State Department of Public Health v. Superior Court

Filed 2/19/15

IN THE SUPREME COURT OF CALIFORNIA

STATE DEPARTMENT OF PUBLIC )

HEALTH, )

)

Petitioner, )

) S214679

v. )

) Ct.App. 3 C072325

THE SUPERIOR COURT OF )

SACRAMENTO COUNTY, )

) Sacramento County

Respondent; ) Super. Ct. No. 34-2012-80001044

)

CENTER FOR INVESTIGATIVE ________)

REPORTING, ________)

)

Real Party in Interest. )

____________________________________)

The Center for Investigative Reporting (the Center) is a news organization

investigating mistreatment of mentally ill and developmentally disabled

individuals in state-owned long-term health care facilities. It filed a Public

Records Act request for copies of all the citations issued by the Department of

Public Health (DPH) — the agency charged with investigating, licensing, and

disciplining long-term health care facilities — to the facilities the Center was

investigating.

The Long-Term Care, Health, Safety, and Security Act of 1973 (the Long-

Term Care Act) lays out in detail the information that must be included in citations

issued by DPH and expressly states that the citations are public records, but that

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the names of the affected patients or residents must be redacted from the publicly

available version of the citation. (See Health & Saf. Code, §§ 1423, 1424, 1429,

1439.) Yet DPH disclosed heavily redacted copies of the citations it had issued to

the facilities in question, citing its obligation under another statute not to release

confidential information obtained ―in the course of providing services‖ to mentally

ill and developmentally disabled individuals. (Welf. & Inst. Code, § 5328; all

subsequent statutory references are to the Welfare & Institutions Code unless

otherwise indicated.)

The trial court determined that the Long-Term Care Act was the more

specific and later-enacted statute and thus trumped section 5328. DPH sought writ

relief, and the Court of Appeal issued a writ directing the trial court to vacate its

judgment. In so doing, the Court of Appeal agreed with DPH, but only in part. It

concluded that because both statutes are remedial statutes designed to protect the

same vulnerable population, the two statutory schemes could be harmonized. The

Court of Appeal did so by ordering DPH to disclose such information as the Court

of Appeal deemed consistent with the common purpose of both statutes while

permitting DPH to redact such information as the Court of Appeal deemed

inconsistent with that common purpose.

We reverse and remand with instructions for the Court of Appeal to deny

the petition. The trial court was correct: The Long-Term Care Act‘s provisions

are the later-enacted provisions, and they announce with detail and specificity the

information that must be included in DPH citations in the public record. Because

it is both the more specific and the later-enacted statute, the Long-Term Care Act

is properly construed as a limited exception to section 5328‘s general rule of

patient and resident confidentiality. Accordingly, DPH citations issued under the

Long-Term Care Act are public records and must be disclosed to the Center

subject only to the specific redactions mandated by the Long-Term Care Act.

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I.

The Center is a nonprofit news organization involved in investigating and

reporting on patient abuse in state-owned long-term care facilities operated by the

Department of Developmental Services for the benefit of mentally ill and

developmentally disabled individuals. The Center is engaged in ―ongoing

investigation into cases of patient abuse, injury and death at the State‘s largest

developmental centers, the State‘s handling of the investigations and specifically

that of the internal police force, called the Office of Protective Services, charged

with protecting this vulnerable population.‖

In May of 2011, while investigating these matters, a staff reporter

employed by the Center filed a written request, pursuant to the Public Records Act

(Gov. Code, § 6250 et seq.), requesting copies of all citations issued by DPH since

2002 to the seven largest state-owned and state-operated treatment facilities. DPH

issues such citations pursuant to a detailed statutory scheme set out in the Long-

Term Care Act.

DPH‘s response was twofold. First, it informed the Center that DPH was

required to maintain citations for only four years. Second, DPH told the Center

that any recent responsive records would be ―examined and redacted before

release in accordance with Welfare and Institutions Code section 5328,‖ which

governs patient confidentiality at facilities providing designated services to

developmentally disabled and mentally ill patients and residents. As explained in

more detail below, section 5328 is part of the Lanterman-Petris-Short Act; a

parallel provision is included in the Lanterman Developmental Disabilities

Services Act. (See § 4514.) Like the parties and the Court of Appeal, we refer to

both acts collectively as the Lanterman Act. When we refer to section 5328, the

reference applies equally to section 4514.

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A month later, DPH produced 55 citations from the years 2007 through

2011. In DPH‘s own words, the records were ―aggressively‖ redacted. In fact, the

redacted citations contained scant information about the violations giving rise to

each citation. A representative example is citation number 15-1040-0003490-S.

The citation is classified as an ―AA‖ citation, meaning that the patient died as a

direct and proximate result of the facility‘s offense. (Health & Saf. Code, § 1424,

subd. (c).) The citation lists two general regulations that were violated: California

Code of Regulations, title 22, section 76315, subdivision (a)(4)(B), which requires

each patient or resident to have an individual program plan, and California Code

of Regulations, title 22, section 76525, subdivision (a)(20), which assures patients

and residents the right ―[t]o be free from harm, including unnecessary physical

restraint or isolation, excessive medication, abuse or neglect.‖ But the substance

of the violation is then described as follows: ―The facility failed to keep Client 1

free from harm by . . . .‖ The remainder of the citation, comprising two and a half

pages of text, is completely redacted.

An unredacted copy of one citation the Center obtained from a confidential

source shows the kind of information that DPH redacted. Citation number 15-

0788-0008629-F describes an incident in which one-third of the patients in one

unit at the Sonoma Developmental Center sustained injuries consistent with being

unnecessarily tasered. The citation describes the nature of the injuries sustained

by some of the patients and the fact that the patients had limited or no ability to

communicate verbally. By contrast, the redacted copy of the report says nothing

more than that a violation of Code of Federal Regulations, title 42, part 483.420,

subdivision (a)(5) — ―Protection of clients‘ rights‖ — occurred.

The Center‘s legal counsel wrote a letter to DPH arguing that the redactions

were not legally justified. DPH responded with an email maintaining that the

redactions were required by Welfare and Institutions Code sections 4514 and

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5328.15. The Center responded by filing a petition for writ of mandate in the

superior court seeking an order that DPH disclose the redacted material pursuant

to the Public Records Act.

The trial court said it was ―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.‖ It concluded that the two statutes

could not be reconciled and that the Long-Term Care Act‘s mandate that DPH

citations be made public with minimal redaction trumped the Lanterman Act‘s

confidentiality provisions because the Long-Term Care Act was the more specific

statute. DPH filed a petition for writ of extraordinary mandate.

The Court of Appeal acknowledged a conflict between the Long-Term Care

Act and the Lanterman Act, but determined that the statutes could be harmonized.

It observed that ―the Lanterman Act and the Long-Term Care Act apply to the

same population and seek the same purpose — to promote and protect the health

and safety of mental health patients. But the two acts effectuate this common

purpose from opposite directions. The Lanterman Act effectuates this purpose by

ensuring the confidentiality of mental health records — this encourages persons

with mental problems to seek, accept and undergo treatment and to be open and

candid in treatment. The Long-Term Care Act effectuates this purpose, as relevant

here, by making citations for violations of patient care standards publicly

accessible, so the public can oversee what is happening in these facilities.‖ The

―congruence of population and purpose, and this effectuation of purpose from

opposite directions, creates a complementarity of method to effectuate the

common purpose for this common population. In this way, these confidentiality

and public accessibility provisions can be harmonized.‖

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The Court of Appeal undertook this harmonization by evaluating each

category of information that the Long-Term Care Act requires to be included in

citations. The court then determined whether disclosing each type of information

would ―giv[e] [e]ffect to [b]oth the Lanterman Act and the Long-Term Care Act.‖

Applying this test, the Court of Appeal determined that, in light of the Lanterman

Act‘s purpose of protecting confidentiality, the following information should be

redacted from DPH citations issued under the Long-Term Care Act before they are

made public: ―any names contained in the citations, other than those of the

authorized inspectors and investigators specified in section 1439 of the Long-Term

Care Act,‖ and ―[t]he patient‘s or resident‘s mental, physical, and medical

conditions, history of mental disability or disorder, as well as the risk the violation

presents to that mental and physical condition.‖ By contrast, DPH must release

the following information in light of the Long-Term Care Act‘s policy favoring

publication of citations: ―what was the harm, what was the abuse, what was the

lack of respect or dignity afforded, and what was the action that the facility did or

failed to do,‖ ― ‗the particular place or area of the facility in which [the violation]

occurred,‘ ‖ ―the ‗good faith efforts exercised by the facility to prevent the

violation from occurring‘ [citation], and ‗[t]he licensee‘s history of compliance

with regulations.‘ ‖

Justice Hoch dissented. She would have concluded that the two statutes

were in irreconcilable conflict as to what information in a DPH citation can or

must be released to the public. She would have resolved the conflict by

concluding that the Long-Term Care Act prevailed because its relevant provisions

are more specific and later enacted than section 5328. We granted review.

II.

We begin by describing the two statutory schemes at issue.

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A.

The Long-Term Care Act was enacted in 1973 with the purpose of

―establish[ing] (1) a citation system for the imposition of prompt and effective

civil sanctions against long-term health care facilities in violation of the laws and

regulations of this state, and the federal laws and regulations as applicable to

nursing facilities as defined in subdivision (k) of Section 1250, relating to patient

care; (2) 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; and (3) a provisional licensing mechanism to ensure that full-term licenses

are issued only to those long-term health care facilities that meet state standards

relating to patient care.‖ (Health & Saf. Code, § 1417.1.) It makes DPH

responsible for licensing, investigating, and sanctioning long-term health care

facilities throughout the state. (See Kizer v. County of San Mateo (1991) 53

Cal.3d 139, 142 (Kizer) [summarizing the DPH‘s obligations under the Long-

Term Care Act].)

The term ―long-term health care facility‖ is defined as any of eight types of

licensed care facilities. (Health & Saf. Code, §§ 1418, subd. (a), 1760.) Four of

the eight categories of long term care facilities — ―[i]ntermediate care

facility/developmentally disabled,‖ ―[i]ntermediate care facility/developmentally

disabled habilitative,‖ ―[i]ntermediate care facility/developmentally disabled—

nursing,‖ and ―[i]ntermediate care facility/developmentally disabled—continuous

nursing‖ (id., § 1418, subd. (a)(3)–(5), (8)) — serve only developmentally

disabled persons.

Section 1422 explains the importance of DPH inspections and the

procedure for conducting them. It declares that ―inspections are the most effective

means‖ of ensuring a high level of care at long-term health care facilities. (Health

& Saf. Code, § 1422, subd. (a).) It requires DPH to conduct inspections upon

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receiving a complaint, and no less frequently than once every two years regardless

of whether any complaint has been filed. (Id., § 1422, subd. (b).) If an inspection

uncovers any violations of state or federal standards of care, the inspector must

recommend a federal enforcement remedy or issue a citation unless the violation is

deemed an ― ‗unusual occurrence.‘ ‖ (Id., § 1423, subds. (a) & (c).)

Before the Long-Term Care Act was enacted, the only significant sanctions

available against a long-term health care facility were misdemeanor criminal

charges, injunctions, or suspension or revocation of the facility‘s license. (Sen.

Com. on Health & Welfare, Analysis of Assem. Bill No. 1600 (1973–1974 Reg.

Sess.) as amended June 21, 1973, p. 1.) This system was ―criticized as too rigid,

lacking in intermediate sanctions, and ineffective in producing compliance with

standards.‖ (Ibid.; see Joint Com. on Aging, Analysis of Assem. Bill No. 1600

(1973–1974 Reg. Sess.) p. 4; Report of Joint Com. on Aging, Rep. Regarding

Assem. Bill No. 1600 (1973–1974 Reg. Sess.) 5 Assem. J. (1973–1974 Reg. Sess.)

p. 8786 (Joint Committee Report) [describing the available remedies as ―either too

weak or too severe in nature‖].) The Long-Term Care Act also specifically sought

to combat the problem that ―[t]he Department‘s reports on nursing homes and their

relative compliance with patient health and safety standards were all centralized in

Sacramento and, therefore, practically inaccessible to nursing home consumers.‖

(Joint Com. Rep. at p. 8786.)

Although the Long-Term Care Act‘s inspection and citation process serves

to punish by naming and shaming facilities that violate the law, ―[t]he focus of the

. . . statutory scheme is preventative.‖ (Kizer, supra, 53 Cal.3d at p. 148.) It

serves to ―protect patients from actual harm, and encourage health care facilities to

comply with the applicable regulations and thereby avoid imposition of the

penalties‖ that accompany a citation. (Ibid.) The Long-Term Care Act, and

Health and Safety Code section 1424 in particular, ―is designed to protect one of

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the most vulnerable segments of our population, ‗nursing care patients . . . who are

already disabled by age and[/or] infirmity,‘ and hence in need of the safeguards

provided by state enforcement of patient care standards.‖ (California Assn. of

Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 295.)

―As a remedial statute, section 1424 is to be liberally construed on behalf of the

class of persons it is designed to protect.‖ (Ibid.)

The Long-Term Care Act details the information that must be included in

every citation, and it specifies that citations are public records. It also specifies

that the patient‘s or resident‘s name must be redacted and is not part of the public

record. Section 1423 provides that ―[e]ach citation shall be in writing and shall

describe with particularity the nature of the violation, including a reference to the

statutory provision, standard, rule, or regulation alleged to have been violated, the

particular place or area of the facility in which it occurred, as well as the amount

of any proposed assessment of a civil penalty. The name of any patient

jeopardized by the alleged violation shall not be specified in the citation in order to

protect the privacy of the patient. However, at the time the licensee is served with

the citation, the licensee shall also be served with a written list of each of the

names of the patients alleged to have been jeopardized by the violation, that shall

not be subject to disclosure as a public record.‖ (Health & Saf. Code, § 1423,

subd. (a)(2).)

Section 1424 provides that DPH‘s determination of the appropriate penalty,

including the specific factors considered, must be made public. In determining the

penalty, DPH must consider ―all relevant facts . . . including, but not limited to,

the following: [¶] (1) [t]he probability and severity of the risk that the violation

presents to the patient‘s or resident‘s mental and physical condition[,] [¶] (2) [t]he

patient‘s or resident‘s medical condition[,] [¶] (3) [t]he patient‘s or resident‘s

mental condition and his or her history of mental disability or disorder[,] [¶] (4)

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[t]he good faith efforts exercised by the facility to prevent the violation from

occurring[,] [¶] (5) [t]he licensee‘s history of compliance with regulations.‖

(Health & Saf. Code, § 1424, subd. (a).) These ―facts considered by the

department in determining the amount of the civil penalty shall be documented by

the department on an attachment to the citation and available in the public record.‖

(Id., subd. (b).)

Class ―AA‖ and ―A‖ citations — i.e., citations issued for violations that are

a proximate cause of the death of a patient or resident or that pose a substantial

probability of causing serious physical harm or death (Health & Saf. Code, § 1424,

subds. (c), (d)) — ―shall be prominently posted for 120 days . . . in a place or

places in plain view of the patients or residents in the long-term health care

facility, persons visiting those patients or residents, and persons who inquire about

placement in the facility.‖ (Id., subd. (a).) The format and content of these public

postings are carefully delineated, with specific requirements regarding document

formatting and the location where the citations must be posted. (Ibid.) Less

severe class ―B‖ citations need not be publicly posted, but ―shall be made

promptly available by the licensee for inspection or examination by any member

of the public who so requests.‖ (Id., subd. (b).) It is a separate class ―B‖ violation

to fail to comply with these requirements. (Id., subd. (c).)

Finally, the Long-Term Care Act says, ―Any writing received, owned, used,

or retained by [DPH] in connection with the provisions of this chapter is a public

record within the meaning of subdivision (d) of Section 6252 of the Government

Code, and, as such, is open to public inspection pursuant to the provision of

Section 6253, 6256, 6257, and 6258 of the Government Code.‖ (Health & Saf.

Code, § 1439.) Again, the statute emphasizes that the patients‘ and residents‘

names must be redacted but does not mention any other redaction. (Ibid. [―[T]he

names of any persons contained in such records, except the names of duly

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authorized officers, employees, or agents of the state department conducting an

investigation or inspection in response to a complaint filed pursuant to this

chapter, shall not be open to public inspection and copies of such records provided

for public inspection shall have such names deleted.‖].)

B.

The Lanterman-Petris-Short Act was enacted in 1967. (Stats. 1967,

ch. 1667, § 36, p. 4074.) Its stated purposes include ―provid[ing] prompt

evaluation and treatment of persons with mental health disorders or impaired by

chronic alcoholism‖ (§ 5001, subd. (b)), ―encourag[ing] the full use of all existing

agencies, professional personnel, and public funds to accomplish these objectives‖

(id., subd. (f)), and ―protect[ing] persons with mental health disabilities and

developmental disabilities from criminal acts‖ (id., subd. (g)).

The relevant provisions here are Welfare and Institutions Code sections

5328 and 4514. Section 5328 provides that ―[a]ll information and records

obtained in the course of providing services under‖ enumerated statutory divisions

addressing services provided to mentally ill individuals ―to either voluntary or

involuntary recipients of services shall be confidential. . . .‖ It further provides

that ―[i]nformation and records shall be disclosed only in any of the following

cases‖ and then enumerates 25 specific exceptions. The exceptions include,

among other things, referrals of patients or residents between qualified

professionals, disclosure to approved researchers who sign an oath of

confidentiality, disclosure ―[t]o the courts, as necessary to the administration of

justice‖ (id., subd. (f)) and disclosure to an insurer when approved by the recipient

of services. (Id., subds. (a), (e), & (i).)

As originally enacted, section 5328 contained a much shorter list of

exceptions. (See Stats. 1967, ch. 1667, § 36, pp. 4092–4093.) It was reenacted

and amended in 1972 (Stats. 1972, ch. 1058, § 2, pp. 1960–1961) and has

11

subsequently been amended several times to expand the list of exceptions. As

discussed in more detail below, the Legislature enacted additional exceptions to

section 5328‘s confidentiality rule in 1980, which were codified at Welfare and

Institutions Code section 5328.15. (Stats. 1980, ch. 695, § 1, p. 2095.) Section

5328.15 has been amended several times. The most relevant amendment occurred

in 2012, when the Legislature authorized disclosure of confidential information,

including ―unredacted citation report[s],‖ to any ―protection and advocacy agency

established pursuant to [Welfare and Institutions Code] Section 4901.‖

(§ 5328.15, subd. (c)(2); see Stats. 2012, ch. 664, § 3.)

Welfare and Institutions Code section 4514 is substantively identical to

section 5328. Under section 4514, information and records obtained in the course

of providing services to developmentally disabled persons are confidential. This

provision was originally subsumed within section 5328, which at the time applied

to the records of both mentally ill and developmentally disabled residents and

patients. (See Gilbert v. Superior Court (1987) 193 Cal.App.3d 161, 168–169.)

In 1982, the Legislature moved the protections for developmentally disabled

persons to section 4514, where they appear as part of the Lanterman

Developmental Disabilities Services Act, a statute addressing services for

developmentally disabled persons. (Ibid.; see § 4500 et seq.) No substantive

change was intended. (See Cal. Health & Welfare Agency, Enrolled Bill Rep. on

Sen. Bill No. 1736 (1981–1982 Reg. Sess.) Aug. 23, 1982; Sen. Com. on Health &

Welfare, Analysis of Sen. Bill No. 1736 (1981–1982 Reg. Sess.) as introduced

Mar. 11, 1982.) Subdivision (v) of section 4514 contains exemptions from the

general confidentiality rule that are identical to those provided for mentally ill

residents and patients in section 5328.15, subdivision (c)(2). The provisions were

enacted simultaneously and have been amended in a parallel manner throughout

the years. (See, e.g., Stats. 2012, ch. 664.)

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Section 5328‘s confidentiality protections are designed ―to encourage

persons with mental or alcoholic problems to seek treatment on a voluntary basis.‖

(County of Riverside v. Superior Court (1974) 42 Cal.App.3d 478, 481; see

Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 447 (Sorenson); In re

S.W. (1978) 79 Cal.App.3d 719, 721 [section 5328 seeks to protect patients from

the ―embarrassment or more serious consequences‖ and ―undesired publicity‖ that

could result if their having received treatment became public knowledge]; see Sen.

Alan Short, attachment to letter to Gov. Ronald Reagan, Aug. 16, 1967, p. 3

[Lanterman Act ―provides for the confidentiality of records so that mentally ill

persons will not be haunted by unauthorized unnecessary exposure of their

medical histories‖].) Anyone who knowingly violates section 5328 by releasing

confidential information without authorization is subject to a civil action with

damages equivalent to the greater of $10,000 or treble the amount of actual

damages. (§ 5330, subd. (a).) Anyone who negligently violates section 5328

faces damages equivalent to $1,000 plus actual damages. (Id., § 5330, subd. (b).)

III.

Before considering the merits of the Court of Appeal‘s effort to harmonize

the Long-Term Care Act and the Lanterman Act, we must first address a threshold

argument. The Center contends that section 5328 does not apply to Long-Term

Care Act citations because such citations are not ―obtained in the course of

providing services‖ (§ 5328) to developmentally disabled or mentally ill persons.

The Center says that an investigation and the resulting citation do not involve

providing services, so their content is not governed by section 5328‘s

confidentiality guarantee.

We disagree. Section 5328 renders confidential ―[a]ll information and

records obtained in the course of providing services‖ to patients or residents

receiving services pursuant to several enumerated statutory divisions. (§ 5328.) It

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is true that DPH is not a service provider directly regulated by section 5328. But

when DPH investigates a facility governed by section 5328, it inevitably relies

upon records from the facility in carrying out its investigation. (See Health & Saf.

Code, §§ 1420, subd. (a)(2) [the investigator ―shall collect and evaluate all

available evidence‖ including ―[s]tatements of witnesses,‖ ―[f]acility records,‖ and

―[o]bserved conditions‖], 1421, subd. (a) [similar].) Facility records plainly

constitute ―information and records obtained in the course of providing services.‖

That this information may then be passed on to the investigator and incorporated

into a DPH citation does not change the fact that they are deemed confidential by

statute.

The Center relies on Sorenson, supra, 219 Cal.App.4th 409, Tarasoff v.

Regents of University of California (1976) 17 Cal.3d 425, 443 (Tarasoff), and

Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1585 (Devereaux)

in support of its argument that the information in DPH citations is not ―obtained in

the course of providing services.‖ But none of these cases stands for the

proposition that confidential information obtained during a DPH investigation

becomes public when an investigator reviews or reproduces it.

Sorenson said that section 5328 did not render court transcripts of

Lanterman Act commitment proceedings nonpublic. But this was in part because

section 5328 specifically provides for disclosure of confidential information ― ‗[t]o

the courts, as necessary to the administration of justice.‘ ‖ (Sorenson, supra, 219

Cal.App.4th at pp. 444, quoting § 5328, subd. (f).) So court proceedings

discussing information obtained in the course of treating a patient or resident are

not confidential precisely because section 5328 expressly authorizes release of

such information under the circumstances. Here, by contrast, the Center does not

argue that any enumerated exemption to section 5328 authorizes disclosure of

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confidential information obtained in the course of providing services to mentally

ill and developmentally disabled patients and residents.

Tarasoff and Devereaux are even further afield. Neither case involved a

patient or resident who was alleged to have been receiving treatment under the

Lanterman Act at the time the record in question was generated. (See Tarasoff,

supra, 17 Cal.3d at p. 443 [―[t]he pleadings . . . state no facts showing that the

psychotherapy provided to [the patient] by [the hospital] falls under any of [the]

programs‖ enumerated in § 5328]; Devereaux, supra, 32 Cal.App.4th at p. 1585

[the patient ―failed to allege with any specificity the nature of [the] records so as to

bring them within the purview of . . . section 5328‖].) They therefore have little

relevance here.

A.

We now turn to the primary question that occupied the Court of Appeal:

whether the Long-Term Care Act and the Lanterman Act can be harmonized, or

whether one must prevail over the other.

We have recently emphasized the importance of harmonizing potentially

inconsistent statutes. ― ‗A court must, where reasonably possible, harmonize

statutes, reconcile seeming inconsistencies in them, and construe them to give

force and effect to all of their provisions. [Citations.] This rule applies although

one of the statutes involved deals generally with a subject and another relates

specifically to particular aspects of the subject.‘ [Citation.] Thus, when ‗ ―two

codes are to be construed, they ‗must be regarded as blending into each other and

forming a single statute.‘ [Citation.] Accordingly, they ‗must be read together

and so construed as to give effect, when possible, to all the provisions thereof.‘

[Citation.]‖ ‘ [Citation.] Further, ‗ ― ‗[a]ll presumptions are against a repeal by

implication. [Citations.]‘ [Citation.] Absent an express declaration of legislative

intent, we will find an implied repeal ‗only when there is no rational basis for

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harmonizing the two potentially conflicting statutes [citation], and the statutes are

―irreconcilable, clearly repugnant, and so inconsistent that the two cannot have

concurrent operation.‖ ‘ ‖ ‘ ‖ (Pacific Palisades Bowl Mobile Estates, LLC v. City

of Los Angeles (2012) 55 Cal.4th 783, 805 (Pacific Palisades); see Chavez v. City

of Los Angeles (2010) 47 Cal.4th 970, 986.)

But the requirement that courts harmonize potentially inconsistent statutes

when possible is not a license to redraft the statutes to strike a compromise that the

Legislature did not reach. (See Garcia v. McCutchen (1997) 16 Cal.4th 469, 479

[―the general policy underlying legislation ‗cannot supplant the intent of the

Legislature as expressed in a particular statute‘ ‖].) The cases in which we have

harmonized potentially conflicting statutes involve choosing one plausible

construction of a statute over another in order to avoid a conflict with a second

statute. (See, e.g., Pacific Palisades, supra, 55 Cal.4th at p. 803 [characterizing

the statute being construed as ―unclear or ambiguous‖]; Brown v. Mortensen

(2011) 51 Cal.4th 1052, 1067–1068 [harmonizing two federal statutes where the

first statute was ―silent‖ on the question at issue].) This canon of construction,

like all such canons, does not authorize courts to rewrite statutes.

The Court of Appeal misapplied the harmonization rule here. It did not

interpret either the Lanterman Act or the Long-Term Care Act in a way that

rendered the text of the two acts consistent. Instead, its harmonization analysis

began by considering the ―common purpose‖ of the two acts, i.e., ―to promote and

protect the health and safety of mental health patients.‖ It then harmonized the

statutes by considering, in its own independent judgment, whether disclosure of

the various types of information listed as public records in the Long-Term Care

Act would serve this common purpose. This approach was well intentioned but

erroneous.

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Instead of starting with the statutes‘ purposes, the Court of Appeal should

have started with their respective texts. (See Pineda v. Williams-Sonoma Stores,

Inc. (2011) 51 Cal.4th 524, 529 [―we look first to the words of a statute, ‗because

they generally provide the most reliable indicator of legislative intent‘ ‖].)

Beginning with the text of the statutes, we conclude that the statutes are in conflict

and thus one must be interpreted as providing an exception to the other.

The Long-Term Care Act states not only that DPH citations are public

records, but that ―AA‖ and ―A‖ citations must be publicly posted at the facility in

question. (Health & Saf. Code, §§ 1424, subd. (b), 1429, subds. (a) & (b), 1439.)

Section 1424, subdivision (a) specifically states the factors DPH must consider

when choosing the appropriate fine for a violation. Those factors include ―[t]he

patient‘s or resident‘s medical condition,‖ ―his or her history of mental disability

or disorder,‖ and ―[t]he probability and severity of the risk that the violation

presents to the patient‘s or resident‘s mental and physical condition.‖ (Id., § 1424,

subd. (a).) These ―facts considered by the department in determining the amount

of the civil penalty shall be documented by the department on an attachment to the

citation and available in the public record.‖ (Id., subd. (b).) And section 1429

adds detailed regulations as to the manner in which citations must be posted at the

facility, mandating where the citations must be displayed, the size and color of the

display, and the font size that must be used. (Id., § 1429, subds. (a), (b).)

In two separate statutory provisions, the Long-Term Care Act also

mandates the precise redactions that should occur before making a citation public.

Section 1423 states that ―[t]he name of any patient jeopardized by the alleged

violation shall not be specified in the citation in order to protect the privacy of the

patient.‖ (Health & Saf. Code, § 1423, subd. (a)(2).) Although patient names

must be made available to the sanctioned facility itself, they ―shall not be subject

to disclosure as a public record.‖ (Ibid.) Similarly, section 1439 states that ―[a]ny

17

writing . . . retained by the state department in connection with the provisions of

this chapter is a public record . . . and, as such, is open to public inspection

pursuant to the provisions of [the Public Records Act]. However, the names of

any persons contained in such records, except the names of duly authorized

officers, employees, or agents of the state department conducting an investigation

or inspection . . . shall not be open to public inspection and copies of such records

provided for public inspection shall have such names deleted.‖

Thus, the Long-Term Care Act‘s detailed provisions mandate the contents

and public nature of DPH citations, as well as the information that must be

redacted before the citations are made public. By specifying that names must be

redacted from the public copies of citations but not mentioning any other

information that may be redacted, sections 1423 and 1439 leave little room for

concluding that any further redaction is permitted. (See Rojas v. Superior Court

(2004) 33 Cal.4th 407, 424 [― ‗[I]f exemptions are specified in a statute, we may

not imply additional exemptions unless there is a clear legislative intent to the

contrary.‘ ‖].) Accordingly, we conclude that the express terms of the Long-Term

Care Act require that citations be made public subject only to the restriction that

the names used in the citation must be redacted, except for the names of DPH‘s

investigating officers, employees, or agents.

By contrast, the Lanterman Act‘s express terms would render most of the

information included in a DPH citation confidential and therefore not subject to

disclosure. It renders confidential ―[a]ll information and records obtained in the

course of providing services‖ to patients and residents under the enumerated

statutory divisions. (§ 5328, italics added.) As noted, the types of information a

DPH investigator must compile will necessarily derive from such information.

Furthermore, the Lanterman Act specifically enumerates 25 exceptions to its

general ban on disclosure of confidential information, none of which is applicable

18

here. No exception permits publication of confidential patient or resident

information so long as the patient‘s or resident‘s name is redacted.

It is thus evident that the two statutory schemes conflict. On one hand, the

Long-Term Care Act, which expressly applies to facilities that provide the types of

services enumerated in section 5328 (see Health & Saf. Code, § 1418), requires

publication of all information contained in DPH-issued citations except for the

names of patients or residents (or information that constitutes the constructive

equivalent of the patients‘ or residents‘ names). Failure to publicly post the

citations in the manner required by the Long-Term Care Act is a class ―B‖

violation of the Long-Term Care Act resulting in a $1,000 civil penalty. (Id.,

§ 1429, subd. (c).) On the other hand, section 5328 provides that all information

obtained in the course of providing enumerated services to patients or residents is

confidential and thus not subject to disclosure. As such, the Lanterman Act would

require extensive redaction of citations before they could be made public. The

knowing disclosure of such confidential information exposes the discloser to a

minimum of $10,000 in civil liability; negligent disclosure exposes the discloser to

a minimum of $1,000 in civil liability. (§ 5330.) In sum, the Lanterman Act

prohibits disclosure of information that the Long-Term Care Act deems public.

The Court of Appeal‘s harmonization effort results in a disclosure scheme

that is inconsistent with the requirements of either statute. By permitting DPH to

disclose ―what was the harm [to the patient or resident], what was the abuse, what

was the lack of respect or dignity afforded, and what was the action that the

facility did or failed to do‖ (italics omitted), the Court of Appeal did not give full

effect to section 5328‘s mandate that such information is the type of medical

information that must be maintained as confidential to protect patients and

residents from embarrassment. And by requiring redaction of information that the

Long-Term Care Act expressly requires to be included in the public record,

19

including ―[t]he patient‘s or resident‘s mental, physical, and medical conditions,

history of mental disability or disorder, as well as the risk the violation presents to

that mental and physical condition,‖ the Court of Appeal did not give full effect to

that act‘s purpose of preventing future violations by making facilities‘ past

violations publicly known with a high degree of specificity. As Justice Hoch put

it, ―under the guise of bringing harmony, the majority opinion does violence to

two statutory enactments — carving out of the Lanterman Act an exception

allowing public citations to include an unredacted description of the nature of the

violation, and severing from the Long-Term Care Act the requirement that the

public record contain the aforementioned ‗relevant facts.‘ ‖

Even if the Court of Appeal‘s methodology had been sound, it is not clear

that the balance it struck was logical. The Court of Appeal‘s decision required the

redaction of information, including information on ―the risk the violation presents

to [the patient‘s or resident‘s] mental and physical condition,‖ that is highly

significant to understanding how and why the DPH selected a particular penalty as

the appropriate punishment for a particular violation. At the same time, the Court

of Appeal‘s compromise leaves in the public record enough facts for a patient or

resident who was the victim of the misconduct to know that he or she is the subject

of the citation. It is hard to see how such results would protect patients from the

embarrassment of seeing their suffering disclosed in the public record or advance

the Long-Term Care Act‘s goal of specifically and publicly identifying the full

scope of a facility‘s misconduct.

In addition, the Court of Appeal‘s harmonization requires facilities to walk

a tightrope when balancing their obligations to protect confidentiality and to make

citations public. The slightest misstep in either direction exposes facilities to

significant civil liability. (See Health & Saf. Code, § 1429, subd. (c); § 5330,

subds. (a) & (b).) It is unclear whether a risk-averse facility would react by over-

20

redacting or under-redacting. What is clear is that facilities would be exposed to a

dilemma that the Legislature in all likelihood did not intend to create.

We also reject DPH‘s argument that the statutes can be harmonized by

reading section 1439 as authorizing the extensive redaction of citations permitted

by the Court of Appeal. Section 1439 requires disclosure of citations ―pursuant to

the provision of‖ the Public Records Act. In turn, the Public Records Act provides

that ―public records exempt from disclosure by express provisions of law‖ need

not be disclosed. (Gov. Code, § 6253, subd. (b).) According to DPH, section

5328 is such an ―express provision of law,‖ thus creating an exemption from the

Public Records Act‘s general rule favoring disclosure of governmental records.

But interpreting section 5328 to define the information subject to disclosure under

the Long-Term Care Act would mean section 1439 has little if any practical effect

as to mentally ill and developmentally disabled individuals in state-owned long-

term health care facilities, who constitute a significant portion of the individuals

section 5328 encompasses. It is hard to fathom why the Legislature would have

expressly stated in section 1439 that ―the names of any persons contained in such

records . . . shall not be open to public inspection,‖ if it also meant to define the

scope of required redactions through reference to section 5328, which renders all

patient and resident records confidential unless otherwise provided. Reading the

statutes in the manner DPH proposes would also shield long-term care facilities

serving mentally ill and developmentally disabled residents from public scrutiny in

a manner not applicable to other long-term care facilities. (Cf. Kizer, supra, 53

Cal.3d at p. 148 [declining to construe the Long-Term Care Act to create ―a two-

tiered system of enforcement‖].) We therefore conclude it is not ―reasonably

possible‖ to harmonize these provisions ―without distorting their apparent

meaning.‖ (Fields v. Eu (1976) 18 Cal.3d 322, 328.)

21

For similar reasons, we reject DPH‘s argument that the Information

Practices Act of 1977 protects from disclosure the information contained in DPH

citations. The Information Practices Act does not apply to records that are

disclosable ―[p]ursuant to the California Public Records Act.‖ (Civ. Code,

§ 1798.24, subd. (g).) DPH‘s argument under the Information Practices Act

assumes that section 5328 either defines the scope of disclosure required under the

Long-Term Care Act or announces an exception to the Public Records Act‘s

general rule that public records are disclosable. We have rejected the former

proposition, and the latter is the dispositive question in this appeal.

B.

We now address the dispositive question: whether the Lanterman Act must

be treated as an exception to the Long-Term Care Act‘s general rule that DPH

citations must be made public with only minimal redactions, or whether the Long-

Term Care Act must be treated as an exception to the Lanterman Act‘s general

rule that all information obtained in the course of treating mentally ill and

developmentally disabled patients and residents is confidential.

The rules we must apply when faced with two irreconcilable statutes are

well established. ―If conflicting statutes cannot be reconciled, later enactments

supersede earlier ones [citation], and more specific provisions take precedence

over more general ones [citation].‖ (Collection Bureau of San Jose v. Rumsey

(2000) 24 Cal.4th 301, 310 (Rumsey).) But when these two rules are in conflict,

the rule that specific provisions take precedence over more general ones trumps

the rule that later-enacted statutes have precedence. (See People v. Gilbert (1969)

1 Cal.3d 475, 479 [― ‗It is the general rule that where the general statute standing

alone would include the same matter as the special act, and thus conflict with it,

the special act will be considered as an exception to the general statute whether it

was passed before or after such general enactment.‘ ‖]; see Nunes Turfgrass, Inc.

22

v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1539 [same]; see also

Code Civ. Proc., § 1859 [―when a general and particular provision are

inconsistent, the latter is paramount to the former‖].)

The parties rely on dueling cases to demonstrate which statute is more

specific. The Center cites cases to demonstrate that the relevant provisions of the

Long-Term Care Act are more specific because they deal with a more specific

subject matter — i.e., DPH citations — than does section 5328 of the Lanterman

Act. (See, e.g., Marsh v. Edward Theatres Circuit, Inc. (1976) 64 Cal.App.3d

881, 890 [―A special statute dealing expressly with a particular subject controls

and takes precedence over a more general statute covering the same subject.‖].)

On the other hand, DPH argues that the Lanterman Act is more specific because it

applies to a narrower group of individuals. (See In re Ward (1964) 227

Cal.App.2d 369, 374–375.)

―[O]ur goal is to discern the probable intent of the Legislature so as to

effectuate the purpose of the laws in question.‖ (Rumsey, supra, 24 Cal.4th at

pp. 309–310; see Code Civ. Proc., § 1859.) Considering the precise nature of the

two statutory schemes here, we conclude that the Long-Term Care Act is the more

specific statute. The particularly detailed nature of the Long-Term Care Act‘s

discussion of DPH citations demonstrates that the Legislature thought carefully

and specifically about the importance of publishing citations and concluded that

patients‘ and residents‘ confidentiality was adequately protected by redacting the

names of the victims of a violation. The Lanterman Act, by contrast, addresses the

confidentiality of records obtained in the course of treating mentally ill and

developmentally disabled individuals at a high level of generality. Further,

although the Long-Term Care Act applies to some facilities that are unlikely to

provide services under the Lanterman Act, four of the eight categories of long-

term health care facilities defined in the Long-Term Care Act exclusively serve

23

developmentally disabled persons. The Lanterman Act, by comparison, applies

whether or not services are provided in a ―long-term health care facility.‖ On

balance, the specificity with which the Long-Term Care Act discusses DPH

citations and the fact that developmentally disabled and mentally ill individuals

are among the primary groups the Legislature sought to protect via the Long-Term

Care Act persuade us that the Legislature intended DPH citations to be made

public subject only to any redaction required by the Long-Term Care Act,

notwithstanding section 5328‘s broad language.

This conclusion is buttressed by the fact that the Long-Term Care Act is the

later-enacted statute. The Long-Term Care Act was enacted just over a year after

section 5328 was amended and reenacted. The Legislature that enacted the Long-

Term Care Act was no doubt aware of the privacy concerns presented by public

disclosure of information obtained in the course of treating mentally ill and

developmentally disabled individuals. Yet the Long-Term Care Act, as originally

enacted, included Health and Safety Code section 1439, which expressly mandates

that every ―writing‖ DPH generates under the Long-Term Care Act is a matter of

public record subject only to the redaction of the names of the individuals

involved (other than DPH investigators). Had the Legislature intended to treat

citations issued to facilities caring for mentally ill and developmentally disabled

patients and residents differently than citations issued to other facilities, it likely

would have said so given how recently it had reconsidered section 5328.

The Legislature has amended section 5328 several times since 1972 to

update statutory cross-references and to expand the list of exceptions. In 1982, the

Legislature enacted section 4514, which is substantively identical to section 5328

but pertains exclusively to developmentally disabled individuals. These changes

left intact the key language of section 5328: the requirement that ―[a]ll

information and records obtained in the course of providing services . . . to either

24

voluntary or involuntary recipients of services shall be confidential.‖ (§ 5328; see

Gov. Code, § 9605 [―Where a section or part of a statute is amended . . . . [t]he

portions which are not altered are to be considered as having been the law from

the time when they were enacted . . . .‖].)

Moreover, the Legislature has continued to view the Long-Term Care Act

as demanding specific and detailed disclosure of DPH citations. Section 1424‘s

statement that ―[r]elevant facts considered by [DPH] in determining the amount of

the civil penalty [for a citation] shall be documented by [DPH] on an attachment to

the citation and available in the public record‖ was added by the Legislature in

1998. (Health & Saf. Code, § 1424, subd. (b); as amended by Stats. 1998, ch. 650,

§ 3, p. 4249.) Thus, more than 25 years after the original enactment of the Long-

Term Care Act, the Legislature reaffirmed the importance of publicly releasing the

detailed information contained in the attachments to a DPH citation, and it did so

without suggesting that section 5328 limited the scope of disclosure. (Cf.

Albertson v. Superior Court (2001) 25 Cal.4th 796, 804–807 [relying on

legislative history showing that the Legislature had enacted a statute requiring

disclosure of confidential records of sex offenders to the district attorney despite

the fact that no such exemption was added to section 5328].)

DPH acknowledges that the Long-Term Care Act was enacted after section

5328 but argues that the Legislature‘s 2012 enactment of three identical statutory

provisions (§§ 4514, subd. (v), 4903, subd. (h), 5328.15, subd. (c)) shows that the

Legislature understands the Long-Term Care Act to be subordinate to section

5328‘s confidentiality rule. These identical provisions provide that confidential

records may be disclosed to a private nonprofit ―protection and advocacy‖ agency

established pursuant to Welfare and Institutions Code section 4901 for the purpose

of protecting patients‘ and residents‘ interests. Specifically, a facility may

disclose ―[a]n unredacted citation report‖ to the protection and advocacy agency,

25

but the disclosed ―information shall remain confidential and subject to the

confidentiality requirements of subdivision (f)‖ of section 4903. (§§ 4514,

subd. (v)(2), 4903, subd. (h)(2), 5328.15, subd. (c)(2), italics added.) DPH says

these provisions would be ―pointless if unredacted citation reports containing

Lanterman-protected information were already available to the general public

under the [Long-Term Care Act] and/or [the Public Records Act].‖

Contrary to DPH‘s argument, the 2012 enactments do not provide

protection and advocacy agencies with merely the same access to DPH citations

that the general public has under the Long-Term Care Act. The statutes, by their

terms, provide for disclosures of unredacted citations, i.e., citations that include

the names that sections 1423 and 1439 of the Health and Safety Code require to be

redacted. Thus, the recent enactments at most prove that the Legislature in 2012

sought to ensure greater access to citations for the protection and advocacy agency

than the degree of access to which the general public is entitled. This is hardly

surprising given that the protection and advocacy agency needs to know who was

actually harmed by a facility‘s misconduct in order to fulfill the agency‘s statutory

mandate of ―protecting and advocating for the rights of people with disabilities,‖

including by ―[p]ursu[ing] administrative, legal, and other appropriate remedies or

approaches.‖ (§ 4902, subd. (a)(2).) The 2012 enactments also operate in a

different procedural context: whereas a member of the general public must file a

Public Records Act request for a copy of the citation with redactions to remove

patient names, the protection and advocacy agency gains direct access to

unredacted records within three days of making a request. (§ 4903, subd. (e)(1).)

The legislative history of the 2012 enactments further supports the Center‘s

position. The enactments were directed at a specific problem: DPH‘s refusal to

provide unredacted reports regarding Lanterman-protected residents to the state‘s

protection and advocacy agency absent a case-specific showing of probable cause.

26

(Sen. Com. on Human Services, Analysis of Sen. Bill No. 1377 (2011–2012 Reg.

Sess.) as amended Aug. 20, 2012, p. 4 (Senate Analysis).) DPH cited sections

5328 and 4514 as the basis for this policy. (Sen. Analysis, at pp. 3–4.) But

legislators who supported the 2012 enactments considered DPH‘s probable cause

requirement ―unnecessary and unwarranted‖ in light of the protection and

advocacy agency‘s existing right to access relevant reports and its statutory

obligation to maintain confidentiality. (Id. at p. 4.) These supporters hoped that

by clarifying the protection and advocacy agency‘s right of access, the new

provisions would ―eliminate [DPH‘s] relatively recent practice that has resulted in

substantial delays of records.‖ (Id. at p. 5.) Contrary to DPH‘s argument, this

legislative history does not suggest that the Legislature accepted DPH‘s broad

interpretation of sections 5328 and 4514. If anything, the 2012 enactments

rejected that interpretation by reaffirming the protection and advocacy agency‘s

preexisting right of access. (Cf. W.R. Grace & Co. v. Cal. Employment Com.

(1944) 24 Cal.2d 720, 729 [―Although courts ordinarily infer an intent to change

the law from a material change in the language of a statute [citations], the

circumstances may indicate merely a legislative intent to clarify the law . . . .‖].)

DPH‘s argument that section 5328.15, subdivision (a) evinces the

Legislature‘s intent to limit the scope of public disclosure of DPH citations is

similarly flawed. That provision permits the disclosure of any and all information

that is confidential under section 5328 to DPH licensing personnel. It does not

refer specifically to DPH citations imposed under the Long-Term Care Act, nor

does it prove by implication that the Legislature sought to repeal that statute‘s

explicit provisions governing the disclosure of such citations.

In sum, the Long-Term Care Act is both the more specific and the later-

enacted statute. As such, it creates a limited exception to section 5328‘s general

prohibition against the release of any information obtained in the course of

27

providing treatment to mentally ill and developmentally disabled individuals

through the statutorily enumerated programs. Thus, the Long-Term Care Act‘s

provisions govern the scope of information contained in DPH citations that must

be released to the public both at facilities themselves and in response to a request

pursuant to the Public Records Act.

On this record, we do not know whether the 55 citations at issue will be

devoid of personally identifying information once redacted to remove patient and

resident names. Accordingly, we have no occasion to consider whether unusually

detailed citations that clearly identify particular patients or residents without

expressly naming them might require redaction under the Long-Term Care Act.

IV.

For the reasons above, we reverse and remand this case to the Court of

Appeal with instructions to deny DPH‘s petition for writ of mandate. We also

deny DPH‘s motion to take additional evidence.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

BAXTER, J.*

GILBERT, J.**

___________________________________

* Retired Associate Justice of the Supreme Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.

** Presiding Justice of the Court of Appeal, Second Appellate District,

Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

28

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion State Department of Public Health v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 219 Cal.App.4th 966

Rehearing Granted

__________________________________________________________________________________

Opinion No. S214679

Date Filed: February 19, 2015

__________________________________________________________________________________

Court: Superior

County: Sacramento

Judge: Timothy M. Frawley

__________________________________________________________________________________

Counsel:

Kamala D. Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney General, Gregory D.

Brown, Deputy State Solicitor General, Julie Weng-Gutierrez, Assistant Attorney General, Niromi W.

Pfeiffer and Grant Lien, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Davis Wright Tremaine, Rochelle Wilcox; Jassy Vick Carolan, Duffy Carolan and Jeff Glasser for Real

Party in Interest.

Arne Werchick for California Advocates for Nursing Reform, Inc., as Amicus Curiae on behalf of Real

Party in Interest.

Ram, Olson, Cereghino & Kopczynski, Karl Olson; Jeffrey D. Glasser; James W. Ewert; and Juan F.

Cornejo for California Newspaper Publishers Association, Los Angeles Times Communications LLC,

McClatchy Newspapers, Inc., First Amendment Coalition and California Broadcasters Association as

Amici Curiae on behalf of Real Party in Interest.

O‘Melveny & Myers, Sabrina Heron Strong, Patricia K. Yew, Heather Silver and Alexander Slavin for

Inner City Law Center as Amicus Curiae.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Grant Lien

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 327-6749

Duffy Carolan

Jassy Vick Carolan

400 Montgomery Street, Suite 200

San Francisco, CA 94104

(415) 539-3399

2