Cook v. Craig

• Decision Date: 25 February 1976
• Citation: 55 Cal.App.3d 773,127 Cal.Rptr. 712
• Parties: Karen COOK et al., Plaintiff and Appellants, v. Glendon CRAIG et al., Defendants and Respondents. Civ. 15094.
• Court: California Court of Appeals Court of Appeals

Page 712

127 Cal.Rptr. 712

55 Cal.App.3d 773

Karen COOK et al., Plaintiff and Appellants, v. Glendon CRAIG et al., Defendants and Respondents.

Civ. 15094.

Court of Appeal, Third District, California.

Feb. 25, 1976.

As Modified on Denial of Rehearing March 19, 1976.

Joseph Remcho, American Civil Liberties Union, NAACP Legal Defense & Educational Fund, Inc., Mexican American Legal Defense & Education Fund, San Francisco, Anthony G. Amsterdam, Stanford, by Amaiti Schwartz, San Francisco, for plaintiffs and appellants

Evelle J. Younger, Atty. Gen., by Robert L. Mukai, Deputy Atty. Gen., Sacramento, for defendants and respondents.

PARAS, Associate Justice.

Plaintiffs appeal from a judgment dismissing their complaint after the court sustained a demurrer without leave to amend.

Plaintiffs seek, (1) pursuant to the Public Records Act (PRA) (Gov.Code, § 6250 ¹ et seq.) and the due process clause, to be allowed to inspect and make copies of the rules and regulations of the California Highway Patrol (CHP) governing the investigation and disposition of citizens' complaints of police misconduct (first and second causes of action), and (2) to require the CHP to comply with the rule-making provisions of the California Administrative Procedure Act (APA) (§ 11370 et seq.) in promulgating its rules and regulations (third cause of action).

Plaintiffs are three state taxpayers (see Code Civ.Proc., § 526a), Karen Cook, John Palmer, and Paul Weber, and an unincorporated association, the Northern California Police Practices Project (Project).

The petition alleges that the Project, through its legal director, a member of the California Bar, is presently undertaking to furnish counsel and advice to plaintiffs Karen Cook John Palmer and Paul Weber at their respective requests with regard to the relative effectiveness of various remedies which may be available to them for alleged police misconduct. Karen Cook wishes to redress the claimed mistreatment of her sister by a CHP officer and Paul Weber claims his own such mistreatment. John Palmer wishes to know the propriety of the procedures used by the CHP in the investigation of a complaint of personnel misconduct filed by him, and desires to lodge a second complaint regarding the CHP investigation of the first complaint.

The three individuals allege that they are reluctant to file administrative complaints with the CHP because they lack access to information which will enable them to evaluate the potential advantages and disadvantages of pursuing the administrative remedy provided by the CHP; they are unaware, and will remain unaware, of the full extent of any administrative remedy provided; and they are unable to present complaints in a meaningful manner because they cannot tailor them to the procedures and issues which the CHP deems important. Moreover, it is alleged that plaintiffs' counsel is unable to advise or represent them because he lacks access to information which would enable him to render adequate legal advice on the relative effectiveness of an administrative In sustaining the demurrer to this complaint, the trial court ruled that the PRA does not compel disclosure of the CHP's procedure for investigating citizen complaints, because (1) the 'internal management investigative procedure' does not relate to the conduct of the public's business and is therefore not a public record within the meaning of subdivision (d) of section 6252; and (2) the procedure is so 'intertwined with the complaints themselves' that it is exempted from disclosure by subdivisions (f) and (k) of section 6254 which exempt records of complaints and investigations, and privileged information. The trial court further stated that disclosure of the procedures was not compelled by due process, relying upon Hannah v. Larche (1960) 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307. Finally, the trial court found the APA inapplicable because the procedures sought 'cannot be said to be other than material relating to internal management of the agency,' within the exception clause of subdivision (b) of section 11371.

complaint and the effect of such a complaint on subsequent legal or other remedies and interests of the plaintiffs. DP The petition then alleges that the Project would participate in the rule-making process of the CHP if the defendants complied with the requirements of the APA; and that the Project had requested and demanded that the commissioner promulgate 'all' rules and regulations of the CHP in accordance with the mandatory procedural requirements of the APA, but the commissioner failed to do so. In addition, the petition alleges that the Project had previously requested and demanded copies of 'all' CHP rules and regulations to evaluate their status under the APA.

I MOOTNESS

Plaintiffs' original request for the CHP's rules and procedures regarding citizen complaints of police conduct was made on November 1, 1973. After several additional requests, this action was filed on August 26, 1974. On October 28, 1974, the Attorney General informed plaintiffs' counsel by letter that the Legislature had enacted new section 832.5 of the Penal Code on February 22, 1974, effective January 1, 1975, which provided.

'832.5. Each sheriff's department and each city police department in this state shall establish a procedure to investigate citizens' complaints against the personnel of such departments, and shall make a written description of the procedure available to the public.'

The Attorney General's letter then stated:

'Although the Department of the California Highway Patrol is not required by new section 832.5 or any other provision of law either to establish a citizen complaint investigation procedure or to make available a written description thereof, the Department is of the belief that section 832.5 expresses a new legislative policy favoring availability of information concerning the manner in which law enforcement agencies handle complaints against their personnel.

'We wish, therefore, to advise you, as a person who has previously expressed interest in the matter, that the Department's citizen complaint investigation procedure will be available to the public from and after January 1, 1975. Copies of the document may be purchased at nominal cost.'

Despite this concession, the department continued to oppose Court-ordered disclosure, and succeeded in obtaining the judgment herein in its favor on December 17, 1974. On January 17, 1975, the Attorney General mailed plaintiffs a copy of the newly disclosed document entitled 'Citizen's Complaint Investigation, revised December, 1974.'

The issues as to the first and second causes of action are not moot. In the absence of a stipulation from counsel for plaintiffs, defendant cannot by mere assertion Moreover, at least one plainiff seeks to know what procedures were in effect prior to the December 1974 revision, under which his prior complaint was investigated, so the case as to him is not moot. As to future revisions of the procedures, it is apparent that defendant's unilateral decision to disclose its complaint investigation procedures is also unilaterally rescindable. Given the position of defendant that it has no legal obligation to disclose these procedures, and its voluntary disclosure only after litigation was commenced, we cannot say that the dispute will not recur. In such circumstances, especially where, as here, the issue is one affecting the public generally, the courts need not accept mootness. (See, e.g. Allee v. Medrano (1974) 416 U.S. 802, 810--811, 94 S.Ct. 2191, 40 L.Ed.2d 566; Gray v. Sanders (1963) 372 U.S. 368, 376, 9 L.Ed.2d 821; Dept. of Agriculture v. Tide Oil Co. (1969) 269 Cal.App.2d 145, 150, 74 Cal.Rptr. 799.)

show that they have provided all the information sought by plaintiffs. '(W)hether a final settlement has been reached is a matter depending on the determination of factual issues to be resolved by a fact finding tribunal.' (Landberg v. Landberg (1972) 24 Cal.App.3d 742, 747, 101 Cal.Rptr. 335, 338.)

In any case, voluntary disclosure does not resolve plaintiffs' action for 'declaratory relief' as to whether the procedures are required to be disclosed under the PRA. '(T)he general rule governing mootness becomes subject to the caserecognized qualification that an appeal will not be dismissed where, despite the happening of the subsequent event, there remain material questions for the court's determination. This qualification or exception has been applied to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed . . . and the relief thus granted may encompass future and contingent legal rights.' (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 25, 432 P.2d 717, 721.) " Thus, while it has been said that the declaratory judgment acts necessarily deal with present rights, the 'present right' contemplated is the right to have immediate judicial assurance that advantages will be enjoyed or liabilities escaped in the future." (Id. at p. 541, fn. 2, 63 Cal.Rptr. at p. 25, 432 P.2d at p. 721; see also Southern Counties Gas Co. v. Ventura Pipeline Constr. Co. (1971) 19 Cal.App.3d 372, 96 Cal.Rptr. 825.)

II THE CALIFORNIA PUBLIC RECORDS ACT

The PRA begins with a broad statement of intent: 'In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares 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.)

Like the federal Freedom of Information Act, section 552 et seq. of 5 United States Code, upon which it was modeled (see Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 652, 117 Cal.Rptr. 106), the general policy of the PRA favors disclosure. Support for a refusal to disclose information 'must be found, if at all, among the specific exceptions...