Anderson-Barker v. Superior Court

Filed 1/22/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CYNTHIA ANDERSON-BARKER, B285391
Petitioner, (Los Angeles County
Super. Ct. No. BS156058)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
CITY OF LOS ANGELES,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Amy D. Hogue,
Judge. Petition for writ of mandate denied.
Donald Cook for Petitioner.
No appearance for Respondent.
Michael Feuer, City Attorney, Blithe S. Bock, Assistant
City Attorney, Wendy Shapero, Deputy City Attorneys, for Real
Party in Interest.
_________________________
Petitioner Cynthia Anderson-Barker filed a petition under
the California Public Records Act (Gov. Code, §§ 6250, et seq.,
(CPRA)) to compel the City of Los Angeles to disclose
electronically-stored data relating to vehicles that private towing
companies had impounded at the direction of the Los Angeles
Police Department. The City argued the CPRA was inapplicable
because it did not possess or control the requested data. The trial
court agreed, and denied the petition.
Anderson-Barker filed a petition for writ of mandate
seeking an order directing the trial court to vacate its order, and
enter a new order directing the City to produce the data. We
issued an order to show cause, and now deny the petition.
FACTUAL BACKGROUND
A. Background Facts
The Los Angeles Police Department (LAPD) uses privately-
owned companies to tow and store impounded vehicles.1 These
tow companies are referred to as “Official Police Garages”
(OPGs), and perform their services pursuant to written contracts
with the City of Los Angeles. Although the City contracts
separately with each OPG, the terms of the contracts are
materially identical, except with respect to the covered service
area.
When a LAPD officer needs to impound a vehicle, he or she
contacts an OPG to tow and store the vehicle. The LAPD officer
is required to prepare a “CHP 180 form” that documents the
1 These undisputed “Background Facts” are based in part on
the factual summary set forth in City of Los Angeles v. Superior
Court (2017) 9 Cal.App.5th 272 (City of Los Angeles), a prior writ
proceeding in this case that addressed an order compelling the
City to respond to Anderson-Barker’s discovery requests.
2
vehicle seizure. The officer and the OPG each retain a portion of
the CHP 180 form. The OPG then enters information regarding
the impoundment into a database known as the “Vehicle
Information Impound Center” (VIIC). The VIIC resides on a
server that is owned and maintained by the “Official Police
Garage Association of Los Angles” (OPGLA), a private
organization comprised of OPGs. OPGLA provides public access
to certain information on the VIIC through a web-based portal.
The impounding OPG also scans a portion of each CHP 180 form
into “Laserfiche,” a database that is owned and maintained by an
independent document storage company OPGLA contracts with
to store OPG-related documents.
Sections 9.3 and 9.4 of the OPG contracts require each OPG
to “provide timely information to the VIIC,” and to “participate in
the [Laserfiche] System maintained by the OPGLA.” However,
the contracts do not specify what information the OPG should put
into the VIIC or what documents it should scan into Laserfiche.
Section 14.3 of the OPG contracts sets forth various
requirements about the retention and inspection of “records
generated or kept by the OPG” regarding its City towing services.
The section provides that all such records are “subject to periodic
inspection by [the City],” and that “all data and records . . .
related to the towing or storage services provided under [the]
Agreement” must be “made available without notice, [24 hours-a-
day].” Section 14.3 also prohibits OPGs from “interfer[ing] with,
prevent[ing] or refus[ing] to permit concerned law enforcement
personnel . . . to make an examination, inspection or copy of any
record kept by the OPG.”
Each OPG contract is subject to the “Standard Provisions
for City Contracts” (“SPCC”), a series of standardized provisions
3
that are generally incorporated into any contract the City enters
into with a third party. SPCC section 23, entitled “Ownership
and License,” provides in relevant part: “Unless otherwise
provided for herein, all Work Product originated and prepared by
CONTRACTOR . . . under this Contract shall be and remain the
exclusive property of the City for its use in any manner it deems
appropriate.” SPCC section 23 defines the term “Work Product”
to include (among other things) “all works, tangible or not,
created under this Contract including, without limitation,
documents, material, data reports, . . . computer programs, and
databases . . . and all forms of intellectual property.”
B. Prior Litigation Seeking Disclosure of VIIC and
Laserfiche Data
On March 10, 2014, Colleen Flynn submitted a written
request to the LAPD seeking all data “recorded in [the VIIC]
database,” and “[a]ll documents as scanned into Laserfiche
regarding vehicle seizures. . . .” Although Flynn’s request
acknowledged the VIIC data and Laserfiche scans were “stored in
systems maintained by [OPGLA],” she asserted that the
materials qualified as “public records” because the City’s
contracts with the OPGs provided it the right to “access and
possess” the materials.
The LAPD declined Flynn’s request, explaining that the
materials she had requested did not qualify as “public records”
because it did not own or maintain the computer systems that
stored the VIIC and Laserfiche databases. Although the LAPD
admitted it had authority to “access” those materials, it asserted
that such access did not qualify as “ownership” of those
materials, or otherwise transform the materials into public
records. The LAPD further asserted that even if the requested
4
information qualified as a public record, it was subject to
numerous exemptions set forth in the CPRA.
On March 27, 2014, Flynn filed a petition for writ of
mandate pursuant to Government Code section 62582 seeking to
compel the City of Los Angeles to disclose the VIIC and
Laserfiche data. (See Flynn v. Superior Court, Superior Court
Case No. BS147850 (Flynn).) In her supporting legal
memorandum, Flynn argued that the language in SPCC section
23 established that the City owned all the data and documents
each OPG had generated pursuant to its written agreement,
which included all VIIC and Laserfiche data. The City, however,
argued that section 14.3 of the OPG contract clarified that the
OPG was to “retain . . . the VIIC and Laserfiche records,” and set
forth the conditions under which the OPG was required to
provide those records to the City. In the City’s view, section
14.3’s retention and access requirements demonstrated that it did
not actually own the materials.
The trial court agreed with the City, explaining that SPCC
section 23 included language clarifying that the provision applied
“‘unless otherwise provided for’ in the OPG contract.” The court
concluded that “[section] 14.3 [of the OPG contract] meets the
‘otherwise provided for’ requirement, thereby negating [the
ownership provision set forth in the [SPCC] attachment
provision].” The court also noted that the OPG contracts
described the circumstances under which the City could access
the VIIC and Laserfiche data, which would have been
unnecessary if the City owned those materials.
2 Unless otherwise noted, all further statutory citations are
to the Government Code.
5
Flynn filed a petition for writ of mandate seeking
immediate review of the trial court’s order. (See § 6259, subd.
(c).) On February 20, 2015, Division One of this District denied
the petition. Flynn then filed a petition for review in the
California Supreme Court, which the Court denied.
After the Flynn matter concluded, the City amended its
OPC contracts to include the following language:
“Notwithstanding the Standard Provisions for City Contracts, the
OPG VIIC and the data contained therein is owned by the OPG of
Los Angeles.” The City added identical language regarding any
data and documents stored in Laserfiche.
C. Summary of Anderson-Barker’s CPRA Action
1. Anderson-Barker’s CPRA petition and the City’s prior
petition for writ of mandate
On June 4, 2015, petitioner in the current action, Cynthia
Anderson-Barker, submitted a request to the LAPD seeking
disclosure of a subcategory of the data Flynn had previously
sought. Specifically, Anderson-Barker requested the LAPD to
disclose: (1) “All data recorded in [the VIIC] database, for any
vehicle seized at LAPD direction at any time from June 1, 2010 to
the present, for which a CHP 180 form was prepared”; and (2)
“All CHP 180 forms for any vehicle seized at LAPD direction at
any time from June 1, 2010 to the present, for which a CHP 180
was prepared. This includes, but is not limited to documents that
are indexed in Laserfiche. . . .”
In response, the LAPD informed Anderson-Barker it would
“respond to [the] portion of [her] request” that sought copies of
CHP 180 forms located in the LAPD’s investigative files. The
LAPD declined, however, to provide any VIIC or Laserfiche data,
explaining that OPGLA and the OPGs owned and maintained
6
those materials. The LAPD further explained that “the issue of
whether the information in the VIIC database and the documents
in the Laserfiche system constituted ‘public records’ under the
CPRA [had been] vigorously litigated in [the Flynn action].” The
LAPD noted that after receiving extensive evidence and briefing,
the trial court in Flynn had ruled that the requested materials
were not subject to the CPRA’s disclosure requirements, and that
the California Court of Appeal had denied a petition for writ of
mandate seeking reversal of that decision.
On June 18, 2015, Anderson-Barker, represented by the
same attorney who had represented Deborah Flynn (Donald
Cook),3 filed a petition for writ of mandate pursuant to section
6258 seeking to compel the City to disclose the VIIC and
Laserfiche data. The petition asserted that the City’s “claim that
it does not ‘own’ the requested public records is false, and [the
City] knows its claim is false.” According to the petition, the
written contracts between the City and the OPGs made clear that
the data belonged to the City, rather than the OPGs or OPGLA.
After the City filed its answer to the petition, Anderson-
Barker propounded discovery on the City seeking information
related to its claim that it did not own the VIIC and Laserfiche
data. The City objected to each request on the basis that the
Civil Discovery Act did not apply to CPRA proceedings.
Anderson-Barker filed a motion to compel responses to her
3 As discussed in more detail below, petitioner Anderson-
Barker, Cook and Flynn are all attorneys who share the same
business address. Cook has litigated a series of actions against
“California law enforcement agencies over their respective
impoundment practices. . . .” (County of Los Angeles v. Superior
Court (2015) 242 Cal.App.4th 475, 479.)
7
discovery arguing that the Civil Discovery Act did apply, and that
the City had waived any further objections to the requests. The
trial court agreed, and ordered the City to respond to the
discovery without further objection. The City filed a petition for
writ of mandate in this court seeking an order directing the trial
court to vacate its order, and enter a new order denying the
petitioner’s motion to compel. We granted the petition in part.
Although we agreed that the Civil Discovery Act applied to CPRA
proceedings, we vacated the portion of the trial court’s ruling
concluding that the City had waived all further objections. (See
City of Los Angeles, supra, 9 Cal.App.5th 272.)
2. The parties’ briefings regarding Anderson-Barker’s
CPRA petition
Following our ruling, Anderson-Barker proceeded with
discovery and then filed a memorandum in support of her CPRA
petition. The memorandum argued that the VIIC and Laserfiche
data were subject to disclosure under the CPRA because the OPG
contracts provided the City “unfettered access” to that data.4
Anderson-Barker also noted that in a separate CPRA action she
had initiated against the California Department of
Transportation (DOT) (Superior Court Case No. BS159845),5 the
trial court had found that the City did have possession of the
4 Anderson-Barker’s memorandum also sought production of
all CHP 180 forms the LAPD had stored in a document retention
system known as “Documentum.” The trial court found this
request was overly burdensome. Anderson-Barker’s petition for
writ of mandate does not challenge that portion of the trial
court’s ruling.
5 Anderson-Barker filed Case No. BS159845 against the DOT
while the City’s petition for writ of mandate challenging the trial
court’s discovery order was pending before this court.
8
VIIC database, and ordered the data disclosed. Anderson-Barker
asserted that there was no basis for the trial court to depart from
that ruling in this case.
The City, however, argued that the VIIC and Laserfiche
data were not subject to disclosure because the City did not have
actual or constructive possession of the data. The City contended
that to establish possession, Anderson-Barker had to show it had
a right to control the data in question; the mere fact that it had a
right to access the data was insufficient. The City also argued
that Anderson-Barker was collaterally-estopped from pursuing
her CPRA petition based on the prior ruling in the Flynn
proceeding. The City asserted that Anderson-Barker was in
privity with Flynn because they shared the same office space,
used the same attorney (Donald Cook) and had both worked with
Cook on similar CPRA actions.
The City also argued the court should not follow the ruling
it had made regarding the VIIC data in Case No. BS159845.
According to the City, the attorney who defended the DOT in that
case had failed to bring the Flynn action to the court’s attention,
and had not submitted any “evidence on the underlying
substantive issues regarding the disclosability of the [VIIC]
data.” The City also noted that it had been unable to comply with
the disclosure order issued in that case because OPGLA refused
to provide the VIIC data. Anderson-Barker, in turn, had never
sought to enforce the order.
In support of its opposition, the City provided a declaration
from LAPD Detective Benjamin Jones, who served as the LAPD’s
“OPG Coordinator.” Jones’s declaration explained that section
14.3 of the OPG contract showed that the OPGs’ only
requirements regarding their towing records was to “retain[] the
9
records and mak[e] them available for inspection and audit upon
request.”6 Jones further explained that while sections 9.3 and
9.4 of the OPG contract required each OPG to utilize the VIIC
and Laserfiche databases, the contract did not require the OPG
to “input any specific information into VIIC,” or to “store any
specific documents in the Laserfiche system.” As a result, “each
OPG [is left to] decide[] what information regarding its vehicle
towing and storage services it inputs into VIIC,” and “which
documents it stores in the Laserfiche system.”
Jones declaration further explained that although the
LAPD had “internet access to the VIIC database and . . .
Laserfiche system,” these databases were not stored on City
servers, and City personnel had no “authority to modify (add to or
delete from) any of the information in VIIC or any electronic
records in Laserfiche. Nor do any City personnel have any
control over the contents of either of those databases.” Finally,
Jones noted that the City had never actually accessed “most of
the electronic data in VIIC and . . . Laserfiche.” According to
Jones, the City had used “a very limited portion of the VIIC” to
ensure compliance with the OPG contracts, and had no reason to
access the “Laserfiche database” because the LAPD retained its
own copies of the CHP 180 forms.
6 Jones also asserted that the City had always interpreted
section 14.3 as assigning ownership of all “the records generated
and maintained by the OPGs, including the information in VIIC
and the documents stored in Laserfiche, . . . to the tow company.”
Jones further asserted that the language the City had added to
the OPG contracts in 2014, which expressly assigned ownership
of this data to the OPGs, was only intended to “confirm the
parties’ historical understanding of the OPG contract.”
10
The City also provided a declaration from Gary Minzer, the
president of OPGLA and the owner of an OPG. Minzer explained
that, as required under section 14.3 of the OPG contracts, each
OPG kept and maintained its own records regarding towing
services, and made them available to the City for “audit purposes
upon requests.”7 Minzer further asserted that the VIIC was
“privately owned and operated by OPGLA,” and “stored on
computer systems which are maintained by the OPGLA.” Minzer
described “Laserfiche” as a “data storage company” that OPGs
use “pursuant to a license . . . to scan and store electronic records
pertaining to a vehicle impound. The electronic records reside in
Laserfiche’s private data storage center.” As in Jones’s
declaration, Minzer asserted that each OPG was responsible for
deciding what information to put into the VIIC and Laserfiche
databases, and that the City had no authority or ability to alter
any of the data or records stored on those systems.
3. The trial court’s ruling
The trial court denied Anderson-Barker’s petition,
concluding that the City did not have a duty to disclose the
requested data because the evidence showed it did not “possess or
control the VIIC or Laserfiche records.” In support of its ruling,
the court cited statements in the Jones and Mizner declarations
asserting that while the City had “internet access” to the data at
issue, “it has no physical possession of the data and does not and
cannot exercise control, i.e., . . . it does not input the data, cannot
7 Like Jones, Minzer also asserted that OPGLA and the
OPGs had always understood and interpreted section 14.3 of the
contract to assign ownership of all such records to the OPGs, and
not to the City.
11
add or delete data, cannot manipulate the data etc. [Based on
this evidence,] [t]he Court is not persuaded the City in fact has
possession or control of the . . . data.”8
The court acknowledged it had reached a different
conclusion regarding the City’s possession of the VIIC data in
Case No. BS159845. Although the court did not explain why it
had changed its ruling in the present case, it did note that
neither side had “appealed” its prior ruling, and that “no records
ha[d] been produced [pursuant to that] judgment.”9
Anderson-Barker filed a petition for writ of mandate
requesting that we direct the trial court to vacate its order, and
enter a new order compelling the City to produce the VIIC and
Laserfiche data. In November 2017, we issued an order to show
cause.
DISCUSSION
A. Standard of Review
8 The Court also found the City’s evidence established it did
not own the data in question. As explained below, Anderson-
Barker’s writ petition does not challenge that finding.
9 As an alternative basis for its ruling, the trial court agreed
with the City’s contention that Anderson-Barker was collaterally
estopped from seeking disclosure of the VIIC and Laserfiche data
based on the order issued in the Flynn action. The court found
that the ruling in Flynn qualified as a final decision on the
merits, and that Anderson-Barker was in privity with Colleen
Flynn. As explained in more detail below, we affirm the trial
court’s finding that the City did not have a duty to disclose the
VIIC and Laserfiche data because the evidence established it did
not possess that data. Accordingly, we need not address the issue
of collateral estoppel.
12
“An order of the trial court under the [CPRA] is reviewable
immediately by petition to the appellate court for issuance of an
extraordinary writ.” (Consolidated Irrigation v. Superior Court
(2012) 205 Cal.App.4th 697, 708 (Consolidated Irrigation) [citing
§ 6259, subd. (c)]; see also Filarsky v. Superior Court (2002) 28
Cal.4th 419, 426 (Filarsky).) “[W]e . . . conduct an independent
review of the trial court’s ruling; factual findings made by the
trial court will be upheld if based on substantial evidence.”
(Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336
(Times Mirror); see also Caldecott v. Superior Court (2015) 243
Cal.App.4th 212, 218 [“We conduct an independent review of an
order denying a request for documents under the CPRA.
[Citation.] The trial court’s findings of fact, if any, are reviewed
using the substantial evidence test”]; Consolidated Irrigation,
supra, 205 Cal.App.4th at p. 708 [“‘We review de novo the trial
court’s ruling, but defer to its determination of any express or
implied factual findings’”].)
B. Summary of the CPRA
“The CPRA was modeled on the federal Freedom of
Information Act (FOIA) (5 U.S.C. § 552 et seq.) and was enacted
for the purpose of increasing freedom of information by giving
members of the public access to information in the possession of
public agencies. [Citation.]” (Filarsky, supra, 28 Cal.4th at pp.
425-426.) The CPRA requires that, upon request, state and local
agencies make available for inspection and copying any public
record “[e]xcept with respect to public records exempt from
disclosure. . . .”10 (§ 6253, subd. (b); see also § 6253, subd. (c).)
10 Sections 6254-6254.33 and 6255 set forth numerous
categories of public records that are exempt from disclosure
13
Section 6252 subdivision (e) defines “public record” to mean “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.”11
Section 6253, subdivision (c) provides that “upon receiving
a request for a copy of public records, [each agency] shall, within
10 days determine whether the request seeks public records in
the possession of the agency that are subject to disclosure. If the
agency determines that the requested records are not subject to
disclosure, . . . the agency promptly must notify the person
making the request and provide the reasons for its
determination.” (Filarsky, supra, 28 Cal.4th at p. 426.) To
establish an agency has a duty to disclose under section 6253,
subdivision (c), the petitioner must show that: (1) the record
“qualif[ies] as [a] ‘public record[]’” within the meaning of section
6252, subdivision (e); and (2) the record is “in the possession of
the agency.” (Consolidated Irrigation, supra, 205 Cal.App.4th at
p. 708; see also Board of Pilot Commissioners v. Superior Court
(2013) 218 Cal.App.4th 577, 597-598 (Board of Pilot
Commissioners) [“to prevail [on a CPRA petition, the petitioner]
under the CPRA. (See Times Mirror, supra, 53 Cal.3d at
p. 1338.)
11 The term “writing” is defined to include, among other
things, “handwriting, typewriting, printing, . . . transmitting by
electronic mail or facsimile, and every other means of recording
upon any tangible thing any form of communication or
representation, including letters, words, pictures, sounds, or
symbols, or combinations thereof, and any record thereby created,
regardless of the manner in which the record has been stored.”
(§ 6252, subd. (g).)
14
must establish that the files (1) qualify as public records and (2)
were in the possession of the [agency]”].) In the context of the
CPRA, the term “possession” has been defined to “mean[s] both
actual and constructive possession.” (Board of Pilot
Commissioners, supra, 218 Cal.App.4th at p. 598; see also City of
San Jose, supra, 2 Cal.5th at p. 623.) “‘[A]n agency has
constructive possession of records if it has the right to control the
records, either directly or through another person.’ [Citation.]”
(City of San Jose v. Superior Court (2017) 2 Cal.5th 609, 623 (City
of San Jose.)
Whether a record falls within the statutory definition of a
“public record” involves a “distinct inquiry” from whether the
agency is in possession of that record. (Regents of University of
California v. Superior Court (2013) 222 Cal.App.4th 383, 395-401
[“whether the information falls within the meaning of ‘public
records’ is not determined by whether [the agency] has or might
have . . . possession of them”; trial court erred by “incorpor[ating]
. . . possession into the definition of public records,” thus
“conflat[ing] two distinct inquiries”]; see also City of San Jose,
supra, 2 Cal.5th at p. 624 [whether “[a]n agency [has]
. . . possession of records” is a “separate. . . . question” from
whether a document “constitute[s] a public record [under section
6252, subdivision (e)]”].) The duty to disclose applies only when
the petitioner has satisfied both elements. (Consolidated
Irrigation, supra, 205 Cal.App.4th at p. 708 [rejecting petitioner’s
“contention . . . that it need only demonstrate that the files . . .
were ‘public records’”; “the duty set forth in Government Code
section 6253, subdivision (c) pertains [only] to ‘disclosable public
records in the possession of the agency’”].)
15
C. The City’s Right to Access the VIIC and Laserfiche
Data Is Insufficient to Establish Constructive
Possession
In this case, the trial court did not address whether the
VIIC and Laserfiche data qualify as a form of “public record”
within the meaning of section 6252, subdivision (e). Instead, the
court’s ruling focused on the issue of possession, concluding that
the City does not “possess or control the VIIC or Laserfiche
records,” and thus has no duty to disclose those records under
section 6253, subdivision (c). Anderson-Barker disagrees,
contending that the City has possession of the VIIC and
Laserfiche data because the OPG contracts provide it “unfettered
access” to the data. According to Anderson-Barker, this right of
access is, in itself, sufficient to establish “constructive
possession.”12 The City acknowledges it has a contractual right
to access the data in question, but asserts that merely having
access to a record is insufficient to establish constructive
possession.
1. The right to access records is insufficient to establish
constructive possession
12 In prior CPRA proceedings (and in the original petition to
compel production that was filed in this case), Anderson-Barker
and her attorney have argued that the City has constructive
possession over the VIIC and Laserfiche data because the OPG
contracts assign ownership of that data to the City. (See
generally City of San Jose, supra, 2 Cal.5th at p. 623 [a
contractual right of ownership over a record is sufficient to
establish constructive possession].) In her current petition for
writ of mandate, however, Anderson-Barker has not raised that
argument.
16
Anderson-Barker has cited no legal authority supporting
the proposition that an agency’s right to access the records of a
private entity constitutes a form of constructive possession. For
purposes of the CPRA, the term “constructive possession” means
“the right to control the records.” (City of San Jose, supra, 2
Cal.5th at p. 623.) The term “control” is generally defined as “the
power or authority to manage, direct, or oversee.” (Black’s Law
Dict. (9th ed. 2009), p. 378.) As the trial court noted in its order,
the City presented evidence showing that it does not direct what
information the OPGs place on the VIIC and Laserfiche
databases, and has no authority to modify the data in any way.
The mere fact that it can “access” the data does not equate to a
form of possession or control. To conclude otherwise would
effectively transform any privately-held information that a state
or local agency has contracted to access into a disclosable public
record. Nothing in the text or history of the CPRA suggests it
was intended to apply so broadly.
Our conclusion finds support in Forsham v. Harris (1980)
445 U.S. 169 (Forsham), which rejected a similar argument in the
context of the FOIA.13 The plaintiff in Forsham sought
13 “It is well-established that because the CPRA ‘was modeled
on [the FOIA],’ the ‘judicial construction of the FOIA . . . “serve[s]
to illuminate the interpretation of its California counterpart.”
[Citation.]’ [Citation.]” (City of Los Angeles, supra, 9 Cal.App.5th
at p. 290 [citing and quoting Times Mirror, supra, 53 Cal.3d at
p. 1338]; see also County of Los Angeles v. Superior Court
(Axelrad) (2000) 82 Cal.App.4th 819, 825 [“the two enactments
have similar policy objectives and should receive a parallel
construction”].) As with the CPRA, to prevail on a FOIA claim,
the plaintiff must show (among other things) that the requested
record was “in control” of the federal agency “at the time the
17
disclosure of data that a private research organization had relied
on in a study funded by a federal grant. Although the research
organization retained possession of the data, federal regulations
authorized the agency that had provided the grant “to access the
data,” and to “obtain permanent custody of the [data] upon
request.” (Id. at p. 173.) Although the plaintiff acknowledged the
agency had never actually exercised its right to access or take
possession of the data, it contended that FOIA extended to “all
documents created by a private grantee to which the Government
has access.” (Id. at p. 183.)
The Supreme Court rejected that interpretation, explaining
that FOIA only applies to records an agency has “in fact [created]
or obtain[ed], and not to records which merely could have been
obtained.” (Forsham, supra, 445 U.S. at p. 186 [emphasis in
original].) The Court further explained that to be disclosable
under FOIA, the agency must have a “possessory” interest in the
record at issue, and that “potential access to the grantee’s
information” was insufficient. (Id. at p. 185.) Although the Court
acknowledged FOIA might apply once an agency had exercised its
rights to obtain information from a grantee, disclosure was not
required “unless and until that right is exercised.” (Id. at p. 181.)
We believe a similar analysis applies under the CPRA. As
Forsham suggests, the City might have a duty under the CPRA
to disclose any data it has actually extracted from the VIIC or
Laserfiche databases, and then used for a governmental purpose.
Anderson-Barker’s CPRA request, however, is not limited in such
a manner. Instead, she seeks disclosure of all information the
OPGs have entered into the VIIC and Laserfiche databases
FOIA request is made.” (U.S. Dept. of Justice v. Tax Analysts
(1989) 492 U.S. 136, 145.)
18
regarding City-related impoundments based solely on the fact
that the City has the authority to access that information. We
agree with Forsham’s analysis, and conclude that, as with the
FOIA, mere access to privately-held information is not sufficient
to establish possession or control of that information.
2. City of San Jose does not address whether access to
records constitutes a form of constructive possession
Anderson-Barker, however, argues that the Supreme
Court’s recent decision in City of San Jose, supra, 2 Cal.5th at
p. 623, demonstrates that a state agency’s “right to access and
take possession of [a record or data] makes the data public
records” regardless of whether the agency “technically ‘own[s]’
the records.” The question decided in City of San Jose, however,
was whether a government employee’s communication regarding
official business that had been sent from his personal e-mail
account fell within the definition of a “public record” under
section 6252, subdivision (e). The agency argued that “a
document concerning official business is only a public record
[within the meaning of section 6252, subdivision (e)] if it is
located on a government agency’s computer servers or in its
offices.” (Id. at p. 624.) The Court disagreed, holding that a
government employee communication that “otherwise meet[s]
[the] CPRA’s definition of ‘public records’ do[es] not lose this
status because [it is] located in an employee’s personal account.
A writing retained by a public employee conducting agency
business has been ‘retained by’ the agency within the meaning of
section 6252, subdivision (e), even if the writing is retained in the
employee’s personal account.” (Id. at p. 623.) Nothing in the
Court’s analysis or holding supports the view that an agency’s
contractual right to access a private entity’s records qualifies as a
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form of “possession” of those records within the meaning of
section 6253, subdivision (c). Indeed, City of San Jose does not
even address the issue of possession.
DISPOSITION
The petition for writ of mandate is denied. The respondent
shall recover its costs on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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