SAN JOSE, CITY OF v. S.C. (SMITH) (To be called and continued to the December 2016 calendar.)Real Party in Interest, Ted Smith, Reply to Answer to Petition for ReviewCal.June 23, 2014 No. $218066 SUPREME COURT (LED HUN 28 2014 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA CITY OF SAN JOSE,et al., rank A. McGuire Clerk Defendants and Petitioners Below, Frank Deputy VS. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent. TED SMITH, Plaintiff, Real Party in Interest, and Petitioner Here. SMITH’S REPLY TO THE CITY OF SAN JOSE’S ANSWER TO PETITION FOR REVIEW After Decision by the Court of Appeal Sixth Appellate District Case No. H039498 | Santa Clara County Superior Court, Case No. 1-09-CV-150427 JAMES McMANIS(40958) MATTHEW SCHECHTER(212003) CHRISTINEPEEK (234573 JENNIFER MURAKAMI(273603) McMANIS FAULKNER A Professional Corporation 50 West San FernandoStreet, 10th Floor San Jose, California 95113 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Attorneys for Plaintiff, Real Party in Interest, and Petitioner Here, TED SMITH No. 8218066 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF SAN JOSE,et al., Defendants and Petitioners Below, VS. . SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent. TED SMITH, Plaintiff, Real Party in Interest, and Petitioner Here. SMITH’S REPLY TO THE CITY OF SAN JOSE’S ANSWER TO PETITION FOR REVIEW After Decision by the Court of Appeal Sixth Appellate District Case No. H039498 Santa Clara County Superior Court, Case No. 1-09-CV-150427 JAMES McMANIS(40958) MATTHEW SCHECHTER(212003) CHRISTINE PEEK (234573) JENNIFER MURAKAMI(273603) McMANIS FAULKNER A Professional Corporation 50 West San FernandoStreet, 10th Floor San Jose, California 95113 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Attorneysfor Plaintiff, Real Party in Interest, and Petitioner Here, TED SMITH TABLE OF CONTENTS INTRODUCTION.......seasecaeeaeeseenscesaeersasenaeeeseseseoneeseessseeseessecsesenssesscesessseesesssseaseeeeaseaseeraeans 1 LEGAL ARGUMENT......ceccccsceeesesesssecesneetneecsscrssccnsessstsseseecesesesesetsseseseseseesasessaasesnsesneey 4 I. REVIEW IS NECESSARY TO CORRECT THE SIXTH II. I. DISTRICT’S FLAWED INTERPRETATION OF THE CPRA, WHICH CONFLICTS WITH CONSTITUTIONAL REQUIREMENTS. .........ccceeessesscsscsesssessessessecseseesecessssssseesesensensessonseeseeesseases 4 A. Reversing The Sixth District Will Not Judicially Amend The CPRA.,....... cc cecssccssecssecsecesnerseeeneeseeseseeetenerseeesnesessnesseeneees 4 B. Review Is Warranted Because The Sixth District Did Not Interpret The CPRA Consistently With Proposition 59, Which Refers Expressly To “Public OffiCIAIS.””cee eceeseeesetsececereenseesceeseesseeeseeseecserseesaecaeesecsneeesseseaeesaeees 6 1. Proposition 59 Supports Smith’s Interpretation Of The CPRA. 0... .cicccsscssesecsseceeetseeseesesseneteeecaceneceneeeneeaseneeeees 6 2. The City’s Argument That Proposition 59 Had No Effect On Established Privacy Rights Does Not Support Denial OfReview. 000.0... cecceeseeeseeeeeeeeeseeenee 7 C. Smith Has Stated Grounds For Review Because — Faced With The Novel Issue Of Whether Public Employees May Conceal Records Concerning The Public’s Business In Private Accounts — The Sixth District Interpreted The CPRA To Exclude Such Records And Potentially Any Record Not “Prepared, Owned, Used, Or Retained” By The Legislative Body AS A WHOLE. coc cccccccecccseccccssscsssscscscssssscccnssnncucaeceessesecescccesevececeseauananaeeas 10 WAITING FOR LOWER COURTS TO RULE WOULD ONLY SERVE TO WEAKEN PUBLIC TRUSTIN STATE AND LOCAL GOVERNMENT.occceecesecetecsesesssceeceseesseasesseeeeesenseges 12 THE REGENTS CASEIS INAPPOSITE BECAUSEIT DID NOT CONCERN RECORDS PREPARED, OWNED,USED, OR RETAINED BY A LOCAL AGENCY’S OWN EMPLOYEES10.0... secesssessscessecseescesseceecesaessesesscssesecesesseseseesseeesesesaaaesneesneeas 14 IV. IF THE COURT DECIDES TO REVIEW THE ISSUE OF WHETHER RECORDS STORED INPERSONAL ACCOUNTSOR ON PERSONAL DEVICES ARE “PUBLIC RECORDS,” CLARIFICATION IS ALSO NEEDED ON HOW THE CONCEPT OF CONSTRUCTIVE POSSESSION APPLIES IN THE CONTEXT OF THE CPRA.,wiccecccscccsssecsssesccncenecerersecescesnecseceseeesessecassucseessesseceseesereenseessussssssssaasas® 15 CONCLUSION.....cccceseceecscessecceneseeeseessssasssesesessancseesussessessarenscesecaeessassenseeseaseansaeenaeseesees 16 il TABLE OF AUTHORITIES CASES Bernardi v. County ofMonterey (2008) 167 Cal.App.4th 1379... 8 Caston v. Hoaglin (S.D. Ohio 2009) 2009 WL 1687927 oweeerenee 13 City ofOntario v. Quon (2010) 560 US. 746...eeceeeeseeeetssreceteeseneeees 13 Commission on Peace Officer Standards & Training v. Superior Court (Los Angeles Times Communications LLC) (2007) 42 Cal.4th 278 ........ 10 Consolidated Irrigation Dist. V. Superior Court (City ofSelma) (2012) 205 Cal.App.4th 697 oo... cccceescsseeesesteesecsessssessesessssnsssessesseesesesees 15 County ofLos Angeles v. Superior Court (Axelrad) (2000) 82 Cal-App.4th 819 ccsccssccscsssssessnssseesssnsessesessessnereesesesevsseseeseeenees 8 Gray v. Faulkner (N.D.Ind. 1992) 148 F.R.D. 220 wceeecseseseesseeeeeeees 13 Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1... 9 International Federation ofProfessional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319...ccceeeseesees 9 International Federation ofProfessional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319 o.oo cecsessreesseesessseeseseseceeneersneesesaterseereeas 11 Long Beach Police Officers Association v. City ofLong Beach (May29, 2014, S200872) —§ Cal4thcccceeecesecesseeseeeeceesereeseesereeseeraees 11 O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423oceeeeeeereee 5 Regents ofthe University ofCalifornia v. Superior Court (Reuters America LLC) (2013) 222 Cal.App.4th 383 oo.eececssesssseseseceeseessseseeesesenes 14 San Gabriel Tribune v. Superior Court (City of West Covina) (1983) 143 Cal.App.3d 762 ......cccscscsesrcssscesseessreeseesscetsssasesascnetseeesesesees 3, 16 ili STATUTES Gov. Code, § 6252, SUD. (€) occ cescceseeseseessseseceeeeesseescesaeeentersreenesesuees 4,15 Gov. Code, § 6253(C) occ cscsccsccesscesscsecssecctsessceseeaesneersaeeessersaeseneeneseesges 12, 15 Gov. Code, § 6258 0... ccscccsssccecessneeesesseceersceeeeseaeeceesessensetecesssueesseaeesersns 12 OTHER AUTHORITIES S. Rep. No. 813, 89th Cong., Ist Sess., p. 1 (1965)...eeeeesseseseseereeees 16 CONSTITUTIONAL PROVISIONS Cal. Const., art. I, § 3, subd. (b)(1) «0... eeeeeeneeesdeeeeeeeeeeseseeeeeseeesseeaeesenaes 7 Cal. Const., art. I, § 3, subd. (D)(2) ..... ccc cccesceeeeneeetesereeeseeeeaeeceaneeeeeeeeesaetes 7 iv INTRODUCTION The California Public Records Act (“CPRA”) is a key part of the democratic process in California. It ensures that the public has access to records of state and local public entities, officials, and employees, who are paid with public funds to perform work on behalf of the public. The CPRA thereby providesa critical tool for citizens to hold public entities and their individual representatives and employees accountable for their actions. In one fell swoop, the Sixth District has underminedthe reach and purpose of the CPRA by declaring that only writings of the legislative body — as a whole — are covered, and therefore any writings relating to the public’s business stored on personalelectronic devices or in personal accounts need not be produced in response to a CPRA request. (Opinion, pp. 13-15, 24.) The Opinion effectively grants officials free reign to hide documents from public scrutiny, gutting one of the most important mechanisms for holding government officials accountable to the citizens they serve. Defendants and petitioners below (collectively, “the City”) attempt to minimize the impact of the Sixth District’s Opinion and ask this Court to deny review. The Opinion cannot be dismissed as a lone outlier; rather, it portends far-reaching consequences. Predictably, other public entities will interpret and apply the Opinion to limit the public’s right to obtain and inspect any records not “prepared, owned, used, or retained” by the legislative body as a whole — thereby defeating the purpose of the CPRA andarticle I, section 3(b) of the California Constitution. Delay in resolving these issues would erode the public’s trust in government, as public entities and lower courts struggle with a published opinion that interprets the CPRA so as to create a gaping loophole andrestricts the reach of the CPRA as a general matter. Review is warranted under Rule 8.500(b)(1) of the California Rules of Court, in order to secure uniformity of decision in CPRA casesand to settle an important question of law. It is undisputed that the records soughtin this case concerned the public’s business — the City of San Jose’s involvement in a major commercial developmentproject in the downtown area. (1 PA 13 (Requests 27-30); 4 PA 853.) The City appears to concedethat “public records” include not only those records required by law to be retained but also those records that an official keeps as “necessary or convenient” to the discharge of that official’s duties. (See Answer,p. 2 (citing San Gabriel Tribune v. Superior Court (City of West Covina) (1983) 143 Cal.App.3d 762).) Nevertheless, the City and its amicus, the League of California Cities, argue this Court should not accept review because(they claim) issues of employee privacy would have to be resolved and those issues should be addressed by the Legislature or by lower courts. Asset forth below, the Court can resolve the broad question of whether public employees can shield public records from disclosure by hiding them in personal accounts without getting bogged downin the details of how to search for or produce such documents. Delay will not ripen the issues in Smith’s Petition any further. The time for review is now. This Court has the opportunity to provide important guidance on whether writings concerning the public’s business, which individual employees keep on personal equipment as necessary or convenient to the discharge of their duties, qualify as “public records.” For the reasonsset forth herein, and in Smith’s Petition, Smith respectfully requests that the Court grant his Petition and clarify that the definition of “public records”is muchbroaderthan the Sixth District recognized, and that public employees may not conceal records concerning the public’s business in personal accounts. /// LEGAL ARGUMENT I. REVIEW IS NECESSARY TO CORRECT THE SIXTH DISTRICT’S FLAWED INTERPRETATION OF THE CPRA, WHICH CONFLICTS WITH CONSTITUTIONAL REQUIREMENTS. A. Reversing The Sixth District Will Not Judicially Amend The CPRA. Interpreting the CPRA toinclude public officials and employees within the definition of “local agency,” would neither amendthe statute nor encroach on the Legislature’s role, as the City contends. Courts routinely interpret and apply statutory language. The City cites no authority establishing either (a) when statute is considered to have been “amended”or (b) that an interpretation ofthe CPRA contrary to the Sixth District’s would somehow meetthat standard. The CPRA broadly defines “public records” without reference to any specific technology or means of communication, and therefore does not require amendmentin order to cover writings kept on personal equipment. (See Gov. Code, § 6252, subd. (e) (defining public records to include “any writing containing informationrelating to the conduct of the public’s business prepared, owned, used, or retained by anystate or local agency regardless ofphysicalform or characteristics.”) (emphasis added).) The City’s argumentthat judicial deferenceis particularly appropriate in the context of new technologiesis similarly inapt. This is not a case where technology has outpaced the language ofthe statute. Indeed, technology is always improving — companies consistently design and build productsthat are faster, smaller, and have more memory than their predecessors. It is not necessary for the Legislature to amendevery single statute on the books each time there is a technological step forward. O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1443, on whichthe City relies, is inapposite because the CPRA clearly mandates disclosure of writings relating to the public business “regardless ofphysicalform or characteristics.” There is no exception based on the technology usedto facilitate the communication. While the City may agree with the Sixth District’s interpretation, that does not transform other interpretations (such as the trial court’s) into judicial amendments. Deferring to the Legislature would needlessly preserve the Sixth District’s judicially created loophole until some indeterminate future date. Judicial interpretation of the CPRA would not usurp the Legislature’s role in any way. The City’s argumentto the contrary poses nobarrier to review. B. Review Is Warranted Because The Sixth District Did Not Interpret The CPRA Consistently With Proposition 59, Which Refers Expressly To “Public Officials.” 1. Proposition 59 Supports Smith’s Interpretation Of The CPRA. In Section III.D of its Answer, the City argues that Proposition 59 did not affect the interpretation of the CPRA and simply reaffirmed prior law regarding its construction. (Answer, pp. 9-12). Asa result, says the City, the term “public officials” in Proposition 59 did not “amendthe definition of ‘local agencies’ in the Public Records Act.” (Answer, p. 11.) This argument fails because it incorrectly presumes that the terms “public records” and “local agency” in the CPRA were not intended to cover writings “prepared, owned, used, or retained” by individual employeesand officials in the first place. Assuming for the sake of argument that Proposition 59 did not changethe interpretation of the CPRA,the City still must establish that its interpretation of the CPRA is the correct one. The fact that Proposition 59 expressly refers to “public officials” suggests that its drafters and the voters understood the CPRA to apply to “public officials” and not merely the legislative body as a whole. (See Cal. Const., art. I, § 3, subd. (b)(1).) The City argues that Smith did not proceed under Proposition 59, but cites no authority that Smith had to “invoke” Proposition 59 in his CPRA request for Proposition 59 to apply. Proposition 59 applies generally and the CPRA must be interpreted consistently withits requirement of broad construction in favor of the right of access. (See Cal. Const., art. I, § 3, subd. (b)(2) (referring to authorities in effect on the effective date of Proposition 59).) Moreover, Proposition 59 also imposesspecific conditions on futurelimits to the right of access: “A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right ofaccess shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” (See Cal. Const., art. I, § 3, subd. (b)(2) (emphasis added).) Review is warranted because the Sixth District did not interpret the CPRA consistently with these provisions. 2. The City’s Argument That Proposition 59 Had No Effect On Established Privacy Rights Does Not Support Denial Of Review. The City argues that review should be denied because the Sixth District’s opinion protects the privacy rights ofcity officials and employees, while the trial court’s decision would lead to searches “of all private communications in the private accounts and devices of the City Council members and employees.” (Answer, pp. 11-12; emphasis in original.). This argument has no merit. The City cites no evidence in support ofthis assertion and fails to explain why it could not require its employees to search their own devices. More importantly, it is not necessary for this Court to resolve the details of hypothetical future productionsin orderto affirm the broadprinciple that writings about public business do notlose their public character just because an employee voluntarily takes work home and commingles it with personalfiles. Trial courts have tools at their disposal — such asprivilege logs and in camera review — to resolve specific disputes over privilege issues. (See, e.g., Bernardi v. County ofMonterey (2008) 167 Cal.App.4th 1379, 1387 (County producedprivilege log and special master reviewed documents in camera); County ofLos Angeles v. Superior Court (Axelrad) (2000) 82 Cal.App.4th 819, 833-36 (ordering in camera inspection of documents).) In addition, claims for invasion of the constitutional right to privacy are subject to a balancing test. (See International Federation ofProfessional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338-39 (“IFPTE ”) (citing Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 37-40); see also Hill, supra, 7 Cal.4th at 23-37.) Ifthe Sixth District’s Opinion stands, however, lower courts would have no reason to perform a detailed privilege analysis of records in personal accounts because the Opinion exempted those records from the CPRA en masse. Therefore, delaying review to allow lower courts to rule on similar cases would be unlikely to assist the Court in understanding any specific privacy issues that mayarise. In addition, the City’s argumentignoresthe fact that councilmembersand other public employees voluntarily decide whether or not to commingle their work and personal communications by using personal equipment to conduct public business. Under the City’s logic, if a public employee took hard copies of government documents homeandplaced them in a lockedfile cabinet with the employee’s personal documents, those documents are exempt from disclosure because they are “inaccessible” to the local agency. This Court has rejected the argumentthat location trumps content in | determining which records are subject to the CPRA. (See Commission on Peace Officer Standards & Training v. Superior Court (Los Angeles Times Communications LLC) (2007) 42 Cal.4th 278, 291 (“CPOST’).) Review is necessary to clarify that this rule applies in the context of communications voluntarily stored on personal electronic equipment. Even though Proposition 59 generally preservedprivacy rights, that does not mean advances in technology require a narrowerinterpretation of the CPRA,especially when the decision to use personal equipment is within the public employee’s control. C. Smith Has Stated Grounds For Review Because — Faced With The Novel Issue Of Whether Public Employees May Conceal Records Concerning The Public’s Business In Private Accounts — The Sixth District Interpreted The CPRA To Exclude Such Records And Potentially Any Record Not “Prepared, Owned, Used, Or Retained” By The Legislative Body As A Whole. The City asserts Smith madea “specious argument” in observing that the Opinion appears to exclude writings prepared, owned,used, or retained only by an individual council member, and not the local agency as a whole. (Answer, pp. 12-13.) Regardless of whetherthe Sixth District needed to distinguish the agency as a whole from its individual employees, this distinction was an integral part of the Sixth District’s reasoning: 10 The plain language of [the CPRA’s definition of‘local agency’] thus denominatesthe legislative body as a whole; it does not appearto incorporate individual officials or employees of those entities. [...] Because it is the agency — here, the City — that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannotbe said to fall within the statutory definition. (Opinion, pp. 14-15; emphasis in original.) At a minimum,the Sixth District’s Opinion has the potential to generate significant confusion, and therefore requiresclarification. Depending upon how public entities and other courts apply the Sixth District’s rationale, documents or information previously assumed to be subject to the CPRA may become unavailable to the public.' The ' See, e.g., Long Beach Police Officers Association v. City ofLong Beach (May 29, 2014, S200872) _Cal.4th__ (namesofofficers involved in police shootings not exempt on facts presented in that case); International Federation ofProfessional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319, 346 (public employee salaries not exempt). It is unclear whether the Sixth District’s requirementthat the record be “prepared, owned, used,or retained by the legislative body as a whole meansthat the information held non- exempt in these cases would nonetheless be excluded from the Sixth District’s definition of “public record.” (See Opinion, pp. 15-16.) In addition, letters from councilmembers to constituents sent from the councilmember’s individual office, memos or position papers on matters coming before the council, emails between councilmembers and otherlocalorstate officials, all of which involve the public business but may notbe written or used by the “agency,” may be held outside the definition of “public record”if the Sixth District’s Opinion stands. 11 CPRA recognizesthat citizens have aninterest in timely disclosure. (See Gov. Code, § 6253(c) (10 day deadline for response, subject to extension of no more than 14 days), 6258 (times for responsive pleadings in a proceeding to enforce the CPRA shall beset “with the object of securing a decision ... at the earliest possible time’”).) If the Court delays or denies review,the public’s right of access to certain documents maybeirreparably lost. Il. WAITING FOR LOWER COURTS TO RULE WOULD ONLY SERVE TO WEAKEN PUBLIC TRUST IN STATE AND LOCAL GOVERNMENT. In Section IJI.Bof its Answer, the City argues that review should not be granted because other courts of appeal have not addressedthe issue of storing public records in personal accounts. (Answer,pp. 7-8.) Waiting for lower courts to rule would weaken public trust in government, because the public’s right to access information remainsat risk in the interim, subject to the whim and caprice of public officials who naturally would be motivated to adopt an aggressive interpretation of the Sixth District’s Opinion thatlimits the right of access. (See, e.g., Answer, p. 13, fn. 1 (complaining about having to “endure” use of the CPRA for “fishing expeditions”).) 12 As noted by amiciin this case, public employeesandofficials have used personal devices or accountsto try to shield improper behavior from the public. (Ram, Olson, Cereghino & Kopcezynski amicusletter (May 8, 2014), pp. 7-8; ACLU amicusletter (May 22, 2014), p. 6.) Accepting review now would deter future scandals and mitigate the erosion of the public’s trust in government. The City’s related argument that delayis warranted because email, voicemail and texting are somehow “new”or “emerging” technologies ignores reality. These means of communication are not “new” and courts have had many years to ruminate on the scope of an entity’s obligation to look for and produce such communications, especially in the contextof civil discovery.” 2 The City contends that Smith cited no authority in support of his claim that courts may look to state and federal discovery procedures for guidance on the scope ofthe City’s control over and obligation to look for responsive records. (Answer, p. 13.) In fact, Smith did cite authorities regarding the responding party’s duties to produce items in its “possession, custody, or control.” (See Petition, pp. 21-24 (citing Gray v. Faulkner (N.D.Ind. 1992) 148 F.R.D. 220, 223; Castonv. Hoaglin (S.D. Ohio 2009) 2009 WL 1687927, *3, among other authorities).) These authorities do not support exempting responsive communications in an employee’s personal account from production. The Sixth District’s Opinion failed to justify treating the obligation of public employees and agencies to search for and produce responsive documents differently in the context of the CPRA andcivil discovery. 13 The City’s reliance on City ofOntario v. Quon (2010) 560 U.S. 746 is misplaced. As in Quon,it is not necessary for this Court to resolve whether specific employees have a reasonable expectation of privacy in specific communications. See id. at 760-61. The Court mayaffirm the broad principle that public officials and employees may not use personal equipmentto circumvent the CPRA without getting into the weeds about whethercertain types of searches implicate privacy rights and whetherthose rights are outweighed by other interests. Lower courts may resolve these issues, keeping in mindthat public employees may avoid implicating their privacy rights altogether by choosing not to conduct public business on personal devices. Even if lower courts have not yet considered the issue, review should be granted now to minimize further erosion of the public’s trust in government. II. THE REGENTS CASEIS INAPPOSITE BECAUSEIT DID NOT CONCERN RECORDS PREPARED, OWNED, USED, OR RETAINED BY A LOCAL AGENCY’S OWN EMPLOYEES. TheCity relies on Regents ofthe University ofCalifornia v. Superior Court (Reuters America LLC) (2013) 222 Cal.App.4th 383 (“Regents”), for the proposition that the CPRA’s definition of “public 14 records” is unambiguous. (Answer, p. 9.) The City’s relianceon this case is misplaced. Regents involved documents that were possessed by private equity firms and had not been provided to the Regents themselves. Jd. at 389, 396. In contrast, Smith sought documentsthat had been prepared, owned,used, or retained by City officials and employees in connection with a downtown commercial development project. (1 PA 13 (Requests 27-30).) Regents is factually inapposite and doesnotaid the City’s argument. IV. IF THE COURT DECIDES TO REVIEW THE ISSUE OF WHETHER RECORDS STORED IN PERSONAL ACCOUNTSOR ON PERSONAL DEVICES ARE “PUBLIC RECORDS,” CLARIFICATION IS ALSO NEEDED ON HOW THE CONCEPT OF CONSTRUCTIVE POSSESSION APPLIES IN THE CONTEXT OF THE CPRA. The City argues at length that the authorities cited in Smith’s Petition on the subject of constructive possession are not in conflict. (Answer, pp. 14-17.) For example, the City distinguishes the analysis of the term “possession” in Government Codesection 6253(c) and “public records” in section 6252(e) in Consolidated Irrigation Dist. v. Superior Court (City ofSelma) (2012) 205 Cal.App.4th 697, 710-11 & fn.8. (Answer, p. 15.) The City’s argumentis not persuasive. If the Court chooses to review whetherthe definition of “public records” 15 includes records prepared, owned, used, or retained by individual employees using personal equipment, the relationship between section 6252 and 6253(c) also requires clarification. It would defeat the goal ofjudicial economyfor the Court to clarify that records stored on personal equipmentqualify as “public records,” but leave public entities free to raise new argumentsthat such recordsstill cannot be produced becausetheyare not “in the possession of the agency” within the meaningofsection 6253(c). Therefore, Smith respectfully requests that the Court also addressthis potential source of confusion and conflicting rulings. CONCLUSION The importance of the CPRA in ensuring government’s accountability to the public cannot be understated:. The conceptthat access to information is a fundamental right is not foreign to our jurisprudence: ‘Nearly two hundred years ago, James Madisonstated, “[knowledge] will forever govern ignorance and a people who meanto be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the meansofacquiring it, is but a prologue to a farce or a tragedy or perhaps both.” (San Gabriel Tribune, supra, 143 Cal.App.3d at 772 (citing Schaffer et al., A Look at the California Records Act and Its Exemptions (1974) 4 Golden Gate L.Rev. 203, 203-04, quoting from S. Rep. No. 813, 16 89th Cong., Ist Sess., p. 1 (1965)).) This case provides an opportunity to settle an important issue of law and clarify the scope of the CPRA and Proposition 59. Smith respectfully requests that the Court grant his Petition for Review. Dated: June 20, 2014 McMANIS FAULKNER JAMES McMANIS MATT SCHECHTER CHRISTINE PEEK Attorneys for Plaintiff/Real Party in Interest, TED SMITH 17 CERTIFICATE REGARDING WORD COUNT I, Christine Peek, counsel for Real Party in Interest and Petitioner here, Ted Smith, hereby certify, pursuant to California Rules of Court, Rule 8.204(c)(1), that theword count forthis brief, exclusive oftables, according to Microsoft Word 2013, the program used to generate this brief, is 3426words. I declare under penaltyof perjury under the lawsofthe State of California that the foregoing is true and correct. Executed this 20th day of June, 2014. Oh & OL CHRISTINE PEEK S218066 CERTIFICATE OF SERVICE I am a citizen of the United States. My business addressis 50 West San FernandoStreet, 10th Floor, San Jose, California, 95113. I am employed in the County of Santa Clara, where this mailing occurs. I am overthe age of 18 years, and not a party to the within action. I served the foregoing document describedas: REAL PARTYIN INTEREST’S REPLY TO THE CITY OF SAN JOSE’S ANSWERTO PETITION FOR REVIEW on the following person(s) in this action: Richard Doyle Nora Frimann Margo Laskowska — Office of the City Attorney 200 E. Santa Clara Street, 16" Floor San Jose, CA 95113 Attorneys for Defendants and Petitioners, City of San Jose Clerk ofthe Court | Sixth District Court of Appeal 333 W. Santa Clara Street Suite 1060 San Jose, CA 95113 Clerk of the Superior Court Santa Clara County. Superior Court 191 N.First Street San Jose, CA 95113 Ted Smith Plaintiff and Real Party in 465 S. 15th Street Interest San Jose, CA 95112 ><] (BY MAIL)I enclosed the documentsin a sealed envelope or package addressed to the persons at the addresseslisted above or on the attachedservicelist. I placed the envelope for collection and mailing, following our ordinary businesspractices. I am readily familiar with this businesses' practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am employed in the county where the mailing occurred. The envelope or package wasplaced in the mailat San Jose, California. I declare under penalty of perjury under the laws of the United States of America that the aboveis true and correct. Executed on June 20, 2014, at San Jose, California. Se,tbhnweEe ELENA K. SCHNEIDER
