City of Hemet v. Superior Court

• Decision Date: 24 August 1995
• Docket Number: No. E-015439,E-015439
• Citation: 37 Cal.App.4th 1411,44 Cal.Rptr.2d 532
• Parties: , 95 Cal. Daily Op. Serv. 6759, 95 Daily Journal D.A.R. 11,542 The CITY OF HEMET, Petitioners, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent. The PRESS ENTERPRISE COMPANY, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 532

44 Cal.Rptr.2d 532

37 Cal.App.4th 1411, 95 Cal. Daily Op. Serv. 6759,

95 Daily Journal D.A.R. 11,542

The CITY OF HEMET, Petitioners, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent The PRESS ENTERPRISE COMPANY, Real Party in Interest.

No. E-015439.

Court of Appeal, Fourth District, Division 2, California.

Aug. 24, 1995.

As Modified on Denial of Rehearing Sept. 20, 1995.

Review Denied Nov. 16, 1995.

Robert T. Henderson, Hemet City Atty. and Law Offices of Ferguson, Praet & Sherman and Larry J. Roberts and Peter J. Ferguson, Santa Ana, for petitioners.

No response by respondent.

Waters & Elwell, Sharon J. Waters, Riverside, for real party in interest.

Crosby, Heafey, Roach & May and John E. Carne, Oakland, as amicus curiae on behalf of real party in interest.

OPINION

McKINSTER, Associate Justice.

In this matter we issued an alternative writ of mandate to consider whether real party, the Press-Enterprise newspaper, is entitled to obtain certain records from petitioner, the City of Hemet, under the California Public Records Act. ("CPRA".) (Gov.Code, § 6250 et seq.) ¹ The trial court ordered disclosure of certain records; however, we conclude that real party is not entitled to the records under the Act, and will issue the writ as prayed.

STATEMENT OF THE CASE

Chuck Steadman, a police sergeant for the City, became concerned over drug use at the high school attended by his children. He collected certain information, and eventually faxed to school officials a list of students he believed to be involved in the use and/or sale of drugs. The faxed memorandum also reported that a deputy sheriff was aware of the drug use but did not prevent or disclose it because one of the students had a photograph of the deputy smoking marijuana and threatened to publicize it.

This action by Sergeant Steadman became the subject of some public interest when the memorandum, which had been intended for the sole use of a vice-principal, was circulated or shown to other persons. The City eventually conducted an investigation of the incident, focussing on whether Steadman had improperly used City property (the fax machine), had investigated drug use on county property (the school grounds) while on duty as a City officer, or had used his police status to obtain confidential information from the school.

The deputy sheriff mentioned by name in the fax filed a claim under the Tort Claims Act (§§ 810, et seq.) on May 12. Litigation on the claim is apparently still pending.

On April 27, 1994--after the investigation was completed ²--The Press-Enterprise filed with the City a request for documents under CPRA. The Press-Enterprise sought "the report on the internal investigation conducted by the Hemet Police Department into the actions of Sgt. Chuck Steadman...." By letter dated May 13, the City regretfully declined to provide the records, and the newspaper filed a petition for writ of mandate in the superior court pursuant to section 6258. ³ The superior court found the records to be discoverable, subject only to redaction in the interests of the privacy of some of those concerned. ⁴ The City exercised its right to review by this court, and we stayed disclosure pending resolution of the matter. (§ 6259, subd. (c).)

DISCUSSION

I.

In undertaking review of such an order, we perform plenary review of the ruling on the merits; our review is independent on issues of law, and follows the substantial evidence test with respect to any issues of fact. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336, 283 Cal.Rptr. 893, 813 P.2d 240.)

Section 6255 provides that when a public agency ⁵ decides to refuse a request under CPRA, it "shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Here, City contends both that disclosure is prohibited by one or more specific provisions of CPRA, and that this is a case in which the public interest in secrecy outweighs that in disclosure. At the bottom of its most pressing argument is the assertion that the confidentiality provisions applicable to police personnel records under Penal Code sections 832.5 et seq. bar disclosure under CPRA.

In opposition, the Press-Enterprise contends not only that the litigation privilege is inapplicable, but also that the Penal Code sections apply only to attempts to discover materials made within the context of litigation, and are wholly inapplicable to a CPRA request.

In considering the arguments of the parties, we are mindful of the legislative declaration that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (§ 6250.) The adoption of CPRA reflected a " 'background of legislative impatience with secrecy in government' " (53 Ops.Atty. Gen. 136, 143, quoted in San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771-772, 192 Cal.Rptr. 415) and courts must be careful to respect the purpose of the Act. We must give due regard to the primary purpose of CPRA, or what the United States Supreme Court has described as the "core purpose" of the analogous federal act: to "contribute significantly to public understanding of the operations or activities of government ... to let citizens know what their government is up to." (Department of Justice v. Reporter's Committee for Freedom of Press (1989) 489 U.S. 749, 773, 775, 109 S.Ct. 1468, 1481-82, 1483, 103 L.Ed.2d 774 [Internal quotation marks omitted].) ⁶ As our own Supreme Court has stated, "[I]mplicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651, 230 Cal.Rptr. 362, 725 P.2d 470.) ⁷

II.

The City contends that the records are protected by the privilege for documents pertaining to litigation.

Most of the exemptions to the general policy of free disclosure are set out in section 6254. Subdivision (b) allows the public agency to withhold "[r]ecords pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810) ⁸ until the pending litigation or claim has been finally adjudicated or otherwise settled." The City contends that the records of the investigation conducted by the police department into the conduct of Sergeant Steadman qualify as such records.

As the dates set out above demonstrate, the internal affairs investigation was concluded over two weeks before the deputy sheriff filed his claim. Press Enterprise points out this chronology, and argues that the exemption affects only items prepared before a lawsuit or tort claim is filed, and certainly not to records which were not prepared with the primary purpose of assisting in the litigation. Press Enterprise asserts that the City cannot take records which were not exempted in their genesis and transform them into exempt "litigation" documents simply because they later become relevant to a lawsuit.

Press Enterprise's position is supported by an opinion of the Attorney General. (1988 71 O.A.G. 235.) Asked to construe the exemption, the Attorney General took the position that "pending litigation" is a "term of art"; thus, an action or proceeding is " 'pending' from its inception until the rendition of final judgment." (71 O.A.G. at p. 238; Black's Law Dict., cited as 3d ed. at 1291, now 5th ed. at 1021.) He further concluded that a document could not "pertain to pending litigation" unless it was prepared specifically for that litigation, rejecting the argument that any record which was "relevant to" the subject matter of litigation thereby was a record which "pertained to" the litigation itself.

Although this conclusion does not follow necessarily from the proposition that litigation cannot be "pending" until it is commenced, the Attorney General's view is supported at least in part by analogous construction of other statutes. With respect to the attorney-client privilege, for example, if a client prepares a report or other document relating to an incident or situation and intends that the document be transmitted to counsel, it is privileged; however, if a report is prepared in the usual course of business for a purpose independent of possible legal consultation, no privilege is created even if the document is later sent to counsel. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737, 36 Cal.Rptr. 468, 388 P.2d 700.) A document or report prepared for a dual purpose is privileged, or not privileged, depending on the "dominant purpose" behind its preparation. (Holm v. Superior Court (1954) 42 Cal.2d 500, 507, 267 P.2d 1025, 268 P.2d 722; Vela v. Superior Court (1989) 208 Cal.App.3d 141, 149, 255 Cal.Rptr. 921.)

Under the Press-Enterprise's view, the internal affairs report here was prepared with a "dominant purpose" relating to intradepartmental concerns. Certainly this conclusion is amply supported by the record, specifically the declaration of City's Police Chief, Lee Evanson, which describes the report's value and importance as a critical part of the department's "self-critical analysis" which makes the department "able to formulate better training and ultimately provide the careful management of a police department better able to serve the citizens of our community." ⁹ (Cf. Vela v. Superior Court (1989) 208 Cal.App.3d 141, 149-151, 255 Cal.Rptr. 921, involving an investigation by a task force "created specifically for the purpose of investigating incidents or occurrences...