Fairley v. Superior Court, B122829

• Decision Date: 30 September 1998
• Docket Number: No. B122829,B122829
• Citation: 66 Cal.App.4th 1414,78 Cal.Rptr.2d 648
• Parties: , 98 Cal. Daily Op. Serv. 7564, 98 Daily Journal D.A.R. 10,462, 98 Daily Journal D.A.R. 10,918 John FAIRLEY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; City of Long Beach et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

Page 648

78 Cal.Rptr.2d 648

66 Cal.App.4th 1414, 98 Cal. Daily Op. Serv. 7564,

98 Daily Journal D.A.R. 10,462,

98 Daily Journal D.A.R. 10,918

John FAIRLEY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent City of Long Beach et al., Real Parties in Interest.

No. B122829.

Court of Appeal, Second District, Division 4, California.

Sept. 30, 1998.

As Modified on Denial of Rehearing Oct. 19, 1998.

Robert Mann, Donald W. Cook, and Adam Axelrad, Los Angeles, for Petitioner.

No appearance for Respondent.

Robert E. Shannon, Long Beach City Attorney, and Daniel S. Murphy, Principal Deputy City Attorney, for Real Parties in Interest.

CHARLES S. VOGEL, Presiding Justice.

INTRODUCTION

Petitioner John Fairley seeks a writ of mandate to compel the respondent superior court to order real parties in interest, the City of Long Beach and the Doe respondents (referred to hereafter as "the City"), to provide petitioner with all documents relating to his arrest, pursuant to his request for the documents under the California Public Records Act ("CPRA"). (Gov.Code, § 6250 et seq.) ¹ The trial court denied the writ on the basis that the documents at issue were exempted from disclosure under the "pending litigation" provision found in section 6254, subdivision (b), which is discussed below.

The City has filed a return to the writ petition accompanied by apparently all of the requested documents, acknowledging that litigation is no longer pending between it and petitioner. The City therefore requests that we dismiss the writ petition as moot; however, we decline to do so. It remains to be determined whether the pending litigation exemption was ever applicable to the disputed documents. If the pending litigation exemption, or another exemption relied upon by real party in interest in the trial court but not considered by the trial court nor raised here (§§ 6254, subd. (f) and 6255), was never properly applicable, pititioner will be entitled to recover statutory attorney fees and costs he incurred in petitioning the trial court to obtain the requested documents. (§ 6259, subd. (d).) Because we conclude that the trial court misconstrued the pending litigation exemption, we remand the matter to the trial court to reevaluate the disputed documents in view of the opinions expressed below.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was arrested by City of Long Beach police officers on April 26, 1997. On February 3, 1998, petitioner requested from the City any police department reports concerning his arrest, including any crime reports, arrest reports, evidence reports, use of force reports, canine reports, officer-involved shooting reports, and follow-up reports. His request was denied on February 10, 1998, without explanation.

On March 20, 1998, petitioner filed a verified petition and motion for order seeking to compel the City to disclose the records concerning petitioner's arrest, pursuant to the CPRA. (§ 6250 et seq.) The City filed an answer and opposition to the petition on April 9, 1998. Therein the City contended that the records were exempt from disclosure pursuant to section 6254, subdivisions (b) (pending litigation) and (f) (arrest or complaint records). The City also asserted that the records were exempt from disclosure pursuant to section 6255, in that the public interest served by not making the records public clearly outweighed the public interest served by disclosure of the records. ² Petitioner filed a reply to the City's opposition on April 14, 1998.

A hearing on the petition was held by the trial court on April 16, 1998. At the conclusion of the hearing, the court ordered the City to disclose the disputed records or show cause why it should not do so (§ 6259, subd. (a)) by filing further opposition to the petition identifying each document in its possession and making a particularized showing why each document is exempted from disclosure. The City was also ordered to make the documents available to the court for in-camera inspection prior to the hearing on the order to show cause.

The City submitted its further opposition, again relying on section 6254, subdivisions (b) and (f) to justify withholding the documents, and specifying that it had in its possession an arrest report, a citizen's arrest report, an arrest disposition sheet, and a rejection-to-file-charges sheet. Attached to the opposition was the claim for damages against the City which was filed by petitioner with the City Clerk on June 9, 1997. Also attached was the City's rejection of petitioner's claim for damages, dated October 21, 1997, which indicated that petitioner would have six months (or until April 21, 1998) to file a court action. Petitioner submitted a reply to the opposition.

Hearing on the order to show cause was held on May 22, 1998, at which time the court ruled that the City did not have to disclose the records because they were subject to the "pending litigation" exemption of section 6254, subdivision (b). The court stated in its minute order: "There is no indication that the legislature, when it enacted the Public Resources Act, intended to allow parties to litigation to make an end run around the provisions of the Discovery Act by using the former to enforce discovery rights that are not enforceable under the latter. It appears more likely than not that petitioner in this case is attempting to use his status as a member of the public to broaden his rights as a litigant to engage in discovery." The court therefore denied the petition, without prejudice, "only until the pending litigation or claim between petitioner and the City of Long Beach ... has been finally adjudicated or otherwise settled." The court indicated that it had not inspected the documents made available by the City for in-camera inspection, and returned the sealed documents to the City.

Petitioner then filed the petition for writ of mandate now before us. (§ 6259, subd. (c).)

DISCUSSION

As previously mentioned, after the petition for writ of mandate was filed in this case, the City provided petitioner with apparently all of the documents in its possession pertaining to petitioner's arrest. This does not render the matter moot, however, because the question of petitioner's entitlement to the documents in the first place remains to be determined in light of the opinions expressed here. If the question is decided in petitioner's favor, he will be entitled to collect his attorney fees and costs. (§ 6259, subd. (d).) In addition, we deem the interpretation of the "pending litigation" exemption to the CPRA to be a matter of public interest and continuing concern. We agree with petitioner that the issue is likely to repeatedly come before trial courts in cases involving access to public records. (See Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 77 Cal.Rptr.2d 629 [discussing a litigant's right to pursue records under the act].)

As our Supreme Court has recognized, "The Public Records Act, section 6250 et seq., was enacted in 1968 and provides that 'every person has a right to inspect any public record, except as hereafter provided.' (§ 6253, subd. (a).) We have explained that the act was adopted 'for the explicit purpose of "increasing freedom of information" by giving the public "access to information in possession of public agencies." ' [Citation.] As the Legislature declared in enacting the measure, 'the Legislature ... 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.)" (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370, 20 Cal.Rptr.2d 330, 853 P.2d 496.)

"Grounds to deny disclosure of information 'must be found, if at all, among the specific exceptions to the general policy that are enumerated in the Act.' (State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778, 783, 117 Cal.Rptr. 726.) The general policy of disclosure reflected in the act 'can only be accomplished by narrow construction of the statutory exemptions.' (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 773, 192 Cal.Rptr. 415.)" (Citizens for a Better Environment v. Department of Food & Agriculture (1985) 171 Cal.App.3d 704, 711, 217 Cal.Rptr. 504.)

The question before us concerns the construction to be given the exemption found in section 6254 which provides that "nothing in this chapter shall be construed to require disclosure of records that are any of the following: ... (b) Records 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), until the pending litigation or claim has been finally adjudicated or otherwise settled." The trial court here seemed to broadly construe any document pertaining to the subject matter of litigation as being subject to exemption under section 6254, subdivision (b), viewing with disfavor and suspicion any attempt by a litigant to access the records of a public agency by way of the CPRA.

The construction and interpretation of a statute is a question of law which we necessarily consider de novo. (County of Los Angeles v. Superior Court (1993) 18 Cal.App.4th 588, 594, 22 Cal.Rptr.2d 409.) It appears that no other Court of Appeal has directly addressed, other than in dicta, the issue of the construction to be given the "pending litigation" exemption to section 6254.

In City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 44 Cal.Rptr.2d 532, the court, albeit in dicta, ³ advocated adoption of a limited construction of the pending litigation exemption of section 6254, subdivision (b) as follows: "a document is protected from disclosure only if it was specifically prepared for use in litigation." (Id. at p. 1420, 44 Cal.Rptr.2d 532.) "A document or report prepared for a dual purpose is privileged, or not privileged, depending on the 'dominant...