspection of records. Sec 67.25 (d) should be used for any formulated “rule of reason”. Sunshine Ordinance Sec. 67.25 (d) Notwithstanding any provisions of California Law or this ordinance, in response to a request for information describing any category of non-exempt public information, when so requested, the City and County shall produce any and all responsive public records as soon as reasonably possible on an incremental or "rolling" basis such that responsive records are produced as soon as possible by the end of the same business day that they are reviewed and collected. This section is intended to prohibit the withholding of public records that are responsive to a records request until all potentially responsive documents have been reviewed and collected. Failure to comply with this provision is a violation of this Article.

In Bruce v. Gregory (1967), the search was done by the requester, not by the staff. If all government public records and information were made public, most of the search could be done by the public. This is the goal of Sunshine Ordinance Sec. 57.21-1 (a) “It is the policy of the City and County of San Francisco to utilize computer technology in order to reduce the cost of public records management, including the costs of collecting, maintaining, and disclosing records subject to disclosure to members of the public under this section. To the extent that it is technologically and economically feasible, departments that use computer systems to collect and store public records shall program and design these systems to ensure convenient, efficient, and economical public access to records and shall make public records easily accessible over public networks such as the Internet.” and (b).

Sec 67.26 “The work of responding to a public-records request and preparing documents for disclosure shall be considered part of the regular work duties of any City employee,” In my opinion, keeping the public informed is one of the most important functions of government. Sunshine Ordinance Sec. 67.1 (d) “The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information.”

In Bruce v. Gregory (1967) and in every court case opinion on public access to records and meetings, the courts always state that we should construe the interpretation of public access laws and any rules in favor of the broadest access to public information, records and meetings. In Bruce v. Gregory (1967) referring to the “rule of reason”, “[8c] The amended rules regulating public inspection are to be construed in favor of the broadest exercise by the public of the right of inspection.”

The city’s past use of the “rule of reason” has been without formulated regulations. The “rule of reason” seems to only be invoked on some fuzzy standard of reasonableness that they only seem to know. The city then extends this fuzzy standard to digital searches and digital copies. This is not the “rule of reason” defined by Bruce v. Gregory (1967). Example: November 10, 2016, Jessica Blome, Deputy Director, Enforcement & Legal Affairs, to Members of the Ethics Commission, Agenda Item 9: Staff’s Report and Recommendation for handling Ethics Commission Complaint No. 1516-59, Alvin Johnson v. Angela Calvillo, Clerk of the Board of Supervisors. https://sfethics.org/ethics/2016/12/minutes-november-28-2016.html

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Use of “Rule of Reason” by Other Agencies

The city of San Francisco uses a very broad interpretation of the “rule of reason” to restrict access to public records and seems to be an island to itself to that interpretation. As far as I can tell, in searching for other city and state agencies that mention the “rule of reason”, the few that use it, use it only for the physical inspection of records. Examples: “Public records maintained by the Commission are available for inspection during BCDC’s regular business hours (Monday through Friday, excluding state holidays). Members of the public are not required to give notice to inspect public records during those hours. However, if the request requires BCDC staff to retrieve, review, or redact records, or if BCDC staff needs sufficient time to review files to separate records that will be disclosed from records that are exempt from disclosure, a mutually agreeable time should be established to inspect the records. Inspecting public records is subject to a rule of reason as to time and duration, and must be consistent with the efficient functioning of Commission offices.”
https://bcdc.ca.gov/public_records.html

“Public records are open to inspection during CARB office hours, 8:30 a.m. until 4:30 p.m., Monday through Friday, excluding state holidays. However, the inspection of public records is subject to a rule of reason as to time and duration and must be consistent with the efficient functioning of CARB offices and follow the procedures set forth in the "California Air Resources Board Public Records Review Policy."”
http://ww2.arb.ca.gov/frequently-asked-questions

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Sunshine Ordinance Task Force (SOTF) past attempts to tackle “Rule of Reason”

In my opinion, this SOTF order of determination got it right on formulating procedures and posting online. It should have used the word “regulations” instead of procedure for consistency with the court opinion. SOTF should review all formulated regulations. Member Hyland and Chair Wolfe were part of this determination.

ORDER OF DETERMINATION, November 3, 2014, DATE DECISION ISSUED, October 28, 2014, CASE TITLE – Michael Petrelis v. Office of the City Attorney. (File No. 14066)

“The Task Force requests that Mr. Dorsey submit a letter of action and proposed practices for responding to public records request by November 30, 2014. In addition, the Task Force requests that the letter address the issue of “Rule of Reason” and suggests that once a procedure is established that it be posted online.” https://sfgov.org/sunshine/Modules/ShowDocument.aspx?documentid=50758

As far as, I can tell, this letter does not exist unless Mr. Dorsey incorporated it into the Good Government Guide?

SOTF, Rules Committee, Special Meeting, September 26, 2017, on the “Rule of Reason” SOTF File No. 17103

Meeting Minutes of which the text below is taken from. (P413 – P414 Proposed “rule of reason” additions to SOFT)
https://sfgov.org/sunshine/sites/default/files/sotf120617_item13.pdf

Can also be found at: https://sfgov.org/sunshine/sites/default/files/sotf011618_item13.pdf, https://sfgov.org/sunshine/node/2883, https://sfgov.org/sunshine/sites/default/files/rls92617_item4.pdf

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H. MISCELLANEOUS

The Chair of the SOTF and his/her designee has the authority to take action on any issues not directly addressed by the By-Laws or Complaint Procedures.

Rule of Reason:

A Respondent who invokes a Rule of Reason argument must provide the Task Force with the following letters:


A Respondent who invokes the Rule of Reason as justification for delaying a response or denying access to public records should demonstrate compliance with Section 6253.1 of the California Public Records Act. This section requires a public agency to "in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records."

Respondent invoking "Rule of Reason" should provide the Task Force with documentation and testimony answering the following questions:


If Respondent did not make a reasonable effort regarding items 1-3, then Rule of Reason justification may not be found.

In addition. Respondent must show evidence pursuant to the San Francisco Sunshine Ordinance:


Respondent who invoke the Rule of Reason should note that the SOTF will use the following as a criteria to evaluate validity of a Rule of Reason finding:

"A clearly framed request which requires an agency to search an enormous volume of data for a "needle in the haystack" or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. Records requests, however, inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort." California First Amendment Coal. v. Superior Court., 67 Cal. App. 4th 159, 166.

A Respondent who invokes the Rule of Reason regarding an unduly burdensome search or volume of material should provide documentation and testimony regarding the following:


In addition, a Respondent who invokes the Rule of Reason because it would require production of an unduly burdensome volume of material should provide the following testimony and documentation:


Ultimately, the burdens fall on the Respondent to prove that the Rule of Reason is a justification for not fully complying with a request for records. The Task Force must apply an evidentiary test.

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Partial from the minutes Discussion (P395)

“The Committee reviewed and proposed. revision to the draft language regarding the Rules of Reason and suggested the following:

What happened to File 17103 is at the bottom of this webpage. Click Here

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Discussion of SOTF Proposed Rules of “Rule of Reason” by Rules Committee, Special Meeting, September 26, 2017

I believe the above SOTF rules are going in the right direction in spelling out the “rule of reason” formulated regulations and how SOTF should evaluate invocation by a respondent. From the City Attorney’s Office instruction to custodian of records: “If circumstances may warrant invoking this rule, the responding department should consult with the City Attorney's Office before doing so.” And the rule is to be used in only “unusual instances” and “circumstance so extreme”, City Attorney’s Office, Good Government Guide, July 2021.

As stated in the proposed SOTF “rule of reason” rules “Ultimately, the burdens fall on the Respondent to prove that the Rule of Reason is a justification for not fully complying with a request for records.” This is very important and true.

Unlike the above discussion comment, “Requiring that the City Attorney authorize invocation of Rule of Reason was not supported.” I disagree. It may not be stated in the CPRA or the Sunshine Ordinance, but the City Attorney’s Office (CAO) has not informed city employees of the “rule of reason” as given by Bruce v. Gregory (1967) to use it properly. In fact, the CAO has omitted much of the Bruce v. Gregory (1967) “rule of reason” as to be misleading to its use. Further, the “rule of reason” is used as a limitation on the inspection of records contradicts many provisions of the Sunshine Ordinance and the CPRA. Any formulated regulations by an agency that does not comply with law is an attempted insertion into law. Any policy that does not comply with the San Francisco Sunshine Ordinance, CPRA or the Brown Act is in the jurisdiction of SOTF. This should not be taken lightly.

The “rule of reason” by the city has been used beyond the intention of Bruce v. Gregory (1967) limited to the inspection of records. The “rule of reason” can be used as an open door resulting in absurd consequences well beyond the intent of the legislature in the CPRA and the voters in the San Francisco Sunshine Ordinance. The very court cases and reasoning Bruce v. Gregory (1967) uses to open the door for the “rule of reason” can be used for closing the door for abuse or limiting its abuse.

In reading the below, it is important to keep in mind the intent of the legislature and voters.

CPRA 6253
“(a) Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as here after provided.”

San Francisco Sunshine Ordinance Sec 67.21
“(a) Every person having custody of any public record or public information, as defined herein, (hereinafter referred to as a custodian of a public record) shall, at normal times and during normal and reasonable hours of operation, without unreasonable delay, and without requiring an appointment, permit the public record, or any segregable portion of a record, to be inspected and examined by any person and shall furnish one copy thereof upon payment of a reasonable copying charge, not to exceed the lesser of the actual cost or ten cents per page.”

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Bruce v. Gregory (1967):

“[4] It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. fn. 5 (Citizens Utilities Co. [65 Cal.2d 674] v. Superior Court, 59 Cal.2d 805, 811 [31 Cal.Rptr. 316, 382 P.2d 356]; Interinsurance Exchange v. Ohio Cas. Ins. Co., 58 Cal.2d 142, 153 [23 Cal.Rptr. 592, 373 P.2d 640]; American Industrial Sales Corp. v. Airscope, Inc., 44 Cal.2d 393, 398 [282 P.2d 504, 49 A.L.R.2d 1344]; Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 113 [142 P2d 929].)

[5] Although a court may not insert qualifying provisions into a statute not intended by the Legislature and may not rewrite a statute to conform to an assumed legislative intent not apparent (People v. One 1940 Ford V-8 Coupe, 36 Cal.2d 471, 475 [224 P.2d 677]), "words of general import may be given a contracted meaning dependent upon the connection in which they are employed, and considering the general purpose or scheme entertained by the legislature in passing the statute, and ... words will not be given their literal meaning when to do so would evidently carry the operation of the enactment far beyond the legislative intent and thereby make its provisions apply to transactions never contemplated by the legislative body. ..." (People v. Davenport, 13 Cal.2d 681, 685 [91 P.2d 892], quoted in Farnsworth v. Nevada-Cal Management, 188 Cal.App.2d 382, 387 [10 Cal.Rptr. 531].)”

From MOSK, J. dissent in Bruce v. Gregory (1967):

“ Access to and inspection of public records is a fundamental right of citizenship, existing at common law. (Nowack v. Fuller (1928) 243 Mich. 200 [219 N.W. 749, 751, 60 A.L.R. 1351]; State ex rel. Halloran v. McGrath (1937) 104 Mont. 490 [67 P.2d 838]; People ex rel. Stenstrom v. Hartnett (1928) 224 App.Div. 127 [230 N.Y.S. 28], affd. 249 N.Y. 606 [164 N.E. 602]; State v. Keller (1933) 143 Ore. 589 [21 P.2d 807, 812]; Palacios v. Corbett (1915, Tex.Civ.App.) 172 S.W. 777, 781.) It can be abridged or circumscribed only for the most compelling public purpose, and then only by an officer or agency acting pursuant to express authority.”

“The Legislature said as clearly as the English language permits that the records are to be open at all times during office hours.”

“But it did not delegate authority to the tax collector, or to any administrative agency, to pronounce such restrictive regulations by bureaucratic fiat. It is difficult to see how the intent to reserve only to the Legislature itself the power to circumscribe inspection could be expressed more cogently than by the language of Code of Civil Procedure section 1892: the right exists "except as otherwise expressly provided by statute." It has not been otherwise expressly provided by statute.”

“The majority assert that "a court may not insert qualifying provisions into a statute not intended by the Legislature and may not rewrite a statute to conform to an assumed legislative intent not apparent." I approve of that statement and find it a compelling reason to grant the petition for writ of mandate.”

Bruce v. Gregory (1967) puts big brakes on using “rule of reason”, so the City Attorney’s Office should authorize use of “rule of reason”. It needs to be formulated regulations on inspection of records and approved by SOTF."

“[6b] We should not imply powers in the custodian of records to limit inspection that are any broader than is strictly essential to prevent inefficiency or chaos in public offices.”
“[8c] The amended rules regulating public inspection are to be construed in favor of the broadest exercise by the public of the right of inspection.”

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Bruce v. Gregory , 65 Cal.2d 666

[L. A. No. 28192. In Bank. Feb. 6, 1967.]

HOWARD E. BRUCE, Plaintiff and Appellant, v. G. LEON GREGORY, as County Tax Collector, etc., Defendant and Respondent.

COUNSEL

Fred H. Almy for Plaintiff and Appellant.

Stanford D. Herlick, County Counsel, and Robert R. Walker, Deputy County Counsel, for Defendant and Respondent.

OPINION

PETERS, J.

This is an appeal from a judgment of the Superior Court of San Bernardino County denying a petition for a writ of mandate to compel respondent tax collector to make certain tax records regularly available for inspection by petitioner.

Appellant-petitioner is a citizen and taxpayer in San Bernardino County. One of his business endeavors is to locate parcels of land upon which the secured real property taxes are delinquent. He then contacts the owner of the land and endeavors to purchase the owner's interest. After paying off the tax liens, he normally resells the parcel for a profit.

Appellant has for several years ascertained the identity of parcels burdened by back-tax liens by examining the delinquent tax abstracts, which are maintained by the tax collector and are under his exclusive custody, care, and control.

In his complaint, appellant alleged that in 1963 the tax collector refused, for a period of over four months, to let members of the public (except for representatives of title companies) examine the delinquent tax abstracts. Thereafter, members of the public were permitted to examine these records during one hour in the morning and one hour in the afternoon of each business day of the tax collector's office. Again, examiners representing title companies were not so limited. fn. 1 [65 Cal.2d 669]

Appellant made a demand of the tax collector for greater access to the delinquent tax abstracts, which demand was rejected. The trial court ordered an alternative writ of mandate to issue, and a hearing was had on the order to show cause.

The tax collector's testimony reveals that he originally denied appellant access to examine the records because appellant's actions had interfered with the normal conduct of business of the office. The interference cited, however, was not physical interference--not interruptions or inconvenience by appellant being in the office or monopolizing the record books. Rather it was that letters appellant regularly sent to owners of tax- delinquent parcels frightened the owners into believing their property was about to be sold at public auction. The recipients of these letters often telephoned the tax collector's office with frantic inquiries, imposing a burden on his staff which he wished to eliminate.

The tax collector was asked if appellant's practice of engaging in extended searches of the records was, itself, directly interfering with the office. The tax collector evaded an unequivocal answer. He admitted that the effect appellant's letters to landowners were having on the owners was the primary reason for denying him access to the records. He also admitted that few persons asked to make extended searches of the delinquent tax abstracts.

Testimony at the hearing also disclosed that a special desk in the office was set aside for persons making extensive searches in order to prevent crowding at the front counter of the office. The tax collector testified that at certain periods of the year his office was extremely busy and that at particular times, when the delinquent tax abstract records were being posted with new entries and when the county auditor had possession of these records, they would be unavailable for examination by all members of the public.

The trial judge concluded from the testimony at the hearing that, under the applicable law, the regulations which permitted appellant to examine the records only two hours a day were invalid. Rather than order the peremptory writ, the judge, exercising claimed discretionary powers, filed a memorandum in which he stated that he would deny the petition for writ of mandate if the tax collector, within 30 days, submitted reasonable amended regulations governing examination [65 Cal.2d 670] of the records by the public. The memorandum stated that the regulations would be valid if they permitted examination during all hours and all days when the office was open, except at times when examination would disrupt the orderly functioning of the office.

The tax collector drafted amended regulations, and, after they were modified once again at the trial judge's suggestion, these were approved by the court. Judgment denying the petition for writ of mandate was then entered.

The tax collector's "Second Amended 'Procedures For Control And Use of Delinquent Abstracts' " provides as follows: Information about one or two parcels will be furnished at all times by the tax collector's staff. The delinquent abstract books themselves will be open to public inspection on working days from 8:30 a.m. to 4:30 p.m. fn. 2 Use of the delinquent tax abstracts will be permitted only at a particular desk and only when space at that desk is available, provided, however, that the tax collector undertakes to provide a desk or table for use by the public. A special location is set aside for title company representatives.

The language under most vigorous attack on appeal states that, "in order to maintain the functions of the Tax Collector's Redemption Division, as required by law, the use of the Abstract books may be restricted at the following times, as deemed necessary:

"1) During the month[s] of July and August and until such times as the posting of the past year's sales and removal of past year's redemptions have been completed.

"2) During the rush peak work load collection periods immediately preceding and following the December 10th and April 10th delinquent dates as established by State law.

"3) Immediately preceding the peak work load periods created by Tax Sales at Public Auction of Tax Deeded Lands." (Italics added.)

[1] The first issue is procedural: Did the trial court properly rest its denial of the writ of mandate on facts (i.e., the new regulations) arising after the complaint and answer were filed? In our opinion, the trial court's actions were proper and commendable.

[2a] It has been held that a judge hearing a mandamus proceeding may properly consider, in deciding whether to issue a peremptory writ, all relevant evidence, including facts [65 Cal.2d 671] not existing until after the petition for writ of mandate was filed. [3] This is so because mandamus is an action where equitable principles apply (Allen v. Los Angeles County Dist. Council of Carpenters, 51 Cal.2d 805, 811 [337 P.2d 457], cert. den. 361 U.S. 936 [4 L.Ed.2d 356, 80 S.Ct. 376]; Dare v. Board of Medical Examiners, 21 Cal.2d 790, 795 [136 P.2d 304]), and because issuance of the writ is frequently a matter for the court's discretion (Dowell v. Superior Court, 47 Cal.2d 483, 486-487 [304 P.2d 1009]; compare Palmer v. Fox, 118 Cal.App.2d 453, 456-457 [258 P.2d 30]).

Decisions are to be found in which mandamus relief was denied, even though petitioner's rights may have been violated, because facts arising after the petition was filed prevented the writ from serving any useful purpose. (Stracke v. Farquar, 20 Cal.2d 82 [124 P.2d 9]; Bender v. Superior Court, 152 Cal.App.2d 817 [314 P.2d 54].) Other decisions hold that if the respondent has complied with the petitioner's demands after issuance of the alternative writ, the writ has accomplished the purpose of the mandamus proceedings and the petition should be dismissed as moot. (Thornton v. Hoge, 84 Cal. 231 [23 P. 1112]; Muller v. Municipal Court, 146 Cal.App.2d 231 [303 P.2d 775]; Mitchell v. Warren, 95 Cal.App.2d 594 [213 P.2d 413].) The rationale is, "No purpose would be served in directing the doing of that which has already been done." (Muller v. Municipal Court, supra, at p. 232; see also Crestlawn Memorial Park Assn. v. Sobieski, 210 Cal.App.2d 43, 47 [26 Cal.Rptr. 421].) In George v. Beaty, 85 Cal.App. 525 [260 P. 386], the court said: "[T]he remedy of mandamus will not be employed where the respondents show that they are willing to perform the duty without the coercion of the writ. ... ' "Mandamus will not issue to compel the doing of an act which has already been done, or which the respondent is willing to do without coercion". ...' " (P. 529.) "[W]here the return to the alternative writ shows a compliance therewith, the petition will be dismissed." (P. 532.)

[2b] It is obvious that these procedural rules require the court in mandamus proceedings to apprise itself of facts that arise after pleading which render the dispute moot or make the remedy useless.

American Distilling Co. v. City Council of City of Sausalito, 34 Cal.2d 660, 666 [212 P.2d 704, 18 A.L.R.2d 1247], is distinguishable. There the court said: "The petitioner's right to [mandamus] relief is determinable by the facts as they [65 Cal.2d 672] existed at the time the petition was filed [citation]; and unless in the meantime the law defining the legal duty has been changed, the preemptory [sic] writ should follow the terms of the alternative writ." In that case the city council had concluded that owners of one-half of the value of territory proposed to be annexed had not protested annexation and it approved the annexation without further hearings. Certain federally owned land was within the parcel sought to be annexed, and at the time of the protest it was assessed at zero dollars. Mandamus was sought to compel the city council to make a finding that owners of half the value of the land had protested, which was true unless the federal land could be valued.

The court held that the city council was required by statute to value the land according to the last equalized assessment roll. The language quoted above was employed to denote that any later-made assessments were irrelevant to the dispute. fn. 3 The opinion nowhere indicates that the trial court was required to ignore other facts arising after the petition was filed which would have mooted the case or which would have demonstrated that the city council was willing to make the finding demanded without coercion of the writ.

Rittersbacher v. Board of Supervisors, 220 Cal. 535 [32 P.2d 135], is also distinguishable. It concerned a petition for writ of mandate to compel respondent board of supervisors to cancel an assessment levied against a certain parcel of land. A general demurrer was interposed, stating that petitioner had not alleged a discriminatory assessment procedure. The court said, "The real question is whether the petitions in mandamus state facts entitling the plaintiffs to any relief; and this question must be determined on the facts existing at the time the petitions for the writs were filed as disclosed by the allegations thereof." (Italics added.) (P. 541.)

The import of the italicized language is that in passing on a demurrer, the court should ignore all allegations of facts not yet existing, that is, which are mere predictions. For example, an allegation that petitioner believes respondent will at sometime in the future fail to perform official duty does not state a cause of action. This language in Rittersbacher must be confined to the demurrer situation. Once the court reaches the [65 Cal.2d 673] merits of the case, it should consider all relevant facts, regardless of when they came into existence. fn. 4 Therefore, the amended regulations were properly considered by the trial court.

The substantive issues raised in this case require us to construe two statutes that provide for public examination of official documents. Section 1227 of the Government Code reads: "The public records and other matters in the office of any officer, except as otherwise provided, are at all times during office hours open to public inspection of any citizens of the State." Code of Civil Procedure, section 1892, provides: "Every citizen has a right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute."

Appellant first contends that these statutes are absolute in operation--that if, as is conceded here, the records involved are of the type which the statutes authorize the public to inspect, under no circumstances can inspection be denied.

This contention is untenable. Occasions will frequently arise when a public document is needed by a public official in order to perform his official duties. Testimony in this case demonstrated that at times the county auditor must have possession of the delinquent tax abstracts in order to draw up county financial reports; at other times members of the tax collector's staff must have use of the records for posting new entries and removing outdated ones. We cannot construe the statutes to give a member of the public priority over county officers in the use of official records. Appellant's construction of the statutes would require the auditor or tax collector to suspend official duties while appellant examines the books in aid of his private business. This interpretation must be rejected.

[4] It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. fn. 5 (Citizens Utilities Co. [65 Cal.2d 674] v. Superior Court, 59 Cal.2d 805, 811 [31 Cal.Rptr. 316, 382 P.2d 356]; Interinsurance Exchange v. Ohio Cas. Ins. Co., 58 Cal.2d 142, 153 [23 Cal.Rptr. 592, 373 P.2d 640]; American Industrial Sales Corp. v. Airscope, Inc., 44 Cal.2d 393, 398 [282 P.2d 504, 49 A.L.R.2d 1344]; Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 113 [142 P2d 929].)

[5] Although a court may not insert qualifying provisions into a statute not intended by the Legislature and may not rewrite a statute to conform to an assumed legislative intent not apparent (People v. One 1940 Ford V-8 Coupe, 36 Cal.2d 471, 475 [224 P.2d 677]), "words of general import may be given a contracted meaning dependent upon the connection in which they are employed, and considering the general purpose or scheme entertained by the legislature in passing the statute, and ... words will not be given their literal meaning when to do so would evidently carry the operation of the enactment far beyond the legislative intent and thereby make its provisions apply to transactions never contemplated by the legislative body. ..." (People v. Davenport, 13 Cal.2d 681, 685 [91 P.2d 892], quoted in Farnsworth v. Nevada-Cal Management, 188 Cal.App.2d 382, 387 [10 Cal.Rptr. 531].)

The courts have not hesitated, when legislative intent is clear, to find by implication provisions in a statute which are not within the scope of the statutory language taken literally. (Cf. In re Cregler, 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305] [waiting for a bus at depot not the kind of "loitering" proscribed by statute]; Kasunich v. Kraft, 201 Cal.App.2d 177 [19 Cal.Rptr. 872].) In particular, courts of several jurisdictions have construed statutes providing for public inspection of documents, absolute on their face, to exempt inspection under circumstances in which it would interfere with the operation of public offices.

In Bell v. Commonwealth Title Ins. Co., 189 U.S. 131 [47 L.Ed. 741, 23 S.Ct. 569], a federal statute provided that "All books in the offices of the clerks of the Circuit and District Courts, containing the docket or minute of the judgments, or decrees thereof, shall, during office hours, be open to the inspection of any person desiring to examine the same, without any fees or charge therefor. "Another statute required the clerks to index the records and provided that "such indices and records shall at all times be open to the inspection and examination of the public." (Italics added.) (P. 131.) The decree ordered examination be allowed but stated that "such inspection and examination shall be made only at such times and under such circumstances as will not [65 Cal.2d 675] interfere with the respondent or his assistants in the discharge of their duties or with the exercise of the right of other persons to have access to said indices and cross indices." (189 U.S. at p. 132.)

In affirming, the United States Supreme Court said that a member of the public "cannot interfere with the clerk or his assistants in the discharge of their duties, or with the equal rights of other persons to such inspection and examination. ... Under this decree the clerk, as custodian, can make such reasonable regulations as will secure to him and his assistants full use of all the books and records of his office--which, of course, is a primary matter to be considered--and also will guard against any tampering with or injury to those books and records, and at the same time give to the plaintiff and others access to the indices." (189 U.S. at p. 133.)

In Direct-Mail Service v. Registrar of Motor Vehicles, 296 Mass. 353 [5 N.E.2d 545, 108 A.L.R. 1391], the statute provided that "records of the registrar 'shall be open to the inspection of any person during reasonable business hours.' " (P. 546.) The court stated that the right to inspect at such hours would be circumscribed by physical limitations such as lack of space and that persons examining records could be prohibited from monopolizing them or from interfering unduly with the work of the office. "[T]he applicant must submit," said the court, "to such reasonable supervision on the part of the custodian as will guard the safety of the records and secure equal opportunity for all." (5 N.E.2d at p. 547.)

The statute at issue in Fuller v. State, 154 Fla. 368 [17 So.2d 607], provided, "All state, county and municipal records shall at all times be open for personal inspection of any citizen of Florida, and those in charge of such records shall not refuse this privilege to any citizen." (P. 607.) Although the statute was absolute in its language, the court construing it stated: "There is always a field for the operation of reason and charity in such controversies in a way to protect the municipality and accommodate the one who desires the inspection if the parties are disposed to find it." (P. 608.) The court said the custodian could regulate inspection to safeguard the records. (See also State ex rel. Eggers v. Brown, 345 Mo. 430 [134 S.W.2d 28, 32-33].)

In Whorton v. Gaspard, 239 Ark. 715 [393 S.W.2d 773], the statute provided only that records were subject to inspection by interested persons. The court said: " 'Without doubt, reasonable [65 Cal.2d 676] restrictions and conditions may be imposed with respect to the right to use public records. Even in the absence of any specific restrictions, the right implies that those exercising it shall not take possession of the registry or monopolize the record books so as unduly to interfere with the work of the office or with the exercise of the right of others, and that they shall submit to such reasonable supervision on the part of the custodian as will guard the safety of the records and secure equal opportunity for all.' " (393 S.W.2d at pp. 774-775; accord, State ex rel. Halloran v. McGrath, 104 Mont. 490 [67 P.2d 838, 841-842]. See also State ex rel. Louisiana Title Ins. Co. v. Brewer, 147 Ohio St. 161 [70 N.E.2d 265]; State v. Harrison, 130 W.Va. 246 [43 S.E.2d 214, 218-219].) The question here seems to be one of first impression in the California appellate courts. There are, however, opinions of the Attorney General of California construing section 1892 of the Code of Civil Procedure, section 1227 of the Government Code, and what is now section 1808 of the Vehicle Code, which makes certain motor vehicle records open to inspection "during office hours." These opinions, which are to be accorded substantial weight (6 Cal.Jur.2d, Attorney General, § 11, p. 97), are similar to the above digested cases in implying inherent reasonableness limitations in the statutes (39 Ops.Cal.Atty.Gen. 298, 300; 34 Ops.Cal.Atty.Gen. 286, 287; 26 Ops.Cal.Atty.Gen. 136, 140).

[6a] We therefore hold that the rights created by section 1892 of the Code of Civil Procedure and section 1227 of the Government Code, are, by their very nature, not absolute, but are subject to an implied rule of reason. Furthermore, this inherent reasonableness limitation should enable the custodian of public records to formulate regulations necessary to protect the safety of the records against theft, mutilation or accidental damage, to prevent inspection from interfering with the orderly function of his office and its employees, and generally to avoid chaos in the record archives.

[7] Appellant contends that since the record here does not support a finding that his inspection practices have interfered directly with the tax collector's office, no limitations on his right to inspect are permitted. But the statute should not be interpreted to prevent a custodian of records from formulating regulations for public inspection until the time that interference arises. Rules which will prevent interference in the future and still, in the meanwhile, not unnecessarily hamper public inspection of records are permissible. [65 Cal.2d 677]

The tax collector, on the other hand, relies on various authorities which suggest that the custodian of public records has a discretion to exercise in regulating inspection and that the decision as to when inspection interferes with office operations is for him alone to make. (E.g., 34 Ops.Cal.Atty.Gen. 286, 287, supra.)

The Legislature has said, "It is the policy of the State of California that public records and documents be open for public inspection in order to prevent secrecy in governmental affairs. ..." (Assembly Joint Resolution No. 9, Stats. 1959, ch. 111, p. 5588.) The public inspection statutes in most states specifically reserve to the custodian the power to make rules and regulations respecting inspection. (See, e.g., statutes construed in Chambers v. Kent (Sup.Ct.) 201 N.Y.S.2d 439; Butcher v. Civil Service Com., 163 Pa.Super. 343 [61 A.2d 367]; State ex rel. Youmans v. Owens, 28 Wis.2d 672 [137 N.W.2d 470, mod. 139 N.W.2d 241].) Nevertheless, the California Legislature did not include such language in our inspection statutes. [6b] We should not imply powers in the custodian of records to limit inspection that are any broader than is strictly essential to prevent inefficiency or chaos in public offices. In New York, where inspection statutes specifically give custodians powers to regulate inspection, limitations on inspection are narrowly construed. (C. Van Deusen, Inc. v. New York State Liquor Authority (Sup.Ct.) 47 Misc.2d 1094 [263 N.Y.S.2d 984, 986], quoting from New York Post Corp. v. Leibowitz, 2 N.Y.2d 677 [163 N.Y.S.2d 409, 143 N.E.2d 256, 260].) fn. 6 At common law, where public records were subject to inspection, the custodian's regulatory power was exercisable only to "prevent undue interference." (Italics added.) (Disabled Police Veterans Club v. Long (Mo.App.) 279 S.W.2d 220, 223. Accord, Republican Party of Arkansas v. State (Ark.) 400 S.W.2d 660, 662; Courier-Journal & Louisville Times Co. v. Curtis (Ky.) 335 S.W.2d 934, 937.)

Accordingly denial of the right of inspection is proper only when necessary to prevent interference to respondent's office--limitations on inspection cannot be permitted merely because certain rules and regulations are "reasonable" in the abstract. (See State v. Harrison, supra, (W.Va.) 43 S.E.2d 214, 219.) [65 Cal.2d 678]

[8a] The remaining question is whether the tax collector's amended rules, when properly construed, can be said to be reasonably necessary to assure the orderly operation of his office.

[9] All intendments favor the validity of a decree or judgment. Courts should interpret judgments in such manner as to make them valid and with reference to the law regulating the rights of the parties. (Estate of Gould, 181 Cal. 11, 14 [183 P. 146]; Watson v. Lawson, 166 Cal. 235, 241 [135 P. 961]; In re Gideon, 157 Cal.App.2d 133, 135 [320 P.2d 599].) Since for practical purposes, the amended regulations make up the "judgment" here, we should apply the foregoing rules in construing those regulations.

[8b] By interpreting the tax collector's rules in light of the above construction of the California inspection statutes, the judgment here should be affirmed. [10] The phrase "as deemed necessary" in those rules cannot be taken to give the tax collector greater regulatory powers than the statutes permit. The power to restrict inspection is no greater during the weeks of peak workload in his office (although occasions for exercising it may arise more frequently during those periods). We must assume that the tax collector will carry out his official duty, and that duty enables him to "deem it necessary" to restrict inspection only when strictly necessary to prevent direct interference with the operations of his office. He may not restrict inspection because appellant's letters to landowners upset them and result in bothersome telephone calls to his office. (See Harrison v. Powers, 19 Cal.App. 762, 763 [127 P. 818]; Aitcheson v. Huebner, 90 Mich. 643 [51 N.W. 634].) He may not restrict inspection now because he fears that at some future date proliferation of extended searches by the public may burden his office.

Inspection may be denied or restricted if (1) records are needed by the staff of the tax collector's office or other officials; (2) the adequate space for inspection which the tax collector, in his regulations, has undertaken to provide is, at a particular moment, occupied by other members of the public; (3) he has valid reasons to fear defacement or other damage to the records, and supervision of inspection is, at the moment, impossible; (4) a person is monopolizing certain records to the detriment of other members of the public who wish to inspect them.

[11] It is urged that the record does not disclose a need for respondent to deny inspection from 8 a.m. to 8:30 a.m. and [65 Cal.2d 679] 4:30 p.m. to 5 p.m. This is true. However, the denial of inspection at these two half-hour periods is not so substantial a denial of appellant's rights that we can hold the trial court abused its discretion in denying the writ of mandate. (See Dowell v. Superior Court, supra, 47 Cal.2d 483, 486-487.)

[8c] The amended rules regulating public inspection are to be construed in favor of the broadest exercise by the public of the right of inspection. Based on that premise the judgment is affirmed.

Traynor, C. J., McComb, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.

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MOSK, J.

I dissent.

Access to and inspection of public records is a fundamental right of citizenship, existing at common law. (Nowack v. Fuller (1928) 243 Mich. 200 [219 N.W. 749, 751, 60 A.L.R. 1351]; State ex rel. Halloran v. McGrath (1937) 104 Mont. 490 [67 P.2d 838]; People ex rel. Stenstrom v. Hartnett (1928) 224 App.Div. 127 [230 N.Y.S. 28], affd. 249 N.Y. 606 [164 N.E. 602]; State v. Keller (1933) 143 Ore. 589 [21 P.2d 807, 812]; Palacios v. Corbett (1915, Tex.Civ.App.) 172 S.W. 777, 781.) It can be abridged or circumscribed only for the most compelling public purpose, and then only by an officer or agency acting pursuant to express authority. Indeed, in North v. Foley, (1933) 238 App.Div. 731 [265 N.Y.S. 780], mandamus was granted to a taxpayer who sought to examine public records under a statute which permitted "reasonable regulations to be prescribed by the officer having the custody" of the records. There the officer contended the investigation of records "would interrupt unduly the business" of his office. The court conceded (at p. 784) "that such an examination must necessarily, to some extent, interrupt the ordinary and usual course of business in public offices," but concluded there "can be no good reason for depriving a citizen of this right."

In California the common law rule has been codified in two statutes. Section 1227 of the Government Code reads: "The public records and other matters in the office of any officer, except as otherwise provided, are at all times during office hours open to inspection of any citizen of the State." Code of Civil Procedure section 1892 provides: "Every citizen has a right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute."

One searches the two sections in vain for a hint that a tax [65 Cal.2d 680] collector, any administrative officer, or indeed a court, may prohibit public access to official records during July and August, before and after December 10 and April 10, or between 8 and 8:30 a.m. or 4:30 and 5 p.m., or at any other period. The Legislature said as clearly as the English language permits that the records are to be open at all times during office hours.

The Legislature apparently recognized that circumstances conceivably might arise that would justify reasonable limitations. But it did not delegate authority to the tax collector, or to any administrative agency, to pronounce such restrictive regulations by bureaucratic fiat. It is difficult to see how the intent to reserve only to the Legislature itself the power to circumscribe inspection could be expressed more cogently than by the language of Code of Civil Procedure section 1892: the right exists "except as otherwise expressly provided by statute." It has not been otherwise expressly provided by statute.

The regulations proposed by defendant may be reasonable. And it may be that unlimited exercise of the rights reiterated in the code sections will at some time and under some circumstances interfere with the normal functions of the tax collector. If that happens, his remedy is to complain to the Legislature and to suggest appropriate amendments to the existing statutes.

The majority assert that "a court may not insert qualifying provisions into a statute not intended by the Legislature and may not rewrite a statute to conform to an assumed legislative intent not apparent." I approve of that statement and find it a compelling reason to grant the petition for writ of mandate.

­FN 1. The type of examination of records referred to was the "extended search," which involves going over a record book page by page. It is conceded that the tax collector has at all times provided to members of the public information about one or two specific parcels, with the actual inspection normally made by staff members.

­FN 2. Office hours are 8 a.m. to 5 p.m.

­FN 3. Actually, the time at which assessed valuation ought to have been taken for evidentiary purposes was that date at which the protests against annexation were presented to the city council, and not, as the opinion states, the date when the petition for the writ was filed in court.

­FN 4. The rule is tempered, of course, by the requirement that a party cannot be permitted to introduce evidence at the hearing not contemplated by the issues set forth in the pleadings and which might surprise the opposing litigant and leave him unprepared to submit rebuttal evidence. (Cf. Rittersbacher v. Board of Supervisors, supra, 220 Cal. 535, 540.)

­FN 5. The language for which appellant seeks a literal interpretation are the words "at all times during office hours" in section 1227 of the Government Code.

­FN 6. Compare State v. Owens, supra (Wis.) 137 N.W.2d 470, 475: "[P]ublic policy favors the right of inspection of public records and documents, and, it is only in the exceptional case that inspection should be denied."

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Good Government Guide (July 2021) Rule of Reason Sections

https://www.sfcityattorney.org/wp-content/uploads/2021/08/GGG-July-2021-FINAL.pdf

The same text in this Good Government Guide is repeated in the November 16, 2021 Memorandum Paul Zarefsky, Jon Givner, Deputy City Attorneys RE: Deadlines for Responding to Public Records Requests Following the Termination of the Mayor’s March 2020 Emergency Orders
https://www.sfcityattorney.org/wp-content/uploads/2021/11/Deadlines-for-Responding-to-Public-Records-Requests-Following-the-Termination-of-the-Mayors-March-2020-Emergency-Orders-1.pdf

3. Timely Response

f. The rule of reason (pages 103-105; pdf pages 119-121)
City departments must balance the duty to respond to public records requests with their obligation to maintain a high level of service generally to the public. In rare circumstances, responding to a single public records request may be so burdensome and time-consuming that the demands placed on the department to respond within the required time frame would unreasonably impinge on the department’s ability to perform its other duties. The same is true for a series of requests from the same requester that cumulatively impose extreme burdens on a department. In these unusual instances, the department may invoke a “rule of reason” (a common law doctrine) under which it will limit the amount of time per day or week it will devote to responding. If circumstances may warrant invoking this rule, the responding department should consult with the City Attorney’s Office before doing so.

In general, the timing of a department’s response to a request to inspect records or to receive copies of records must be reasonable in light of all the circumstances, including: the volume of records to be inspected or copied; whether the records are readily available; the need, if any, to review the records to make appropriate redactions; and the complexity of the review and redaction process. In particular instances, other considerations might be relevant: for example, the need, if any, to assign staff to oversee the requester’s inspection of records to protect the integrity of the records, and whether the department is actively using responsive records such that their production at a given time would disrupt the department’s operations by depriving it of access to the records.

Without unreasonably delaying the time for a requested inspection of records to occur or be completed, or the time for producing copies of records, a department may consider such factors as those discussed above in determining the timing and logistics of an inspection, or the time for producing or completing the production of responsive records. In compelling circumstances, the rule of reason, rather than specific deadlines, may govern the pace of the department’s response, to enable it to balance its duties under the public records laws with its obligation to maintain a high level of service to the general public. Departments must not place unnecessary roadblocks in the way of requesters, however. Before invoking the rule of reason to govern the timing of a response, department personnel should endeavor to work cooperatively with the requester to determine if the request or requests can be narrowed to minimize barriers to a prompt response, or to at least prioritize records the requester would like to receive first.

Because open government laws place great importance on responding promptly to public records requests, a department should neither lightly nor routinely invoke the rule of reason as a basis for elongating the time for fully responding. Indeed, we advise City personnel against invoking the rule of reason unless they have first consulted with the City Attorney’s Office about their particular circumstances.

4. Proper Response

b. The duty to search for records

A “reasonableness” standard

The duty to respond to a public records request necessarily encompasses a duty to search for responsive records. The City must make a good faith, reasonable search effort. What constitutes a reasonable search depends on the circumstances. In some cases, a knowledgeable department employee will definitively know whether responsive records exist and, if so, where they may be located. But often the department will need to circulate the request among those employees likely to have or know of responsive records. In a similar vein, the department often will need to consult those files where responsive records likely would be found. Files in storage must be retrieved and searched if they are likely to contain responsive records.

But the duty to search for records does not require a department to try to find a needle in a haystack or expend extraordinary efforts that are unlikely to locate responsive records. Further, as noted above, the more burdensome the search required, the more likely will be the need to invoke an extension of time to respond to the request or, in more extreme cases, to invoke the rule of reason warranting a more drawn-out search. It is possible there may be a circumstance so extreme that it is appropriate for a department to decline to conduct a comprehensive search, but before taking such an approach, the department should consult with the City Attorney’s Office.

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Other mentions of “rule of reason” with SOTF

https://cdn.muckrock.com/outbound_request_attachments/94383620Anonymous/72902/19089-Analysis-20190917-c.pdf

https://lawsdocbox.com/95867773-US_Government_Resources/Sunshine-ordinance-task-force-agenda-packet-contents-list.html

https://archive.org/details/SFGTV_20130401_113000/start/354/end/414

https://archive.org/details/SFGTV_20161203_140000_Ethics_Commission_112816

http://www.synturf.org/images/RJN_in_Support_of_Writ.pdf - Contains partial transcript of a 2013 Ehtics Commission hearing where the “Rule of Reason” mentioned.

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File 17103 continued timeline:

File 17103 on Agenda SOTF 12-06-2017

https://sfgov.org/sunshine/sites/default/files/sotf_120617_agenda.pdf

https://sfgov.org/sunshine/sites/default/files/sotf_120617_minutes.pdf

Member J. Wolf, seconded by Member Cannata, moved to amend the SOTF By- Law, Section 10. Hearing Procedures for Complaints, to delete “and its committees” to indicate the procedure only applies to the Full Task Force.
No Action Taken, File No. 17103 SOTF Minutes 12-19-2017
https://sfgov.org/sunshine/sites/default/files/sotf_121917_agenda.pdf
https://sfgov.org/sunshine/sites/default/files/sotf_121917_minutes.pdf

File 17103 on Agenda SOTF 11-16-2018 https://sfgov.org/sunshine/sites/default/files/sotf_011618_agenda.pdf
https://sfgov.org/sunshine/sites/default/files/sotf_011618_minutes.pdf

Member Maass, seconded by Member Eldon, moved to adopt the proposed changes to the procedures for reconsideration as further amended to increase the deadline to request reconsideration from 10 days of issuance to 30 days of issuance and adopt as amended.

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