STATE OF CALIFORNIA COPY OFFICE OF LEGISLATIVE COUNSEL September 12, 2011 Honorable Brian W. Jones Room 3147, State Capital CALIFORNIA PUBLIC RECORDS ACT: REAL ESTATE APPRAISAL EXEMPTION - #1123274 Dear Mr. Jones: With respect to the facts described below, you have asked whether the Wildlife Conservation Board may validly refuse a request under the California Public Records Act to release a real estate appraisal, prepared by or for a real property seller, that the board has received as part of a grant application for the acquisition of that property by a county. By way of background, you provided us with the following facts. In 2004, the Peninsula Open Space Trust (POST), a nonprofit organization, purchased a parcel of coastal property (hereafter che Pillar Point property) in an unincorporated area of the County of San Mateo (hereafter the county) for $2.7 million. ‘The California State Coastal Conservancy contributed slightly over $1 million in Proposition 40 grant funds’ to the purchase price of the Pillar Point property in exchange for an Irrevocable Offer of Dedication of Title in Fee on approximately 70 acres of the 119 acre parcel, to protect the public interest. POST recently entered into negotiations with the county to sell the Pillar Point property and two other parcels for approximately $3 million. For purposes of the sale, POST. * Proposition 40, also known as the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, was approved by voters at the March 5, 2002, statewide primary election. Proposition 40 authorized the sale of §2.6 billion in general obligation bonds, including $1.275 billion for land, aie, and water conservation programs, including property acquisition for those purposes (Secs. 5096.61 and 5096650, Gov. C.). Proposition 40 allocated $200 million for the State Coastal Conservancy, to be appropriated by the Legislature, and continuously appropriated $300 million to the Wildlife Conservation Board, for those purposes (Sec, 5096.650, Gov. C.).Honorable Brian W. Jones — Request #1123274 — Page 2 commissioned an appraisal of the Pillar Point property to demonstrate the fair market value of the property. The appraisal was performed by Hulberg & Associates, a private appraisal firm, The private real estate appraisal valued the parcel at $1.9 million, based in part on the fact that the Irrevocable Offer of Dedication of Title in Fee in favor of the California State Coastal Conservancy acted as a restriction, running with the land, on the ability of a property owner to develop the property. ‘The county sought to finance the acquisition of the properties from POST by applying to the Wildlife Conservation Board (hereafter the board) for a grant of Proposition 40 fands. As part of the grant application, the county provided the board with a copy of the real estate appraisal for the Pillar Point property that had been prepared for POST by the private appraisal firm.” ‘As part of the approval process for the county's grant application, the board sent the real estate appraisal to the Department of General Services (hereafter DGS) for a review to determine whether the appraisal’s value determination of $1.9 million was adequately supported, In February 2011, DGS delivered its review of the real estate appraisal to the board in the form of a report, which included certain information from the real estate appraisal, including the appraised value and the existence of the Irrevocable Offer of Dedication of Title in Fee in favor of the California State Coastal Conservancy. DGS released. 2 copy ofits review report, but not the actual real esate appraisal, co a member of the public in response to a request pursuant to the California Public Records Act (Ch. 3.5 (commencing. with Sec. 6250), Div. 7, Title 2, Gov. C. hereafter the CPRA). The board approved the county's grant application at its June 2011 meeting. While the board was considering the county's grant application, Assembly Member Jones sent a request ro the board, pursuant ro the CPRA, to obtain a copy of the real estate appraisal that had been commissioned by POST and included in the county's grant application to the board. The board responded to the request by asserting that the real estate appraisal would not be disclosed because it was statutorily exempted from mandatory disclosure by subdivision (h) of Section 6254 of the Government Code.’ We are informed by the board that it has a general policy, premised on the exemption in subdivision (h) of Section 6254, of not disclosing any real estate appraisal until escrow closes on the property acquisition You have asked, based on the facts you have provided, whether the board appropriately withheld disclosure of the real estate appraisal pursuant to either subdivision (b) of Section 6254 or Section 6255. In the event that the real estate appraisal satisfies the statutory criteria for exemption from mandatory disclosure under either of those sections, * We have not been informed as to whether an appraisal has been performed for the two parcels other than the Pillar Point property, and, if so, whether those appraisals were included with the county's grant application. * Alllsection references are o the Government Code, unless otherwise specified.Honorable Brian W. Jones — Request #1123274 — Page 3 you have asked whether the board's disclosure of the real estate appraisal to DGS for purposes of reviewing the appraisal constituted a waiver, pursuant to Section 6254.5, of the board's right to claim an exemprion. ‘The CPRA generally operates to make all public records chat are prepared, owned, used, or retained by a state or local agency open to public inspection during office hours, and requires the agency, upon a request for a copy of those records, to make a copy of those records available upon payment of fees (Sec. 6253). In this connection, Section 6252 sets forth, in pertinent part, definitions for the following terms: “6252. Asused in this chapter: includes any writing containing information relating d by any state or local agency regardless of physical form or characteristics. ‘Public records’ in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975. “(F) ‘State agency’ means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constit (Emphasis added.) ‘The board is a state agency within the Department of Bish and Game and, a real estate “(e) ‘Public record: therefore, is an entity subject to the requirements of the CPRA. As to wheth appraisal is a public record subject to disclosure under the CPRA, the definition of “public record” is broad and intended to cover “every conceivable kind of record that is involved in the governmental process” (Versaci . Superior Court (2005) 127 Cal.App.Ath 805, 813, quoting Coronado Police Officers Ass'n v. Carroll (2003) 106 Cal.App.4th 1001, 1006). In regard to the present inquiry, the real estate appraisal is a written document that che county included in an application submitted to the board and that was used by the board for purposes of determining whether, and in what amount, to provide grant funding to the county to acquire the property. Thus, it is our opinion that the real estate appraisal is a public record for purposes of the CPRA. ‘The CPRA provides that certain public records are specifically exempted from the act and may be withheld from disclosure at the agency's diseretion (see, for example, Secs. 66254 and 6255). Thus, we must determine whether any of the exemptions contained in the CPRA authorized the board to withhold that public record. In keeping with the purpose of the CPRA, exemptions from the general public disclosure requirements are narrowly construed (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1321). Also, the various statutory exemptions in the CPRA are permissive in nature, as opposed to mandatory (Black Panther Party v. Keboe (1974) 42 Cal.App.3d 645, 656). In other words, although a particular public record may satisfy the criteria for an exemption, the agency may