Cal.4: SDT for financial records in a pollution investigation to properly assess penalty was reasonable

The state’s subpoena for records in a pollution investigation were statutorily based, within the agency’s jurisdiction, and reasonable in scope. Here, the records were financial, and it was for imposing a reasonable penalty. The subpoena also did not violate a right to privacy because the records gathered can’t be otherwise disclosed. State Water Resources Control Bd. v. Baldwin & Sons, Inc., 2020 Cal. App. LEXIS 101 (4th Dist. Jan. 16, 2020) (published Feb. 10, 2020):

We conclude the trial court properly balanced the competing interests here. Although Appellants assert the trial court did not adequately explain the basis for its ruling, it is clear from the record that the trial court considered the scope of the subpoena requests and Appellants’ relevancy and privacy concerns, balanced the competing interests, and carefully exercised its discretion in compelling production of responsive documents subject to a protective order. For reasons already discussed ante, in applying the Brovelli test, the State Board has a legitimate and important interest in obtaining Appellants’ Financial Documents to aid in its investigation. (Hill, supra, 7 Cal.4th at p. 38.) Appellants have not shown any error on this record. (See Tom v. Schoolhouse Coins (1987) 191 Cal.App.3d 827, 830 [236 Cal. Rptr. 541] (Tom) [compelling production of various business records, including complete customer list with customers’ identities, where there was “a sufficiently compelling governmental interest in identifying and rectifying violations of the securities laws to justify the de minimus intrusion” on any privacy interests held by the customers]; see also Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 6, 24 [56 Cal. Rptr. 2d 706, 923 P.2d 1] [peer review records that were protected by statute and not subject to discovery were nonetheless subject to disclosure in response to an investigative subpoena].)

The subpoena process itself guarantees limited use and precludes unauthorized disclosure of Appellants’ financial information. (Gov. Code, §§ 11181, subds. (g) & (h), 11183; Tom, supra, 191 Cal.App.3d at p. 830 [financial privacy interest was “adequately protected by Government Code section 11183, which makes it a misdemeanor for any public officer to divulge information pertaining to the ‘confidential or private transactions, property or business of any person’ acquired pursuant to the investigative authority conferred by Government Code sections 11180 and 11181”].) And the trial court provided additional protections when it issued a protective order. (See City and County of San Francisco v. Uber Technologies, Inc. (2019) 36 Cal.App.5th 66, 84 [248 Cal. Rptr. 3d 273] (Uber) [rejecting “Uber’s contention that the trial court’s order should be reversed on the basis that the administrative subpoenas invade the privacy and confidentiality interests of Uber or third parties,” where a protective order was in place].)

Appellants have not shown that the confidentiality provisions in the protective order are insufficient to protect their interests. …

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