II

--.1 ITHOMAS R. BURKE (State Bar No. 141930)

<:( DAVIS WRIGHT TREMAINE LLP
2 505 Montgomery Street, Suite 800 Court
.r::::: San Francisco, California 941 I 1-6533
3 Telephone: (415) 276-6500 C
CJ Facsimile: (415) 276-6599
4 GORDON
re GLEN A. SMITH (State BarNo. 106341) BY: GAIL PEERLESS
•

n 5 ABC, INC. Deputy Clerk

500 S. Buena Vista Street

6 Burbank, CA 91521
Telephone: (818) 460-6304
7 Facsimile: (818) 843-1655

8 . Attorneys for Petitioner

KGO TELEVISION, INC.
9

10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.

II IN AND FOR THE COUNTY OF SAN FRANCISCO

12 UNLIMITED JURISDICTION

13

14
KGO Television, Inc., Case No. CPF-07-S07028
15
Petitioner,
16 [RROP08EDj ORDER RE KGO'S FIRST
v. AMENDED PETITION FOR WRIT OF
17 MANDATE
MUNICIPAL TRANSPORTATION AGENCY;
18 CITY AND COUNTY OF SAN FRANCISCO;
and DOES 1 through 10,
19 Date: November 20, 2007
Respondents. Time: 9:30 a.m.
20 Dept: 302
TRANSPORTATION WORKERS UNION, Hon. Patrick J. Mahoney
21 LOCAL 250A,
Action Filed: February 13,2007
22 Intervenors

2 ~1 This matter came on for hearing on November 20, 2007 in Department 302 of this Court on

24 Petitioner KGO Television, Inc.'s First Amended Petition for Writ of Mandate before San

25 Francisco Superior Court Judge Patrick J. Mahoney. Glen A. Smith of ABC, Inc., and Thomas R.

26 Burke of Davis Wright Tremaine LLP appeared on behalf of Petitioner KGO Television, Inc.

27 ("KGO"). Jonathan C. Rolnick, Office of the City Attorney, appeared on behalf of Respondents
I
28 Case No. CPF 07-507028 SFO 40Q621vl 0019918-000013
[PROPOSED] ORDER RE KGO'S FIRST AMENDED WRIT OF MANDATE
 I City and County of San Francisco and its constituent agency the Municipal Transportation Agency

2 ("MTA" collectively the "City"), and Michael D. Nelson, Nevin & Absalom, appeared on behalf of

3 Intervenor Transportation Workers' Union, Local 250A. After consideration of all papers

4 submitted and argument of counsel, the Court hereby ORDERS as follows:

5 Respondents' reading of the Court's Order of April 12, 2007 is reasonable for the Order

6 precludes the City from disclosing personally identifYing information as to 25 operators. Since that
7
Order, Petitioner has utilized the provisions of the Sunshine Ordinance, the Public Records Act and
8
the information it obtained pursuant to the April 12, Order to compile specific information related
9
to the identification of certain drivers. It appears from the record that the source of Petitioner's
10
II current information consists of public records, specifically files related to tort claims. It is

12 undisputed that the records being sought - the videos - are public records and must be disclosed

13 absent a statutory exception. Respondents bear the burden of demonstrating that an exception

14 applies and the exception at issue is one for "personnel, medical or similar files." Govt. Code
15
§ 6255.
16
The evidence does not support the conclusion that the exception applies. The video cameras
i7.n- -Fe ~ -f-c
J f are on the bus, first and foremost, the public protection an~record events that unquestionably are
l8
19 occurring in public. There has been no showing that the videos are part of a personnel or medical

20 file or that the videos are similar to a personnel or medical file.

21 The privacy rights of drivers have been asserted as a further ground to deny the request.
22
There simply is no legal support of the proposition that a person driving a bus has some inherent
23
right of privacy. A driver's uniform has a number on it to facilitate a passenger's ability to identifY
24
the driver; the vehicles are on public streets performing a public function; and passengers are
25
26 apprised as they enter the bus that their actions are being recorded. Plainly, the drivers also are on

27 notice. Any uncertainty on this question is dispelled by the decision in International Federation of
2
28 Case No. CPF 07-507028 SFO 400621 vi 0019918-000013
[PROPOSED] ORDER RE KGO'S FIRST AMENDED WRIT OF MANDATE
 1 Professional and Technical Engineers v. Superior Court (2007) 42 Ca1.4th 319 authorizing

2 disclosure of city employees' salaries, normally information maintained in a personnel file and not
3
something recorded by a video camera in a public setting. It appears that Petitioner has made two
4
public records act requests for videos based upon information gleaned from public records. In its
5
Amended Writ, in its moving papers and again during today's hearing, Petitioner confirmed that
6
7 KGO seeks all 171 videos previously identified by Respondents. For the reasons stated, the writ is

8 granted directed Respondent City to turn over the 171 videos requested forthwith. The files should

9 be released in the same Viscom DiSS Viewer format that was used when MTA provided the video

10 file to KGO as described in Paragraph 20 of Respondent's Answer to First Amended Verified

11
Petition for Writ of Mandate.
12

13
IT IS HEREBY ORDERED,
14

15 '7\
Dated: ~" .-2/ , 2007
16

17
---2;-;£ //7/;/d?t:£/
he HonorajJ)e Patrick J. MahoneY"
Judge ofthfSan Francisco Supe . r Court
18

19

20

21

22

23

24

25

26
27

28 Case No. CPF 07·507028 SFO 400621v1 0019918-000013

[PROPOSED] ORDER RE KGO'S FIRST AMENDED WRIT OF MANDATE
 SUPERIOR COURT OF CALIFORNIA
County of San Francisco

KGO TELEVISION, INC Case Number: 507028

Plaintiff( s)
CERTIFICATE OF MAILING
vs, (CCP 1013a (4) )

MUNICIPAL TRANSPORTATION AGENCY,

Defendant( s)

I, Gail Peerless, a Deputy Clerk of the Superior Court of the County of San Francisco,
certifY that I am not a party to the within action.
On December 21,2007 I served the attached ORDER RE KGO'S FIRST AMENDED
PETITION FOR WRIT OF MANDATE by placing a copy thereof in a sealed envelope,
addressed as follows:
THOMAS R. BURKE, ESQUIRE JONATHAN ROLNICK
DAVIS WRIGHT TREMAINE DEPUTY CITY ATTORNEY
505 Montgomery St., #800 OFFICE OF THE CITY ATTORNEY
San Francisco, Ca. 94111-6533 1390 Market St., 5th Fl.
San Francisco, Ca. 94102-5408

MICHAEL D. NELSON, ESQUIRE

NEVIN & ABSALOM
22 Battery St., #333
San Francis~o, Ca. 94111

and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco,
CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and
mailing on that date following standard court practices.

Dated: December 21, 2007

GORDON PARK-LI, Clerk

By:
Gail Peerless, Deputy Clerk