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Court of Appeal No._A132793 (Sonoma County Superior Court Case No. SCV 249181

Hon. Mark Tansil)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION FOUR

________________________________________ JULIA ANNA BERTOLI, a minor, by and through her Guardian ad Litem, VALERIE BERTOLI and JOSEPH BERTOLI, and DAVID

ROUDA Petitioners

v. SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SONOMA, Respondent.

CITY OF SEBASTOPOL; SEBASTOPOL CITY COUNCIL AND CITY COUNCIL MEMBERS FROM 1998 TO PRESENT, SARAH GLADE GURNEY, SAM PIERCE, LINDA KELLEY, LARRY ROBINSON, CRAIG LITWIN, WILLIAM ROVENTINI, ROBERT ANDERSON,

MICHAEL KYES, GUY WILSON, PATRICK SLAYTER, KATHLEEN SHAFFER; JENNIFER THILLE; SEBASTOPOL ENGINEERING

DEPT., SUE KELLY REBECCA MANSOUR; SEBASTOPOL PLANNING DEPT, KENYON WEBSTER, JOCELYN IMMACOLATO, NAOMI METZ, MARY GOURLEY; SEBASTOPOL PUBLIC WORKS

DEPT, RICHARD EMIG; SEBASTOPOL POLICE DEPT., JEFF WEAVER, GREG DEVORE, GORDON PITTER, CELESTE DWYER; SEBASTOPOL BUILDING DEPT., GLENN SCHAINBLATT, TODD CUNNINGHAM; CITY MANAGER’S OFFICE, DAVID BRENNAN, JACK GRIFFIN; MAYORS CRAIG LITWIN, GUY WILSON, SAM

SPOONER; CITY CLERK’S OFFICE, HOLLIE FIORI, MARY GOURLEY; SEBASTOPOL ADMINISTRATIVE SERVICES AND FINANCE DEPT., RON PUCCINELLI, KAREN CANO, PATTIE

MURPHY; SEBASTOPOL FIRE DEPT., JOHN ZANZI, Real Parties in Interest

------------------------------------------------------------------------------ BRIEF OF AMICUS CURIAE CALIFORNIANS AWARE IN

SUPPORT OF PETITIONERS JULIA ANNA BERTOLI, a minor, and DAVID ROUDA

------------------------------------------------------------------------------ JOSEPH T. FRANCKE (SNB 88654)

(916) 487-7000 terry@calaware.org 2218 Homewood Way, Carmichael, CA 95608

ATTORNEYS FOR PROPOSED AMICUS CURIAE

CALIFORNIANS AWARE

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I. INTRODUCTION

Californians Aware (“CalAware”) respectfully submits this brief

supporting the Petition for Extraordinary Writ of Mandate (“Petition”)

submitted by Petitioner Bertoli and her attorney, David Rouda. The

trial court’s ruling that city councilmembers are not subject to the

California Public Records Act (“CPRA”) and that city business-related

emails are not public records when stored on municipal and personal

computers1 of City employees and councilmembers was erroneous.

The trial court’s ruling would allow local agencies to exempt

themselves from the disclosure requirements of the CPRA and the

Declaration of Rights in the California Constitution as amended by

Proposition 59 of 2004 (Prop.59).

As emailing becomes a routine means of transacting government

business, the trial court’s ruling would allow a significant part of the

public business to be performed in private, circumventing the public

policies underlying the principles of the public records laws.

This Court also should hold that it was an abuse of discretion for

the trial court to award attorney fees against a public records requester,

the instrument for the vindication of the public policies of open

government and disclosure of public records underlying the CPRA,

Prop. 59, the Brown Act, the Bagley-Keene Open Meeting Act, and the

common law.

1 As used in this discussion, “personal computer” means not just a certain compact hardware device suitable for individualized business or home use—a “PC”—but one that is the personal property of an individual agency officer, staff member or consultant.

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WHY THE PETITION SHOULD BE GRANTED

The issues presented by Julia Anna Bertoli’s Petition will have a

profound impact on how government agencies interpret their disclosure

obligations under the CPRA.

The trial court erred in concluding with very little factual support

and very little analysis that producing the requested public records

would compromise privacy interests and create an excessive burden.

The trial court’s rulings would allow large portions of the public’s

business to be conducted in the shadows because all the public agency

has to do is conduct the public’s business on personal computers and

personal email accounts.

By ruling that the Petition was clearly frivolous and awarding

attorney fees to the government agency, the trial court’s erroneous

ruling would have a chilling effect on future public records requesters.

That would clearly be contrary to the underlying policies of the CPRA.

The trial court erroneously accepted the Respondents’ distortions of

the facts below that Petitioners’ motives were improper by naming

“private individuals” to the Petition and that Petitioners sought

“private” information. The record shows, however, that the requests

were for specific public records - specific records that dealt with the

public’s business of vital interest to the public. The record also shows

that the City kept Petitioners in the dark about the location and identity

of custodians of public records, which uncertainty required Petitioners

to name all potential custodians.

Because the trial court’s decision would allow government

agencies to circumvent the CPRA, Prop. 59 and the common law, the

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Petition should be granted and the trial court’s Order reversed.

II. Argument

A. The CPRA

“Implicit in the democratic process is the notion that government

should be accountable for its actions. In order to verify accountability,

individuals must have access to government files. Such access permits

checks against the arbitrary exercise of official power and secrecy in

the political process.” Los Angeles Unified School Dist. v. Superior

Court (2007 Ct. App. Dist. 2) 151 Cal. App. 4th 759, 764, quoting

CBS, Inc. v. Block (1986) 42 Cal. 3d 646, 651.

As this Court explained in Sander v. State Bar of California

(June 10, 2011 Ct. App. Dist. 1) 196 Cal. App. 4th 614, 621-22, the

public policies underlying the common law right of access to public

documents are deeply rooted in our democratic form of government.

Id. “The policy reasons for opening up government to the public have

been expressed on numerous occasions throughout this nation’s history.

Foremost among them is the goal of fulfilling our cherished ideal of

creating a ‘government of the people.’ James Madison wrote: ‘A

popular Government without popular information, or the means of

acquiring it, is but a Prologue to a Farce or Tragedy; or perhaps both.

Knowledge will forever govern ignorance: And a people who mean to

be their own Governors, must arm themselves with the power which

knowledge gives.’” Id. at 622.

In 1968, the California Legislature enacted the CPRA for the

purpose of increasing freedom of information by giving members of the

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public access to information in the possession of state and local

agencies. County of Santa Clara v. Superior Court (2009 Ct. App.

Dist. 6) 171 Cal. App. 4th 119, 128. This purpose is evident from the

Act’s preamble, in which “the Legislature ... declares that access to

information concerning the conduct of the people’s business is a

fundamental and necessary right of every person in this state.” Gov.

Code § 6250.

With the passage of Proposition 59, the people’s right to access

to information now has constitutional stature—on a par with freedom

of speech, petition, and assembly—in Article I, Section 3(b) of the

California Constitution. Prop. 59 creates a new constitutional right to

the “writings of public officials.” The right is independent of the

CPRA or any other law. By approving Prop. 59, California voters

endorsed the principles of the CPRA and explicitly recognized the right

of access to information concerning the conduct of the people’s

business found in the writings of public officials as well as public

agencies. Cal. Const., art. 1, § 3, subd. (b)(1). Prop. 59 provides that a

statute such as the CPRA must be “broadly construed if it furthers the

people’s right of access, and narrowly construed if it limits the right of

access.” Cal. Const., art. 1, § 3, subd. (b)(2).

To illustrate California’s public policy on the right of access to

public documents, this Court explained: “In enacting the Brown Act,

our state’s open meeting law, the Legislature finds and declares that the

public commissions, boards and councils and the other public agencies

in this State exist to aid in the conduct of the people’s business. It is the

intent of the law that their actions be taken openly and that their

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deliberations be conducted openly. The people of this State do not yield

their sovereignty to the agencies which serve them. . . . This expression

of policy is repeated in the Bagley–Keene Open Meeting Act and its

sentiment is captured in the Public Records Act, which has been

interpreted to embody the strong public policy in favor of disclosure of

public records.” Sander, 196 Cal. App. 4th 614, 335-36 (citations and

internal quotation marks omitted).

The CPRA requires full disclosure by a public agency of “public

records” that are not statutorily exempt from its provisions. Gov. Code

§ 6253; Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d 1325,

1338. If a public agency claims a record is exempt from disclosure,

the broad right of access places the burden on the agency to show that

the public record is exempt. Sacramento County Employees’

Retirement Sys. v. Superior Court (2011 Ct. App. Dist. 3) 195 Cal.

App. 4th 440, 453. The courts must construe statutory exemptions

from disclosure narrowly. Id., citing Dixon v. Superior Court (2009 Ct.

App. Dist. 3) 170 Cal. App. 4th 1271, 1275–1276.

As the California Supreme Court noted well before the passage

of Prop. 59, the CPRA “was modeled on its federal predecessor, the

Freedom of Information Act ... which was broadly conceived to require

full agency disclosure unless information is [statutorily] exempted.”

Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d 1325, 1338

(citations and internal quotation marks omitted); Milner v. Department

of Navy (2011) 131 S. Ct. 1259, 1262, quoting EPA v. Mink (1973) 410

U.S. 73, 80 (the FOIA is a disclosure statute enacted to “permit access

to official information long shielded unnecessarily from public view.”)

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B. The Trial Judge Erroneously Applied Rules Governing Discovery in Deciding on the Petition Below; the Motive of the Public Records Requester is Irrelevant From the start of his ruling, the trial judge mischaracterized the

Petition for Writ under the CPRA and FOIA as a civil litigation: “This

is an automobile accident case.” Order. The trial judge then

erroneously described the public records requests as a discovery

“fishing expedition.” The trial judge erroneously applied the discovery

rules in making his decision, since the motive of a CPRA requester is

irrelevant. See County of Los Angeles v. Superior Court (Axelrad)

(2000 Ct. App. Dist. 2) 82 Cal. App. 4th 819, 826 (explaining that the

Court had no issue with petitioner using the CPRA in an attempt to

obtain documents for use in civil cases filed by his employer because

he was permitted to do so under the CPRA, which provides that there

are no “limitations on access to a public record based upon the purpose

for which the record is being requested, if the record is otherwise

subject to disclosure. § 6257.5.”) (emphasis added).

The Axelrad Court further explained that Government Code

Section 6257.5 was enacted to codify the holding in State Bd. of

Equalization v. Superior Court (1992) 10 Cal. App. 4th 1177, which

explained that what is material is the public interest in disclosure, not

the private interest of a requesting party; section 6255 does not take

into consideration the requesting party’s profit motives or needs.

Axelrad, 82 Cal. App. 4th at 826 n.6, quoting State Bd. Of

Equalization, 10 Cal. App. 4th at 1191.

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The CPRA requires that public records be made available to

“every person in this state,” without exception; there is no exception

for persons who may potentially have a claim for damages against a

governmental agency. Wilder v. Superior Court (1998 Ct. App. Dist.

2) 66 Cal. App. 4th 77, 82-83 (emphasis added). Section 6257.5 of the

CPRA, titled “Purpose of request for disclosure; effect,” provides:

“This chapter does not allow limitations on access to a public record

based upon the purpose for which the record is being requested, if the

record is otherwise subject to disclosure.” Gov. Code § 6257.5.

The City’s attorneys, the city employees’ and councilmembers’

declarations and the trial court repeatedly referred to the Petition as

seeking discovery for litigation, but the motive of a particular public

records requester is irrelevant; the question instead is whether

disclosure serves the public interest. See State Bd. of Equalization, 10

Cal. App. 4th at 1191; Wilder, 66 Cal. App. 4th at 82-83. “The Public

Records Act does not differentiate among those who seek access to

public information.” State Bd. of Equalization, 10 Cal. App. 4th at

1190. “Whether data is disclosable does not turn on who requests it.”

Sacramento County Employees’ Retirement Sys., 195 Cal. App. 4th

440, 472.

The requesting party in Wilder was struck by a Los Angeles

County Metropolitan Transportation Authority (“MTA”) train, at a

pedestrian grade crossing. Id. at 79. Prior to filing a lawsuit, Wilder

made two requests for public documents under the CPRA. Id.

Similarly, Petitioner Bertoli made several public records requests to

Sebastopol prior to filing a lawsuit.

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In Wilder, the MTA responded to the requests by stating that

some requested documents were exempt from disclosure “because the

documents were prepared in anticipation of litigation” and that some

were exempt because they were “personnel-related and their disclosure

would constitute an unwarranted invasion of personal privacy.” Id. at

81. The trial court dismissed Wilder’s petition for writ of mandate

seeking an order to disclose the records. Id. The trial court concluded

that Wilder could seek those documents in discovery in the anticipated

civil lawsuit. Id.

This Court found that the trial court ruled incorrectly, that the

statutory provision for enforcing the CPRA is not the equivalent of

ordinary mandamus. Id. at 82. Under the CPRA, every person in this

state may obtain ready access to public records. Id. (emphasis added;

quotation marks omitted). The express “object” of the enforcement

provision of the CPRA is to ensure that review of an agency decision to

withhold documents from a “member of the public” be secured “at the

earliest possible time.” Id.

The Wilder court explained that: “Petitioner did not cease to be

a ‘member of the public’ when she was struck by the Blue Line. The

statute, which we are bound to interpret in accordance with its plain

language unless doing so would lead to absurd results, requires that

public records be made available to ‘every person in this state,’ without

exception.” Id. Similarly, Petitioner Bertoli did not cease to be a

“member of the public” when she was struck by a car while she was in

the crosswalk or when she made public records requests upon the City

of Sebastopol.

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Furthermore, the right to public records is broader than the right

to civil discovery. Wilder, 66 Cal. App. 4th at 83; see also County of

Los Angeles, 82 Cal. App. 4th at 829-830. As the Wilder court

explained, putting aside the time, effort and financial resources required

to institute a lawsuit against a governmental entity and to promulgate

discovery requests, discovery is limited to matters relevant to the

subject matter of the pending action. Wilder, 66 Cal. App. 4th at 83.

A CPRA request can cover anything the requester “suspects the

agency might have in its files.” Id. (emphasis added). As a member of

the public, Wilder was entitled to the broader categories of documents

available under the CPRA. Id. So too is Petitioner Bertoli. This Court

has clearly rejected Judge Tansil’s erroneous reasoning that

nondisclosure is permitted if the judge thinks the requester is on a

“fishing expedition.”

“Moreover, at the time of [Wilder’s] requests, it could not be

conclusively presumed that she would file a government claim or

institute a lawsuit. It may well have been the case that the documents

were requested to ascertain whether grounds for such a claim or lawsuit

existed.” Id. Similarly, at the time Petitioner Bertoli made her

requests, she had not filed her civil complaint.

Not only is the motive of a requester irrelevant, this Court has

stated that a party to litigation has an even stronger interest in

disclosure. Marylander v. Superior Court (2000 Ct. App. Dist. 2) 81

Cal. App. 4th 1119, 1125. The law is clearly in favor of disclosure

regardless of the reasons behind the request. While it is true that

Petitioner Bertoli subsequent to making public records requests filed a

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complaint, the exemptions contained in the CPRA do not apply to the

issue of whether records may be withheld in pending litigation so as to

defeat a party’s right to discovery. See id.

Ironically, before the enactment of public records access statutes

in California and long before discovery statutes, the 19th Century

common law concept of a “public record” was precisely one reliably

enough created and regularly enough kept by a government official to

be admissible in evidence to prove a fact, providing the person seeking

it had a “beneficial” (i.e., litigation-related) interest sufficient to

warrant a writ of mandate compelling its release. See, e.g., Kyburg v.

Perkins (1856) 6 Cal. 674. C. The Trial Court Erred in Concluding that Production of the Public Records Would Compromise Interests in Privacy and Create an Excessive Burden on Sebastopol since the Evidence Failed to Show Public Interest in Non-disclosure Clearly Outweighs Public Interest in Disclosure The trial court erred in concluding that production of the public

records would compromise privacy interests and create an excessive

burden on Sebastopol, since Sebastopol failed to carry its burden of

demonstrating a public interest in nondisclosure that clearly outweighs

the public interest in disclosure. If a public official can just claim it is

too time-consuming to comply with a public records request, then no

public official would ever have to comply with such a request. 1. The Public Interest in Disclosure Outweighs the Public Interest in Nondisclosure Government Code Section 6255, subdivision (a), provides: “The

agency shall justify withholding any record by demonstrating that the

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record in question is exempt under express provisions of this chapter or

that on the facts of the particular case the public interest served by not

disclosing the record clearly outweighs the public interest served by

disclosure of the record.” Gov. Code § 6255(a); see also San Diego

County Emp. Retirement Ass’n, 2011 WL 2535585, at *4 (holding that

the burden of proof is on the proponent of nondisclosure to demonstrate

a clear overbalance on the side of confidentiality.) “Moreover, if only

part of a record is exempt, the agency is required to produce the

remainder, if segregable. (§ 6253, subd. (a).)” County of Santa Clara,

170 Cal. App. 4th at 1321.

In October 2006, over two and a half years prior to Petitioner

Bertoli being injured, Sebastopol resident Glen Clements was also

struck by a vehicle in the same crosswalk and suffered permanent brain

damage. The area of the accident was identified as dangerous and

needing safety improvements over ten years ago by a citizen’s advisory

group. The safety of the road in Sebastopol has been the subject of

numerous newspaper articles and public debate for the past decade.

Sebastopol has failed to eliminate the extreme hazards on Healdsburg

Avenue, which are documented by a high number of catastrophic

injuries, despite having received hundreds of thousands of dollars of

grant funding for road improvements. Due to the high number of

collisions, in 2011, the California Highway Patrol took over highway

policing duties from Sebastopol.

In the most recent traffic collision data study, which was

conducted in 2009 by the California Highway Patrol, the Statewide

Integrated Traffic Records System, 2009 Annual Report of Fatal and

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Injury Motor Vehicle Traffic Collisions, Sebastopol is listed as having

the second highest collision rate among similarly-sized jurisdictions.

Exh. 1. Sebastopol also had the second highest rate out of seventy (70)

jurisdictions of similar size for the number of pedestrians killed or

injured. Id. The documents produced by Respondents show that

residents of Sebastopol considered Healdsburg Avenue, near Florence

Avenue, a dangerous and unsafe road. For instance, a resident emailed

Sebastopol City Manager on July 6, 2009:

First I live on the corner of Lynch and 116 and we always have a very hard time getting out is there any way for the town to pub up a traffic light? . . . Second The crosswalks in town! Unfortunately the girl who was hit is a wake up call we really need to install more of the cross walks that have lights! . . . . That intersection is another hard one to get in and out of! I was on my way to drop my son off and meet the father of the girl who was hit. He is so devastated. There are a lot of kids who are in this town and I would hate to see this happen to anyone else! I have almost got hit in the same spot!

Exh. 2. Another resident emailed Sue Kelly, Engineering Director: Many months after the July 3d accident, CalTrans put up pedestrian safety signs at the intersection of Healdsburg Av and Florence. I consider this to be a dangerous place to cross the street, and I really appreciated the presence of these signs. I guess that other people who have to cross the street there also welcomed the presence of the signs.

Exh. 2 (emphasis added).

The public clearly has a strong interest in knowing if elected

officials and government employees are doing their jobs and whether

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the public’s tax dollars are being spent appropriately, especially when

they were designated to be used for road improvements and pedestrian

safety. Voters in Sonoma County passed the Traffic Relief Act for

Sonoma County (“Measure M”) in November 2004. Measure M

provides for a sales tax to be used to maintain local streets, sidewalks,

bike lanes, fix potholes, accelerate widening of Highway 101, improve

interchanges, restore and enhance transit, support development of

passenger rail, and build safe bicycle and pedestrian routes. Local

jurisdictions, such as the City of Sebastopol, have used Measure M to

help fund various projects such as road improvements, including

improvements on Healdsburg.

For instance, to apply for Measure M funding for Street Smart

Sebastopol Phases 2 and 3, the City submitted information about Street

Smart Sebastopol Phases 2 and 3 to the Sonoma County Transportation

Authority and specifically listed the intersection at Healdsburg Avenue

at Florence Avenue on the list of improvements. Mr. Rouda has

discovered that the City made several requests for Measure M and other

local and state funds to improve the intersection in question many years

prior to 2009. The people are entitled to know about these requests and

the reasons why the improvements were not made prior to 2009.

The trial judge erroneously limited his consideration to

Petitioner Bertoli’s “litigation” interest. However, as explained above,

Miss Bertoli did not cease to be a member of the public when she was

struck by a car while walking in a crosswalk.

Though the CPRA is mindful of the right of individuals to

privacy, the “Act’s core purpose is to prevent secrecy in government

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and contribute significantly to the public understanding of government

activities.” San Diego County Emp. Retirement Ass’n v. Superior

Court (June 28, 2011 Ct. App. Dist. 4) -- Cal.Rptr.3d ----, No.

D058962, 2011 WL 2535585, at *9 (emphasis added), citing City of

San Jose v. Superior Court (1999) 74 Cal. App. 4th 1008, 1016–1017,

88 Cal.Rptr.2d 552.) The right of access to public records “must be

broadly construed if it furthers the people’s right of access, and

narrowly construed if it limits the right of access.” Cal. Constitution

Art. 1, §3(b)(2). 2. The Trial Judge Mistakenly Believed that Petitioners were Insisting on TERIS and that Private, Confidential Information Would Have Been Exposed

Petitioners did not request access to anyone’s hard drive, and

Mr. Rouda would have been perfectly content to not have to spend

thousands of dollars to hire a third party data collection company to

assist Sebastopol in complying with the public records requests. If

Sebastopol had complied with the public records laws and produced

non-exempt public records as requested, Mr. Rouda would not have

been put in the position to have to even make the suggestion of using a

data collection company.

Had Sebastopol accepted Mr. Rouda’s suggestion to use TERIS,

only a suggested company, TERIS would have only collected

information that matched Mr. Rouda’s specific requests, the majority of

which specified Healdsburg Avenue, Street Smart Sebastopol, funding

for street improvements (including Healdsburg Avenue) and the

General Plan - all of which are public records. No “personal” “private”

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information would have even been extracted and collected by TERIS.

Referencing various “private” and “confidential,” the City’s

counsels make the absurd assertion that “Petitioners have done nothing

to protect this sensitive information.” Response at 19, l. 3. No such

information would have been extracted by a data collection company or

produced to Mr. Rouda. No one prevented the City from suggesting

another data collection company of the City’s choosing to perform the

task.

Even if the trial court had ordered TERIS to perform the data

extraction, Sebastopol could have itself “protected” any “sensitive”

information by redacting privileged and exempt information prior to

production to Petitioners. And Mr. Rouda only informed the court of

the need for a neutral third party data collection company due to the

City’s and their counsels’ delay and obstructionist tactics prior to the

filing of the Petition.

Because Respondents’ Response was full of twisted and post hoc

reasoning, Judge Tansil was fooled into believing that Petitioners were

“targeting” “private” emails on the personal computers of “private”

individuals with “no public records” on their computers. Judge Tansil

was also duped into believing that: 1. Mr. Rouda was insisting on

TERIS performing the email search and collection; 2. that TERIS had

to copy the hard drives of computers to search emails; and 3. that

private, confidential information would “not” be redacted.

For Respondents to argue in their Response that Petitioner

“completely disregards” the exemptions provided in Section 6254,

Response at 24, ll. 2-3, demonstrates either their counsels’ inability to

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comprehend that it was Sebastopol’s burden to establish the propriety

of its withholding of documents from public disclosure or their

counsels’ inability to understand modern technology. Gov. Code §§

6255(a), 6259(a). Furthermore, those claimed exemptions were not

even mentioned to Petitioners until Respondents put them on their

Response, which was served after the filing of the Petition, which was

over a year after Miss Bertoli made the CPRA requests on the City.

Petitioner’s counsel never insisted on Sebastopol using TERIS;

he only suggested TERIS after Sebastopol claimed it was too

burdensome for it to produce the public records sought. 3. Balancing of the Competing Interests of Disclosure Versus Privacy Amicus believes that a balancing of the competing interests of

disclosure versus privacy isn’t even necessary or possible since

Respondents failed to identify the privacy interests or a reasonable

expectation of privacy under the circumstances. The City’s counsels

completely clouded the issue by claiming that Mr. Rouda was

demanding all information contained on hard drives and tossed in

“privacy” red herrings. It is clear that Petitioners specifically requested

only documents that involved work by the City relating to Healdsburg

Avenue, Sebastopol’s Regional Bike and Pedestrian Plan, the General

Plan, Street Smart Sebastopol, and documents related to the City’s

finances - all of which are clearly public records. Any private or

confidential or exempt information could have been redacted, or

presented to the trial court for in camera review, and not disclosed to

the Petitioners.

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However, if the Court does conduct a balancing test, it is clear

that the public interests in disclosure of these public documents clearly

outweigh the minimal privacy interests of public employees. All of the

requested documents related to City business, and the public has a

strong interest in knowing how Sebastopol spent and is spending the

public’s tax dollars and whether Sebastopol’s government has and is

maintaining local streets, sidewalks, bike lanes, and building safe

pedestrian routes, especially those next to elementary schools.

This Court reviews de novo the question of whether, under

section 6255, Sebastopol satisfied its burden of demonstrating a public

interest in nondisclosure that clearly outweighs the public interest in

disclosure on the facts of this particular case, according deference to

any express or implied factual findings of the superior court supported

by substantial evidence. Sacramento County Emp.’ Retirement Sys.,

195 Cal. App. 4th at 467.

“If the records sought pertain to the conduct of the people’s

business there is a public interest in disclosure. The weight of that

interest is proportionate to the gravity of governmental tasks sought to

be illuminated and the directness with which the disclosure will serve

to illuminate.” Connell v. Superior Court (1997 Ct. App. Dist. 3) 56

Cal. App. 4th 601, 616, quoting Citizens for a Better Env. v.

Department of Food & Agri. (1985) 171 Cal. App. 3d 704, 715. The

issue is “whether disclosure would contribute significantly to public

understanding of government activities.” City of San Jose, 74 Cal.

App. 4th at 1018.

In enacting the CPRA, the Legislature was “mindful of the right

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of individuals to privacy.” International Fed’n of Prof’l and Technical

Eng’rs v. Superior Court (2007) 42 Cal. 4th 319, 329; § 6250. To

evaluate whether any privacy interest exists in the particular case, this

Court examines whether a legally protected privacy interest exists and

whether there is a reasonable expectation of privacy under the

circumstances. Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.

4th 1, 39-40. The party claiming a violation of the right of privacy

must establish: 1. a legally protected privacy interest; 2. a reasonable

expectation of privacy under the circumstances; and 3. a serious

invasion of the privacy interest. International Fed’n of Prof’l and

Technical Eng’rs, 42 Cal. 4th at 338, citing Hill, 7 Cal. 4th at 39–40.

Although Respondents’ claimed privacy interests are unclear,

Amicus will begin with the issue raised in Tracy Press, Inc.2 - whether

emails or documents possessed by City Councilmembers on their

personal devices are public records, as that seems the closest possible

interest Respondents might be claiming. Section 6252, subdivision (g)

makes it clear that emails are public records: “‘Writing’ means any

handwriting, typewriting, printing, photostating, photographing,

photocopying, transmitting by electronic mail or facsimile, and every

other means of recording upon any tangible thing any form of

communication or representation, including letters, words, pictures,

sounds, or symbols, or combinations thereof, and any record thereby

created, regardless of the manner in which the record has been stored.”

Gov. Code § 6252(g) (emphasis added).

2 Tracy Press, Inc. v. Superior Court (2008 Ct. App. Dist. 3) 164 Cal. App. 4th 1290.

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Numerous courts have concluded, in various contexts, that

persons who use email to communicate do not have any reasonable

expectation of privacy in those communications. See TGB Ins. Services

Corp. v. Superior Court (2002) 96 Cal. App. 4th 443, 450-452; United

States v. Charbonneau (1997 S. D. Ohio) 979 F. Supp. 1177, 1184 (“an

e-mail message, like a letter, cannot be afforded a reasonable

expectation of privacy once that message is received”).

This Court has held that disclosing the content of emails, at least

insofar as the emails were shorn of information revealing the parties’

email addresses, would not offend any legally protected privacy interest

of the parties. See City of San Jose, 74 Cal. App. 4th at 1023. After an

email is sent, the sender has no control over its distribution. Unless the

sender works for Wikileaks or Google or is a hacker, he or she usually

cannot determine whether anyone has received the message, the

number or identity of persons that have accessed the message, the

location at which the message was received, or whether the recipient

has forwarded the message to others. See United States v. Heckenkamp

(2007 9th Cir.) 482 F.3d 1142, 1146; American Libraries Ass’n v.

Pataki (S.D.N.Y.1997) 969 F. Supp. 160, 167; McDonald,

Dissemination of Harmful Matter to Minors Over the Internet (2001)

12 Seton Hall Const. L.J. 163, 165-169. There is minimal privacy

interest in these emails to be balanced against the public interests of

disclosure.

4. Burdens of Production

The trial court in its Order failed to describe what he termed

“excessive” burden. Here, as in State Board of Equalization, “the

21

public interest in disclosure is substantial, the manifest public interest

in the avoidance of secret law and a correlative interest in the

disclosure of an agency’s” governance and the public’s business. State

Bd. of Equalization, 10 Cal. App. 4th at 1190.

Also similar to State Board of Equalization, the City overstates

the burden of finding the requested public records. As this Court

explained in State Board of Equalization, to the extent the public entity

complains of staff inconvenience and expense, the burden is

sufficiently alleviated by retaining outside experts in these matters to

perform the task and by the fact that the requester will pay the attendant

costs. See id. “There is nothing in the Public Records Act to suggest

that a records request must impose no burden on the government

agency.” Id. at 1190 n.14 (emphasis in original), citing Northern Cal.

Police Prac. Project v. Craig (1979 Ct. App. Dist. 3) 90 Cal. App. 3d

116, 124. “The Public Records Act contemplates there will be some

burden in complying with a records request, the only question being (in

the case of nonexempt material) whether the burden is so onerous as to

clearly outweigh the public interest in disclosure.” State Bd. of

Equalization, 10 Cal. App. 4th at 1190 n.14. Though a public entity

such as Sebastopol should have in place policies and guidelines on how

to comply with a CPRA request, Mr. Rouda attempted to alleviate any

supposed burden on Sebastopol - he not only suggested a data

collection company, he offered to pay for all attendant costs.

5. The California Constitution

Leaving aside the CPRA, and any balancing tests, Prop. 59

would compel disclosure. The analysis under Article I, § 3(b) is

22

simple: 1. are the emails “writings”? The answer is clearly yes; 2. are

council members “public officials”? yes again; 3. the emails therefore

must be disclosed. How they were created and transmitted over the

internet, the ownership of the computer and email account, are

appropriately irrelevant under Article I, § 3(b). To withhold city-

business emails created or received on personal computers is to

effectively gut the CPRA and the FOIA. To allow this to stand would

amount to an open invitation for city officials and employees to

conduct business in the shadows.3

D. City Business-related Information in the Computers of City Employees and Councilmembers are Public Records The trial court erred in ruling that the emails on the personal

computers of City employees and Councilmembers are not public

records.

This Court in Tracy Press Inc. was presented with the issue of

whether emails in a city councilmember’s personal possession were

public records subject to production, but did not resolve the issue due

to the panel’s decision that an indispensable party was not named to the

Petition before the panel.

3 Former Alaska Governor Sarah Palin, for instance, kept six email accounts while she was the governor: one for public contact; one for internal state business; one for anything confidential; and three others for a mix of state and personal business. In September 2008, the Anchorage Daily News reported that Palin routinely used a Yahoo email account labeled “personal” or “private” to conduct state business. Because Alaska doesn’t archive the private Yahoo accounts of public officials, such “private or confidential” emails would escape public records requests. State business was also conducted on another supposed “personal” email account, sp@hslak.com.

23

Respondents’ first point in their Response below is that none of

the information or data on the personal computers of the thirty-four

“private” individuals are public records. Response at 20, ll. 15-16. To

use the word “private” to describe the people named in the Petition

below is completely inappropriate and a red herring since Petitioner

only named individuals whom she believed based upon the limited

information she had prior to filing of the Petition conducted City

business - i.e. City employees or Councilmembers - and who may

possess public records. Respondents were attempting to paint a false

picture of Petitioners requesting personal information from private

individuals, then claiming with post hoc reasoning that the Petition is

frivolous on its face. Miss Bertoli clearly had requested only public

records. Also, each of the individuals listed were either City

employees, contractors or councilmembers, not as the City tried to

imprint on Judge Tansil - “private” individuals who had nothing to do

with City business.

The City then makes the baseless argument that: “A document or

record solely in the possession of a city council member is not a writing

‘prepared, owned, used or retained by any state or local agency.’”

(Response at 27, ll. 22-23) The City continued: “A City Council

member is just not, by definition, a ‘local agency’ and is not subject to

a PRA request.” (Response at 27, ll. 23-24)

Contrary to the City’s flawed arguments, the CPRA provides:

“‘Local agency’ includes a county; city, whether general law or

chartered; city and county . . . or any board, commission or agency

thereof; other local public agency; or entities that are legislative bodies

24

of a local agency . . . .” Gov. Code § 6252(a).

The CPRA provides that: “‘Public records’ includes any writing

containing information relating to the conduct of the public’s business

prepared, owned, used, or retained by any state or local agency

regardless of physical form or characteristics.” Gov. Code § 6252(e).

The definition is broad and is “intended to cover every conceivable

kind of record that is involved in the governmental process and will

pertain to any new form of record-keeping instrument as it is

developed.” San Gabriel Tribune v. Superior Court (1983 Ct. App.

Dist. 2) 143 Cal. App. 3d 762, 774, quoting 58 Ops. Atty. Gen. 629,

633-634 (1975).

Under the CPRA, “‘Writing’ means any handwriting, typewriting,

printing, photostating, photographing, photocopying, transmitting by

electronic mail or facsimile, and every other means of recording upon

any tangible thing any form of communication or representation . . . .

regardless of the manner in which the record has been stored.” Gov.

Code § 6252(g).

A city is a “local agency,” and each city of this state is governed

by an elected government body - a city council - which establishes

municipal policy and enacts and implements local ordinances. Gov.

Code § 36501. Government Code Section 36501 provides that:

The government of a general law city is vested in: (a) A city council of at least five members. (b) A city clerk. (c) A city treasurer. (d) A chief of police. (e) A fire chief.

25

(f) Any subordinate officers or employees provided by law.

Gov. Code § 36501. A city council clearly as the governing/legislative

body of the city is a “local agency” subject to the CPRA. Gov. Code §

6252(a); see also Azusa Land Partners v. Department of Indus.

Relations (2010 Ct. App. Dist. 2) 191 Cal. App. 4th 1, 24 (“the city

council is the City’s legislative body”). The courts have long

recognized that all documents created in the transaction of the public’s

business are public records.

The City, an intangible legal creation, can only legislate through

its City Council, and the City Council as a whole - an inanimate body -

can only act through its individual members; thus, a government

agency can only act through its representatives.

This Court explained in Tracy Press, Inc. that if the city

councilmember had emailed from the City’s offices, discussing City

business, “it is undeniable that the records would be ‘public records’

that must be produced.” Tracy Press, Inc. v. Superior Court (2008 Ct.

App. Dist. 3) 164 Cal. App. 4th 1290, 1293, 1300. Although the Tracy

Press Court declined to make a ruling as to whether Tucker’s e-mails

sent without using the City’s resources but discussing the City’s

business are “public records,” it seemed to hint that had Tracy Press

named the city councilmember to the petition before the Court of

Appeal, it would have made a determination on the merits and rule that

the records were public records. The panel explained: “Were we to

find that the e-mails in Tucker’s personal possession were public

records subject to production under Tracy Press’s request, that finding

would conflict with the order of the superior court. As to the City, our

26

order would supersede the superior court’s order, but not as to Tucker.”

Id. at 1301 (emphasis added). E. The Trial Court Erred in Ruling that Petitioners’ Petition was Clearly Frivolous

The City’s attorneys began their Response below by attacking

Petitioner Bertoli’s attorney by describing the public records requests

as “improper, baseless, ‘scorched earth’ massive invasion of privacy

and horrendous waste of precious City resources.” The Response

further stated that Mr. Rouda “has proven to be untrustworthy,”

“cannot be trusted with this information,” “cannot be trusted to

accurately represent facts or abide by the rules of professional ethics,”

and “cannot be trusted.” The information Mr. Rouda supposedly

“cannot be trusted with” was the “confidential, private, privileged”

information contained in employees’ computers, and his representation

of Petitioner Bertoli “borders on irrational obsession.”

The City’s post hoc reasoning should be rejected by this Court:

the City’s attorneys argued that, because Petitioner named individuals

to her Petition who performed City business on their personal

computers, her Petition must have targeted personal information, so it

must have been frivolous. See R.P. ex rel. C.P. v. Prescott Unified Sch.

Dist. (2011 9th Cir.) 631 F.3d 1117, 1126, citing EEOC v. Bruno’s

Restaurant, 13 F.3d 285, 287 (9th Cir.1993) (“We’ve cautioned that ‘a

district court [should] resist ... engag[ing] in post hoc reasoning by

concluding that, because a plaintiff did not ultimately prevail, his action

must have been unreasonable or without foundation.’”)

The level of personal character attacks against Petitioner’s

27

attorney clearly violates the ethics rules governing attorneys, and the

amount of inaccuracies contained in the Response is astonishing, and,

as Mr. Rouda explained during oral arguments to the trial court:

“shocking.” “Although counsel have broad discretion in discussing the

legal and factual merits of a case, it is improper to misstate the law or

to resort to personal attacks on the integrity of opposing counsel.”

People v. Spector (May 2, 2011 Ct. App. Dist. 2) No. B216425, 194

Cal. App. 4th 1335, 2011 WL 1632037, at *46 (citations omitted),

quoting People v. Bell (1989) 49 Cal.3d 502, 538. Amicus can only

compare this injustice to baseless absurd rumors such as the falsity that

President Obama is not a U.S. citizen, which he was reluctant to

address but ultimately released his long-form birth certificate to put the

issue to rest.

The City’s attorneys’ character assassination of Petitioner’s

attorney was improper. “[I]t is vital to the integrity of our adversary

legal process that attorneys strive to maintain the highest standards of

ethics, civility, and professionalism in the practice of law. Indeed,

unwarranted personal attacks on the character or motives of the

opposing party, counsel, or witnesses are inappropriate and may

constitute misconduct.” In re Ross (2009 Ct. App. Dist. 3) 170 Cal.

App. 4th 1490, 1514 (citations and internal quotation marks omitted)

quoting In re S.C. (2006 Ct. App. Dist. 3) 138 Cal.App.4th 396, 412;

see also Saks v. Parilla, Hubbard & Militzok (1998 Ct. App. Dist. 4) 67

Cal. App. 4th 565, 567 n.3 (“The name-calling, accusations of criminal

conduct, and pernicious character assassinations are offensive not only

28

because they are indecorous and unprofessional, but because they are

completely unrelated to the legal issue presented.”)

Prior to filing the Petition, Petitioner Bertoli made numerous

CPRA requests to the City for information on the location and

custodians of responsive emails, but in violation of Section 6253(a), the

City refused to inform Petitioner Bertoli of the number, location and

the names of the custodians possessing computers on which responsive

city business-related emails were stored. It was not until May 31, 2011

that the City served its Response to the Petition below in which it

finally provided information to Petitioner Bertoli on the number,

location and the names of the custodians of computers on which

responsive city business-related emails might be stored.

Petitioner Bertoli named all known city departments and

individuals who she thought would have such public records on the

Petition.4 Petitioner was not informed prior to filing her Petition that

City Councilmembers were not provided computers by the City to

conduct city council business, but that instead, Councilmembers

used/use their own computers to conduct City Council business,

including composing and receiving emails. Though the Response

provided this information to Petitioners for the first time,

Respondents’ counsels twisted the truth by claiming that Petitioners

4 This Court in Tracy Press, Inc., 164 Cal. App. 4th at 1293, 1302-03, dismissed the petition due to petitioner’s failure to name Suzanne Tucker, the city councilmember from whom the newspaper sought records, ruling that she was an indispensable party.

29

named the individuals to the Petition as part of a “scorched earth” tactic

of an attorney who “knows no bounds to unbridled aggression.”

The truth is that Petitioner’s counsel filed the Petition without

the knowledge that those emails were located in some cases only on

personal computers. It is curious that Respondents’ counsels painted

Mr. Rouda as an overly eager advocate by seeking supposedly

“private” information when Mr. Rouda had no knowledge prior to

Respondents’ filing of the Response that Councilmembers conduct

their ENTIRE City Council business on personal computers, and when

he only made the public records requests to the City. Petitioner’s

counsel only named individuals to the Petition for Writ of Mandate

because he was concerned that if he didn’t name everyone, his Petition

might be dismissed under Tracy Press, Inc. for failure to name

indispensable parties.

It is clear that at least some of those personal computers contain

public records since Councilmembers are not provided City computers

- so it stands to reason that their “personal” computers contain public

records created when they conducted City Council business on their

“personal” computers. It is not clear by the councilmembers’

declarations that they actually conducted any search of their “personal”

computers for emails responsive to Petitioners’ requested search terms,

since they merely stated: “To the best of my knowledge” no responsive

emails exist. It is humanly impossible for City Councilmembers to

remember each and every email they might have received related to

their city duties over a period of years. Pursuant to the CPRA and the

California Constitution, they were required to conduct a search of their

30

emails, prior to the Petition having to be filed before providing a

conclusory statement as support for the Response to the Petition that

“to the best of my knowledge,” no responsive emails exist.

Respondents argued without supporting law that since Petitioner

only served the public records requests on the City, naming the

individuals on the Petition was “frivolous on its face as to each of the

34 individuals.” (Response at 2, ll. 21-28) First, as explained above,

Miss Bertoli served her requests only on the City; the individuals were

named to the Petition below because Mr. Rouda did not want the case

to be dismissed for failure to name indispensable parties.

Second, under the CPRA, the City, as a local agency, has the duty

upon receipt of appropriate requests to provide persons with access to

its public records for inspection and/or copying. Gov. Code §§ 6252,

subd. (b), 6253, subds. (a), (b). The CPRA does not require a requester

to name a particular department or employee or councilmember. It is

the duty of the city to comply with the CPRA’s disclosure requirements

regardless of the fact it has many departments, divisions, or other

components and that its many departments, divisions and components

are staffed by human individuals.

Accordingly, when a city receives an appropriate request for

disclosure of public records, it is the city’s duty to ensure that it

provides prompt disclosure of responsive public records through one of

its “humans” regardless of the fact that those responsive public records

may be kept or maintained by one or more of its departments, divisions,

or other components. The CPRA does not, either expressly or

implicitly, permit a local agency to shirk or otherwise avoid its duty of

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full and prompt disclosure of its nonexempt public records by adopting

procedures or practices that require persons to make separate CPRA

requests of each local agency department or division or employee or

councilmember that/who may have responsive public records.

This interpretation of the CPRA is supported by section 6253(c),

which defines the unusual circumstances when a time extension for

compliance is permitted. “Unusual circumstances” include: (1) the need

for an agency to search for and collect the requested public records

from its field facilities separate from the office of the agency

processing the request; and (2) the need for consultation with two or

more components of the agency. Gov. Code § 6253(c)(1), (3).

It is implicit within those provisions that a local agency, on

receipt of a public records request, may find it necessary to contact and

consult with its various components, departments and divisions to

comply with its duty to disclose nonexempt public records responsive

to the request. It is also implicit that the disclosing would be through

one or several of the “humans” since our computers have not as far as

this writer knows reached a level of cognizance and autonomy equaling

human brains in deciding which documents to produce.

It would be unreasonable to expect a requester to know precisely

to which individuals to send a particular public request. The CPRA

does not require a person such as Petitioner Bertoli to make a separate

CPRA request of each component, individual, field facility, or other

department of a local agency in order to obtain disclosure of that local

agency’s responsive public records. See State Bd. of Equalization, 10

32

Cal. App. 4th at 1186 n.95

Furthermore, if a local agency were permitted to require a person

to make separate CPRA requests of each department, division, or other

component that may keep or maintain responsive public records, that

person usually will not be in as good a position as the local agency to

determine which of those components may keep or maintain those

records (or even which components exist). See California Attorney

General’s Office of Summary of the Public Records Act (2004) p. 3-4

(“In order to invoke the CPRA, the request for records must be both

specific and focused. The requirement of clarity must be tempered by

the reality that a requester, having no access to agency files or their

scheme of organization, may be unable to precisely identify the

documents sought. . . . To the extent reasonable, agencies are generally

required to assist members of the public in making focused and

effective requests for identifiable records.)

The City even supports this logical interpretation by stating in

the Response: “Departments are not separate legal entities, and the

City’s Response should be deemed a response for the Departments, to

the extent required.” Response at 1 n.1, ll. 27-28. It simply defies

5 “Associated’s request for ‘all records maintained by the Principal Auditor’s Office regarding the history and current interpretation of Sales and Use Tax Regulations 1660 and 1667’ describes identifiable records (i.e., can be located with reasonable effort) within the meaning of sections 6256 and 6257. … For that reason we reject the Board’s assertion that Associated’s request, to be sufficiently specific, must reference individual documents by date, author and subject matter. Associated need not have provided the Board with ‘a complete description down to the last detail of title and file number.’ (citation) It would be impossible for Associated to be so specific unless it possessed a document index, which the Board refuses to provide. By this ploy, the Board would place Associated into a classic ‘Catch-22’ situation.”

33

logic that the City’s attorneys can argue that Miss Bertoli should have

served the individuals with the public records requests (when she was

operating with limited information), yet tell the court that their law firm

was representing the “various departments within the City” since

“Departments are not separate legal entities.”

If a local agency were to require a person to make separate

CPRA requests to each department, component, employee, etc., that

requirement would violate the CPRA’s prohibition against any delay or

obstruction of disclosure of that agency’s public records. Gov. Code §

6253, subd. (d).

The trial court erred in accepting Respondent’s faulty definition

of “1ocal agency” as requiring the requester to send individual public

records requests to individuals and particular departments. Res-

pondents’ construction goes against the requirement that courts broadly

construe the public’s right of access, a construction now mandated by

the California Constitution. Art. 1,§ 3(b)(2); BRV, Inc. v. Superior

Court (2006 Ct. App. Dist. 3)143 Cal. App. 4th 742, 750. D. The City of Sebastopol Failed to Comply with Government Code Section 6255 which Requires the Agency to Justify Withholding Any Record by Demonstrating that the Record is Exempt The CPRA provides: “The agency shall justify withholding any

record by demonstrating that the record in question is exempt under

express provisions of this chapter or that on the facts of the particular

case the public interest served by not disclosing the record clearly

outweighs the public interest served by disclosure of the record.” Gov.

34

Code Section 6255(a); San Diego County Emp. Retirement Ass'n, 2011

WL 2535585, at *4.

Sebastopol objected to several of Miss Bertoli’s public records

requests, including: 1. that many of the requests were overly extensive

and overbroad; 2. that because Sebastopol does not keep specific files

on Healdsburg Avenue or the intersection, it had “no way to identify

documents” relating to the request; 3. that many requests “would

require City employees to expend hundreds of hours reviewing

hundreds of project files”; and 4. that the “requests have required

numerous City departments to search their entire catalog of records.”

None of those objections were made in accordance with Section

6255(a); the City failed to demonstrate that the records in question were

exempt under express provisions of the CPRA or that the public

interest in nondisclosure clearly outweighed the public interest served

by disclosure of the record. Gov. Code § 6255(a).

Because of those objections, Mr. Rouda suggested ways for

Sebastopol to comply with the public records requests; for instance,

Mr. Rouda suggested certain search terms to determine which

documents should be produced, and suggested that the City could use a

data collection and extraction company such as TERIS if it did not have

the capability to keep up with technological advances. Petitioner

Bertoli only resorted to filing the Petition in superior court because

Sebastopol simply refused to conduct the search and refused to produce

the requested documents.

Sebastopol failed to comply with Section 6255, which provides

that when a public agency denies a request for disclosure, it is required

35

to provide the requestor with a written denial and to justify its

determination that the record is exempt or otherwise should not be

disclosed. Gov. Code, § 6255.

It wasn’t until they filed the Response that Respondents claimed

production would have violated the privacy of the employees and

Councilmembers and provided Petitioners with the particular

exemption subsections in Government Code 6254 which they claimed

applied to justify the refusal to produce public records. Response at 24,

ll. 2-16. It was Sebastopol’s burden to identify those exemptions,

which it failed to do prior to Mr. Rouda filing the Petition for Petitioner

Bertoli. Petitioners could not have possibly “disregarded” the

exemptions since they were never informed prior to filing the Petition

which exemptions Sebastopol claimed applied to justify their

withholding of production of the requested documents.

The trial judge ruled erroneously since it is clear that at least

some if not all of the named individuals possessed and possess public

records on their personal computers, and the CPRA does not require a

requester to serve a public records request on any individual in

particular or a department in particular. F. Trial Court Erred in Awarding of Attorney Fees to the City 1. Petitioner’s Case was Not Clearly Frivolous

Petitioner Bertoli’s case was not frivolous, and certainly not

clearly frivolous. Petitioner Bertoli sought public records from

Sebastopol - not private exempt information, as the City’s counsels

tried to obfuscate the real issues with foggy, deceptive and post hoc

36

reasoning. If allowed to stand, the trial court’s ruling would have a

chilling effect on both individual and media requesters in the future.

The CPRA is entirely dependent on private enforcement and is

utilized by individuals and news media, including small newspapers

and bloggers. If every enforcement action puts someone at risk of

having to pay the public agency’s attorney fees, then no CPRA petition

would ever be filed. That would completely defeat the policies

underlying the public records laws.

This Court held that the Tracy Press petition was not clearly

frivolous. Tracy Press, Inc., 164 Cal. App. 4th at 1302. This Court

explained that if the city councilmember had emailed from the City’s

offices, discussing City business, “it is undeniable that the records

would be ‘public records’ that must be produced.” Id. at 1293, 1300.

Although the Tracy Press Court declined to make a ruling as to

whether City Councilmember Tucker’s personal e-mails sent without

using the City’s resources but discussing the City’s business are “public

records,” it seemed to hint that had Tracy Press named the city

councilmember to the petition before the Court of Appeal, it would

have made a determination on the merits and rule that the records were

public records.

The panel explained: “Were we to find that the e-mails in

Tucker’s personal possession were public records subject to production

under Tracy Press’s request, that finding would conflict with the order

of the superior court. As to the City, our order would supersede the

superior court's order, but not as to Tucker.” Id. at 1301 (emphasis

added); cf. Mechling v. City of Monroe (2009 Ct. App. Div. 1) 152

37

Wash. App. 830, 843-844 (email messages of public officials or

employees are subject to a public records request under the Public

Disclosure Act if the emails contain information related to the conduct

of government); cf. O’Neill v. City of Shoreline (2010) 170 Wash. 2d

138, 141 (court had to consider whether metadata is a public record that

must be disclosed under the Public Records Act, a matter of first

impression before the court; it affirmed the Court of Appeals and held

that metadata associated with public records is subject to disclosure

under the PRA).

The Tracy Press, Inc. Court explained that Tracy Press’s case

was not frivolous: “Although this proceeding was doomed from the

beginning by Tracy Press’s failure to name Suzanne Tucker as a party,

the petition attempted to raise an important and novel issue concerning

whether writings in the sole possession of a city council member are

‘prepared, owned, used, or retained by any state or local agency’ (Gov.

Code, § 6252, subd. (e)) and are therefore subject to a public records

request under the Public Records Act and the California Constitution.

The participation of amici curiae attests to the importance of the issue.

We therefore conclude that this proceeding is not clearly frivolous.”

Tracy Press, Inc., 164 Cal. App. 4th at 1302.

In Rogers v. Superior Court (1993 Ct. App. Dist. 2) 19 Cal. App.

4th 469, 484, this Court found that though the petitioner’s case was

unmeritorious, it was not clearly frivolous. Id. at 484. The Court of

Appeal stated that “it is certainly not frivolous” and found that the trial

court abused its discretion in awarding costs to the City in an amount to

be determined later. Id. at 483. This Court explained: “Although we

38

have found petitioner’s case to be unmeritorious, it is certainly not

frivolous. Accordingly, respondent court erred in awarding costs to the

City.” Id. at 484.

Thus, even if this Court finds that Petitioner Bertoli’s Petition

below was unmeritorious, it cannot find that it was clearly frivolous.6

In cases not involving the CPRA, “frivolous,” as applied to

litigation, has been held to mean that any reasonable attorney would

agree that the case lacked merit, or that it was subjectively intended

only to harass an opponent. See In re Marriage of Flaherty (1982) 31

Cal. 3d 637, 650 (“An appeal should be held to be frivolous only when

it is prosecuted for an improper motive - to harass the respondent or

delay the effect of an adverse judgment - or when it indisputably has no

merit - when any reasonable attorney would agree that the appeal is

totally and completely without merit.”); Freeman v. Sullivant (2011 Ct.

App. Dist. 2) 192 Cal. App. 4th 523, 530 (“A civil appeal is frivolous

only when it is prosecuted to harass the respondent or delay the effect

6 Petitioners have found only two Court of Appeal cases, one of which is unpublished, where the Court of Appeals affirmed a trial court’s award of attorney fees to the government in a CPRA case. Those cases are distinguishable. In Butt v. City of Richmond (1996 Dist. 1) 44 Cal. App. 4th 925, 929, this Court explained that the requester’s petition was denied because of his failure to allow the government the requisite 10 days to determine whether to comply with his request. Here, Petitioners waited over a year from the time she first made the requests before filing the Petition below. In the other case, this Court explained that the requester persisted in the litigation well after receipt of the requested information, and that her petition lacked any arguable merit. This Court, however, remanded the case to the trial court holding that the trial court must determine the ability of the requester to pay the attorney fees. Here, Petitioners have not received the requested documents - the City didn’t even perform searches of their computers to determine if responsive documents exist.

39

of an adverse judgment, or when any reasonable attorney would agree

that the appeal is totally and completely without merit. However, an

appeal that is without merit is not by definition frivolous and should not

incur sanctions.”) 2. This Court Must Consider Petitioner’s Ability to Pay Attorney Fee Award The rules that attorney fees not be awarded against an

unsuccessful plaintiff except in a limited number of cases, and then

only in an amount that does not go beyond the plaintiff’s ability to pay,

derive from a policy of protecting litigants’ ability to vindicate their

rights.

As Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil

& Shapiro (2001 Ct. App. Dist. 2) 91 Cal. App. 4th 859 noted in the

context of civil rights litigation, there is a strong equitable

consideration to keep in mind in an award of legal fees to a prevailing

defendant: a plaintiff is the instrument for the vindication of the public

policy underlying the civil rights laws. Id. at 865. As a result, a trial

court has a nonforfeitable duty to make express written findings on the

ability of a plaintiff to pay an award of legal fees to ensure that they do

not loom as a chilling effect thwarting the public policies that underlie

the statutes by subjecting the plaintiff to the threat of “financial ruin.”

Id. at 868 & n.42; Seever v. Copley Press, Inc. (2006 Ct. App. Dist. 2)

141 Cal. App. 4th 1550, 1562 (applying Rosenman to award of costs

out of concern that shifting litigation expenses to those ordinarily of

modest or low incomes ‘would unduly discourage these plaintiffs from

litigating legitimate claims’.)

40

The Rosenman Court explained: “The trial court should also

make findings as to the plaintiff’s ability to pay attorney fees, and how

large the award should be in light of the plaintiff’s financial situation.

As the Ninth Circuit Court of Appeals held in Patton v. County of

Kings (9th Cir. 1988) 857 F.2d 1379, 1382, the trial court ‘should

consider the financial resources of the plaintiff in determining the

amount of attorney’s fees to award to a prevailing defendant.’ We

wholeheartedly agree with the Ninth Circuit’s holding an award of

attorney fees ‘should not subject the plaintiff to financial ruin.’”

Rosenman, 91 Cal. App. 4th at 868 n.42.

In Villanueva v. City of Colton (2008 Ct. App. Dist. 4) 160 Cal.

App. 4th 1188, 1203–1204, another civil rights case, this Court held

that regardless of the merits of the plaintiff’s action, in ruling on the

defendants’ request for attorney fees, the court must consider the

plaintiff’s ability to pay: “Because the majority of cases under the

FEHA involve litigants who would not have the financial means to

prosecute this type of case, the public policy behind the FEHA is

served by not discouraging them from pursuing the litigation by

potentially imposing fees that could easily devastate them financially

simply because a few file frivolous claims. Thus, a plaintiff’s ability to

pay must be considered before awarding attorney fees in favor of the

defendant.”

This Court explained in Braun v. City of Taft (1984 Ct. App.

Dist. 5) 154 Cal. App. 3d 332, 349, that “Section 6259 was enacted to

carry out the purposes of the California Public Records Act. Through

the device of awarding attorney fees, citizens can enforce its salutary

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objectives.” Braun, 154 Cal. App. 3d at 349. In Garcia v. Santana

(2009 Ct. App. Dist. 2) 174 Cal. App. 4th 464, 476–77, a landlord-

tenant matter, this Court held that the trial court may consider the

financial circumstances of the losing party in fashioning a fee award:

“In determining the amount of fees to be awarded to the prevailing

party where the statute, as here, requires that the fee be reasonable, the

trial court must therefore consider the other circumstances in the case in

performing the lodestar analysis. Those other circumstances will

include, as appropriate, the financial circumstances of the losing party

and the impact of the award on that party.” Garcia, 174 Cal. App. 4th

at 476-77.

Because the CPRA was modeled upon the FOIA, and the two

have a common purpose, federal legislative history and judicial

construction of FOIA may be used in construing CPRA. California

State Univ. v. Superior Court, 90 Cal. App. 4th 810, 823 (2001 Ct.

App. Dist. 5). The FOIA does not allow the district court to assess

against the plaintiff attorney fees; the court may only assess attorney

fees against the United States. See 5 U.S.C. § 552(a)(4)(E).

The CPRA is entirely dependent on private enforcement.

If every enforcement action puts the requester at risk for having to pay

the government’s attorney fees, then no CPRA petition would ever be

filed. It would turn the CPRA into nothing more than a mere

expression of legislative intent for the principle of open government. 3. The Legislative History of Section 6259(d) Shows that the Legislature Did Not Originally Intend to Award Attorney Fees to the Government

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The legislative history of the CPRA shows that prior to 1975, the

CPRA did not provide for attorney fees to either party. In May of

1974, Senator George Moscone introduced a bill that would have

amended the CPRA to provide that a public records requester would be

awarded attorney fees if he or she was wrongfully denied access to

open meetings or records. Exh. 3. Senator Moscone stated that the

purpose for the bill was to “close loopholes in the various open

meetings and records laws.” He also explained: “And to encourage

those who feel that government has unlawfully slammed the door in

their faces, I have amended the legislation so that those who are

wronged can collect full costs for their trouble.” Exh. 3. Senator

Moscone’s bill would not have allowed attorney fees to the public

agency.

Later that year, in December, Assemblyman Leon Ralph

introduced a bill that would also amend the CPRA; his bill would have

eliminated the exemptions from the CPRA of records of the legislature

and the courts, and certain records from the governor’s office. Exh. 4.

As first introduced in December 1974 and then amended in January

1975 and February 1975, Assemblyman Ralph’s bill did not include the

amendment providing for attorney fees. The March 1975 amendment,

however, showed that the bill would require an award of court costs

and attorney fees to a plaintiff where the court finds that records were

improperly withheld from disclosure and to the defendant when the

court finds that the plaintiff’s case was clearly frivolous. Exh. 5.

Although Governor Edmund Brown signed Senator Moscone’s

bill and it became law in 1975, because Assemblyman Ralph’s bill

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conflicted with Senator Moscone’s bill in that the senator’s bill did not

provide for attorney fees against the plaintiff, that section of Senator

Moscone’s bill did not become effective because Assemblyman

Ralph’s bill was chaptered. Exh. 6.

Our legislative research found no clues as to why Assemblyman

Ralph added the attorney fees section in the March 1975 amendment

and no clues as to what Assemblyman Ralph meant by “clearly

frivolous,” which leads to the conclusion that Assemblyman Ralph

meant the words’ usual meaning. Some of which were described

above: totally without merit; prosecuted with an improper motive;

intended only to harass.

In his September 18, 1975 letter to Governor Edmund Brown

urging him to sign the legislation, however, Assemblyman Ralph

explained that his bill would expand the provisions of the CPRA and

establish the Legislative Open Records Act. Exh. 7. Assemblyman

Ralph never even mentioned the attorney fees provision, which shows

that it wasn’t vital to him and that it was probably only added because

of having to come to an agreement with other legislators and to

accommodate concerned groups. Again, confirming that the “Act’s

core purpose is to prevent secrecy in government and contribute

significantly to the public understanding of government activities.”

San Diego County Emp. Retire. Ass’n, 2011 WL 2535585, at *9.

Given that Assemblyman Ralph was a huge proponent of civil

rights, having been active in the NAACP, CORE (Congress for Racial

Equality), and having marched in support of Dr. Martin Luther King, it

can be deduced that he would not have meant for attorney fees to be

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awarded in this case where an indigent, severely disabled teenager had

sought public records but was met with delay and obstructionist tactics.

Petitioners’ case was not clearly frivolous.

IV. Conclusion

CalAware respectfully requests that this Court issue a writ of

mandate directing the Superior Court to vacate its ruling in this matter

and grant Petitioners’ Petition for Extraordinary Writ of Mandate

ordering Respondents to search for and disclose City business-related

emails and award her attorney fees and costs as the prevailing party,

including fees and costs incurred in filing this Petition. DATED: July 23, 2011 Respectfully submitted, Californians Aware By:______________________

Terry Francke, Esq. Attorneys for CalAware