DocketNumber： D039198
Judges： McIntyre, Huffman
Filed Date： 3/6/2003
Status： Precedential
Modified Date： 11/3/2024
Opinion
Coronado Police Officers Association and seven other police officers associations (collectively the Association) appeal from a judgment denying them access to a database created by defendants Steven J. Carroll, as the San Diego County Public Defender, and San Diego County Department of the Public Defender (collectively the Public Defender) under the California Public Records Act, Government Code section 6250 et seq. (the Act). (All statutory references are to the Government Code unless otherwise indicated.) The Association contends the trial court erred when it ruled that the database was not a public record within the meaning of section 6252. We treat the appeal as a petition for an extraordinary writ, which we deny on the grounds that the database is not a public record; and even if it is, it would be exempt from disclosure under the Act’s “catchall” exemption (§ 6255) because the public interest in nondisclosure clearly outweighs the public interest in disclosure.
Factual and Procedural Background
The Public Defender is an agency organized under the County of San Diego Charter whose principal business is the representation of indigent criminal defendants. It functions like a typical law firm to further the interests of its clients through the combined resources, research and work product of the entire organization. Since 1988 the Public Defender has preserved client files in the original hard copy format, but technical innovations have since allowed it to scan the preserved files into an electronic
To give its attorneys fast and efficient access to information regarding peace officer performance and other recurring issues, the Public Defender also devised and implemented a computer program to supplement and integrate such information into its existing files. Thus, the “database” at issue is comprised of information contained in the Public Defender’s existing client files that is supplemented with information gathered from other public information sources, such as court files, civil service proceedings, peace officer reports and newspaper articles. Information in the database includes impeachment evidence. One of the Public Defender’s goals is to share impeachment information so that each attorney does not have to undertake a new and independent investigation every time a case file is opened.
The Association discovered the existence of the database from a newspaper article. It sought to inspect the database under the Act after becoming concerned that the database might (1) include peace officer personnel records (Pitchess material; Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]); (2) violate article I, section 1 of the California Constitution, which prohibits the unnecessary collection of personal information; and (3) contain inaccurate information. After the Public Defender denied its request, the Association filed this action seeking declaratory relief and a writ of mandamus to compel the disclosure. The trial court found the database at issue was not a “public record” and the Association appeals. During the pendency of this appeal, we asked the parties to submit supplemental letter briefing on the applicability of section 6255 to this action.
Discussion
Appealability of Judgment
The Public Defender contends the judgment denying the Association access to the database is not appealable and the Association’s sole means of
Subdivision (c) of section 6259 provides that an order granting or denying a request for disclosure of public records is generally reviewable by writ rather than appeal. In limited situations, however, an appellate court may determine the merits of an attempted appeal from a nonappealable judgment or order by treating the matter as a writ proceeding. (Olson v. Cory (1983) 35 Cal.3d 390, 400-401 [197 Cal.Rptr. 843, 673 P.2d 720].) This power is generally invoked where (1) the briefs and record contain in substance all the elements prescribed by rule 56 of the California Rules of Court for an original mandate proceeding and (2) there are extraordinary circumstances justifying the exercise of that discretionary power. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745-747 [29 Cal.Rptr.2d 804, 872 P.2d 143]; Olson v. Cory, supra, 35 Cal.3d at p. 401.)
The instant record satisfies the first requirement. We find the second requirement is also satisfied because the Association filed the notice of appeal within the statutory time period for seeking writ review and a dismissal for lack of appellate jurisdiction would lead to further trial court proceedings and would not further judicial economy. Under these unusual circumstances, we reach the merits of the appeal by treating it as a petition for an extraordinary writ.
The Database Is Not a Public Record
The Act requires that local and state agencies make their public records available for inspection. (§ 6253.) 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[.]” (§ 6252, subd. (e).) The definition is broad and “ ‘ “intended to cover every conceivable kind of record that is involved in the governmental process[.]”’” (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774 [192 Cal.Rptr. 415], quoting § 6252, subd. (e).) But the mere possession by a public agency of a document does not make the document a public record. (City Council v. Superior Court (1962) 204 Cal.App.2d 68, 73 [21 Cal.Rptr. 896].)
The Public Defender contends the database is not a public record because its core function, the representation of indigent criminal defendants, is a private function. We agree. Although the requested database was prepared, used and retained by the Public Defender as required under section 6252, subdivision (e), the critical question is whether the information contained therein relates to the conduct of the “public’s business.” On this issue,
In Polk, a criminal defendant sued his public defender attorney under 42 United States Code section 1983, alleging denial of due process. The Supreme Court examined the public defender’s function, and not simply its relationship with the state, in determining whether the public defender attorney had acted under color of state law for purposes of liability under 42 United States Code section 1983. The court concluded that a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding because the public defender is serving an essentially private function, adversarial to and independent of the state. (Polk, supra, 454 U.S. at pp. 318, 325 [102 S.Ct. at pp. 449-450, 453-454].) In this capacity, the public defender maintains the same level of professional independence as a private attorney, and the state is constitutionally obligated to respect this independence. (Id. at pp. 321-322 [102 S.Ct. at pp. 451-452].)
Although the facts and procedural context in Polk are distinguishable, the principle stated therein is apposite, as recognized by the Florida Supreme Court, which applied the Polk rationale in a case involving a public records dispute. In Kight v. Dugger (Fla. 1990) 574 So.2d 1066 (Kight), the Florida Supreme Court considered whether the records of a criminal defendant’s trial counsel were subject to disclosure under Florida’s Public Records Act during postconviction litigation by virtue of the fact that the records had been provided to the Office of Capital Collateral Representative (CCR), a governmental agency appointed to represent a defendant at postconviction proceedings. (Id. at p. 1068.) The court concluded that files in the possession of the CCR “in furtherance of its representation of an indigent client [were] not subject to public disclosure” under the Florida’s Public Records Act and “[t]o hold otherwise would subject the records of a defendant who is unable to retain private collateral representation to public disclosure while those of a defendant represented by private counsel would be immune from such disclosure.” (Id. at p. 1069.) Although the California Supreme Court has not addressed this issue, it has recognized the principle that a public defender is not a state agent, but rather acts as a private attorney when representing clients. (In re Hough (1944) 24 Cal.2d 522, 528-529 [150 P.2d 448].)
While the court’s statements in Kight appear in the context of the representation of a single client and address disclosure of that individual’s file, the fact some of the information in the database may not be attached to a particular client file is not dispositive because it does not change the nature of the information into that relating to the “public’s business.” As explained
Here, the Public Defender has “scanned” or copied the information contained in its paper client files into a computer database. Information contained in client files includes discovery provided by prosecuting agencies, information provided by clients, information gathered by the Public Defender through its own investigative efforts, court minute orders, probation reports and other case related documents. The database allows individual Public Defender attorneys to quickly and efficiently access case files without having to send an employee to a distant storage facility to search for and retrieve a closed file. However, all restrictive court orders are obeyed and information is “source coded” to prevent the dissemination of restricted information, including the names of witnesses released as the result of a Pitchess motion.
The Public Defender has created indices of its closed files so that its attorneys representing individual clients may access the electronically stored information in performing their duties. The Public Defender has articulated a number of legitimate reasons for accessing information in a closed case file, including (1) representing the same client on a probation revocation or on a new criminal charge; (2) discovering witness statements to assist in a new case; (3) discovering alleged patterns of Fourth Amendment violations by law enforcement officers; (4) researching for previous internal investigations relating to police misconduct; and (5) copying the file for appellate counsel or the client.
The Public Defender has also devised a computer program so that information in its client files can be integrated and then supplemented with information from other public sources. Thus, information needed on a recurring basis, such as performance information for sworn law enforcement officers, is readily accessible. Rather than requiring an individual public defender attorney to physically retrieve multiple client and general information files and then manually sort through the information, the computer does the work, quickly and efficiently, to the benefit of the entire office and all current and future clients. To that extent, the database is merely a different storage medium for information already contained in existing Public Defender files and available from other public sources.
We believe the database represents a logical application of the traditional functions of defense counsel because the information contained therein is partially assembled from individual client files—files created by the Public Defender as counsel to defendants in criminal proceedings. The collected
At oral argument, counsel for the Association stated the goal of the petition was to enable individual officers to access information in the database that is not attached to any particular case in order to correct inaccuracies or to assert privacy rights. After reviewing the database it apparently intends to pursue a separate action to remove from the database material it deems the Public Defender is not entitled to retain, such as Pitchess material or material allegedly obtained in violation of the privacy rights of its members. But the Public Defender is charged with protecting the interests of the clients it serves. To perform its work, the Public Defender must be allowed to assemble information so that it can sift through available facts in order to prepare legal theories and plan strategy. (See Hickman v. Taylor (1947) 329 U.S. 495, 510-511 [67 S.Ct. 385, 393-394, 91 L.Ed. 451].) To carry out this work, it must be free from unnecessary intrusion. (Ibid.) Allowing the Association or other entities or individuals to dictate what information the Public Defender may retain and evaluate would unnecessarily intrude upon its work, when private defense counsel is not subject to similar intrusion.
This decision does not imply that all documents possessed by the Public Defender regarding the database are private rather than public records. Records containing information Concerning the administrative decision to compile the database, the cost of maintaining the database or rules applying to its access and use are policy decisions made by the Public Defender in its capacity as the administrator of a public office. A court could properly conclude that such documents are public records because they relate to the public’s business and not the representation of clients.
While the dissent concludes the database is a public record, it never directly responds to our conclusion that the database is not a public record because it does not “relatfe] to the conduct of the public’s business.” (§ 6252, subd. (e).) Instead, the dissent tenders two primary arguments to support its conclusion that the database must be a public record. The first argument is that the generic information gathered is not related to the
The dissent would apparently concede that information contained in individual client files is not a public record because it relates to the representation of individual clients. In fact, the Association argued before the trial court that the public should not have a right to view information contained in individual client files. Yet, the dissent’s first argument ignores the record in this case showing that the database is primarily comprised of information from client files, collected for the representation of individual clients. This information is then augmented by additional data from other public information sources.
Significantly, there is no indication in the record that the Public Defender is doing anything differently than it did prior to the creation of the database. The Public Defender has always kept hard copies of its client files; that it now scans those files, indexes the files and implements a computer program to allow it to integrate its client files with information obtained from public sources does not render the files public records. There is no evidence that the Public Defender suddenly discovered that newspaper articles and other public information sources may contain data helpful to the defense of its clients and that collecting and retaining this information would be beneficial to the defense of present and future clients. While the dissent characterizes this latter activity as “snooping,” it is nothing more than what a private law firm and its individual attorneys do to further the interests of its clients. Simply ignoring public sources of information about recurring witnesses could lead to legal malpractice liability and claims of ineffective assistance of counsel.
We fail to see how placing this information into a computer database is any different than individual public defender attorneys sharing the information orally or in writing. The dissent declares that “[i]t is the institutional nature of the public defender’s office and the administrative decisions of its management that make the creation of such a database possible.” (Dis. opn., post, at p. 1022.) While this may be a true statement, it is also meaningless. The dissent would have the Public Defender take individual client files and impeachment evidence gathered for a particular client and seal it from all but the lead attorney actually representing the individual client. There is no support in law or logic for such a position. Moreover, it ignores the fact that the Public Defender’s office works in a team environment and functions like any law firm so that the combined resources of the firm can be used to
The dissent also fails to recognize that the database does not exist to further any governmental process. Rather, the Public Defender created the database primarily out if its client files to serve the interests of individual indigent clients. Simply put, we have a difficult time understanding what the dissent is objecting to. Is it the fact that the Public Defender keeps client files and allows these files to be reviewed by individual Public Defender attorneys not connected to the case? Is it the fact that the Public Defender chooses to collect and retain information about the performance of peace officers from other public sources? Or is it the fact that the Public Defender can access all this information quickly because it no longer needs to physically review numerous individual pieces of paper?
The dissent then contends that the database is a public record because it was created with public funds. The dissent cites no authority supporting this assertion. We agree with the general contention that the public has a strong interest in documents pertaining to the use of public funds. (E.g., Connell v. Superior Court (1997) 56 Cal.App.4th 601, 616-617 [65 Cal.Rptr.2d 738] [public has interest in records pertaining to government’s conduct in managing public revenues]; Ohio ex rel. Beacon Journal Publishing Company v. Bodiker (1999) 134 Ohio App.3d 415 [731 N.E.2d 245, 252-255] [financial records, budgetary records or other materials detailing staff time and public money spent on a particular case is a public record].) But, the Association has not requested information about the public funds expended in creating and implementing the computer program that indexes and organizes the information in the database. Taking the dissent’s position to its logical conclusion, every document written on a government owned computer or with government purchased pen and paper would become a public record. We submit that this is not the proper test.
Finally, we are compelled to note that the dissent has mischaracterized what is in the database. The Public Defender obtains information about police practices from public information sources; thus, there is nothing in the record to support the dissent’s suggestion that the Public Defender is involved in collecting, storing or disseminating private or personal information about police officers or other public officials.
Privacy interests generally fall into one of two categories: “(1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making
We fail to see what privacy right Association members have in information pertaining to their general job performance. To the extent the database contains the personnel records of Association members (Pitchess material), this information is not shared and it is separately coded and maintained. (People v. Alford (2003) 29 Cal.4th 1033, 1042 [130 Cal.Rptr.2d 672, 63 P.3d 228] [Pitchess material limited to case in which it was sought and cannot be shared].) Should an individual Public Defender improperly offer Pitchess material into evidence, appropriate action can be taken including contempt, sanctions or a report to the State Bar for disciplinary action.
Moreover, simply reviewing the entire database will not allow the Association to determine whether Pitchess material is improperly made available in violation of restrictive court orders. Rather, this must be ascertained by reviewing protocols established by the Public Defender for use of the database, information regarding the inputting and source coding of data, and possibly the raw computer program itself. Although the Association has not requested these records, and thus the question is not before us, these documents would probably be deemed public records because they are administrative in nature.
Even if some “private” information found its way into the database, it could only be disseminated in a courtroom after a trial judge has determined its relevance and admissibility. Should the Public Defender improperly disseminate inaccurate information outside the litigation context that is harmful to an Association member, that member has an adequate remedy in existing tort law. (Civ. Code, §§ 45 [libel], 46 [slander].)
The Database Is Exempt Under Section 6255
Even if we assume the database is a public record, we find it would be exempt from disclosure under the “catchall” exemption. (§ 6255.) Under section 6255, 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.” (§ 6255.) The existence
We reject the Association’s argument that the Public Defender waived the right to rely on section 6255 by not arguing this exemption. The Public Defender raised section 6255 in its answer by contending the public interest in nondisclosure substantially outweighed the public interest in disclosure. Our review of the trial court’s ruling involves the application of the law to undisputed facts. (CBS Broadcasting Inc. v. Superior Court (2001) 91 Cal.App.4th 892, 906 [110 Cal.Rptr.2d 889].) Under these circumstances a new theory can be raised for the first time on appeal; thus, we requested supplemental briefing addressing this exemption. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6 [70 Cal.Rptr.2d 680] [reviewing court may decide case on any legal theory, whether or not urged by counsel in appellate brief].)
The Association suggests an in camera review is required to determine whether the section 6255 exemption applies and that such a review would reveal the database does not constitute attorney work product as claimed by the Public Defender. But it never asked the trial court to conduct such a review. While the dissent would prefer an in camera review of the database rather than relying on the sworn representations of the Public Defender about its contents, an in camera review is not required as a matter of law, but is left to the sound discretion of the trial court. (California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 174 [78 Cal.Rptr.2d 847]; Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 901 [205 Cal.Rptr. 92]; Yarish v. Nelson (1972) 27 Cal.App.3d 893, 903-904 [104 Cal.Rptr. 205].)
The Association articulated three reasons why the public has an interest in the database because the database may: (1) violate its members’ rights to privacy; (2) contain peace officer personnel records {Pitchess material); or (3) contain inaccurate information. We find these arguments unpersuasive.
Article I, section 1 of the California Constitution includes the right to privacy among the various inalienable rights of all people. The Association correctly argues that the public has a strong interest in prohibiting the unnecessary collection and retention of personal information. (White v. Davis
Sworn law enforcement officers are frequent witnesses in criminal proceedings. Thus, evidence bearing on their credibility is always relevant. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9 [82 Cal.Rptr.2d 413, 971 P.2d 618].) In determining the credibility of a witness, the trier of fact may consider any matter tending to prove or disprove the truthfulness of the witness’s testimony. (Evid. Code, § 780.) For example, evidence of past misconduct may tend to show the witness has some motive, bias, or interest that might induce false testimony. (Evid. Code, § 780, subd. (f); People v. Mickle (1991) 54 Cal.3d 140, 168 [284 Cal.Rptr. 511, 814 P.2d 290].)
The database at issue assembles information collected from individual client files and various public sources on recurring issues such as police performance. This allows the Public Defender attorneys to quickly and efficiently share information without having to undertake a new investigation. Since Public Defender attorneys carry a heavy workload (more than 12,000 felony and 14,000 misdemeanor cases a year), individual clients undoubtedly benefit from this effort to conserve time and resources. The database is compiled by the Public Defender for the legitimate purpose of providing representation to criminal defendants. Thus, the collection and retention of this information is important to the efficient functioning of the Public Defender’s office.
The Association presented no evidence supporting its contention that the dátabase contains peace officer personnel records (Pitchess material) or that the Public Defender improperly used any such information. In contrast, the Public Defender submitted evidence that Pitchess material and information derived therefrom is separately maintained and that all restrictive court orders are obeyed. The Public Defender admits that its database may contain inaccurate information; however, this information is identified and must be retained to show appellate defense counsel what was done to prepare for trial and to explain why witnesses were not called or why possible impeachment evidence was not used.
The public interest is not served by disclosing potentially inaccurate information. In contrast, Public Defender attorneys accessing the database have a professional obligation to use their independent judgment in determining whether any information contained therein is relevant to their particular client. They can disregard information identified as “inaccurate” and
Requiring the Public Defender to disclose the contents of its database on demand would be detrimental to the public interest in providing legal representation to indigent criminal defendants. Significantly, impeachment material is not discoverable and disclosure of the database to the public would severely disadvantage the Public Defender as compared to private defense counsel. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn. 14 [285 Cal.Rptr. 231, 815 P.2d 304]; see also Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [78 Cal.Rptr.2d 819].) While the Association emphasized that it sought the information as citizens, not as representatives of the prosecution or as individuals interested in any criminal proceeding, the purpose for which it desires access to the database is irrelevant. (§ 6257.5.) A conclusion that the database is a nonexempt public record applies equally to any individual or entity seeking its disclosure. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 664, fn. 2 [230 Cal.Rptr. 362, 725 P.2d 470].)
The intent of the Act is “to safeguard the accountability of government to the public . . . .” (Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 1141 [59 Cal.Rptr.2d 537].) To verify accountability, individuals must have access to government files to check for the arbitrary exercise of official power and secrecy in the political process. (CBS, Inc. v. Block, supra, 42 Cal.3d at p. 651.) When representing clients the Public Defender performs a private function and it is held to the same professional standards as private defense counsel. (Polk, supra, 454 U.S. at pp. 318, 325 [102 S.Ct at pp. 449-450, 453-454]; Barner v. Leeds (2000) 24 Cal.4th 676, 683 [102 Cal.Rptr.2d 97, 13 P.3d 704].) The Public Defender is held accountable for the decisions it makes regarding the representation of its clients by potential malpractice liability and it is not entitled to civil malpractice immunity under section 820.2. (Barner v. Leeds, supra, 24 Cal.4th at p. 691.)
For these reasons, the interest of the general public in what information the Public Defender retains for the representation of its clients is slight. Again, it is the public interest that is considered not the private
The Public Defender compiles the database to further its primary function of representing clients. Allowing the public to have access to the database on demand would undermine the Public Defender’s ability to perform this function and would not further the public’s interest. For these reasons we conclude the public interest served by not disclosing the database clearly outweighs the public interest in disclosure.
Disposition
The appeal is deemed a petition for extraordinary relief; the petition is denied. The Public Defender is entitled to costs.
Nares, J., concurred.