Amicus Letter Brief - Newark USD v Sup Ct - Final

8/10/2019 Amicus Letter Brief - Newark USD v Sup Ct - Final

1/13


2/13

Law Offices of Kelly Aviles

First District Court of AppealRe: Amicus Letter Urging Denial of WritJanuary 9, 2015Page 2

Californians Aware is a nonpartisan, non-profit advocacy group, with a board

comprised of journalists, current and former government officers and employees, andpublic interest advocates. Its mission is to foster the improvement of, compliance with.public understanding and use of, public forum law. With that focus it tracks andsponsors selected legislation, occasionally litigates to enforce the open government laws,publishes guides to those laws, and offers training to public agencies, public employees,news organizations, and citizens statewide.

The California Newspaper Publishers Association (CNPA) is a non-profit tradeassociation representing more than 800 daily, weekly and student newspapers inCalifornia. For well over a century, CNPA has defended the First Amendment rights ofpublishers to gather and disseminate - and the public to receive - news and information.

Its members regularly use the CPRA in reporting on public agencies throughout thestate, and on the performance of public employees and the expenditure of public funds.CNPA has filed amicus curiae briefs in numerous cases in which the Supreme Court andthe Courts of Appeal have vindicated the public's and the press' right of access under theCPRA. See, e.g.,Sierra Club v. Superior Court(2013) 57 Cal.4th 157;InternationalFederation of Professional & Technical Engineers, Local 21, AFL-CIO v.Superior Court(2007) 42 Cal.4th 319;POST(2007) 42 Cal.4th 278;SacramentoCounty Employees' Retirement System v. Superior Court(2011) 195 Cal.App.4th 440;County of Santa Clara v. Superior Court(2008) 170 Cal.App.4th 1301.

Los Angeles Times Communications LLC ("The Times"), is a wholly owned

subsidiary of Tribune Publishing Company, LLC, which in turn is a wholly ownedsubsidiary of Tribune Company. It is the publisher of the Los Angeles Times, the largestmetropolitan daily newspaper circulated in California. The Times also publishes throughTimes Community News, a division of the Los Angeles Times, the Daily Pilot, CoastlinePilot, Glendale News-Press, The Burbank Leader, Huntington Beach Independent, andthe La Canada Valley Sun, and maintains the website www.latimes.com, a leadingsource of national and international news. The Times regularly relies on the CPRA for itsreporting on state and local government agencies, and it has successfully litigatednumerous CPRA cases. See, e.g., Commission on Peace Officer Standards& Training v. Superior Court(2007) 42 Cal.4th 278;Los Angeles TimesCommunications v. Alameda Corridor Transportation Authority(2001) 88 Cal. App.4th 1381.

The Sacramento Bee is a division of McClatchy Newspapers, Inc., a wholly-ownedsubsidiary of The McClatchy Company. The flagship newspaper of The McClatchyCompany and the largest paper in the region, The Sacramento Bee was awarded its firstPulitzer Prize in 1935 for Public Service. Since that time, The Bee has won numerousawards, including four more Pulitzer Prizes, the most recent for feature photography in2007.


3/13



The Los Angeles News Group operates nine daily newspapers and associated

websites in Southern California, including its flagship newspaper the Los Angeles DailyNews. The Los Angeles News Group is owned by Digital First Media, the nations secondlargest newspaper company and one of the largest providers of digital news andinformation in the U.S. The Los Angeles News Group is managed by the CaliforniaNewspapers Partnership, majority owned by MediaNews Group along with partnersStephens Media and Gannett, Inc. CNP is the largest publisher of daily newspapers inCalifornia. CNP publishes 30 daily newspapers and associated websites, and over 50weekly publications. The Los Angeles News Group routinely relies upon the CaliforniaPublic Records Act in its reporting and has successfully litigated numerous cases

STATION VENTURE OPERATIONS, LP d/b/a KNSD NBC 7 San Diego (NBC7)

is an NBCUniversal owned and operated television station that has provided continuouslocal news coverage of the San Diego market for fifty years. NBC7 broadcasts more thanthirty three hours of locally produced newscasts each week. The stations websitereaches more than two million unique users each month. NBC7 regularly relies on theCPRA for its reporting on state and local government agencies. NBC7 has receivednumerous awards for journalism, including a recent Edward R. Murrow award andnumerous regional Emmy awards for news coverage.

KFMB CBS 8 San Diegois a CBS affiliate, providing news coverage in the SanDiego market for 65 years. CBS 8 regularly uses the California Public Records Act in thecourse of its reporting on local and state issues.

inewsource is an independent nonprofit dedicated to satisfying a need forcredible, in-depth, data-driven journalism. Teaching, training and mentoring at SanDiego State Universitys School of Journalism and Media Studies, where inewsource isbased, is a dual priority. Its primary partner is KPBS, public media in San Diego, whichdistributes all inewsource reports on television, radio and the web, reaching 1.4 millionpeople a week. inewsource is a member of the Institute for Nonprofit News (formerlythe Investigative News Network) and collaborates with other nonprofit investigativejournalism centers across the country to ensure the broadest audience for its in-depthcontent. inewsource, which was founded in 2009 and is a 501c3, has won dozens awardsfor its investigations including two national Edward R. Murrow awards and a certificatefrom Investigative Reporters and Editors.

II. The Production of Records in Response to a CPRA RequestWaives any Privilege or Exemption That May Have PreviouslyExisted

In 1968, the Legislature enacted the CPRA "for the purpose of increasing freedomof information by giving members of the public access to information in the possession


4/13



of public agencies." CBS, Inc. v. Block(1986) 42 Cal.3d 646, 651. The CPRA declares

that access to information concerning the conduct of the people's business is afundamental and necessary right of every person in this state. (Gov. Code 6250.)

As we have observed in the context of the public's right of access to courtproceedings and documents, public access makes it possible for membersof the public to expose corruption, incompetence, inefficiency, prejudice,and favoritism.

International Federation of Professional and Technical Engineers, Local 21, AFL-CIOv. Superior Court(2007) 42 Cal.4th 319, 333.

In addition to the broad mandates of the CPRA, in 2004, voters overwhelmingpassed Proposition 59, which amended the California Constitution, Article I, Section 3,to guarantee the publics right of access to information concerning the conduct of thepeoples business and to ensure that any provision of law that limits the peoples right ofaccess is narrowly construed. A statuteshall be broadly construed if it furthers thepeoples right of access, and narrowly construed if it limits the right of access.(California Constitution, Art. I, 3(b).)

In order to ensure that all members of the public and media have equal access topublic records, the Legislature included an explicit waiver provision in the CPRA,ensuring that disclosure to one is disclosure to all.

Notwithstanding any other provisions of the law, whenever a state or localagency discloses a public record which is otherwise exempt from thischapter, to any member of the public, this disclosure shall constitute awaiver of the exemptions specified in Sections 6254, 6254.7, or other similarprovisions of law. For purposes of this section, "agency" includes a member,agent, officer, or employee of the agency acting within the scope of his orher membership, agency, office, or employment.

(Govt. Code, 6254.5; Waiver Provision.)

The CPRA also includes a number of express exceptions to its Waiver Provision,ranging from fairly general (Govt. Code, 6254.5 (a) [exempting disclosure made duringthe course of discovery proceedings]) to quite obscure (Govt. Code, 6254.5(i)[exempting records relating to persons subject to the jurisdiction of the Department ofManaged Health Care, for the purposes of corrective action or investigation].) TheLegislature thus knew how to create exceptions to the Waiver Provision. Yet,inadvertent disclosure does not appear anywhere in the nine exceptions.

As the District recognizes in its Petition, but fails to apply here, the canon of


5/13



statutory construction, expressio unius est exclusio alterius (the expression of certain

things in a statute necessarily involves exclusion of other things not expressed) dictatesthat inadvertent disclosure may not be read into a statute in which the Legislaturedeclined to insert it. (Petition at 21.) Additionally, when the CPRA Waiver Provision isjuxtaposed with the CPRAs catch-all exemption, Gov.t Code, 6255, it is clear that theLegislature chose to give the courts the power to analyze factual situations requiringwithholding of records, even where a specific exemption was not already enumerated.Conversely, the Legislature chose not to make a similar catch-all exception to the WaiverProvision. It follows that the Legislature did not intend for inadvertent disclosure to actas an exception to the Waiver Provision.

Even before the enactment of the CPRAs waiver provision, courts recognized that

the CPRAs fundamental purpose of public inspection barred selective disclosure. InBlack Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 656-57, the Court concluded:

The term public inspection necessarily implies general, nonselectivedisclosure. It implies that public officials may not favor one citizen withdisclosures denied to another. When a record loses its exempt status andbecomes available for public inspection, section 6253, subdivision (a),endows every citizenwith a right to inspect it. By force of these provisions,records are completely public or completely confidential. The PublicRecords Act denies public officials any power to pick and choose therecipients of disclosure. When defendants elect to supply copies of

complaints to collection agencies, the complaints become public recordsavailable for public inspection.

(Emphasis in original; reference to footnote omitted).

The District makes a number of untenable arguments as to why the WaiverProvision is not applicable to the current situation. They are all without merit ascontrary to the plain meaning of the statute and public policy. Moreover, such aninterpretation would violate the constitutional mandate to broadly construe statutesthat further the peoples right of access, and narrowly construe those statutes whichlimit the right of access. (Cal. Const., Art. I, 3(b).)

Contrary to the Districts argument, the Waiver Provision is no less applicable torecords the District claims are exempt under Government Code, section 6255,commonly referred to as the catch-all exemption. As the trial court correctly noted,the CPRA Waiver Provision expressly provides that waiver occurs whenever a stateor local agency discloses a public record which is otherwise exempt fromthis chapter Clearly, the District is claiming that the documents are exemptpursuant to this chapter (meaning the CPRA.) Additionally, the CPRA WaiverProvision waives the exemptions specified in Sections 6254, 6254.7, or other similar


6/13



provisions of law. The catch-all exemption is clearly a similar provision that,

contrary to the Districts argument, must be interpreted broadly in favor of access underArticle I, Section 3(b) of the California Constitution.

In any case, the records the District inadvertently disclosed do not fall under thecatch-all exemption. The District claims they are attorney-client privileged and subjectto the work product doctrine. Government Code, section 6254(k) exempts fromdisclosure [r]ecords, the disclosure of which is exempted or prohibited pursuant tofederal or state law, including, but not limited to, provisions of the Evidence Coderelating to privilege. The exemption provided in subdivision (k) of section 6254 is notan independent exemption at all; it simply incorporates other exemptions orprohibitions provided by law. Cook v. Craig (1976) 55 Cal.App.3d 773, 783.

The catch-all exemption serves an important purpose in the CPRA. An agencymay withhold public records where it can justify withholding any record bydemonstrating that the record in question is exempt under express provisions of thischapter ORthat on the facts of the particular case the public interest served by notdisclosing the record clearly outweighs the public interest served by disclosure of therecord. (Govt. Code, 6255; emphasis added.) Therefore, if a specific situation arises,which has gone unaddressed by the vast number of express exemptions set forth in theCPRA, an agency can insteaddemonstrate that, under the particular facts, it should notbe required to disclose certain public records. However, the catch-all exemption doesnot act as alternative or back-up exemption when, as in this case, the records already fall

under one of the CPRAs enumerated exemptions.

The District next argues that because attorney Jennifer Snyder threatened toenforce her clients constitutional right via an ex parteapplication, disclosure wascompelled through legal proceedings. This stretched interpretation would lead toabsurd results. As the trial court pointed out, such a ruling would mean that anytimesomeone files a lawsuit to enforce her constitutional right to public records under theCPRA, those documents, once obtained, would not be available to the general publicbecause they were obtained through legal proceedings. This is particularly concerningin settlements of CPRA claims, where the District is sued and subsequently agrees tosettle the matter by disclosing documents. Additionally, while the record may indicatethat Jennifer Snyder (who is no longer a party to this action) threatenedto file an exparte application to compel the District to disclose the records, no such application wasever filed. Finally, Elizabeth Brazil, the only remaining party to this action, made nosuch threat. Clearly there could be no argument that the documents were disclosed toMs. Brazil through legal proceedings.

Californias Second District Court of Appeal recently dealt with a very similarissue inArdon v. City of Los Angeles (Dec. 10, 2014) 2014 WL 6968719 (Ardon.) Inthat case, the Court correctly held disclosures pursuant to the PRA that are made


7/13



inadvertently, by mistake or through excusable neglect still effect a waiver of any

claimed exemption or privilege that would otherwise attach to the production. In soholding, the Court rejected the Citys position that:

PRA requests are akin to discovery requests in litigated disputes. [The City]argues that an inadvertent production of privileged material should betreated similarly in both forums. The City claims that if documents or thingscan be recalled by the party producing them in a litigated dispute, then agovernmental agency must be permitted to erase the statutory waiver of theprivilege found insection 6254.5 and claw back documents passed alonginadvertently.

The Citys position finds no support in the statute or the legislative historythat surrounds the enactment of the PRA.

The decision was based, at least in part, on a case decided by this very Court,Masonite Corporation v. County of Mendocino Air Quality Management District(1996)42 Cal.App.4th 436.

There, Masonite sought to enjoin the district from disclosing certaindocuments to a third party under the PRA because documents it wasrequired to disclose to the district were trade secrets. AlthoughHealth andSafety Code section 44346 permits Masonite to protect its trade secrets, it

claimed it had inadvertently failed to do so and deserved relief from thewaiver. TheMasonite court agreed with the trial court that [v]oluntarydisclosure of information as a public record, even if mistaken, constitutes avalid waiver of trade secret protection. (Masonite, supra, at p. 455, 49Cal.Rptr.2d 639.)

Judge Edmon acknowledged that inMasonite,the party seeking to protectthe documents was not the party that disclosed them. She stated, Thatdistinction is of little import, however, because in this case the party seekingto invoke the privilege is also the public agency subject to the [PRA]. Ifanything, the case for waiver is only stronger[.] Masonites error was toinadvertently disclose the document to a regulator without the properdesignation. To the extent that the Citys disclosure can be construed asinadvertent, its inadvertent error was to disclose the documents to amember of the public with no legal restrictions on the manner in which thedocuments could be used. That disclosure, even if inadvertent, permanentlydestroyed any semblance of confidentiality by converting those documentsinto public records subject to disclosure to any member of the public at anytime for any reason. Based on the plain language of the statute, anyattorney-client or work product privilege that may have once existed was
http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000211&cite=CAGTS6254.5&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000213&cite=CAHSS44346&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000213&cite=CAHSS44346&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&fi=co_pp_sp_4041_455&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)%23co_pp_sp_4041_455http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996042766&pubNum=0004041&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000213&cite=CAHSS44346&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000213&cite=CAHSS44346&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000211&cite=CAGTS6254.5&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)


8/13



waived at the time of disclosure under the [PRA]. We agree.

Ardon, supra.

Additionally, the Court found that allowing the District to retrieve suchdocuments would contradict the CPRAs clear prohibition against selective disclosure.

[T]he relief sought by the City is inconsistent with the legislative history ofsection 6254.5.The City pointed out that statements by legislators and in alegislative staff report declare the purpose of the waiver was to avoidselective disclosure. The exception sought by the City would accomplishexactly that; viz., selective disclosure of the allegedly privileged documents

to Ms. Rickert but not to others.

Id.

That mandate would be especially thwarted here, should this Court grant theDistricts petition, since others have already viewed the records.

Also troubling is the Districts mischaracterization of the nature of its request tothis Court, alleging [t]his court has before it a request for an immediate review of anorder that compels the revelation of 128 pages of highly confidential communicationsbetween Petitioner and its attorney covering a range of extremely sensitive subjects.

Absent immediate intervention by this Court and correction of the Order below, vitalprivileges will be irreparably breached and violated. (Petition at 14.) Yet, this is not theprocedural posture of this case. The documents have already been disclosed tonumerous members of the public. The District citesPeople ex rel. Lockyer v. SuperiorCourt(2004) 122 Cal.App.4th 1060, 1071, where the court held that an order to produceprivileged material is reviewable by right because there is no way to undo the harmwhich consists in the very disclosure. Yet, that is exactly what the District seeks here undo that which cannot be undone.

III. The California Supreme Courts Decision in F i l a r s k y v .Su p e r i o r Co u r t Bars the Districts Action

InFilarsky v. Superior Court(2002) 28 Cal.4th 419 (Filarsky), the CaliforniaSupreme Court held that the CPRA was the exclusive procedure for litigating the issueof a public agency's obligation to disclose records to a member of the publicand [does]not authorize a public agency in possession of the records to seek a judicialdetermination regarding its duty of disclosure. Id. at 423. In that case, Steve Filarskyhad filed a CPRA request, but the city refused to disclose the requested records. Id. at422. When Filarsky informed the city of his intent to file a lawsuit to compel disclosure,the city filed its own declaratory relief action seeking a preemptive declaration that the
http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000211&cite=CAGTS6254.5&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000211&cite=CAGTS6254.5&originatingDoc=I1ed7d09080ba11e48d70c6d03bbbc05e&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Default)


9/13



requested records were exempt from disclosure. Ibid. In ruling against the city, the

Supreme Court analyzed the purpose behind the CPRA and its structure for judicialreview of the withholding of documents by public agencies.

Permitting a public agency to circumvent the established special statutoryprocedure by filing an ordinary declaratory relief action against a person whohas not yet initiated litigation would eliminate statutory protections andincentives for members of the public in seeking disclosure of public records,require them to defend civil actions they otherwise might not havecommenced, and discourage them from requesting records pursuant to theAct, thus frustrating the Legislature's purpose of furthering the fundamentalright of every person in this state to have prompt access to information in the

possession of public agencies.

Filarsky, supra, 28 Cal.4th at 423.

The Supreme Court went on to declare:

Whatever a public agency's motivation for initiating a declaratory reliefaction in these circumstances, authorizing the agency to commence such anaction would chill the rights of individuals to obtain disclosure of publicrecords, require such individuals to incur fees and costs in defending civilactions they otherwise might not have initiated, and clearly thwart the Act's

purpose of ensuring speedy public access to vital information regarding thegovernment's conduct of its business. (See CBS, Inc. v. Block, supra, 42Cal.3d 646, 656, 230 Cal.Rptr. 362, 725 P.2d 470.) "In light of the clearlegislative objective to promote disclosure which underlies the CPRA, we findno reason to imply a countervailing intention to subject a requester ofinformation to a potential civil action instituted by the government agencyfor the purpose of testing the legitimacy of the request. Rather thanpromoting the goals of open government and full disclosure, such a resultwould be at war with the very purpose of the CPRA and would effectivelydiscourage requests for disclosure by a member of the public orrepresentative surrogate." (City of Santa Rosa v. Press Democrat, supra,187Cal.App.3d 1315, 1323, 232 Cal.Rptr. 445.)

Filarsky, supra, 28 Cal.4th at 434.

The District attempts to distinguishFilarskyon the basis of minor differences inthe procedural posture of the cases. However, the question in front of the court remainsthe same are the records exempt from disclosure. InFilarsky, the city sought adetermination about whether requested documents were disclosable public records;here, the District asks that same question, only post-disclosure.


10/13



Additionally, courts have long recognized their inherent inability to regulate theconduct of persons outside of their jurisdiction.

[A] court can, and should protect its processes from prejudicial outsideinterferences by the promulgation of rules and regulations controlling theuse of property and the conduct of persons under the court's jurisdiction.I tsh ou l d be no t ed , how ever , t h a t t h e Sup r em e Cou r t d i d no t

p u r p o r t t o p r esc r i b e r u l e s o r m easu r es d i r ec t l y r egu l a t i n g t h e

co n d u c t o r a ct i v i t y o f t h e n ew s m ed i a o r o t h er p er so n s n o t

u n d er t h e j u r i sd i ct i o n o f t h e co u r t

Cramer v. Superior Court (1968) 265 Cal.App.2d 216, 224-25; citations omitted[discussingSheppard v. Maxwell (1966) 384 U.S. 333, which held that the court hadpower to regulate persons within its jurisdiction to protect a defendants constitutionalright to a fair trial.]

Similarly, in County of Los Angeles v. Superior Court (Monroe)(1967) 253Cal.App.2d 670, 686, the court noted that that we cannot read Sheppard as nowholding that potentially prejudicial pretrial publicity which occurs outside the courtroom can be controlled by injunction.

Finally, if this Court were to grant the Districts Petition, it would open the door

for a number of other questions and possible motions. For example, where anindividual reviews the inadvertently disclosed material before being notified, can theDistrict next seek an order restraining that person from discussing the informationcontained in the records? If the requester had distributed the documents to thirdparties, such as other members of the public or the media, would the requester have totry and compel the return of documents from those third parties? Would the Districtattempt to prevent the media from publishing it? Would the requester be prohibitedfrom presenting the information to a law enforcement agency, such as the DistrictAttorneys public integrity unit, if the inadvertently disclosed information evidenced aBrown Act violation or other illegal activity? A ruling in favor of the District creates allof these potential quagmires. Additionally, any order preventing citizens or the mediafrom discussing the contents of documents they reviewed would be a prior restraint,which the United States Supreme Court has deemed "the most serious and leasttolerable" infringement upon First Amendment rights. Nebraska Press Assn. v. Stuart(1976) 427 U. S. 539, 559. This illustrates the highly undesirable consequencespresented by the Districts position.


11/13



IV. The Districts Argument Regarding the Records it Claims are

Exempt Raises Unaddressed Brown Act Concerns

In addition to arguing the Attorney/Client Privilege and Work Product Doctrine,the District now claims that some or all of the records should be exempt to protect thedisclosure of deliberations of the Board of Trustees (Petition at 30.) This is particularlyconcerning because, under the Brown Act, deliberations of the Board are expresslyrequired to be done at noticed, public meetings. (Govt. Code, 54950,et seq.) Thepurpose of the Brown Act is to ensure that local government agencies, such as theDistrict, take all actions openly, and only deliberate on matters after members of thepublic have received notice and opportunity to present their views to the agency. (Govt.Code, 54950.) To these ends, the Brown Act requires open meetings, with limited

exceptions, and specifically prohibits a majority of members of a legislative body fromcommunicating about any matter that falls within its subject matter jurisdiction, outsideof a noticed, public meeting.

A majority of the members of a legislative body shall not, outside a meetingauthorized by this chapter, use a series of communications of any kind,directly or through intermediaries, to discuss, deliberate, or take action onany item of business that is within the subject matter jurisdiction of thelegislative body.

(Govt. Code, 54952.2(b)(1).)

[T]he public is entitled to monitor and provide input on the Board's collectiveacquisition and exchange of facts. Page v. Miracosta Community College Dist.(2009) 180 Cal.App.4th 471, 505.

Section 54950 is a deliberate and palpable expression of the act's intendedimpact. It declares the law's intent that deliberation as well as action occuropenly and publicly. Recognition of deliberation and action as dualcomponents of the collective decision-making process brings awarenessthat the meeting concept cannot be split off and confined to one componentonly, but rather comprehends both and either. To "deliberate" is to examine,weigh and reflect upon the reasons for or against the choice. (See Webster'sNew International Dictionary (3d ed.)) Public choices are shaped byreasons of fact, reasons of policy or both. Any of the agency's functions mayinclude or depend upon the ascertainment of facts. [Citation.]

Sacramento Newspaper Guild v. Sacramento County Board of Supervisors(1968) 263Cal.App.2d 41, 47-48.


12/13


13/13

PROOF OF SERVICE

State

of

California

County

of Los Angeles

I reside

or

work within

in the

County

of

Los Angeles State

of

California. I

am

over

the

age

of 8 and not

a party

to the

within action. My address is 1502 Foothill

Blvd. Suite 103-140.

On January 9

2015

I served the foregoing documents described as MICUS

LEITER URGING DENIAL

OF WRIT

on the

parties in this action as listed

on

the

service list below by

the

following means:

Service

List

Paul Boylan

POBOX719

Davis

CA

95617

Counsel for Real Party in Interest Elizabeth Brazil

erome

Behrens/Steve Ngo/Frances Valdez

LOZANO SMITH

2001 North Main Street Suite 650

Walnut Creek California 94596

Counsel

for

Petitioner ewark Unified School District

Hon. Evelio Grillo

Department

3

Alameda County Superior Court

U.S. Post Office Building

201 Thirteenth Street

Oakland CA 94612

Respondent Superior Court

y United States Mail

I enclosed the documents in a sealed envelope or package addressed to

the

persons

at

the addresses above

and

deposited

the

sealed envelope with

the

United

States Postal Service With the postage fully prepaid. I

am

a resident or employed in

the

county where

the

mailing occurred. The envelope

or

package was placed in

the

mail

at

La Verne California.

I declare under penalty

of

perjury under

the

la vs

of the

State

of

California that

the foregoing is true

and

correct.

-

' "

i t e ~ anuary 9 2015

~

Albert Aviles

Amicus Letter Brief - Newark USD v Sup Ct - Final

Documents

Transcript of Amicus Letter Brief - Newark USD v Sup Ct - Final