1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. CV 170486 – Petitioner’s Opening Brief Paul Nicholas Boylan SBN 140098 PAUL NICHOLAS BOYLAN, ESQ. POB 719 Davis CA 95617 Telephone: 530 400 1653 Facsimile: 877 400 1693 Email: [email protected]Attorney for THE NORTH COAST JOURNAL acting on behalf of himself and the People of California SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF HUMBOLDT THE NORTH COAST JOURNAL Petitioner, v. THE CITY OF EUREKA Respondent Case No. CV 170486 NOTICE OF MOTION FOR ORDER RE ACCESS TO PUBLIC RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL NICHOLAS BOYLAN Date: August 7, 2017 Time: 1:45 PM Dept.: Courtroom 4
Transcript
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case No. CV 170486 – Petitioner’s Opening Brief
Paul Nicholas Boylan SBN 140098 PAUL NICHOLAS BOYLAN, ESQ. POB 719 Davis CA 95617
the City admitting that city council members did, indeed, send and receive emails/text
messages during the two aforementioned two regular city council meetings; however, the
City justified withholding these records on the grounds that they contained only
“incidental” information related to the public’s business, were therefore not public
records, and therefore would not be produced. (See Exhibit 1, attached below, Pages 005
and 006).
Petitioner’s litigation and appellate history involving the City leads Petitioner to
reasonably distrust the City’s application of fact and law to records access issues. (See
Declaration of Paul Nicholas Boylan, below, ¶ 8.) Due to this reasonable distrust,
Petitioner requests that this Court conduct an in camera review to determine if any
allegedly private information can be segregated (redacted) from the communications at
issue, leaving the nonexempt information available to the public.
ARGUMENT
I. PUBLIC POLICY FAVORS DISCLOSURE.
The PRA and the California Constitution provide the public with a broad right of
access to government information. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157,
164.) The PRA was enacted for the purpose of increasing freedom of information by
giving members of the public access to records in the possession of state and local
agencies. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) Such “access to
information concerning the conduct of the people's business,” the Legislature declared, “is
a fundamental and necessary right of every person in this state.” (Gov. Code § 6250.)
Consistent with the Legislature's purpose, the PRA broadly defines “public records” to
include “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, subd. (e); Los Angeles County Bd.
of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290 - 292.)
It is well settled that the public’s access to information is necessary for democracy
(Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 164) because “secrecy is
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 3 -
Case No. CV 170486 – Petitioner’s Opening Brief
PAULNICHOLASBOYLAN,ESQ.
POB719
DAVIS,CALIFORNIA95617
antithetical to a democratic system of ‘government of the people, by the people [and] for
the people.’” (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771-
772.) Access to government held records and information is necessary to safeguard the
accountability of government to the public. (Wilson v. Superior Court (1996) 51
Cal.App.4th 1136, 1141.)
II. THERE IS A SET PROCEDURE FOR DECIDING RECORDS ACCESSDISPUTES.
The aforementioned constitutional and statutory recognition of the fundamental
right to access government held records and information spawned a series of substantive
and procedural rules unique to records access enforcement actions that favor access,
including:
§ Public agencies owe every person requesting records the duty to assist the requester
to access the records they seek by overcoming barriers to access. (Gov. Code §
6253.1.)
§ Reviewing courts must resolve all close questions and resolve all ambiguities so as
to allow greater, not lesser, access to information (Sierra Club v. Superior Court
(2013) 57 Cal.4th 157, 166-167).
§ Public officials may not discriminate between requesters - favoring one citizen
with disclosures while denying disclosures to another. (Black Panther Party v.
Kehoe (Kehoe) (1974) 42 Cal.App.3d 645, 656-657.)
§ Public agencies are required to segregate (i.e., redact) private/exempt information
from a record and release the redacted document. (Government Code § 6253 subd.
(a).)
§ The proper mechanism for resolving a PRA dispute is through an in camera review
of the records being withheld to determine if any of the records, or parts of those
records, should be disclosed to the public. (Gov. Code §§ 6253 subd. (a), 6259
subd. (a) and (b).) An in camera review of the documents at issue is mandatory.1
1 Government Code § 6253 subd. (a) states in pertinent part “[t]he court shall decide
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 4 -
Case No. CV 170486 – Petitioner’s Opening Brief
PAULNICHOLASBOYLAN,ESQ.
POB719
DAVIS,CALIFORNIA95617
This Court must work within the special policy and procedural framework
described above when deciding whether or not the public is entitled to access the
information the District withholds.
CONCLUSION
The public is charged with the duty of examining the operations of government and
the activities of elected officials in order to hold them accountable. The California Public
Records Act is the mechanism provided to allow the public to carry out this important
oversight function that is fundamental to our democracy. (Government Code § 6250.)
The public is presumptively interested in knowing what elected officials and public
employees are doing – and not doing - when they are “on the clock” conducting the
public’s business while serving in their capacities as elected officials and public
employees.
The records Petitioner requests relate directly to this strong public interest. If no
exemptions justifying withholding records and information are properly asserted, then
Petitioner respectfully requests that this Court order Respondent to produce the documents
respondent requests unredacted. If exemptions are asserted, Petitioner respectfully
requests that this Court conduct an in camera review in order to evaluate any exemption
claims and to determine what information within the documents respondent requests must
be disclosed to the public. Petitioner requests a declaratory judgment specifying and
enforcing the City’s duty to comply with Cal. Const. Art. 1, sec. 3(b). 2 Finally, Petitioner
requests a writ/injunctive relief that identifies the City’s failure to conduct adequate
records searches, engage with Petitioner to locate records and information Petitioner
requests, and orders the City to comply with its duties to provide the public with access to
the case after examining the record in camera.” (Emphasis added.) 2 Cal. Const. Art. 1, sec. 3(b) mandates: “A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.”
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 5 -
Case No. CV 170486 – Petitioner’s Opening Brief
PAULNICHOLASBOYLAN,ESQ.
POB719
DAVIS,CALIFORNIA95617
records and information.
Dated: July 13, 2017 PAUL NICHOLAS BOYLAN, ESQ.
PAUL NICHOLAS BOYLAN, attorney for THE NORTH COAST JOURNAL
DECLARATION OF PAUL NICHOLAS BOYLAN IN SUPPORT OF PETITIONER’S OPENING BRIEF
I, Paul Nicholas Boylan, declare and state as follows:
1. I am an attorney admitted to practice before all the courts in the State of California
and before this Court. The matters stated below are true and are made from my own
personal knowledge except those matters stated on information and belief, which I believe
to be true. The opinions I state are based on my specialized education, training and
experience. I execute this declaration in support of Petitioner NORTH COAST
JOURNAL’S opening brief in this case.
2. I have nearly 29 years of experience in media, First Amendment law and records
access litigation, writs and appeals. During law school it was my great honor to serve as
an intern and extern clerk for the Honorable Raul A. Ramirez (U.S. District Court for the
Eastern District of California), an intern clerk for the Honorable J. Clinton Peterson
(Solano County) and a legal intern with the American Film Institute (Los Angeles). I was
a member of UCD’s Law Review as served as a member of the Moot Court Board. I
graduated in 1989 from the University of California, Davis, School of Law and – except
for serving as in-house General Counsel for the Grant Joint Union High School District - I
have been in private practice ever since.
3. I began my law practice as an associate with the following Sacramento area law
firms: Dehart & Chafin (litigation); the Law Office of Jay-Allen Eisen (writs and
appeals); Hanson, Boyd, Culhane and Watson (litigation, writs and appeals); and Pinnell
& Kingsley (litigation, writs and appeals).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 6 -
Case No. CV 170486 – Petitioner’s Opening Brief
PAULNICHOLASBOYLAN,ESQ.
POB719
DAVIS,CALIFORNIA95617
4. I opened my own legal office in 1997 with a focus on litigation, writs and appeals,
intellectual property, media, entertainment law, First Amendment, open government and
records access. My current news media clients include: the Sacramento Valley Mirror, the
People’s Vanguard of Davis, the Woodland Record, the Lake County News, the Rio Del
Times, the Ferndale Enterprise and the North Coast Journal. I also represent – both as
litigation and appellate counsel - private citizens seeking access to government held
records and information. My published appellate opinions are: City of Eureka v. Superior
Court (2016) 1 Cal. App. 5th 755; Newark Unified School Dist. v. Superior Court (2015)
245 Cal. App. 4th 887; Kyle v. Carmon (1999) 71 Cal. App. 4th 901; Valley Medical
Transport, Inc. v. Apple Valley Fire Protection Dist. (1998) 17 Cal. 4th 747; Obos v.
Scripps Psychological Assocs. (1997) 59 Cal. App. 4th 103; County of San Bernardino v.
City of San Bernardino (1996) 15 Cal. 4th 909; Western/California, Ltd. v. Dry Creek
Joint Elementary School Dist. (1996) 50 Cal. App. 4th 1461; Brock v. First South Savings
Assn. (1992) 8 Cal. App. 4th 661; Yu v. Alcoholic Bev. etc. Appeals Bd. (1992) 3 Cal.
App. 4th 286; Engelmann v. State Bd. of Education (1991) 2 Cal. App. 4th 47; Vukovich v.
Radulovich (1991) 235 Cal. App. 3d 281.
5. I have represented or am representing the following public advocacy entities as
counsel for open government/records access purposes: the First Amendment Coalition;
Californians Aware; the California Newspaper Publisher’s Association; and Eye on
Sacramento; AquAlliance and the Firearms Policy Coalition. Throughout my professional
career I have also advised public agencies, elected officials and public employees on their
duties and obligations pertaining to records access issues. I am one of the few attorneys
who have represented a public agency (the Orland Unified School District) as a petitioner
in litigation seeking to enforce its right to access records held another public agency (the
Glenn County Office of Education).
6. I have served as an adjunct professor of law for the University of the Pacific,
McGeorge Law School (Sacramento) (topic: media negotiations) and as an annual invited
professor of law at the University of Poitiers School of Law (Poitiers, France) (topic:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 7 -
Case No. CV 170486 – Petitioner’s Opening Brief
PAULNICHOLASBOYLAN,ESQ.
POB719
DAVIS,CALIFORNIA95617
media negotiations). I am often invited to speak/give papers at colleges and universities,
including but not limited to the University of Queensland School of Journalism (Brisbane,
Australia) (topic: the California Public Records Act); University of Johannesburg
(Johannesburg, South Africa) (topic: celebrity confidentiality/non disclosure agreements);
Trinity College (Dublin, Ireland) (topic: copyright). I have been part of speaker panels for
workshops/seminars that offer MCLE credit hosted by the University of Central
Lancashire (Preston, England) (topic: negotiations) and Law Seminars International
(topic: the California Public Records Act). I am a featured lecturer at Stanford
University’s News Room by the Bay, an institution devoted to student journalists.
7. I regularly practice records access/transparency law throughout California,
including Humboldt County.
8. The parties to this dispute recently concluded litigation that culminated in City of
Eureka v. Superior Court (2016) 1 Cal. App. 5th 755, a published opinion that rebuked
Respondent’s very creative argument extending peace offer privacy expectations in an
attempt to withhold a police dashboard camera video depicting police brutality from the
public. In my opinion, based on my direct and indirect experience with the City of
Eureka’s habits and customs when responding to records requests, Respondent habitually
interprets law applicable to records access issues narrowly so as to favor denying the
public access to public records and information. Neither my client nor I trust
Respondent’s evaluation of what records should and should not be released to the public.
9. Attached hereto as Exhibit 1 is a true copy of the chronology of communications
between Petitioner and Respondent beginning with Petitioner’s records request and
culminating with Respondent’s response explaining why Respondent decided not to
produce any records or information within the records responsive to Petitioner’s records
request.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 8 -
Case No. CV 170486 – Petitioner’s Opening Brief
PAULNICHOLASBOYLAN,ESQ.
POB719
DAVIS,CALIFORNIA95617
I declare under penalty of perjury under the laws of the State of California that this
declaration was executed on July 13, 2017, in Davis, California.
Thank you for your letter dated April 24, 2017, responding to the North Coast Journal's April 14, 2017, records request. The Journal appreciates your timely response, but we are hoping to persuade you to provide more information. Your response concluded: "My office has reviewed the records related to your requests and has found a total of 0 pages responsive to the request to be disclosable pursuant to Government Code section 6250 et.seq." This response reveals that the City misunderstands what the City is required to do in response to a request for records. Records responsive to the Journal's request clearly exist, but the City has determined that all of them are exempt per the Public Records Act. However, the PRA requires the City to identify which exemptions allow or require the City to withhold responsive documents.
The Journal asks that you clarify the City's April 24, 2017, response by stating whether or not records responsive to the Journal's request were located and, if yes, the specific reasons/exemptions the City believes allow or require the City to withhold any responsive documents.
Please provide me with a response to this email no later than Wednesday, May 3, 2017. If I do not receive a response to this email by this deadline then the Journal will presume that responsive documents exist and the City will not provide more specific reasons that justify withholding these documents and the Journal will seek a judicial remedy.
Please be reminded that, until this dispute is resolved, the City remains under an obligation to preserve all records responsive to the Journal's April 14th request and take all steps necessary to prevent their accidental or intentional destruction.
