Board of Pilot Commissioners v. Superior Court ( 2013 )


Menu:
  • Filed 8/1/13
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    THE BOARD OF PILOT
    COMMISSIONERS FOR THE BAYS OF
    SAN FRANCISCO, SAN PABLO AND
    SUISUN et al.,
    Petitioners,                              A136803
    v.
    (San Francisco City and County
    THE SUPERIOR COURT OF THE CITY                    Super. Ct. No. CPF-12-512320)
    AND COUNTY OF SAN FRANCISCO,
    Respondent;
    PACIFIC MERCHANT SHIPPING
    ASSOCIATION,
    Real Party in Interest.
    SAN FRANCISCO BAR PILOTS et al.,
    Petitioners,
    v.
    A136806
    THE SUPERIOR COURT OF THE CITY
    AND COUNTY OF SAN FRANCISCO,                      (San Francisco City and County
    Respondent;                               Super. Ct. No. CPF-12-512320)
    PACIFIC MERCHANT SHIPPING
    ASSOCIATION,
    Real Party in Interest.
    The California Public Records Act (CPRA) (Govt. Code, § 6250 et seq.) provides
    for the inspection of public records maintained by state and local agencies. The Pacific
    Merchant Shipping Association (PMSA), real party in interest in this case, petitioned the
    1
    trial court for a writ of mandate compelling production under the CPRA of certain
    records held by Captain Bruce Horton, the then designated port agent of the Board of
    Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun (hereafter Port
    Agent and Board respectively). The trial court granted the petition. Horton, who also
    served as president of petitioner San Francisco Bar Pilots (Bar Pilots), seeks a writ of
    mandate and/or prohibition in this court directing the trial court to set aside its order. The
    Board separately challenges the trial court order. The Board, Horton,1 and Bar Pilots all
    argue that the Port Agent is not a state officer subject to the CPRA, and that the records
    sought are private, not public.
    We stayed the trial court‘s order and requested briefing. After consideration of the
    petitions, the opposition of PMSA, and the petitioners‘ replies, we ordered consolidation
    of the petitions and issued an order to the trial court to show cause why the relief
    requested should not be granted.2 We now grant that relief, finding that, while the Port
    Agent is, for at least certain purposes, a public officer, PMSA has not established that the
    requested records are subject to the CPRA.
    I.     BACKGROUND AND PROCEDURAL HISTORY
    One of the first acts of the California Legislature in 1850 was to establish the
    Board. (Harb. & Nav. Code, § 1101, subd. (g).) The Board licenses and regulates pilots3
    1
    By order of January 28, 2013, we accepted the parties‘ stipulation to substitute
    Peter McIsaac, the new president of Bar Pilots and current Port Agent, in place of Horton.
    Our references to the trial court record, however, necessarily refer to Horton in his then
    active capacities.
    2
    On April 3, 2013, we granted the joint application of Los Angeles Times
    Communications LLC, California Newspaper Publishers Association, and McClatchy
    Newspapers, Inc. to submit briefing as amici curiae (collectively Amici Curiae) in
    support of PMSA.
    3
    A ship‘s pilot is generally defined as a person duly qualified to conduct a ship
    into and out of a port or in special waters and who, while in charge, has the whole
    conduct of the ship‘s navigation. (Webster‘s 3d New Internat. Dict. (2002) p. 1716.)
    2
    on San Francisco Bay and its tributaries. (Harb. & Nav. Code, § 1100 et. seq.)4 The
    Board presently consists of seven members, appointed by the Governor with the consent
    of the Senate, with two members required to be licensed pilots, two members
    representing the shipping industry, and three public members.5 (Harb. & Nav. Code,
    § 1150.)
    Bar Pilots is a private unincorporated association of pilots licensed by the Board.
    Piloting services are compulsory and monopolistic.6 Subject to limited exceptions, pilots
    licensed by the Board have ―exclusive authority . . . to pilot vessels from the high seas to
    Monterey Bay and the Bays of San Francisco, San Pablo, and Suisun and the ports
    thereof, and from those bays and ports to the high seas,‖ as well as ―exclusive authority to
    pilot vessels within and along the waters of those bays . . . .‖ (Harb. & Nav. Code,
    §§ 1125, subd. (a), 1132–1133.) Fees for most, but not all, pilotage services are set by
    statute. (See Harb. & Nav. Code, §§ 1190–1191.) Pilots are required to provide pilotage
    to vessels requiring a pilot (such as large container, cargo, military, and passenger cruise
    ships), and are subject to a fine and suspension or revocation of their license if they fail to
    do so. (Harb. & Nav. Code, § 1138.)
    4
    ―The Legislature finds and declares that it is the policy of the state to ensure the
    safety of persons, vessels, and property using Monterey Bay and the Bays of San
    Francisco, San Pablo, and Suisun, and the tributaries thereof, and to avoid damage to
    those waters and surrounding ecosystems as a result of vessel collision or damage, by
    providing competent, efficient, and regulated pilotage for vessels required by this
    division to secure pilotage services.‖ (Harb. & Nav. Code, § 1100.)
    ―A program of pilot regulation and licensing is necessary in order to ascertain and
    guarantee the qualifications, fitness, and reliability of qualified personnel who can
    provide safe pilotage of vessels entering and using Monterey Bay and the Bays of San
    Francisco, San Pablo, and Suisun.‖ (Harb. & Nav. Code, § 1101, subd. (e).)
    5
    In 2009, the Legislature placed the Board under the authority of the
    Transportation Agency (formerly the Business, Transportation and Housing Agency).
    The secretary of that agency serves as an ex officio member of the Board. (Harb. & Nav.
    Code, § 1150, subd. (d).)
    6
    Pilotage is one of the oldest recognized monopolies. (See Steinhort v. Comr. of
    Internal Revenue (5th Cir. 1964) 
    335 F.2d 496
    , 499.)
    3
    PMSA is a private maritime trade association composed of companies that own or
    operate ocean-going vessels in California waters. Its members pay fees for private pilot
    services rendered by members of the Bar Pilots. PMSA nominates the shipping industry
    representatives to the Board. (Harb. & Nav. Code, § 1150, subd. (a)(2).)
    The Port Agent is a licensed pilot appointed by a majority of all licensed pilots,
    subject to confirmation by the Board. (Harb. & Nav. Code, § 1130; Cal. Code Regs.,
    tit. 7, § 218, subd. (a).)7 The Port Agent‘s duties are ―to carry out the orders of the
    Board, under applicable laws, and to otherwise administer the affairs of the pilots‖
    (Regs., § 218, subd. (a)), including general responsibility for the ―supervision and
    management of all matters related to the business and official duties of pilots‖ (Harb. &
    Nav. Code, § 1130, subd. (b); Regs., § 218, subd. (b)) and the specific responsibility of
    assigning pilots to vessels (Regs., § 218, subd. (d)(1)). The Port Agent does not serve as
    a member or officer of the Board and receives no compensation from the Board (see
    Regs., §§ 206, 207); he does, however, have certain reporting obligations to the Board,
    including:
    Immediate notification of the Board‘s executive director of a suspected violation,
    navigational incident, misconduct, or other rules violation to which the Port Agent
    is a witness or receives a report. (Harb. & Nav. Code, § 1130, subd. (c).)
    Collection of data, preparation of accounts and making of payments to the Board
    required of pilots by statute and regulation, including the name, class, high gross
    tonnage and deep draft of each vessel subject to pilotage. (Regs., § 218,
    subd. (d)(4).)
    Reports of all accidents, groundings, collisions or similar navigational incidents
    involving a vessel to which a pilot has been assigned, as well as suspected pilot
    misconduct, including all pertinent details of the incident as set forth in the
    regulation. (Regs., § 218, subd. (d)(6).)
    7
    All further references to Regulations are to title 7 of the California Code of
    Regulations.
    4
    Reports of any matter that in the Port Agent‘s opinion affects the ability of a pilot
    to carry out his or her lawful duties. (Regs., § 218, subd. (d)(8).)
    Reports whenever any pilot is absent from duty because of illness lasting longer
    than seven days, including the nature of the illness, the probable duration of
    absence and the anticipated date of return to duty. (Regs., § 218, subd. (f).)
    Beginning in July 2011, PMSA requested records regarding the Port Agent‘s
    assignment of pilots to ships transiting the San Francisco Bay. PMSA made document
    production requests to the Port Agent and to the Board in 2011 (Jul. 15, Aug. 30) and
    2012 (Jan. 4, Mar. 26). At issue here are the latter two requests, which sought disclosure
    of what PMSA identifies as ―Pilot Logs.‖
    The January 4, 2012 request, from PMSA‘s counsel and directed to ―Capt. Bruce
    Horton, Port Agent,‖ made a CPRA request for ―any and all documents written, utilized
    or kept current by the Port Agent, including those in electronic format, related to the
    following: [¶] The annual Pilot Log, which is a document created under the direction of
    the Port Agent as a memorialization of all pilot assignments to vessels made pursuant to
    the Port Agent‘s duties under [Regulations section] 218[, subdivision] (c)(1) [(current
    subd. (d)(1))] and reflects the administration of pilot vacation schedules pursuant to the
    Port Agent‘s duties under [Regulations section] 218[, subdivision] (c)(2) [(current
    subd. (d)(2))].‖ PMSA alleged that ―[t]he annual Pilot Log is completed annually for
    each pilot in the normal course of affairs to effectuate the Board‘s requirement that all
    time be presented to the public pursuant to [Regulations section 237[, subdivision] (d)
    and, under certain circumstances, [Regulations section] 237[, subdivision] (f)(1).‖
    Specifically requested were Pilot Logs for the years 2002 through 2011 for each pilot
    licensed during the years in question.
    On February 22, 2012, Horton replied that ―[t]here is no document maintained by
    the Port Agent named the ‗Pilot Log.‘ There is a data set that bears headings that are
    similar to those set forth in your e-mail to [Board counsel] of January 30, 2012. This
    data, however, is not used by the Port Agent in assigning pilots to vessels or in preparing
    or administering the pilots‘ vacation schedule, nor are they supplied to [the Board] in
    5
    discharge of any obligation to the Board under the provisions of [Regulations]
    section 237[.] [¶] The documents containing this data are documents that are maintained
    by [Bar Pilots] in its capacity as a private organization and not in connection with any
    duties imposed upon the Port Agent by statute or by the regulations of [the Board]. For
    that reason, they are not disclosable under the [CPRA].‖
    The March 26, 2012 request was directed to the Board, and again sought
    production of the 2002–2011 Pilot Logs. Demand was made for ―all responsive
    documents in the [Board‘s] possession, custody and control, including but not limited to
    those which are in the possession of your Port Agent.‖ The request further defined a
    Pilot Log as ―a multi-page document created at the direction of the Port Agent in the
    normal course of his business under [Harbors and Navigation Code section] 1130 and to
    keep track of a Pilot‘s time. This document is described in proceedings before the United
    States Tax Court[8] as an annual ‗Pilot Log,‘ which is a document created for each year as
    a memorialization of all pilot assignments to vessels made pursuant to the Port Agent‘s
    duties as further described at [Regulations section] 218[, subdivision] (c)(1) [(current
    subd. (d)(1))] and reflects the administration of pilot vacation schedules pursuant to the
    Port Agent‘s duties under [Regulations section] 218[, subdivision] (c)(2) [(current
    subd. (d)(2))]. The Pilot Log is completed annually for each pilot in the normal course of
    affairs to effectuate the Board‘s requirement that all time be presented to the public
    pursuant to [Regulations section] 237[, subdivision] (d) and, under certain circumstances,
    [Regulations section] 237[, subdivision] (f)(1).‖ PMSA further asserted that a Pilot Log
    ―is created in part to comply with the [Board‘s] requests to provide the amount of
    Minimum Rest Period (‗MRP‘) exemptions taken by each [Bar Pilots‘] pilot. An MRP
    exemption occurs when there is less than twelve hours between the time a Pilot‘s turn
    ends (work shift ends) (represented on the pilot log under the heading ‗BoB‘) and the
    8
    These tax proceedings, Miller v. C I.R. (2011) 
    102 T.C.M. (CCH) 250
     (Miller),
    are discussed post.
    6
    time the Pilot‘s next turn begins (work shift begins) (represented on the pilot log under
    the heading ‗Ride‘).‖
    On April 5, 2012, the Attorney General, as counsel for the Board, responded that
    ―The document you describe is not in the possession of [the Board]. If the ‗Pilot Log‘
    exists, it is not a document prepared, owned, used or retained by [the Board]. The letter
    to you dated February 22, 2012, from Capt. Bruce Horton, the Port Agent, which you
    attached to your request, states that he does not maintain a document called the ‗Pilot
    Log[.]‘ In any case, the Board‘s files do not contain such a document. [¶] You state in
    your letter that the Board is required to produce documents that it does not possess
    because such documents are maintained by Captain Horton, who serves as Port Agent
    and also as President of [Bar Pilots], a private organization. To the extent that Captain
    Horton possesses documents that are producible under the [CPRA], he is subject to a
    direct request under the [CPRA].‖
    On July 3, 2012, PMSA filed a ―Verified Petition for Writ of Mandate Directed to
    the Board of Pilot Commissioners and its Port Agent Ordering Compliance with the
    [CPRA].‖ PMSA sought a peremptory writ directing the Board and Horton, in his
    capacity as Port Agent, to disclose the Pilot Logs. The trial court permitted Bar Pilots
    and Horton, in his capacity as the president of Bar Pilots, to intervene in the action.
    The answer to the trial court mandate petition again denied that the Port Agent or
    Bar Pilots had or maintained a Pilot Log. On August 15, 2012, Horton submitted a
    declaration under penalty of perjury averring that ―[t]he Bar Pilots do not maintain any
    record or records entitled ‗Pilot Log‘ and have not done so at any time during my
    membership. The Bar Pilots maintain a dataset that includes some of the types of
    information PMSA apparently seeks through its requests for ‗Pilot Logs.‘ I do not use
    this dataset in performing my duties as Port Agent. The dataset is not provided to the
    Board or to members of the public.‖
    On September 18, 2012, after hearing argument, the trial court granted the writ in
    part, finding that ―The Port Agent is a public official; among other things, the position
    was created by the Legislature.‖ The court observed that ―[t]he problem here is that the
    7
    person who acts as Port Agent has both a private and public incarnation . . . and is at least
    confirmed by the Board which in turn operates under state law to (i) regulate the actions
    of pilots and (ii) a wide variety of other things in the public interest. [Citations.] [¶] The
    ‗Pilot Logs‘ are documents used by the Port Agent in the execution of his public duties
    including, but not limited to, assigning pilots to vessels and preparing and administering
    pilot vacation time. These are necessary and convenient to the Port Agent‘s public duties
    and are public documents. [Citation.]‖ The court ordered the Port Agent to, within
    30 days, ―produce, if extant, the requested ‗Pilot Logs‘ from 2002 [through] 2011.‖9 The
    court otherwise denied the petition.
    On September 24, 2012, the executive director of the Board and its custodian of
    records, Allen Garfinkle, filed a declaration with the court, averring that that the Board
    did not have the requested Pilot Logs, that the Board does not prepare, own, use, or retain
    such documents, and that the Board ―does not now, and never has, possessed the [Pilot
    Logs].‖
    On October 16, 2012, Horton submitted a declaration in response to the court‘s
    order, averring in pertinent part that: ―3. A small amount of information from the records
    of the Bar Pilots is submitted to [the Board] in compliance with the Port Agent‘s
    reporting duties under the Board‘s regulations. As Port Agent, I maintain and control this
    information. The vast majority of the information in the Bar Pilots‘ records, however, is
    not submitted to the Board. I maintain and control this latter category of records solely in
    my private capacity as President of the Bar Pilots. [¶] . . . [¶] 5. Some but not all of the
    information that [PMSA] asserts is contained in the ‗Pilot Logs‘ is used by the Bar Pilots
    in preparing the report that the Bar Pilots, not the Port Agent, is required to submit to the
    Board under [Regulations] section 237[, subdivision ](d) . . . . I do not use this
    information in performing my duties as Port Agent. Specifically, I do not use the
    information to assign pilots to vessels, and I do not use it to prepare or administer pilot
    9
    On October 5, 2012, the trial court extended the time to seek appellate review of
    its order until October 15, 2012.
    8
    vacation time. I am informed and believe that the information used by the Bar Pilots for
    preparing the report under [Regulations] section 237[, subdivision ](d) could be retrieved
    by submitting a query to the electronic database created and maintained by the Bar Pilots.
    Prior to receiving PMSA‘s document demands, I was unaware of the existence of the
    database. I do not use, and have never used, the database in my capacity as Port Agent. I
    am unaware of any previous Port Agent ever using the database for any purpose. I have
    never submitted a query to the database (or asked anyone to do so on my behalf) for any
    purpose, either in my capacity as Port Agent or in my private capacity as President of the
    Bar Pilots; to my knowledge, no previous Port Agent has ever done so.‖
    The instant petitions for writ of mandate, seeking to vacate the order requiring
    production, were filed on October 15, 2012, by Bar Pilots, the Board, and Horton in his
    private and public capacities.10 On October 17, 2012, we issued a temporary stay of the
    trial court‘s order and set a schedule for briefing. On December 27, 2012, we ordered the
    petitions consolidated and issued an order to show cause why the requested relief should
    not be granted.
    II.    DISCUSSION
    A.     The CPRA
    The CPRA ―provides for the inspection of public records maintained by state and
    local agencies.‖ (California State University, Fresno Assn., Inc. v. Superior Court (2001)
    
    90 Cal.App.4th 810
    , 822 (CSU).) ―The Legislature enacted the CPRA in 1968 to give the
    public access to information in possession of public agencies in furtherance of the notion
    that government should be accountable for its actions and, in order to verify
    accountability, individuals must have access to government files. [Citation.]‖11 (Gilbert
    10
    An order of the trial court under CPRA, which either directs disclosure of
    records by a public official or supports the official‘s refusal to disclose records, is
    immediately reviewable by petition to the appellate court for issuance of an extraordinary
    writ. (Govt. Code, § 6259, subd. (c).) All further statutory references are to the
    Government Code unless otherwise indicated.
    11
    ―In 2004, California voters approved Proposition 59, which enshrined in the
    state Constitution the public‘s right to access records of public agencies. (Cal. Const.,
    9
    v. City of San Jose (2003) 
    114 Cal.App.4th 606
    , 610.) ―Disclosure statutes such as the
    [CPRA] and the federal Freedom of Information Act [(FOIA)] were passed to ensure
    public access to vital information about the government‘s conduct of its business.‖ (CBS,
    Inc. v. Block (1986) 
    42 Cal.3d 646
    , 656.) ―The CPRA embodies a strong policy in favor
    of disclosing public records. [Citations.]‖ (Dixon v. Superior Court (2009)
    
    170 Cal.App.4th 1271
    , 1275.)
    ―[T]he extent of the CPRA‘s coverage is a matter to be developed by courts on a
    case-by-case basis. [Citations.]‖ (CSU, supra, 90 Cal.App.4th at p. 828.) ―This
    decision-making process is an unavoidable consequence resulting from ‗the ―myriad
    organizational arrangements‖ adopted ―for getting the business of the government
    done.‖ ‘ [Citation.] Therefore, each arrangement must be examined in its own context.
    [Citation.]‖ (Irwin Memorial, etc. v. American Nat. Red Cross (9th Cir. 1981) 
    640 F.2d 1051
    , 1054.)12
    B.      Standard of Review
    Interpretation of the CPRA and its application to undisputed facts is question of
    law subject to de novo review. Factual findings made by the trial court will be upheld if
    based on substantial evidence. (Versaci v. Superior Court (2005) 
    127 Cal.App.4th 805
    ,
    812.)
    C.      Is the Port Agent a Public Officer?
    ― ‗State agency‘ means every state office, officer, department, division, bureau,
    board, and commission or other state body or agency, except those agencies provided for
    art. I, § 3, subd. (b) [requiring that ‗the writings of public officials and agencies shall be
    open to public scrutiny‘].) . . . The amendment requires the [CPRA] to ‗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. I, § 3, subd. (b), par. (2).) [However, s]uch was the
    law prior to the amendment‘s enactment. [Citation.]‖ (BRV, Inc. v. Superior
    Court (2006) 
    143 Cal.App.4th 742
    , 750.)
    12
    The CPRA ―was modeled on its federal predecessor, the [FOIA],‖ thus the
    legislative history and judicial construction of the FOIA ―serve to illuminate the
    interpretation of its California counterpart. [Citations.]‖ (Times Mirror Co. v. Superior
    Court (1991) 
    53 Cal.3d 1325
    , 1338.)
    10
    in Article IV (except Section 20 thereof) or Article VI of the California Constitution.‖
    (§ 6252, subd. (f), italics added.)13 ―In attempting to divine how broadly the term ‗state
    agency‘ can be interpreted, we are limited by rules of statutory construction . . . . [¶]
    ‗ ―The court‘s role in construing a statute is to ‗ascertain the intent of the Legislature so
    as to effectuate the purpose of the law.‘ [Citations.]‖ ‘ ‖ (CSU, supra, 90 Cal.App.4th at
    pp. 828–829.)
    The Board and Bar Pilots do not deny that the Board itself is a state agency, but
    argue that the Port Agent does not meet any established criteria for being considered a
    state officer. The Port Agent is not among the Board‘s designated officers (see Regs.,
    §§ 206, 207) and is employed and compensated by Bar Pilots, not by the public. The Port
    Agent is not among the civil executive officers enumerated in Government Code
    section 1001,14 and is selected for the position by the Bar Pilots membership (apparently
    coextensive with his term as president), and is only ―confirmed‖ by the Board, without
    any provision for his removal. (Harb. & Nav. Code, § 1130; Regs., § 218, subd. (a).)
    The Board suggests that the position of Port Agent is ―best viewed as a liaison between
    the licensed pilots and the Board.‖
    The trial court concluded that the Port Agent is a public official because, ―among
    other things, the position was created by the Legislature.‖ But the difficulty, as the trial
    court observed, is that the person acting as Port Agent ―has both a private and public
    incarnation . . . .‖ Horton himself acknowledged, in his August 17, 2011 response to the
    CPRA request, that having one person in the ―dual capacity‖ of both Port Agent and Bar
    Pilots president made it ―sometimes difficult to distinguish between the ‗private‘ and
    ‗public‘ duties of the person who holds both positions.‖
    13
    Articles IV and VI of the California Constitution deal with the legislative and
    judicial branches of government.
    14
    As the Board notes in its petition, the no longer existent positions of ―port
    warden‖ and ―harbor commissioner‖ are among those listed in section 1001, but in
    contrast to the port agent, those positions were gubernatorial appointments for terms
    fixed by statute. (Former Pol. Code, §§ 368, 369, 2520.)
    11
    While the Port Agent, in his capacity as president of Bar Pilots, may have many
    entirely private duties and serve as ―liaison‖ with the Board, he also has responsibilities
    imposed by statute and by administrative regulation. The Port Agent is charged with
    responsibility ―for the general supervision and management of all matters related to the
    business and official duties of pilots.‖ (Harb. & Nav. Code, § 1130, subd. (b); Regs.,
    § 218, subd. (b), italics added.) The Port Agent‘s enumerated duties include assigning
    pilots to vessels. (Regs., § 218, subd. (d)(1).)
    No California appellate court has yet addressed the question we confront here.
    However, at least one federal court has found the Port Agent to be acting as an officer or
    agent of the Board when assigning pilots to vessels, and consequently entitled to Eleventh
    Amendment governmental immunity from suit when performing this task. (Regal Stone
    Ltd. v. Cota (N.D.Cal. Sept. 7, 2010, Civ. A. No. 08-5098-SC) 
    2010 WL 3504846
     (Regal
    Stone).) The Regal Stone litigation arose from the allision15 of the M/V Cosco Busan
    with the San Francisco-Oakland Bay Bridge on November 7, 2007, spilling
    approximately 53,000 gallons of bunker fuel into the San Francisco Bay. The plaintiffs
    sued the pilot at the time of the accident, John Cota, McIsaac and his predecessor as Port
    Agent, Russell Nyborg, and Bar Pilots. Nyborg, McIsaac and Bar Pilots were alleged to
    have permitted Cota to continue to serve as a pilot when he was ―medically unfit,‖ and
    further alleged that McIsaac negligently failed to close the bar to vessel traffic in the face
    of unsafe weather conditions. Nyborg and McIsaac moved to dismiss the complaint, on
    the ground that they were state officials immune from suit. Under the Eleventh
    Amendment to the United States Constitution, ―a state official is immune from suit in
    federal court for actions taken in an official capacity.‖ (California v. Deep Sea Research,
    Inc. (1998) 
    523 U.S. 491
    , 502.) The motion to dismiss specifically alleged that ―Captains
    McIsaac and [co-defendant] Nyborg, Port Agents of the [Board] are such officials.‖
    (Italics added.) Accepting this argument, and noting, as did the trial court here, that the
    15
    The term ―allision,‖ as used in maritime accident cases, describes an accident
    involving a moving vessel and a stationary object or vessel. (Hochstetler v. Board of
    Pilot Comrs. (1992) 
    6 Cal.App.4th 1659
    , 1661, fn. 1.)
    12
    Port Agent ―sometimes acts on behalf of the Bar Pilots, and sometimes on behalf of the
    Board,‖ the court found that the plaintiffs‘ allegations against Nyborg and McIsaac
    ―focus on conduct performed on behalf of the Board, not on behalf of the Bar Pilots.‖
    The court found that McIsaac and Nyborg were acting as officers or agents of the Board
    ―as a matter of law‖ in supervision of Cota, and therefore immune from suit.
    The Board and the Port Agent correctly note that a federal trial court decision has
    no precedential value. (United Firefighters of Los Angeles County v. City of Los Angeles
    (1989) 
    210 Cal.App.3d 1095
    , 1115.) PMSA cited the unpublished federal trial court
    decision in Regal Stone below, and cites it here as persuasive authority. (See Pacific
    Shore Funding v. Lozo (2006) 
    138 Cal.App.4th 1342
    , 1352, fn. 6 [unpublished federal
    cases are citable as persuasive, although not precedential, authority].) The Board and the
    Port Agent also contend that ―entirely different legal standards‖ apply to the analysis of
    Eleventh Amendment sovereign immunity and application of the CPRA, but neither the
    Board nor the Port Agent attempt to articulate the purported analytical differences, and
    neither cite any authority for the argument.
    We find the court‘s reasoning in Regal Stone to be persuasive in many respects.
    But we find it even more significant that it was the Port Agent (in that case McIsaac) who
    argued for immunity from suit based on his status as a government official when
    assigning or supervising pilots, insisting in his pleadings that ―it is the Port Agent‘s
    official duty to assign pilots to vessels in accordance with the Board‘s guidelines,‖ and
    specifically citing to Regulations section 218, former subdivision (c)(1) (current
    subd. (d)(1)).16 The doctrine of judicial estoppel, sometimes referred to as the doctrine of
    preclusion of inconsistent positions, ― ‗prevents a party from asserting a position in a
    legal proceeding that is contrary to a position previously taken in the same or some
    earlier proceeding.‘ ‖ (Jackson v. County of Los Angeles (1997) 
    60 Cal.App.4th 171
    , 181
    (Jackson).)
    16
    As previously noted, Horton has also expressly acknowledged in this litigation
    that at least some of the duties performed by the Port Agent are ―public.‖
    13
    ― ‗ ―[Judicial estoppel] is invoked to prevent a party from changing its position
    over the course of judicial proceedings when such positional changes have an adverse
    impact on the judicial process. . . . ‗The policies underlying preclusion of inconsistent
    positions are ―general consideration[s] of the orderly administration of justice and regard
    for the dignity of judicial proceedings.‖ ‘. . . ‗It seems patently wrong to allow a person to
    abuse the judicial process by first [advocating] one position, and later, if it becomes
    beneficial, to assert the opposite.‘ [Citation.]‖ (Jackson, supra, 60 Cal.App.4th at
    p. 181.) ― ‗ ―Judicial estoppel precludes a party from gaining an advantage by taking one
    position, and then seeking a second advantage by taking an incompatible position.
    [Citations.]‖ ‘ . . . The doctrine applies when: ‗(1) the same party has taken two
    positions; (2) the positions were taken in judicial or quasi-judicial administrative
    proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal
    adopted the position or accepted it as true); (4) the two positions are totally inconsistent;
    and (5) the first position was not taken as a result of ignorance, fraud, or mistake.‘
    [Citations.]‖ (Aguilar v. Lerner (2004) 
    32 Cal.4th 974
    , 986–987.) All are true here.
    At oral argument, both the Port Agent and the Board sought to distinguish the
    factual context of Regal Stone, and contended that it would be inequitable to apply the
    doctrine in this setting.17 (See MW Erectors, Inc. v. Niederhauser Ornamental & Metal
    Works Co., Inc. (2005) 
    36 Cal.4th 412
    , 422–423 [―judicial estoppel is an equitable
    doctrine, and its application, even where all necessary elements are present, is
    discretionary‖ (italics omitted)]; M. Perez Co., Inc. v. Base Camp Condominiums Assn.
    No. One (2003) 
    111 Cal.App.4th 456
    , 463 [judicial estoppel is an equitable doctrine to
    protect against fraud on the courts].) But in Regal Stone, as in this matter, the Port
    Agent‘s role in the assignment of pilots, and whether he acts in an official capacity when
    doing so, was pivotal. And McIsaac took the unequivocal position before the U.S.
    17
    The Board is, however, correct in its assertion that the doctrine cannot be
    applied to it, since it was not a party to the Regal Stone proceeding and has never adopted
    the position taken in that litigation by the Port Agent. We discuss separately, post, the
    Board‘s obligations under the CPRA.
    14
    District Court that he was a state official, acting with the course and scope of that
    capacity, when assigning pilots. We fail to appreciate the inequity in refusing to allow
    the Port Agent to take an inconsistent position here. The Port Agent fails to explain why
    one should be permitted to assume the cloak of a state official when it provides
    protection, but to then cast it off in the event it becomes burdensome. We find that the
    Port Agent must be considered a state officer, at least when performing the official duties
    provided by statute or Board regulation.18
    D.     Are the Pilot Logs Public Records?
    For purposes of the CPRA, a public record is defined as ―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.‖
    (§ 6252, subd. (e).) ―The definition is broad and ‗ ― ‗intended to cover every conceivable
    kind of record that is involved in the governmental process[.]‘ ‖ ‘ [Citation.]‖
    (Coronado Police Officers Assn. v. Carroll (2003) 
    106 Cal.App.4th 1001
    , 1006
    (Coronado Police Officers Assn.).)
    The January 4, 2012 CPRA request by PMSA‘s counsel to Horton first included a
    specific demand for production of ―[t]he annual Pilot Log,‖ alleging that it was ―a
    document created under the direction of the Port Agent as a memorialization of all pilot
    assignments to vessels made pursuant to the Port Agent‘s duties under [Regulations
    section] 218[, subdivision] (c)(1) [(current subd. (d)(1))] and reflects the administration
    of pilot vacation schedules pursuant to the Port Agent‘s duties under [Regulations
    section] 218[, subdivision] (c)(2) [(current subd. (d)(2))].‖ The March 26, 2012 CPRA
    request to the Board mirrored this demand, and specifically referenced the United States
    Tax Court proceeding (Miller, supra, 
    102 T.C.M. (CCH) 250
    ) in support of the request.
    18
    PMSA appears to broadly suggest that the Port Agent should be considered a
    state official even when he is ―administer[ing] the affairs of the pilots‖ or engaged in the
    ―general supervision and management of all matters related to the business . . . of pilots.‖
    (Regs., § 218, subds. (a), (b).) We find no authority for such a sweeping assertion, but
    have no need to decide here the precise demarcation between the Port Agent‘s public and
    private roles.
    15
    PMSA contends that its records requests ―seeks to shed light on the inexplicably
    murky process of assigning pilots to vessels‖ which PMSA alleges has been a ―focal
    point of inquiry in litigation and policymaking at the federal and state level.‖19 PMSA
    insists that the Pilot Logs are public records within the meaning of the CPRA ―reveal[ing]
    pilot assignment and scheduling decisions made by the Port Agent when acting pursuant
    to Board regulation‖ and that such decisions ―are critical to the provision of safe
    pilotage.‖
    But the fact that the Port Agent may act as a public officer in the performance of
    certain of his duties does not mean that every record in his possession or control thereby
    becomes a public document subject to the CPRA. As we have discussed, the Port Agent
    has both private and public incarnations. Bar Pilots is an independent association, with
    its own facilities and its own records of its operations, and the Port Agent concurrently
    serves as president of that association. There is no contention that Bar Pilots is a public
    agency, or that its internal private records are subject to the CPRA, even though Bar
    Pilots makes required annual statistical reports to the Board, which are public record.
    19
    It was the M/V Cosco Busan incident and questions as to the pilot‘s fitness that
    led to the Legislature placing the Board under the authority of the Transportation Agency.
    (Harb. & Nav. Code, § 1150, subd. (d).) The controversy here seems to be focused on
    the issue of requiring MRP‘s for pilots to avoid fatigue. A January 23, 2010 vessel
    incident in Port Arthur, Texas resulted in an investigation by the National Transportation
    Safety Board (NTSB) and recommendation that state licensing boards promulgate ―hours
    of service‖ rules to prevent pilot fatigue. A legislative Joint Sunset Review Committee
    (Govt. Code, § 9147.7, subd. (c)), on February 5, 2012, recommended that the Board
    promulgate hours of service regulations for pilots in accordance with the NTSB report.
    The Board, on July 26, 2012, adopted additional reporting requirements for MRP‘s for
    pilots. Our Legislature recently amended the Harbors and Navigation Code to require the
    Board to ―conduct a study of the effects of work and rest periods on psychological ability
    and safety for pilots‖ and make ―recommendations on how to prevent pilot fatigue and
    ensure the safe operation of vessels.‖ (Harb. & Nav. Code, § 1196.5, subd. (a).) Based
    on the results of the study, the Board will be required to ―promulgate regulations for
    pilots establishing requirements for adequate rest periods intended to prevent pilot
    fatigue.‖ (Harb. & Nav. Code, § 1196.5, subd. (b).) There are no current regulations on
    the subject. The Bar Pilots‘ work rules, calling for 12-hour MRP‘s, are only voluntary
    guidelines.
    16
    (Regs., § 237, subd. (d).)20 Private nongovernmental records are not subject to the
    CPRA.
    ―[T]he mere possession by a public [officer] of a document does not make the
    document a public record. [Citation.]‖ (Coronado Police Officers Assn., supra,
    106 Cal.App.4th at p. 1006.) ― ‗ ―Any record required by law to be kept by an officer, or
    which he keeps as necessary or convenient to the discharge of his official duty, is a public
    record.‖ [Citation.]‘ ‖ (San Gabriel Tribune v. Superior Court (1983) 
    143 Cal.App.3d 762
    , 774 (San Gabriel Tribune); see also CSU, supra, 90 Cal.App.4th at p. 824 [― ‗if a
    record is kept by an officer because it is necessary or convenient to the discharge of his
    official duty, it is a public record‘ ‖].) ―[T]he critical question is whether the information
    contained therein relates to the conduct of the ‗public‘s business.‘ ‖ (Coronado Police
    Officers Assn., at p. 1006.)
    In Coronado Police Officers Assn., for example, a police officers‘ association
    sought to inspect a database compiled by the San Diego Public Defender‘s Office which
    included impeachment information gathered from client files, and ―supplemented with
    information gathered from other public information sources, such as court files, civil
    service proceedings, peace officer reports and newspaper articles.‖ (Coronado Police
    Officers Assn., supra, 106 Cal.App.4th at p. 1004.) Although the database was prepared,
    used and retained by a public agency, the Fourth District Court of Appeal held that that
    20
    To assist the Board in determining the number of pilot‘s licenses to be issued,
    the Bar Pilots are required to provide a report that includes such information as: numbers
    of vessel moves, bar crossings, bay and river moves; average draft and gross registered
    tonnage of piloted vessels; numbers of pilots reported sick or injured and the number of
    days each was unable to perform piloting duties; number of times a pilot resumed duties
    with less than 12 hours off duty, the contributing circumstances, and actual hours off duty
    between assignments; and number of days pilots were engaged in Board-mandated
    training or administrative duties authorized by the Port Agent. (Regs., § 237, subd.
    (d)(1)–(12).)
    17
    the database was not a public record because it was compiled for use in its core private
    function, the representation of criminal defendants.21 (Id. at pp. 1006–1007.)
    In ordering disclosure, the trial court here found that ―[t]he ‗Pilot Logs‘ are
    documents used by the Port Agent in the execution of his public duties including, but not
    limited to, assigning pilots to vessels and preparing and administering pilot vacation time.
    These are necessary and convenient to the Port Agent‘s public duties and are public
    documents.‖ Were this finding supported by substantial evidence, we would view it as
    dispositive. But we can find no competent evidence in the record before the trial court
    which would support such a finding.
    1.     The Evidentiary Record
    The so-called Pilot Logs apparently first came to light in connection with a federal
    income tax dispute litigated between the Internal Revenue Service and an individual
    member of Bar Pilots (Miller, supra, 
    102 T.C.M. (CCH) 250
    ). In that proceeding pilot
    Tom Miller, through counsel, joined in a written stipulation (Miller Stipulation), reciting
    that he was a ―partner‖ in Bar Pilots.22 The stipulation, dated October 18, 2010, included
    two exhibits (referred to in this litigations as the Pilot Logs) identified as ―the [Bar Pilots]
    piloting record‖ for Miller for 2005 and 2006, and further described the documents as
    having been ―created by [Bar Pilots] in the normal course of business to keep track of a
    Pilot‘s time pursuant to [Regulations section] 237[, subdivisions ](d), (f)(1)‖ and ―to
    comply with [the Board‘s] requests to provide the amount of [MRP] exemptions taken by
    21
    The court further found the database, even if it could be considered a public
    record, would be exempt from disclosure under the ―catch-all‖ exemption under
    section 6255. (Coronado Police Officers Assn., supra, 106 Cal.App.4th at pp. 1012–
    1013.) Under section 6255, subdivision (a), a public agency may withhold a public
    record for policy reasons if it can demonstrate 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.‖ As discussed post, we conclude that the issue need
    not be addressed here.
    22
    A 2011 consolidated financial statement for Bar Pilots submitted in evidence by
    PMSA at the trial court indicates that Bar Pilots is ―not legally considered a partnership,‖
    but has filed partnership tax returns since 1979. Bar Pilots‘ financial statements filed
    with the Board are public records. (Regs., § 236.)
    18
    each . . . Pilot.‖ The Miller Stipulation also provided detailed explanations for the data
    columns presented in the Pilot Logs.
    The Miller Stipulation and the attached Pilot Logs for Miller were included as
    exhibits to PMSA‘s petition for writ of mandate in the trial court. The Attorney General
    made written objection to all PMSA exhibits as lacking foundation and authentication,
    and as hearsay. The Attorney General specifically objected to the ―unauthenticated
    records from a tax court matter‖ as ―irrelevant to any issue presented in this case.‖ The
    trial court did not conduct an evidentiary hearing, nor did it expressly rule on any of the
    evidentiary objections by either side. At oral argument before the trial court, the
    Attorney General again objected to the court‘s consideration of the Miller documents,
    and argued that the only competent evidence before the court concerning the Pilot Logs
    was the Port Agent‘s declaration that he used no such records in the performance of his
    duties.
    In responding to the January 4, 2012 CPRA request, Horton denied that there was
    any document maintained by the Port Agent named the Pilot Log, but said that ―[t]here is
    a data set that bears headings that are similar to those set forth in your e-mail to [Board
    counsel] of January 30, 2012.‖ Horton said that the data, however, was not used by the
    Port Agent in assigning pilots to vessels or in preparing or administering the pilots‘
    vacation schedule and was not supplied to the Board. He insisted that ―[t]he documents
    containing this data are documents that are maintained by [Bar Pilots] in its capacity as a
    private organization and not in connection with any duties imposed upon the Port Agent
    by statute or by the regulations of [the Board].‖ Similarly, in responding to the May 26,
    2012 request, the Board replied that it had no Pilot Log in its possession, and the ―is not a
    document prepared, owned, used or retained by [the Board].‖
    In response to the trial court‘s disclosure order, on October 12, 2012, Horton
    submitted another declaration under penalty of perjury reiterating his earlier declaration
    that, while ― ‗the Bar Pilots maintain a dataset that includes some of the types of
    information PMSA apparently seeks through its requests for ―Pilot Logs.‖ I do not use
    this dataset in performing my duties as Port Agent. The dataset is not provided to the
    19
    Board or to members of the public.‘ . . . [¶] . . . Some but not all of the information that
    [PMSA] asserts is contained in the ‗Pilot Logs‘ is used by the Bar Pilots in preparing the
    report that the Bar Pilots, not the Port Agent, is required to submit to the Board under
    [Regulations] section 237[, subdivision ](d). I do not use this information in performing
    my duties as Port Agent. Specifically, I do not use the information to assign pilots to
    vessels, and I do not use it to prepare or administer pilot vacation time. . . . Prior to
    receiving PMSA‘s document demands, I was unaware of the existence of the database. I
    do not use, and have never used, the database in my capacity as Port Agent. I am
    unaware of any previous Port Agent ever using the database for any purpose. I have
    never submitted a query to the database (or asked anyone to do so on my behalf) for any
    purpose, either in my capacity as Port Agent or in my private capacity as President of the
    Bar Pilots; to my knowledge, no previous Port Agent has ever done so.‖
    2.     Discussion
    The issue is not whether a database containing some or all of the information
    requested by PMSA exists. The Port Agent admits that it does, and that it is owned and
    used by Bar Pilots. Nor is the issue an undeniable public interest in safe navigation of
    vessels in our waterways and avoidance of serious environmental, political, and business
    consequences that may result from pilot errors.23 Rather, the question is whether any
    23
    PMSA asks us to take judicial notice of four items, including a Board incident
    review committee report of a near grounding incident near the Richmond wharf on
    February 18, 2012; news articles concerning a January 7, 2013 allision between an empty
    oil tanker and a pier of the Bay Bridge; and a copy of the 2012 annual report provided to
    the Board by Bar Pilots under Regulation section 237, subdivision (d), including the
    number of exceptions to MRP‘s. PMSA contends that the documents (which were not
    provided to the trial court) demonstrate that the pilot assignment data is utilized by both
    the Board and the Port Agent, and that they ―demonstrate the profound public interest in
    the information PMSA seeks.‖ We deny the request because we do not find them
    relevant. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 
    181 Cal.App.4th 471
    , 482
    (Arce) [court may decline to take judicial notice of matters that are not relevant to
    dispositive issues on appeal].) The Bar Pilots annual report is itself a public record
    (Regs., § 237, subd. (d)), but that does not thereby make public the records from which
    the report is produced. (Forsham v. Harris (1980) 
    445 U.S. 169
    –171.) The documents
    do not address data used by the Port Agent in assigning pilots, and the public interest is a
    20
    evidence exists that the information is possessed and used by the Port Agent in the
    performance of his official duties, and consequently a public record. We find that there is
    not.
    PMSA relied in the trial court, and relies here, on the Miller Stipulation and
    attached Pilot Logs as evidence ―of the existence, source and nature of the documents
    sought under the CPRA and the extent of the Port Agent‘s role and duties as a public
    official.‖ But how? PMSA contends that the trial court properly took judicial notice of
    the Miller documents because they are records of a court of the United States and not
    subject to reasonable dispute. Despite PMSA‘s assertion to the contrary, the Miller
    Stipulation and the Pilot Logs are unquestionably hearsay, their content was disputed and
    both the Board and Bar Pilots repeatedly objected to their consideration. PMSA insists
    that the Miller Stipulation and Pilot Logs are not hearsay because they were ―not offered
    for the truth of the matter of the content therein, but to show that, for purposes of CPRA
    disclosure only, the Pilot Logs exist and reflect the daily activities of the Port Agent to
    execute his public duties to assign pilots to vessels and to collect data.‖ Even if the Pilot
    Logs from the Miller case could be considered to establish the existence of an
    information database, statements contained in the Miller Stipulation are the only
    authentication or explanation for any of the information contained within the Pilot Logs,
    and the only basis for the claim that the Pilot Logs ―reflect the daily activities of the Port
    Agent to execute his public duties to assign pilots to vessels and to collect data.‖ While
    judicial notice may be taken of court records (Evid. Code, § 452, subdivision (d)), the
    truth of matters asserted in such documents is not subject to judicial notice. (Arce, supra,
    181 Cal.App.4th at p. 482.)24
    material factor in determining if an exemption to release of public documents otherwise
    subject to disclosure would apply. (§ 6255.)
    24
    See also Sosinsky v. Grant (1992) 
    6 Cal.App.4th 1548
    , 1564–1565, quoting
    1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 47.2: ― ‗What is meant by taking
    judicial notice of court records? There exists a mistaken notion that this means taking
    judicial notice of the existence of facts asserted in every document of a court file,
    21
    In response to evidentiary objections in the trial court, PMSA asserted that the
    Miller Stipulation ―directly admit[s] that the Port Agent‘s recordation of the assignment
    of pilots is undertaken in the regular course of business in order to fully and accurately
    comply with a reporting requirement of the state of California‖ and that ―these statements
    are directly relevant as admissions against interest, since Miller was and is a member of
    [Bar Pilots].‖ But there was no evidence presented that Miller is, or ever has been an
    officer of Bar Pilots, that he had personal knowledge of any of the business records of
    Bar Pilots, or that he was authorized in any way to speak on its behalf. And the
    Stipulation is not even a sworn declaration by Miller. It is the product of yet another
    layer of hearsay—an unverified document submitted and signed by Miller‘s counsel, who
    does not purport to have personal knowledge of any of the content.
    In contrast, the Port Agent avers that he does not, and has not, prepared or used the
    Pilot Logs in assigning pilots, and both the Port Agent and the Board confirm that the
    database is not provided to the Board. In sum, there is no evidence, let alone substantial
    evidence, to support a finding that the Pilot Logs are ―used by the Port Agent in the
    execution of his public duties including, but not limited to, assigning pilots to vessels and
    preparing and administering pilot vacation time‖ or that they are ―necessary and
    convenient to the Port Agent‘s public duties.‖ In the absence of such evidence, the
    database of the Pilot Logs cannot be considered public records under the CPRA.
    E.     Constructive Possession of the Pilot Logs by the Board
    Both PMSA and Amici Curiae argue that records relating to execution of the Port
    Agent‘s public duties are also public records because they are in the constructive
    possession of the Port Agent and the Board. The CPRA pertains to ―disclosable public
    records in the possession of the agency . . . .‖ (§ 6253, subd. (c), italics added.) Relying
    upon the Board‘s general administrative control of the Port Agent and its authority over
    all licensed pilots and pilot reporting requirements (Regs., §§ 218, 219), PMSA insists
    including pleadings and affidavits. However, a court cannot take judicial notice of
    hearsay allegations as being true, just because they are part of a court record or file.‘ ‖
    22
    that both the Board and Port Agent have the right to control the Pilot Log database
    maintained by Bar Pilots, and are therefore in ―possession‖ of those records.
    As to the Port Agent, the argument reaches too far. Under PMSA‘s theory, any
    and all records held or maintained by a private organization would become public record
    simply because one of its officers concurrently held a position performing public
    functions. Whether the record is in the actual or constructive possession of a public
    official, the requirement is still that the record be required by law to be kept by that
    official, or that it be ― ‗ ―necessary or convenient to the discharge of his official duty.‖ ‘ ‖
    (San Gabriel Tribune, supra, 143 Cal.App.3d at p. 774; CSU, supra, 90 Cal.App.4th at
    p. 824.)
    As to the Board, to prevail, PMSA must establish that the files (1) qualify as
    public records and (2) were in the possession of the Board. (Consolidated Irrigation
    Dist. v. Superior Court (2012) 
    205 Cal.App.4th 697
    , 709 (Consolidated Irrigation).)
    ―Possession‖ in this context has been interpreted to mean both actual and constructive
    possession. ―[A]n agency has constructive possession of records if it has the right to
    control the records, either directly or through another person. [Citation.]‖ (Id. at p. 710.)
    PMSA relies primarily on Bernardi v. County of Monterey (2008) 
    167 Cal.App.4th 1379
    (Bernardi) in support of its argument. Neither Consolidated Irrigation nor Bernardi is
    factually analogous.
    In Consolidated Irrigation, the petitioner challenged the approval of an
    environmental impact report (EIR) by the City of Selma (City) and sought a writ of
    mandate to compel production under the CPRA of, inter alia, records of subconsultants
    hired by a primary consultant to prepare reports, studies, or certain sections of the EIR.
    (Consolidated Irrigation, supra, 205 Cal.App.4th at pp. 702, 709–710.) The trial court
    denied the petition. The petitioner contended that the City had the right to control the
    subconsultants‘ files based on a provision in the contract between City and the primary
    consultant that expressly gave the City ownership of all documents and data prepared by
    the contractor. The petitioner was given access to the contractor‘s files, and constructive
    possession of the documents in the contractor‘s file was not at issue. The court
    23
    concluded that the contract provision did not give the City ownership rights in the
    materials in the subconsultant‘s files and affirmed denial of the petition. (Id. at pp. 709–
    711.) Nothing in the Harbors and Navigation Code, or in the Board‘s regulations gives
    the Board any rights of ownership of Bar Pilots‘ records, and Bar Pilots is not a
    contractual agent of the Board. As PMSA acknowledges, there is no reference to Bar
    Pilots in the Harbors and Navigation Code. Bernardi dealt only with the reasonableness
    of an award of attorney fees to a successful CPRA petitioner. The trial court‘s order
    requiring production of the environmental consultant‘s file was not appealed. (Bernardi,
    supra, 167 Cal.App.4th at pp. 1383, 1392.) ―An appellate decision is not authority for
    everything said in the court‘s opinion but only ‗for the points actually involved and
    actually decided.‘ [Citations.]‖ (Santisas v. Goodin (1998) 
    17 Cal.4th 599
    , 620.)
    Amici Curiae contend that the Board has the right to obtain the Pilot Log records,
    and therefore ―owns‖ those records. They cite San Gabriel Tribune for the proposition
    that if an agency delegates a duty to a third party, but retains the power and duty to
    monitor performance of the delegated duty, the third party records relating to the
    performance of that duty are public. San Gabriel Tribune also involved a contractual
    agreement, in that instance between a municipality and trash collection service. The trash
    collection company had a contractual obligation to submit annual financial statements to
    the city, and the records in dispute consisted of financial data that the company submitted
    to the city to justify a rate increase the city authorized. (San Gabriel Tribune, supra,
    143 Cal.App.3d at pp. 767–769.) The court held that those statements were public
    records subject to disclosure because the contractor had ―injected the data into the
    decision-making process of government‖ (id. at p. 778) and ―the City [had] relied on [the
    statements] in granting the rate increase‖ (id. at p. 775). Here the Board has ―delegated‖
    nothing, by contract or otherwise.
    PMSA suggests that Board is ―outsourc[ing] the ‗performance of administrative
    functions‘ ‖ and that Bar Pilots ―is, in many respects, a functional subordinate of the
    public agency and subject to the execution of its public duties.‖ Bar pilotage is a
    recognized but regulated monopoly, and the Board has statutory licensing and oversight
    24
    authority. But the individually licensed members of Bar Pilots render piloting services
    directly to their maritime clients, not on behalf of the Board. The pilot work rules are
    generally established by Bar Pilots, and not by the Board. And the Legislature has never
    given the Board the authority to make pilot assignments or to direct them. The Port
    Agent has always been allocated that responsibility, and we have already held that he
    serves as a state officer in doing so.
    Nor does the record support Amici Curiae‘s argument that Board is attempting to
    ―defeat disclosure by ceding possession and control of [the records] to a third party.‖ So
    far as the evidence discloses, the database at issue has always been solely prepared and
    maintained by Bar Pilots and never provided to the Board, although apparently used in
    part in preparation of the summary statistical reports from Bar Pilots to the Board
    required under Regulations section 237, subdivision (d). But the fact that Bar Pilots may
    use the Pilot Log database to prepare its public summary does not mean that all data used
    to prepare the report is thereby public. (See Forsham v. Harris, 
    supra,
     445 U.S. at
    pp. 171–179 [written data generated, owned and possessed by a privately controlled
    organization funded solely by federal grants are not records of the federal agency
    providing the grants if they are not provided to the agency, even if there is a federal right
    of access to the data].)
    F.     Conclusion
    The evidentiary record before us does not support a finding that the Pilot Log data
    is, or ever has been, used by the Port Agent in the performance of his official duty in
    assignment of bar pilots, and consequently a public record. If the data itself is not public
    record, the fact that the Board could theoretically request it from Bar Pilots does not
    make it so.
    We do not dismiss the public‘s interest, articulated by PMSA and Amici Curiae, in
    safe pilotage of large vessels in the environmentally sensitive confines of the San
    Francisco Bay. We do not doubt that historic records reflecting individual exemptions
    from what are now only recommended MRP‘s in piloting assignments may ―shed light on
    25
    the . . . process of assigning pilots to vessels‖ as PMSA contends. But records otherwise
    private do not become public simply by virtue of public interest in their content.
    As a consequence of well-publicized maritime accidents, the NTSB has
    recommended that state licensing boards promulgate ―hours of service‖ rules to prevent
    pilot fatigue. A legislative committee recently recommended that the Board conduct a
    manpower utilization study based on actual pilot logs. Our Legislature has now acted on
    both recommendations, requiring the Board to study the effects of work and rest periods
    on psychological ability and safety for pilots, and to promulgate pilot regulations
    establishing requirements for adequate rest periods. (Harb. & Nav. Code, § 1196.5.)
    Presumably the information that PMSA seeks will come to light in that process.
    III.   DISPOSITION
    The petition filed in this court, are granted. Let a peremptory writ of mandate
    issue directing the superior court to set aside and vacate its September 18, 2012 order
    granting PMSA‘s petition for writ of mandate and to enter a new and different order
    denying that petition. The previously issued stay shall dissolve upon issuance of the
    remittitur. (Cal. Rules of Court, rules 8.490(c), 8.272.) Petitioners shall recover their
    costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
    _________________________
    Bruiniers, J.
    We concur:
    _________________________
    Jones, P. J.
    _________________________
    Needham, J.
    26
    Superior Court of the City and County of San Francisco, No. CPF-12-512320, Curtis
    E.A. Karnow, Judge.
    Kamala D. Harris, Attorney General, John Saurenman, Assistant Attorney General,
    Christiana Tiedemann, Deputy Attorney General, for Petitioners in No. A136803.
    Phillips, Erlewine & Given, R. Scott Erlewine and Cari A. Cohorn for Petitioners in
    No. A136806.
    No appearance for Respondent.
    Flynn, Delich & Wise, Conte C. Cicala; Davis Wright Tremaine, Thomas R. Burke; and
    Michael C. Jacob for Real Party in Interest.
    Ram, Olson, Cereghino & Kopczynski, Karl Olson as Amici Curiae on behalf of Real
    Party in Interest.
    27
    

Document Info

Docket Number: A136803; A136806

Judges: Bruiniers

Filed Date: 8/1/2013

Precedential Status: Precedential

Modified Date: 11/3/2024