Welcome RESPONDING TO SUBPOENAS AND PUBLIC RECORDS ACT REQUESTS CLEARS Training December 3, 2014...

Welcome

RESPONDING TO SUBPOENAS AND PUBLIC RECORDS ACT

REQUESTS

CLEARS TrainingDecember 3, 2014

Presented by: HENSLEY LAW GROUP Elizabeth M. Calciano

David H. King© 2014 Hensley Law Group www.hensleylawgroup.com

We are attorneys that have devoted our professional careers to government law. Led by Mark Hensley, a city attorney with 25 years of experience serving government agencies in California, the attorneys of HLG collectively have over 75 years of experience providing legal services to cities, special districts, joint powers authorities, and other governmental agencies. For more info: www.hensleylawgroup.com

Hensley Law Group

About us

© 2014 Hensley Law Group www.hensleylawgroup.com

Education: U.C. Hastings, Juris Doctor Bowdoin College, A.B.

Assistant City Attorney for the City of Chino Hills and Deputy City Attorney for the City of El Segundo

[email protected]

Elizabeth M. Calciano

About us


Education: Loyola Law School, Juris Doctor U.C.L.A., Bachelor of Arts

Assistant City Attorney for the City of El Segundo and Deputy City Attorney for the City of Monterey Park

[email protected]

David H. King

About us


Disclaimer (we are attorneys after all)

This presentation is provided for general information only and is not offered or intended as legal advice. Audience members should seek the advice of an attorney when confronted with legal issues and attorneys should perform an independent evaluation of the issues raised in this presentation.


Overview

Responding to Subpoenas Civil Litigation

Subpoenas Objections Criminal Subpoenas DT DMV Subpoenas

Responding to PRA Requests Exemptions Developments in the

PRA Questions & Answers


Responding to Subpoenas


Responding to subpoenas

Subpoenas Writ by a government agency, most

often a court, that has authority to compel testimony by a witness or production of evidence under penalty

“Subpoena Duces Tecum” orders a person or organization to bring or mail physical evidence, usually documents, before agency or court



Best Practices Recommend all

subpoenas funneled to one or two persons in agency designated to coordinate agency response to all subpoenas



Best Practices – Because Time is Short: Immediately review and take your next

steps Calendar response date Send request to employee subpoenaed

and/or departments/divisions that might have responsive items and give deadline for response, building in time for review, and calendar these deadlinesSend to legal counsel if that is agency’s

policyAny other necessary action given the

type of subpoena


Civil Litigation subpoenas

Civil Subpoenas Generally What?

Legal means to obtain documents, testimony and evidence in civil litigation

See Rules – California Code of CivilProcedure (CCP) §1985 et seq.



Why respond? Subpoena compulsory power similar to

court order Failure to comply can punished by

contempt (monetary sanctions) AND Other expenses incurred due to failure

to comply Court can impose without first having to

obtain a court order ordering compliance (merely disobeying the subpoena is sufficient)

CCP Section 2020.040© 2014 Hensley Law Group www.hensleylawgroup.com


Most Common Type: Deposition Subpoena.

Three Kinds: “Testimony only” subpoena - only the

attendance and testimony “Business Records” subpoena - only the

production of business records for copying “Deposition Subpoena For Personal

Appearance And Production Of Documents And Things”;

Formerly called a “Subpoena Duces Tecum,” which in Latin means “bring it with you”

Requires records and testimony


Civil Litigation Subpoena



Other types of Civil Litigation Subpoenas (Trial Subpoena Duces Tecum, etc.)

Rules vary Consult legal counsel


Civil Litigation subpoenas - Objections

Objections – Grounds (not an exclusive list) Failure to Properly Serve

Personal service Service on a business entity may be made

by delivering the subpoena to any officer, director or custodian of records (or any agent or employee authorized to accept service). (CCP § 2020.220(b)(2))

Service on a law enforcement officer may be made either by serving the officer personally or by delivering two copies to his or her immediate supervisor. (See Gov. C. § 68097.1)



Objections – Grounds (not an exclusive list) Failure to Timely Serve:

Business Records - Date to respond must be no earlier than 20 days after issuance and 15 days after service, whichever date is later. (CCP § 2020.410.)

Testimony only – “Sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to travel to the place of deposition. (CCP § 2020.220.)



Objections – Grounds (not an exclusive list) Failure to Timely Serve:

Testimony and Records – “Sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce, and a reasonable time to travel to the place of deposition. (CCP § 2020.220.)

But Special requirements for records that contain “personal information” and thus covered by Notice of Consumer (below)



Objections – Grounds (not an exclusive list) Failure to Tender Fees:

If personal attendance of deponent required, witness fee and mileage must be paid either at the time of service of the deposition subpoena, or at the time the deponent attends deposition.

Except, if “peace officer” sought to be deposed on matters investigated in the course of his or her official duties must reimburse agency for the officer's salary and travel expenses, deposing party must tender to the person accepting the subpoena $275 for each day. (Gov.C. § 68097.2(b), unless indigent party. (Gov.C. § 68097.55)



Objections – Grounds (not an exclusive list) Failure to Tender Fees: If no personal appearance required, payment or

reasonable costs may be demanded simultaneously with delivery of documents: the custodian's clerical expense in locating the

records and making them available at maximum rate of $24 per hour;

actual costs charged by a third party for retrieving them and returning them to storage;

copying costs (computed at $.10 per page; $.20 from microfilm);

actual postal charges. Evidence Code 1563(b); Code Civ. Proc. § 2020.230.



Objections – Grounds (not an exclusive list) Failure to Use Proper Procedure If

A Business Records Subpoena (CCP § 2020.420; Ev.C. § 1560(e)) The subpoenaing attorney may either

engage a registered professional photocopier, or may assume responsibility for the copying.

Professional photocopier – records can either be produced on witness site for copying or mailed in sealed envelope to photocopier’s office (but don’t mail early)

Attorney – Cannot be mailed to attorney – attorney or representative must come to witness site to copy



Inadequate description of records requested Failure to describe items or categories of

items to be produced Unreasonable and Overburdensome

Description unreasonable if bears no relationship to the manner in which the records are kept, and imposes on the subpoenaed party the burden of searching extensive files at many locations to see what it can find to fit the categories in the demand

Unreasonable if description essentially describes all records



Objections to Electronically stored information (“ESI”) are very specific. Unless otherwise agreed or ordered by the court: If a subpoena requiring ESI does not specify

a particular form, the person subpoenaed shall produce in the form it is ordinarily maintained or reasonably usable.

Not required to produce the same ESI in more than one form.

If objecting because the ESI is from a source that is not reasonably accessible, the witness bears the burden to prove undue burden and expense



Objections to ESI are very specific. Absent exceptional circumstances, the court

shall not impose sanctions on a subpoenaed person or any attorney of a subpoenaed person for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system, BUT this does not alter any obligation to preserve discoverable information.

Code Civ. Proc. § 2020.220 (d)



Failure to Properly Notice Consumer if “personal information” of natural persons and agency employees



“Personal information,” is broadly defined to mean “any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual.”

BUT . . . © 2014 Hensley Law Group www.hensleylawgroup.com


Not “personal information” if:Not exempt from public disclosure

under Section 6254 of the Government Code (Public Records Act)

Also – this procedure does not apply to peace officer personnel records as defined in Section 832.8 of the Penal Code because covered separately.



“Consumer” means any “natural person” or any “agency employee”

See CCP § 1985.4, CCP § 1985.3 (applicable to public agencies) and Cal. Civ. Code § 1798.3 if need further details



Codified witnesses constitutional requirement to protect third party privacy rights Witness “must take reasonable steps to notify its

customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered.”

the right to discovery in such a case must be balanced against the customer's right of privacy protected

Cal. Const., art. I, § 1; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652



Requirement for Notice of Consumer DON’T respond early; Ensure service is

complete: at least 10 days before the date set for

production of the records; an at least 5 days before service on the records

custodian. (CCP § 1985.3(b)(2), (3)) This means, as a practical matter, that the

deposition subpoena and privacy notice must be served on the consumer at least 20 days before the date set for production because the deposition subpoena must be served on the records custodian at least 15 days before that date (CCP § 2020.410(c).)



Notice of Consumer statutes do not address what to do if party issuing subpoena does not know what third party witness “personal information” is in the records requested: Be careful Guiding principle is to protect third party privacy

interest Can seek agreement (confirmed in writing) to redact

personal information Can provide names and addresses to subpoenaing

party to issue IF this is not protected – for example, would not be exempt under Public Records Act

If not, agency can issue privacy notices itself to consumers, but court order may be advisable to “bless” process



Objections based on Evidence Code Privileges, including:“Official Information” Privilege Information acquired in confidence by a public

employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

AND Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice unless release consented to. (Public agency’s interest as a party in the outcome of the proceeding may not be considered.)

Evid. Code § 1040 (Evidence Code § 1040)© 2014 Hensley Law Group www.hensleylawgroup.com


Objections based on Evidence Code Privileges, including:Attorney-Client PrivilegeAttorney Work Product



Objection based on Victim’s Confidentiality Penal Code 293 – name and address

shall not be disclosed if victim of certain crimes requests confidentiality

Note Pen. Code § 13203 permits disclosure of arrest information of a peace officer or applicant in certain circumstances, but that does not apply if the police officer is victim and requests Penal Code Section 293 protection because not an arrestee.



Objection based on Victim’s Confidentiality

Penal Code § 964 (a) “In each county, the district attorney and the courts shall establish a mutually agreeable procedure to protect confidential personal information regarding any witness or victim contained in a police report, arrest report, or investigative report if one of these reports is submitted to a court by a prosecutor in support of a criminal complaint, indictment, or information, or by a prosecutor or law enforcement officer in support of a search warrant or an arrest warrant.”



Objection based on Victim’s Confidentiality

Penal Code § 841.5 (a) Except as otherwise provided, law enforcement may not disclose to any arrested person, or to any person who may be a defendant in a criminal action, the address or telephone number of any person who is a victim or witness in the alleged offense.

Exceptions include defendant’s rights in criminal discovery



Peace Officer Personnel Records - Penal Code § 832.8Elder Abuse or Neglect ReportsMisdemeanor to releaseBUT a number of listed exceptionsWelf. And Inst. Code § 15630



Juvenile Records protected by Welfare and Institutions Code § 827 Includes Police Reports regarding arrest or

possible abuse or neglect of children under the age of 18 (T.N.G. v. Superior Court (1971) 4 Ca.3d 767)

Must file Petition with Juvenile Court unless exception

Parents and others included in list of exceptions (WIC § 827), but still review documents carefully because may have objection based on name of confidential reporter or other sensitive information that will either need to be redacted pursuant to agreement or objection made



SCARs (Suspected Child Abuse Reports)A subset of Juvenile Records, so

generally consider if WIC § 827 needs to be asserted when asserting this

Confidential and disclosed only to those entities listed in subsection (b) of Penal Code § 11167.5 (which references other sections).

Violation of the confidentiality provisions in the article is a misdemeanor.



SCARs (Suspected Child Abuse Reports)SCARs statutes contain many very

specific exceptions – Check firstE.g., persons, agencies, and personnel

teams responsible for investigating child abuse and neglect, licensing facilities that care for children, prison boards (in certain circumstances), county health departments, and out-of-state law enforcement agencies, etc.



WIC § 5150 reportsReport created when a peace officer

detains a person in a mental health facility as a result of a mental disorder that makes him or her a danger to self or others

WIC § 5328 prohibits release except if a listed exception

Substantial monetary damages if violated



Objection Procedure options: Consider Phone Call To Issuing

attorney If agreement reached memorialize in

writing (email is fine), with a copy to other parties served with the subpoena and to the professional photocopy service.

If agreement is to extend date to respond to fix defect, make sure to use word “respond” rather than “produce” documents.

Depending on agency protocol, generally attorney to attorney communications, and records staff to non-attorneys© 2014 Hensley Law Group www.hensleylawgroup.com


Objection Procedure options: Letter of Objection:

Sufficient (if not a party) to object to a “records only” or “records and testimony” deposition subpoena -not required to file a motion to quash in order to challenge request, and may simply object.

Monarch Healthcare v. Sup.Ct. (Cassidenti) (2000) 78 Cal.App.4th 1282, 1290



Objection Procedure options: Letter of Objection:

Sufficient (if not a party) to object to a “records only” or “records and testimony” deposition subpoena -not required to file a motion to quash in order to challenge request, and may simply object. (Monarch Healthcare v. Sup.Ct. (Cassidenti) (2000) 78 Cal.App.4th 1282, 1290

Motion to Quash Protective Order



When Responding: Can request more time and the issuer

can agree on a different compliance date. [Ev.C. § 1560(b)(3)] Be sure to memorialize in writing any such agreement.

Complete Declaration of Custodian with required information


Criminal Subpoena Duces Tecum

Criminal Subpoena Duces Tecum can only require appearance before a court – not attorney’s office (Penal Code §§ 1326 and 1327)





Law enforcement agency can object if acting as the investigatory agency because courts have held that the sole discovery is through Penal Code 1054.

BUT cannot object if not investigatory agency Typically occurs when defendant seeking records

from prior cases or impeachment evidence to use against witnesses arrested by your agency testifying against defendant

Still as a courtesy recommend consulting with the DA. Let them know that you have received this subpoena and are responding.© 2014 Hensley Law Group www.hensleylawgroup.com


Objection Procedure Generally phone call or letter explaining

or letter objecting, and referring to District Attorney is sufficient, especially because misuse of process can result in contempt of court ruling by court, but make sure there is a written confirmation that subpoena is withdrawn

Otherwise, Motion to Quash if Necessary



Objection Procedure Generally phone call or letter explaining

or letter objecting, and referring to District Attorney is sufficient, especially because misuse of process can result in contempt of court ruling by court, but make sure there is a written confirmation that subpoena is withdrawn

Otherwise, Motion to Quash if Necessary


Dept. of Motor Vehicles



DMV Subpoenas DMV subpoena must be issued by hearing

officer or hearing board for attendance or production of documents at the hearing.

May be served by First Class Mail Must be served at least 10 days prior to

hearing



Procedures for DMV subpoenas Veh. Code § 14104.5 3 CA ADC § 115.05


Conclusion

Remember best practices – immediately review subpoenas when received and calendar response date

There are a variety of objections available, so it is important to consult with your agency’s attorney.

Thank you!


Responding to PRA Requests


California Public Records Act “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)).


California Public Records Act “Any writing containing information

relating to the conduct of the public’s business” Oftentimes, requests are for

“information,” but the agency has no duty to provide such “information”

Intended to be broad, and encompass more than just written or printed documents, such as e-mail and electronic information


California Public Records Act “prepared, owned, used or retained

by any state or local agency” Public records not necessarily those

“prepared” by agency Can include documents submitted to

agency, such as claim form, application, Public Records Act requests

If the agency does not retain the document, then it has no duty to obtain the document to provide it to the requestor


California Public Records Act What about records not

held by the agency, but pertaining to agency’s business? City of San Jose case to be

decided by California Supreme Court

Issue: whether government-related emails held on an employee’s personal gmail account is subject to PRA


California Public Records Act “by any state or local agency”

Which agencies are subject to PRA? State government, including

Governor’s officeCounty government City government (whether general law

or chartered city)Committees, boards, commissions or

departments of these entities


California Public Records Act “regardless of physical form or

characteristics” Examples include:

EmailElectronic information

There are special rules for dealing with electronicinformation


California Public Records Act Who can request public records?

“access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

“Person” is defined as “any natural person, corporation, limited liability company, firm, or association.”

Limited to persons “in this state”? No. Different from subpoenas


California Public Records Act But we can withhold records from people

adverse to the agency, right? No. Unfortunately, there is no

prohibition from using Public Records Act as a substitute for discovery

But of course not all records will be disclosable to such a requestor


Responding to PRA Requests Content of the Request

Must reasonably describe record or records

Must be focused and specific A request that is so open-ended so that

it amounts to a request for all of a department’s files is unreasonable

The requestor does not have to state his or her purpose in seeking the records, or explain the use to which the record will be put © 2014 Hensley Law Group www.hensleylawgroup.com

Responding to PRA Requests Timing of Response

10 calendar days Triggered by receipt

of the request But the agency

must only make determination within 10 days



But I need more time than just 10 days!


Responding to PRA Requests 14-day extension to make determination

“In unusual circumstances, the time limit [for responding] may be extended by written notice … to the person making the request, setting forth the reasons for the extension…”Need to search for records from

facilities separate from office processing the request

Need to search for a voluminous amount of records


Responding to PRA Requests Duty to make reasonable effort to search

for and locate the record(s) that have been requested Agency does not have a duty to find a

needle in a haystack If truly burdensome on agency staff,

consult with your agency attorney’s office

But no duty to create a record



Three types of determinations: Withhold the

record; Disclose the

record in redacted form; or

Disclose the record.


Responding to PRA Requests Withholding the Record:

Must be justified either by citing to legal basis / exemption in PRA 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.” Justification “shall be in writing”Denial “shall set forth the names and

titles or positions of each person responsible for the denial”


Responding to PRA Requests Disclosure of the Record in Redacted

Form: Rule: Agency has duty to provide record

in redacted form if nonexempt information is “reasonably segregable” from exempt information

But if burden of redacting the record is too great, may be grounds to withhold the records entirely

Similarly, response should be in writing explaining basis for redactions


Responding to PRA Requests Disclosing the Record:

No timeline for disclosing the record, other than “promptly” Again, timelines in PRA relate to

“determination,” not providing the records

If Agency discloses an otherwise exempt public record to one person, the disclosure is a “waiver” of most of the exemptions in the PRA for future requests for the same records


Responding to PRA Requests Consequences for Failure to Comply with

PRA: Agency may be subject to lawsuit

If requestor wins, agency may be compelled to disclose a public record

Requestor is entitled to reasonable attorney’s fees

No criminal penalties Bad publicity


Responding to PRA Requests Summary:

Deadlines under PRA are important Agency not only has a duty to respond,

but a duty to reasonably assist requestor Many issues can be resolved simply by

communicating with the requestor


Exemptions


Exemptions

1. Law Enforcement Records2. Attorney-Client Communications &

Attorney Work Product3. Medical Records4. Personal Contact Information5. Personnel Records 6. “Catchall” or “Public Interest”


Exemptions

A note about the exemptions: Most exemptions are

found in Gov. Code Section 6254

The following is a general overview of the exemptions

Consult with your agency’s attorney on the application of any of the following exemptions


Exemptions

#1 Law Enforcement Records Police reports (Gov. Code § 6254(f))

Certain information within the report is disclosable

However, portions of the “investigative files that reflects the analysis or conclusions of the investigating officer” do not need to be disclosed

Also, anything that would jeopardize pending investigation generally not subject to disclosure© 2014 Hensley Law Group www.hensleylawgroup.com

Exemptions

#1 Law Enforcement Records Officer’s personnel file

Should not be disclosed Can only be disclosed through a Pitchess Motion


Exemptions

#1 Law Enforcement Records Officer’s salary

Yes, disclosable Officer’s name, employing agency, and

employment dates Yes, unless unique circumstances apply

(i.e., he or she is an undercover officer)


Exemptions

What about name of an officer involved in shootings?

Supreme Court in May 2014: the public has a right to know the identities of officers involved in shooting incidents, unless there are circumstances that would permit keeping the information secret, particularly if an officer’s safety might be jeopardized (Long Beach POA v. City of Long Beach).


Exemptions

#2 Attorney-client communications & attorney work product PRA exempts: “Records, the disclosure of

which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”Attorney-client communications

privilegeAttorney work product privilege


Exemptions

#2 Attorney-client communications & attorney work product Common examples:

Attorney-client memorandaEmails to and from your agency

counsel Legal billing statements (for cities with

private counsel) (descriptions of work performed are privileged, but dollar amounts are not)


Exemptions

#3 Medical records PRA exemption: “Personnel, medical,

or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”PRA incorporates certain laws:

Physician-patient privilegeConfidentiality of Medical

Information ActHealth Insurance Portability and

Accountability Act© 2014 Hensley Law Group www.hensleylawgroup.com

Exemptions

#3 Medical records “5150 Reports”

(Mental Health Detentions)Confidential, with

certain limited exceptions specified in Welfare & Institutions Code 5328


Exemptions

#4 Personal contact information Individuals have a substantial privacy

interest in their personal contact information

Case-by-case analysis Be aware of officials’ and employees’

personal telephone numbers, home addresses, and personal e-mail addresses


Exemptions

#5 Personnel Records Exempt from PRA: “Personnel, medical,

or similar files …”Public employees have a

constitutionally protected interest in their personnel files

However, no reasonable expectation of privacy in their names and salary information and their dates of employment

Certain peace officers information must not be disclosed


Exemptions

#5 Personnel Records Social Security

Numbers“Local agencies

shall redact social security numbers from records before disclosing them to the public pursuant [to PRA]”


Exemptions

#6 Lastly, “Catchall” or “Public Interest” Exemption Records can be withheld if the agency

can demonstrate that the public interest is served by not making the record public

“Catch all” because legislature could not foresee each and every type of record or circumstance

This is a balancing test, and the exemption should only be applied upon consultation with your agency attorney


Conclusion

PRA is both complex and challenging Still developing, legislature creating

exemptions and courts re-defining the scope of the law

Important to consult with your agency’s attorney, so that together you can comply with the law and protect the agency’s interests

Thank you!


Date post:	26-Dec-2015
Category:	Documents
Upload:	john-parker
View:	238 times
Download:	0 times