California Public Records Act: City Not Required to Produce Records in Possession of Consultant

The Second District Court of Appeal issued an opinion in Anderson-Barker v. Superior Court (Jan. 22, 2019, No. B285391) ___ Cal.App.5th ___, finding that the City of Los Angeles (L.A.) was not required to disclose tow records in response to a Public Records Act request.

Background

L.A. contracts with private tow companies to tow and store impounded vehicles. These companies are called “Official Police Garages,” or “OPGs.” The OPGS have an association called the “Official Police Garage Association of Los Angeles” (OPGLA) which maintains a database of tow records. The database is called the “Vehicle Information Impound Center” or “VIIC”.

Plaintiff Cynthia Anderson-Barker submitted a request, pursuant to the California Public Records Act (CPRA), for all data recorded in the VIIC database. The City refused to produce the records on the ground that OPGLA owned and controlled the database. Anderson-Barker filed a petition for writ of mandate to compel disclosure of the records. The trial court denied the petition, finding that the requested records were not subject to the CPRA because the City did not own or control the records even though the City had a contractual right to access the records. Anderson-Barker appealed the trial court’s decision. The Second District Court of Appeal affirmed the trial court’s decision.

Legal Discussion

“The CPRA was modeled on the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552 et seq.) and was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies. [Citation.]” (Anderson-Barker v. Superior Court, supra, ___ Cal.App.5th ___, 13, citing Filarsky v. Superior Court (2002) 28 Cal.4th at pp. 425-426.) The CPRA requires that, upon request, state and local agencies make available for inspection and copying any public record “[e]xcept with respect to public records exempt from disclosure. . . .” (Id.)

The duty to disclose set forth in Government Code section 6253(c) only “pertains to disclosable public records in the possession of the agency.” (Consolidated Irrigation v. Superior Court (2012) 205 Cal.App.4th 697, 708 [emphasis added].) Whether a record falls within the statutory definition of a “public record” involves a distinct inquiry from whether the agency is in “possession” of that record. (Regents of University of California v. Superior Court (2013) 222 Cal.App.4th 383, 395-401.) Similarly, “whether the information falls within the meaning of ‘public records’ is not determined by whether [the agency] has or might have…possession of” the records. (City of San Jose v. Superior Court (2017) 2 Cal.5th 609, 624.)

Anderson-Barker argued that L.A. has constructive possession of the records because L.A.’s contract with the OPGs allowed unfettered access to information maintained in VIIC. Anderson-Barker claimed that such right of unfettered access gave rise to constructive possession by L.A. and rendered the records subject to the CPRA. L.A. conceded that it had access to the data, but stated that access does not necessarily give rise to constructive possession. The Court of Appeal agreed, finding that the City did not possess or control the VIIC database and thus had no duty to disclose those records under the CPRA.

The court noted that the term “control” is generally defined as “the power or authority to manage, direct, or oversee.” (Black’s Law Dict. (9th ed. 2009), p. 378.) In making its decision, the Court of Appeal relied on evidence presented by the city showing that it does not direct what information the OPGs place on the VIIC and Laserfiche databases, and has no authority to modify the data in any way. Based on those facts, the court determined that “[t]he mere fact that [L.A.] can ‘access’ the data does not equate to a form of possession or control. To conclude otherwise would effectively transform any privately held information that a state or local agency has contracted to access into a disclosable public record.” (Anderson-Barker v. Superior Court, supra, ___Cal.App.5th___, 17.)

The Court of Appeal went on to note that “the City might have a duty under the CPRA to disclose any data it has actually extracted from the VIIC” and then used for a governmental purpose. (Id. at 18.) However, Anderson-Barker’s request was not limited to data used for governmental purposes, but rather sought all data maintained in the VIIC.

Anderson-Barker also argued that the California Supreme Court’s recent decision in City of San Jose, supra, 2 Cal.5th at p. 623, “demonstrates that a state agency’s ‘right to access and take possession of [a record or data] makes the data public records’ regardless of whether the agency “technically ‘own[s]’ the records.'” The court rejected this argument, noting that the Supreme Court only looked at whether the subject records in City of San Jose were public records, but did not evaluate the issue of possession. In City of San Jose, the Supreme Court found that “[a] writing retained by a public employee conducting agency business has been ‘retained by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.” (Id. at 19, citing City of San Jose, supra, 2 Cal.5th at p.623)

Conclusion

This case exposes a rift between the obligation to disclose public records retained by an agency off-site, such as on an employee’s personal device or maintained by a consultant, and records the agency truly does not own or control. We anticipate further direction from the courts on this issue moving forward. In the interim, contact your legal counsel in the event you receive a request for records in the possession of a third party to determine if they are disclosable.

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Maggie Stern
mstern@kmtg.com | 916.321.4541