Coronado Police Officers Ass'n v. Carroll, D039198.

CourtCalifornia Court of Appeals
Citation131 Cal.Rptr.2d 553,106 Cal.App.4th 1001
Decision Date06 March 2003
Docket NumberNo. D039198.,D039198.
PartiesCORONADO POLICE OFFICERS ASSOCIATION et al. Petitioners, v. Steven J. CARROLL, as Public Defender, etc. Respondent.
131 Cal.Rptr.2d 553
106 Cal.App.4th 1001
Steven J. CARROLL, as Public Defender, etc. Respondent.
No. D039198.
Court of Appeal, Fourth District, Division 1.
March 6, 2003.
Review Denied June 11, 2003.

[131 Cal.Rptr.2d 555]

[106 Cal.App.4th 1004]

Everett L. Bobbitt, San Diego, for Petitioners.

John J. Sansone, County Counsel, William L. Pettingill, Deputy County Counsel, for Respondents.


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

131 Cal.Rptr.2d 556

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 "catch-all" exemption (§ 6255) because the public interest in nondisclosure clearly outweighs the public interest in disclosure.


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

106 Cal.App.4th 1005

medium. With the exception of restricted information, all Public Defender attorneys are able to access the electronically stored files to assist them in representing clients. After scanning the client files it created indices of the files that allow its individual attorneys to access the electronically-stored information for whatever purpose may legitimately assist them in defending their clients, including the ongoing representation of existing clients, utilization of existing witness statements in new cases, discovering patterns of alleged Fourth Amendment violations by the police officers involved in a particular case, researching the database for previous internal investigations relating to police misconduct, or making a copy of files for a client or appellate counsel.

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.

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

106 Cal.App.4th 1006

obtaining appellate review of that order was to file a

131 Cal.Rptr.2d 557

petition for extraordinary writ with this court. We disagree.

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, 197 Cal.Rptr. 843, 673 P.2d 720.)

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,

106 Cal.App.4th 1007

the Public Defender relies on Polk County v. Dodson (1981) 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (Polk).

In Polk, a criminal defendant sued his public defender attorney under 42 U.S.C. 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 U.S.C. 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, 454 U.S. at pp. 318, 325, 102 S.Ct. 445.) In this capacity, the public defender maintains the same level of professional independence as a private attorney,

131 Cal.Rptr.2d 558

and the state is constitutionally obligated to respect this independence. (Id. at pp. 321-322,102 S.Ct. 445.)

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 (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...

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