Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 2
Californians Aware is a nonpartisan, non-profit advocacy group, with a board
comprised of journalists, current and former government officers and employees, and
public interest advocates. Its mission is to foster the improvement of, compliance with.
public understanding and use of, public forum law. With that focus it tracks and
sponsors selected legislation, occasionally litigates to enforce the open government laws,
publishes guides to those laws, and offers training to public agencies, public employees,
news organizations, and citizens statewide.
The California Newspaper Publishers Association (CNPA) is a non-profit trade
association representing more than 800 daily, weekly and student newspapers in
California. For well over a century, CNPA has defended the First Amendment rights of
publishers to gather and disseminate - and the public to receive - news and information.
Its members regularly use the CPRA in reporting on public agencies throughout the
state, and on the performance of public employees and the expenditure of public funds.
CNPA has filed amicus curiae briefs in numerous cases in which the Supreme Court and
the Courts of Appeal have vindicated the public's and the press' right of access under the
CPRA. See, e.g., Sierra Club v. Superior Court (2013) 57 Cal.4th 157; International
Federation of Professional & Technical Engineers, Local 21, AFL-CIO v.
Superior Court (2007) 42 Cal.4th 319; POST (2007) 42 Cal.4th 278; Sacramento
County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440;
County of Santa Clara v. Superior Court (2008) 170 Cal.App.4th 1301.
Los Angeles Times Communications LLC ("The Times"), is a wholly owned
subsidiary of Tribune Publishing Company, LLC, which in turn is a wholly owned
subsidiary of Tribune Company. It is the publisher of the Los Angeles Times, the largest
metropolitan daily newspaper circulated in California. The Times also publishes through
Times Community News, a division of the Los Angeles Times, the Daily Pilot, Coastline
Pilot, Glendale News-Press, The Burbank Leader, Huntington Beach Independent, and
the La Canada Valley Sun, and maintains the website www.latimes.com, a leading
source of national and international news. The Times regularly relies on the CPRA for its
reporting on state and local government agencies, and it has successfully litigated
numerous CPRA cases. See, e.g., Commission on Peace Officer Standards
& Training v. Superior Court (2007) 42 Cal.4th 278; Los Angeles Times
Communications v. Alameda Corridor Transportation Authority (2001) 88 Cal. App.
4th 1381.
The Sacramento Bee is a division of McClatchy Newspapers, Inc., a wholly-owned
subsidiary of The McClatchy Company. The flagship newspaper of The McClatchy
Company and the largest paper in the region, The Sacramento Bee was awarded its first
Pulitzer Prize in 1935 for Public Service. Since that time, The Bee has won numerous
awards, including four more Pulitzer Prizes, the most recent for feature photography in
2007.

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 3
The Los Angeles News Group operates nine daily newspapers and associated
websites in Southern California, including its flagship newspaper the Los Angeles Daily
News. The Los Angeles News Group is owned by Digital First Media, the nations second
largest newspaper company and one of the largest providers of digital news and
information in the U.S. The Los Angeles News Group is managed by the California
Newspapers Partnership, majority owned by MediaNews Group along with partners
Stephens Media and Gannett, Inc. CNP is the largest publisher of daily newspapers in
California. CNP publishes 30 daily newspapers and associated websites, and over 50
weekly publications. The Los Angeles News Group routinely relies upon the California
Public Records Act in its reporting and has successfully litigated numerous cases
STATION VENTURE OPERATIONS, LP d/b/a KNSD NBC 7 San Diego (NBC7)
is an NBCUniversal owned and operated television station that has provided continuous
local news coverage of the San Diego market for fifty years. NBC7 broadcasts more than
thirty three hours of locally produced newscasts each week. The stations website
reaches more than two million unique users each month. NBC7 regularly relies on the
CPRA for its reporting on state and local government agencies. NBC7 has received
numerous awards for journalism, including a recent Edward R. Murrow award and
numerous regional Emmy awards for news coverage.
KFMB CBS 8 San Diego is a CBS affiliate, providing news coverage in the San
Diego market for 65 years. CBS 8 regularly uses the California Public Records Act in the
course of its reporting on local and state issues.
inewsource is an independent nonprofit dedicated to satisfying a need for
credible, in-depth, data-driven journalism. Teaching, training and mentoring at San
Diego State Universitys School of Journalism and Media Studies, where inewsource is
based, is a dual priority. Its primary partner is KPBS, public media in San Diego, which
distributes all inewsource reports on television, radio and the web, reaching 1.4 million
people a week. inewsource is a member of the Institute for Nonprofit News (formerly
the Investigative News Network) and collaborates with other nonprofit investigative
journalism centers across the country to ensure the broadest audience for its in-depth
content. inewsource, which was founded in 2009 and is a 501c3, has won dozens awards
for its investigations including two national Edward R. Murrow awards and a certificate
from Investigative Reporters and Editors.
II.

The Production of Records in Response to a CPRA Request

Waives any Privilege or Exemption That May Have Previously
Existed

In 1968, the Legislature enacted the CPRA "for the purpose of increasing freedom
of information by giving members of the public access to information in the possession

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 4
of public agencies." CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651. The CPRA 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. (Gov. Code 6250.)
As we have observed in the context of the public's right of access to court
proceedings and documents, public access makes it possible for members
of the public to expose corruption, incompetence, inefficiency, prejudice,
and favoritism.
International Federation of Professional and Technical Engineers, Local 21, AFL-CIO
v. Superior Court (2007) 42 Cal.4th 319, 333.
In addition to the broad mandates of the CPRA, in 2004, voters overwhelming
passed Proposition 59, which amended the California Constitution, Article I, Section 3,
to guarantee the publics right of access to information concerning the conduct of the
peoples business and to ensure that any provision of law that limits the peoples right of
access is narrowly construed. A statuteshall be broadly construed if it furthers the
peoples right of access, and narrowly construed if it limits the right of access.
(California Constitution, Art. I, 3(b).)
In order to ensure that all members of the public and media have equal access to
public records, the Legislature included an explicit waiver provision in the CPRA,
ensuring that disclosure to one is disclosure to all.
Notwithstanding any other provisions of the law, whenever a state or local
agency discloses a public record which is otherwise exempt from this
chapter, to any member of the public, this disclosure shall constitute a
waiver of the exemptions specified in Sections 6254, 6254.7, or other similar
provisions of law. For purposes of this section, "agency" includes a member,
agent, officer, or employee of the agency acting within the scope of his or
her membership, agency, office, or employment.
(Govt. Code, 6254.5; Waiver Provision.)
The CPRA also includes a number of express exceptions to its Waiver Provision,
ranging from fairly general (Govt. Code, 6254.5 (a) [exempting disclosure made during
the course of discovery proceedings]) to quite obscure (Govt. Code, 6254.5(i)
[exempting records relating to persons subject to the jurisdiction of the Department of
Managed Health Care, for the purposes of corrective action or investigation].) The
Legislature thus knew how to create exceptions to the Waiver Provision. Yet,
inadvertent disclosure does not appear anywhere in the nine exceptions.
As the District recognizes in its Petition, but fails to apply here, the canon of

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 5
statutory construction, expressio unius est exclusio alterius (the expression of certain
things in a statute necessarily involves exclusion of other things not expressed) dictates
that inadvertent disclosure may not be read into a statute in which the Legislature
declined to insert it. (Petition at 21.) Additionally, when the CPRA Waiver Provision is
juxtaposed with the CPRAs catch-all exemption, Gov.t Code, 6255, it is clear that the
Legislature chose to give the courts the power to analyze factual situations requiring
withholding of records, even where a specific exemption was not already enumerated.
Conversely, the Legislature chose not to make a similar catch-all exception to the Waiver
Provision. It follows that the Legislature did not intend for inadvertent disclosure to act
as an exception to the Waiver Provision.
Even before the enactment of the CPRAs waiver provision, courts recognized that
the CPRAs fundamental purpose of public inspection barred selective disclosure. In
Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 656-57, the Court concluded:
The term public inspection necessarily implies general, nonselective
disclosure. It implies that public officials may not favor one citizen with
disclosures denied to another. When a record loses its exempt status and
becomes available for public inspection, section 6253, subdivision (a),
endows every citizen with a right to inspect it. By force of these provisions,
records are completely public or completely confidential. The Public
Records Act denies public officials any power to pick and choose the
recipients of disclosure. When defendants elect to supply copies of
complaints to collection agencies, the complaints become public records
available for public inspection.
(Emphasis in original; reference to footnote omitted).
The District makes a number of untenable arguments as to why the Waiver
Provision is not applicable to the current situation. They are all without merit as
contrary to the plain meaning of the statute and public policy. Moreover, such an
interpretation would violate the constitutional mandate to broadly construe statutes
that further the peoples right of access, and narrowly construe those statutes which
limit the right of access. (Cal. Const., Art. I, 3(b).)
Contrary to the Districts argument, the Waiver Provision is no less applicable to
records the District claims are exempt under Government Code, section 6255,
commonly referred to as the catch-all exemption. As the trial court correctly noted,
the CPRA Waiver Provision expressly provides that waiver occurs whenever a state
or local agency discloses a public record which is otherwise exempt from
this chapter Clearly, the District is claiming that the documents are exempt
pursuant to this chapter (meaning the CPRA.) Additionally, the CPRA Waiver
Provision waives the exemptions specified in Sections 6254, 6254.7, or other similar

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 6
provisions of law. The catch-all exemption is clearly a similar provision that,
contrary to the Districts argument, must be interpreted broadly in favor of access under
Article I, Section 3(b) of the California Constitution.
In any case, the records the District inadvertently disclosed do not fall under the
catch-all exemption. The District claims they are attorney-client privileged and subject
to the work product doctrine. Government Code, section 6254(k) exempts from
disclosure [r]ecords, the disclosure of which is exempted or prohibited pursuant to
federal or state law, including, but not limited to, provisions of the Evidence Code
relating to privilege. The exemption provided in subdivision (k) of section 6254 is not
an independent exemption at all; it simply incorporates other exemptions or
prohibitions provided by law. Cook v. Craig (1976) 55 Cal.App.3d 773, 783.
The catch-all exemption serves an important purpose in the CPRA. An agency
may withhold public records where it can 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
disclosing the record clearly outweighs the public interest served by disclosure of the
record. (Govt. Code, 6255; emphasis added.) Therefore, if a specific situation arises,
which has gone unaddressed by the vast number of express exemptions set forth in the
CPRA, an agency can instead demonstrate that, under the particular facts, it should not
be required to disclose certain public records. However, the catch-all exemption does
not act as alternative or back-up exemption when, as in this case, the records already fall
under one of the CPRAs enumerated exemptions.
The District next argues that because attorney Jennifer Snyder threatened to
enforce her clients constitutional right via an ex parte application, disclosure was
compelled through legal proceedings. This stretched interpretation would lead to
absurd results. As the trial court pointed out, such a ruling would mean that anytime
someone files a lawsuit to enforce her constitutional right to public records under the
CPRA, those documents, once obtained, would not be available to the general public
because they were obtained through legal proceedings. This is particularly concerning
in settlements of CPRA claims, where the District is sued and subsequently agrees to
settle the matter by disclosing documents. Additionally, while the record may indicate
that Jennifer Snyder (who is no longer a party to this action) threatened to file an ex
parte application to compel the District to disclose the records, no such application was
ever filed. Finally, Elizabeth Brazil, the only remaining party to this action, made no
such threat. Clearly there could be no argument that the documents were disclosed to
Ms. Brazil through legal proceedings.
Californias Second District Court of Appeal recently dealt with a very similar
issue in Ardon v. City of Los Angeles (Dec. 10, 2014) 2014 WL 6968719 (Ardon.) In
that case, the Court correctly held disclosures pursuant to the PRA that are made

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 7
inadvertently, by mistake or through excusable neglect still effect a waiver of any
claimed exemption or privilege that would otherwise attach to the production. In so
holding, the Court rejected the Citys position that:
PRA requests are akin to discovery requests in litigated disputes. [The City]
argues that an inadvertent production of privileged material should be
treated similarly in both forums. The City claims that if documents or things
can be recalled by the party producing them in a litigated dispute, then a
governmental agency must be permitted to erase the statutory waiver of the
privilege found in section 6254.5 and claw back documents passed along
inadvertently.
The Citys position finds no support in the statute or the legislative history
that surrounds the enactment of the PRA.
The decision was based, at least in part, on a case decided by this very Court,
Masonite Corporation v. County of Mendocino Air Quality Management District (1996)
42 Cal.App.4th 436.
There, Masonite sought to enjoin the district from disclosing certain
documents to a third party under the PRA because documents it was
required to disclose to the district were trade secrets. Although Health and
Safety Code section 44346 permits Masonite to protect its trade secrets, it
claimed it had inadvertently failed to do so and deserved relief from the
waiver. The Masonite court agreed with the trial court that [v]oluntary
disclosure of information as a public record, even if mistaken, constitutes a
valid waiver of trade secret protection. (Masonite, supra, at p. 455, 49
Cal.Rptr.2d 639.)
Judge Edmon acknowledged that in Masonite, the party seeking to protect
the documents was not the party that disclosed them. She stated, That
distinction is of little import, however, because in this case the party seeking
to invoke the privilege is also the public agency subject to the [PRA]. If
anything, the case for waiver is only stronger[.] Masonites error was to
inadvertently disclose the document to a regulator without the proper
designation. To the extent that the Citys disclosure can be construed as
inadvertent, its inadvertent error was to disclose the documents to a
member of the public with no legal restrictions on the manner in which the
documents could be used. That disclosure, even if inadvertent, permanently
destroyed any semblance of confidentiality by converting those documents
into public records subject to disclosure to any member of the public at any
time for any reason. Based on the plain language of the statute, any
attorney-client or work product privilege that may have once existed was

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 8
waived at the time of disclosure under the [PRA]. We agree.
Ardon, supra.
Additionally, the Court found that allowing the District to retrieve such
documents would contradict the CPRAs clear prohibition against selective disclosure.
[T]he relief sought by the City is inconsistent with the legislative history of
section 6254.5. The City pointed out that statements by legislators and in a
legislative staff report declare the purpose of the waiver was to avoid
selective disclosure. The exception sought by the City would accomplish
exactly that; viz., selective disclosure of the allegedly privileged documents
to Ms. Rickert but not to others.
Id.
That mandate would be especially thwarted here, should this Court grant the
Districts petition, since others have already viewed the records.
Also troubling is the Districts mischaracterization of the nature of its request to
this Court, alleging [t]his court has before it a request for an immediate review of an
order that compels the revelation of 128 pages of highly confidential communications
between Petitioner and its attorney covering a range of extremely sensitive subjects.
Absent immediate intervention by this Court and correction of the Order below, vital
privileges will be irreparably breached and violated. (Petition at 14.) Yet, this is not the
procedural posture of this case. The documents have already been disclosed to
numerous members of the public. The District cites People ex rel. Lockyer v. Superior
Court (2004) 122 Cal.App.4th 1060, 1071, where the court held that an order to produce
privileged material is reviewable by right because there is no way to undo the harm
which consists in the very disclosure. Yet, that is exactly what the District seeks here
undo that which cannot be undone.
III.

The California Supreme Courts Decision in Filarsky v.

Superior Court Bars the Districts Action

In Filarsky v. Superior Court (2002) 28 Cal.4th 419 (Filarsky), the California

Supreme Court held that the CPRA was the exclusive procedure for litigating the issue
of a public agency's obligation to disclose records to a member of the publicand [does]
not authorize a public agency in possession of the records to seek a judicial
determination regarding its duty of disclosure. Id. at 423. In that case, Steve Filarsky
had filed a CPRA request, but the city refused to disclose the requested records. Id. at
422. When Filarsky informed the city of his intent to file a lawsuit to compel disclosure,
the city filed its own declaratory relief action seeking a preemptive declaration that the

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 9
requested records were exempt from disclosure. Ibid. In ruling against the city, the
Supreme Court analyzed the purpose behind the CPRA and its structure for judicial
review of the withholding of documents by public agencies.
Permitting a public agency to circumvent the established special statutory
procedure by filing an ordinary declaratory relief action against a person who
has not yet initiated litigation would eliminate statutory protections and
incentives for members of the public in seeking disclosure of public records,
require them to defend civil actions they otherwise might not have
commenced, and discourage them from requesting records pursuant to the
Act, thus frustrating the Legislature's purpose of furthering the fundamental
right of every person in this state to have prompt access to information in the
possession of public agencies.
Filarsky, supra, 28 Cal.4th at 423.
The Supreme Court went on to declare:
Whatever a public agency's motivation for initiating a declaratory relief
action in these circumstances, authorizing the agency to commence such an
action would chill the rights of individuals to obtain disclosure of public
records, require such individuals to incur fees and costs in defending civil
actions they otherwise might not have initiated, and clearly thwart the Act's
purpose of ensuring speedy public access to vital information regarding the
government's conduct of its business. (See CBS, Inc. v. Block, supra, 42
Cal.3d 646, 656, 230 Cal.Rptr. 362, 725 P.2d 470.) "In light of the clear
legislative objective to promote disclosure which underlies the CPRA, we find
no reason to imply a countervailing intention to subject a requester of
information to a potential civil action instituted by the government agency
for the purpose of testing the legitimacy of the request. Rather than
promoting the goals of open government and full disclosure, such a result
would be at war with the very purpose of the CPRA and would effectively
discourage requests for disclosure by a member of the public or
representative surrogate." (City of Santa Rosa v. Press Democrat, supra, 187
Cal.App.3d 1315, 1323, 232 Cal.Rptr. 445.)
Filarsky, supra, 28 Cal.4th at 434.
The District attempts to distinguish Filarsky on the basis of minor differences in
the procedural posture of the cases. However, the question in front of the court remains
the same are the records exempt from disclosure. In Filarsky, the city sought a
determination about whether requested documents were disclosable public records;
here, the District asks that same question, only post-disclosure.

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 10
Additionally, courts have long recognized their inherent inability to regulate the
conduct of persons outside of their jurisdiction.
[A] court can, and should protect its processes from prejudicial outside
interferences by the promulgation of rules and regulations controlling the
use of property and the conduct of persons under the court's jurisdiction. It
should be noted, however, that the Supreme Court did not
purport to prescribe rules or measures directly regulating the
conduct or activity of the news media or other persons not
under the jurisdiction of the court
Cramer v. Superior Court (1968) 265 Cal.App.2d 216, 224-25; citations omitted
[discussing Sheppard v. Maxwell (1966) 384 U.S. 333, which held that the court had
power to regulate persons within its jurisdiction to protect a defendants constitutional
right to a fair trial.]
Similarly, in County of Los Angeles v. Superior Court (Monroe) (1967) 253
Cal.App.2d 670, 686, the court noted that that we cannot read Sheppard as now
holding that potentially prejudicial pretrial publicity which occurs outside the court
room can be controlled by injunction.
Finally, if this Court were to grant the Districts Petition, it would open the door
for a number of other questions and possible motions. For example, where an
individual reviews the inadvertently disclosed material before being notified, can the
District next seek an order restraining that person from discussing the information
contained in the records? If the requester had distributed the documents to third
parties, such as other members of the public or the media, would the requester have to
try and compel the return of documents from those third parties? Would the District
attempt to prevent the media from publishing it? Would the requester be prohibited
from presenting the information to a law enforcement agency, such as the District
Attorneys public integrity unit, if the inadvertently disclosed information evidenced a
Brown Act violation or other illegal activity? A ruling in favor of the District creates all
of these potential quagmires. Additionally, any order preventing citizens or the media
from discussing the contents of documents they reviewed would be a prior restraint,
which the United States Supreme Court has deemed "the most serious and least
tolerable" infringement upon First Amendment rights. Nebraska Press Assn. v. Stuart
(1976) 427 U. S. 539, 559. This illustrates the highly undesirable consequences
presented by the Districts position.

Law Offices of Kelly Aviles

First District Court of Appeal

Re: Amicus Letter Urging Denial of Writ
January 9, 2015
Page 11
IV.

The Districts Argument Regarding the Records it Claims are

Exempt Raises Unaddressed Brown Act Concerns

In addition to arguing the Attorney/Client Privilege and Work Product Doctrine,

the District now claims that some or all of the records should be exempt to protect the
disclosure of deliberations of the Board of Trustees (Petition at 30.) This is particularly
concerning because, under the Brown Act, deliberations of the Board are expressly
required to be done at noticed, public meetings. (Govt. Code, 54950, et seq.) The
purpose of the Brown Act is to ensure that local government agencies, such as the
District, take all actions openly, and only deliberate on matters after members of the
public have received notice and opportunity to present their views to the agency. (Govt.
Code, 54950.) To these ends, the Brown Act requires open meetings, with limited
exceptions, and specifically prohibits a majority of members of a legislative body from
communicating about any matter that falls within its subject matter jurisdiction, outside
of a noticed, public meeting.
A majority of the members of a legislative body shall not, outside a meeting
authorized by this chapter, use a series of communications of any kind,
directly or through intermediaries, to discuss, deliberate, or take action on
any item of business that is within the subject matter jurisdiction of the
legislative body.
(Govt. Code, 54952.2(b)(1).)
[T]he public is entitled to monitor and provide input on the Board's collective
acquisition and exchange of facts. Page v. Miracosta Community College Dist.
(2009) 180 Cal.App.4th 471, 505.
Section 54950 is a deliberate and palpable expression of the act's intended
impact. It declares the law's intent that deliberation as well as action occur
openly and publicly. Recognition of deliberation and action as dual
components of the collective decision-making process brings awareness
that the meeting concept cannot be split off and confined to one component
only, but rather comprehends both and either. To "deliberate" is to examine,
weigh and reflect upon the reasons for or against the choice. (See Webster's
New International Dictionary (3d ed.)) Public choices are shaped by
reasons of fact, reasons of policy or both. Any of the agency's functions may
include or depend upon the ascertainment of facts. [Citation.]
Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968) 263
Cal.App.2d 41, 47-48.

PROOF OF SERVICE
State of California, County of Los Angeles

I reside or work within in the County of Los Angeles, State of California. I am

over the age of 18 and not a party to the within action. My address is 1502 Foothill
Blvd., Suite 103-140.
On January 9, 2015, I served the foregoing documents described as AMICUS
LEITER URGING DENIAL OF WRIT on the parties in this action as listed on the
service list below by the following means:
Service List

Paul Boylan
POBOX719
Davis, CA 95617
Counsel for Real Party in Interest Elizabeth Brazil
Jerome Behrens/Steve Ngo/Frances Valdez
LOZANO SMITH
2001 North Main Street, Suite 650
Walnut Creek, California 94596
Counsel for Petitioner Newark Unified School District
Hon. Evelio Grillo
Department 31
Alameda County Superior Court
U.S. Post Office Building
201 Thirteenth Street
Oakland, CA 94612
Respondent Superior Court
By United States Mail

I enclosed the documents in a sealed envelope or package addressed to the

persons at the addresses above and deposited the sealed envelope with the United
States Postal Service, With the postage fully prepaid. I am a resident or employed in
the county where the mailing occurred. The envelope or package was placed in the
mail at La Verne, California.
I declare under penalty of perjury under the la1vs of the State of California that
the foregoing is true and correct.
-:.. '!"

Bite~ January 9, 2015

' .~
Albert Aviles