Judge Curtis A. Kin, Case Number: 24STCP03341, Date: 2024-11-12 Tentative Ruling

Judge: Curtis A. Kin, Case: 24STCP03341, Date: 2024-11-12 Tentative Ruling

Case Number: 24STCP03341 Hearing Date: November 12, 2024 Dept: 86

BI INCORPORATED,

Petitioner,

Case No.

24STCP03341

vs.

CALIFORNIA DEPARTMENT OF TECHNOLOGY,

Respondent.

[TENTATIVE] RULING ON (1) ORDER TO SHOW CAUSE RE: WHY THE COURT SHOULD NOT ORDER NON-DISCLOSURE OF SUBJECT MATERIAL AND (2) MOTION TO FILE RECORDS UNDER SEAL

Dept. 86 (Hon. Curtis A. Kin)

I. FACTUAL AND PROCEDURAL BACKGROUND

This proceeding concerns petitioner’s response to Request for Proposal No. C5611414 (“RFP”) for Global Positioning System (“GPS”) and Electronic Monitoring Services. (Pet. at 2:1-7.) Petitioner BI Incorporated is the largest provider of GPS tracking technologies in the United States. (Pet. ¶ 3.)

On September 5, 2024, respondent California Department of Technology (“CDT”) notified petitioner that it received a California Public Records Act request for documents that petitioner submitted to the California Department of Corrections and Rehabilitation in response to the RFP. (Pet. ¶¶ 4, 6.) CDT allowed petitioner to provide proposed redactions to petitioner’s submission materials. (Pet. ¶ 7.) CDT disagreed with the extent of petitioner’s proposed redactions and provided petitioner with a version of its submission materials with fewer redactions than petitioner desires. (Pet. ¶ 7; Hansen Decl. re: Ex Parte Application ¶ 3 & Ex. C.)

On October 11, 2024, CDT provided petitioner up to October 21, 2024 to obtain a court order preventing disclosure of petitioner’s response to the RFP. (Hansen Decl. re: Ex Parte Application ¶ 3 & Ex. C.) On October 17, 2024, petitioner filed an ex parte application seeking to stay the release of petitioner’s response to the RFP, as well as a motion to seal the parties’ competing redacted versions of petitioner’s submission materials. (See Hansen Decl. re: Motion to Seal ¶ 3 & Exs. A, B.) Respondent stood by its proposed redactions but indicated that it would not oppose petitioner’s proposed redactions in court and that it would comply with the Court’s orders regarding disclosure. (Hansen Supp. Decl. ¶ 14 & Ex. 1.)

On October 28, 2024, the Court issued a temporary restraining order enjoining CDT from releasing its proposed redacted version of petitioner’s response to the RFP. The Court also issued an order to show cause why a preliminary injunction should not be ordered enjoining CDT from releasing the redacted version proposed by it, instead of the redacted version proposed by petitioner, which contains more redactions.

No opposition to the Order to Show Cause has been filed.

II. ORDER TO SHOW CAUSE RE: WHY THE COURT SHOULD NOT ORDER NON-DISCLOSURE OF SUBJECT MATERIAL

BI Incorporated seeks a preliminary injunction restraining respondent California Department from releasing the lesser redacted version of the Response for Proposal Number C56111414 proposed by respondent instead of the more redacted version as proposed by petitioner.

“[T]he question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.)

Under the California Public Records Act (“CPRA”), “every person has a right to inspect any public record” of a state or local agency subject to statutory exemptions. (Gov. Code § 7922.530(a).) Agencies may withhold any record upon a showing 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.” (Gov. Code § 7922.000.) Third parties seeking to prevent an agency from producing their records can file a “reverse-CPRA” action to obtain a determination that such records are exempt from disclosure. (See Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1265-67.) “The burden of proof as to the application of an exemption [to the CPRA] is on the proponent of nondisclosure, who must demonstrate ‘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.’” (Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1255.)

The CPRA also does not require disclosure of records that are privileged under the Evidence Code. (Gov. Code §7927.705.) Under Evidence Code § 1060, “the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.” (Evid. Code § 1060.) A “trade secret” is “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) [d]erives independent economic value… from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Code Civ. Proc. § 3426.1(d).) “[T]he party claiming the [trade secret] privilege has the burden of establishing its existence.” (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.)

Based on the “catch-all” provision of Government Code § 7922.000 and its assertion that certain information in the response to RFP is confidential and/or implicates public safety concerns if disclosed, petitioner proposes redactions to which respondent has not agreed. Based on the authorities cited above, the Court rules as follows concerning petitioner’s proposed redactions:

Proposed Redaction Number	Page Number ( __ of 562)	Ruling	Reason
1	28	GRANT	Petitioner takes measures to ensure that the identity of its supplier remains confidential, from which it derives economic value due to having vetted the supplier over time. (Murnock Decl. ¶¶ 15-17.)
2	30	DENY	The title, business telephone number, and business email address (as opposed to home phone numbers and addresses) of petitioner’s customer do not implicate any public safety concern that would outweigh the public interest in disclosure. Petitioner also does not show that it has taken measures to maintain the secrecy of the identity of its customer.
3	33	DENY	Same as #2
4	36	DENY	Same as #2
5	39	DENY	Petitioner does not demonstrate how knowing the numbers describing its market reach could confer any advantage on its competitors or would jeopardize public safety by providing information to offenders to side step, challenge, or defeat the device. (See Murnock Decl. ¶ 4.)
6	40	DENY	Petitioner does not demonstrate how its competitors could obtain economic value from knowing how much petitioner spent on research and development. (See Murnock Decl. ¶¶ 4, 13.)

7	42	DENY	Petitioner does not demonstrate how it derives economic value from maintaining the secrecy of the number of products it manufactured.
8	43	DENY	Petitioner does not demonstrate that it has taken measures to keep secret that it has a trainer on the specified manufacturing standards or that it derives any economic value from having such a trainer. (See generally Murnock Decl.) The assertion in the RFP that there are 3,600 certified trainers globally suggests that the possibility of petitioner having such a trainer on staff is not a trade secret.
9	44	DENY	Petitioner does not demonstrate how knowing the numbers describing its market reach or the number of monitored individuals on its systems confers any advantage on its competitors.
10	45	DENY	Petitioner does not demonstrate that it has taken measures to keep the amount of square feet it utilizes for equipment production secret or that such information has any economic value.
11	46	GRANT	Petitioner uses multiple security measures to protect and maintain the security of its server room and has a valid interest in preventing the widespread dissemination of the particular security features employed. There is minimal public interest in knowing petitioner’s precise security measures.
12	47	DENY	Petitioner asserts that it has contractual obligations to keep information about the SmartLINK mobile application confidential. (Murnock Decl. ¶ 19.) However, the number of individuals who use SmartLINK does not appear to give insight into how the application works or the terms of any contract between petitioner and an agency.
13	48	GRANT	Petitioner seeks to redact information regarding how it determines whether an offender was near an area where a crime was committed. The Court finds that the information could be used to evade monitoring, which implicates public safety and outweighs the public interest in disclosure. (Murnock Decl. ¶¶ 7, 8, 22, 23.)
14	49	GRANT	Same as #13.

15	50	GRANT IN PART	The response time of petitioner to parole agent calls could potentially be information that would assist an offender in evading monitoring. Accordingly, the phrase beginning with “in less” and ending in “average” may be redacted. The number of outbound calls it places and the number of hours of its training program do not appear to be information that offenders could use to evade monitoring. The public interest in disclosure outweighs any public interest in non-disclosure of such information.
16	54	DENY	Petitioner has not demonstrated how it derives any economic value from keeping secret the number of program managers it would assign to support personnel at the California Department of Corrections and Rehabilitation (“CDCR”).
17	55	GRANT	Petitioner seeks to redact information concerning how its technology could be used to track an offender’s movements in critical situations. The Court finds that the information could be used to evade monitoring, which implicates public safety and outweighs the public interest in disclosure. (Murnock Decl. ¶¶ 7, 8, 22, 23.)
18	56	GRANT	Same as #17
19	57	GRANT	Petitioner seeks to redact information concerning how it can be determined whether an offender has tampered with a monitoring device. The information could be used to evade monitoring, which implicates public safety and outweighs the public interest in disclosure. (Murnock Decl. ¶ 24.)

GRANT IN PART

Petitioner seeks to redact information regarding the contents of TotalAccess reports (paragraph beginning with “Total Access reports include” and ending with “discharges”). It is not readily apparent how an offender could use this information to evade monitoring. The information concerning the TotalAccess reports shall not be redacted.

The other highlighted information which petitioner seeks to redact concern tamper detection technology. The information could be used to evade monitoring, which implicates public safety and outweighs the public interest in disclosure. (Murnock Decl. ¶ 24.) This information concerning tamper detection shall be redacted.

DENY

Petitioners do not show how numbers concerning the GPS locations processed per day and the comparison of GPS points with reported crimes could be used to evade monitoring.

GRANT IN PART

Petitioner seeks to redact information concerning crime scene correlation. The Court finds that the information could be used to evade monitoring, which implicates public safety and outweighs the public interest in disclosure. (Murnock Decl. ¶ 7.) The information concerning crime scene correlation shall be redacted.

With respect to the location of petitioner’s Monitoring Operations, however, petitioner does not demonstrate any threat to public safety that would result from disclosure of this information. Petitioner only asserts that the information should remain confidential and non-public. Petitioner does not show that the public interest in non-disclosure clearly outweighs the public interest in disclosure. The location of petitioner’s Monitoring Operations shall not be redacted.

23	65	DENY	Respondent CDT’s proposed redactions are sufficient and strike the proper balance between withholding any information that could be used to evade monitoring and the public’s right to inspect any public record. Petitioner only speculates that an experienced IT professional could guess the redacted information. Even if such a professional guesses the redacted information, petitioner does not state how an offender could use the information to evade monitoring.
24	70	DENY	Same as #23
25	72	GRANT	It is unclear what independent economic value petitioner derives from how it trains supervision authorities. Nevertheless, offenders could use the training subjects to determine what supervision authorities know and exploit such determination accordingly to evade monitoring. (Murnock Decl. ¶ 10.)
26	73	GRANT	Same as #25
27	74	GRANT	Information concerning petitioner’s troubleshooting processes and process to ensure its location map data is updated every 60 seconds could be exploited to evade monitoring.
28	75	GRANT	Information concerning petitioner’s tracking processes could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
29	76	GRANT	Information concerning petitioner’s data storage, data retrieval, and contingency plans in the event of an emergency could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
30	77	GRANT	Information concerning how petitioner’s geo-fence monitoring works could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
31	78	GRANT	Information concerning how the device is monitored and how motion is detected could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
32	79	GRANT	Information concerning how the device works during electrical power-related events, how a device can confirm signal coverage, and how the device can detect if its case has been compromised could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
33	80	GRANT IN PART	Information concerning how the device can detect if its case has been compromised and petitioner’s quality assurance processes prior to delivery of devices could be exploited to evade monitoring. (Murnock Decl. ¶ 7.) This information shall be redacted. However, the number of GPS products that petitioner manufactured neither sufficiently implicates public safety nor imparts any independent economic value on petitioner. This information shall not be redacted.
34	81	GRANT	Petitioner takes measures to ensure that information concerning its suppliers remains confidential and derives economic value due to having vetted the suppliers over time. (Murnock Decl. ¶¶ 15-17.)
35	82	GRANT IN PART	Information concerning petitioner’s inventory management capabilities and how petitioner’s devices operate in the event of low battery could be exploited to evade monitoring. (Murnock Decl. ¶ 7.) This information shall be redacted. However, the amount of money that petitioner spends for research and development, set forth in Figure 20 on page 82, shall not be redacted. Petitioner does not demonstrate how its competitors could obtain economic value from knowing how much petitioner spent on research and development.
36	83	GRANT	Information concerning how petitioner’s devices operate in the event of low battery could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
37	84	GRANT IN PART	Information concerning petitioner’s monitoring operations could be exploited to evade monitoring. However, for the reasons stated above with respect to #22, the location of petitioner’s Monitoring Operations shall not be redacted.
38	86	GRANT	Information concerning petitioner’s monitoring operations could be exploited to evade monitoring.
39	87	GRANT	Same as #38.
40	88	GRANT	Same as #38.
41	89	DENY	Information concerning petitioner’s testing requirements for staff prior to working in monitoring operations does not sufficiently implicate public safety to warrant non-disclosure.
42	90	DENY	Information concerning petitioner’s data center transition is not specific enough to implicate any public safety concerns or warrant non-disclosure. Petitioner also does not set forth efforts it has taken to keep secret information concerning the two federal agencies for which petitioner currently serves as a cloud service provider.
42 (sic)	91	DENY	Petitioner does not demonstrate any threat to public safety that would result from disclosure of the cities where its data centers are located. Petitioner does not show that the public interest in non-disclosure outweighs the public interest in disclosure.
43	92	DENY	It is not readily apparent how offenders could exploit information concerning petitioner’s accreditation and the fact that it takes anti-virus software practices to evade monitoring.
44	93	GRANT	Details concerning the measures petitioner takes to secure its systems, as well as how its systems are designed, could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
45	94	GRANT	Same as #44.
46	95	GRANT	Details concerning the testing of petitioner’s systems could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
47	96	GRANT	Details concerning how petitioner intends to protect its records from unauthorized access could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
48	97	GRANT	Same as #47.

49	98	GRANT IN PART	With respect to how petitioner’s software will interface with CDCR’s systems, respondent CDT’s proposed redactions are sufficient and strike the proper balance between withholding any information that could be used to evade monitoring and the public’s right to inspect any public record. Petitioner only speculates that an experienced IT professional could guess the redacted information. Even if such a professional guesses the redacted information, petitioner does not state how an offender could use the information to evade monitoring. This information shall not be redacted. With respect to the number of agencies that petitioner currently supports, it is not readily apparent how this information could be exploited to evade monitoring. This information shall not be redacted. With respect to petitioner’s TotalAccess architecture and how agencies could use the software, this information could be exploited to evade monitoring. The paragraph beginning with “TotalAccess architecture” and ending with “contacting BI” shall be redacted.
50	99	GRANT	Information concerning the possible configurations in TotalAccess could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
51	100	GRANT	Information concerning the possible configurations in TotalAccess and how the software identifies locations visited by an offender could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
52	101	GRANT	Information concerning how petitioner’s software identifies locations visited by an offender could be exploited to evade monitoring. (Murnock Decl. ¶ 7.) As the information pertains to petitioner’s central goal of tracking the location of offenders, petitioner derives independent economic value from its efforts to keep the information secret. (Murnock Decl. ¶ 9.)

53	103	GRANT	Offenders could use the training subjects to determine what supervision authorities know and exploit such determination to evade monitoring. (Murnock Decl. ¶ 10.)
54	104	GRANT	Same as #53.
55	105	GRANT	Same as #53.
56	106	GRANT	Information concerning how petitioner’s software could be used to track offenders could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
57	107	GRANT	Same as #56.
58	109	GRANT	Details concerning the integration of CDCR’s data with petitioner’s systems and how GPS location information is queried in petitioner’s software could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
59	110	GRANT	Details concerning how GPS location information is queried in petitioner’s software could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
60	111	GRANT	Details concerning how GPS location information is queried in petitioner’s software, as well as information concerning the correlation of GPS location data with crime scene data, could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
61	112	GRANT	Details concerning the correlation of GPS location data with crime scene data and collection of GPS location data could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
62	113	GRANT IN PART	It is not readily apparent how offenders could exploit information concerning petitioner’s accreditation and the fact that it takes anti-virus software practices to evade monitoring. This information shall not be redacted. However, details concerning the measures petitioner takes to secure its systems, i.e., the information after the sentence “Key aspects of BI’s approach to anti-virus software include:”, could be exploited to evade monitoring. (Murnock Decl. ¶ 7.) This information shall be redacted.
63	114	GRANT	Details concerning the measures petitioner takes to secure its systems, as well as how its systems are designed, could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
64	115	GRANT IN PART	Details concerning the measures petitioner takes to secure its systems, i.e., the information above the “Hiring Practices” section, could be exploited to evade monitoring. (Murnock Decl. ¶ 7.) This information shall be redacted. With respect to the “Hiring Practices” section, however, it is not readily apparent how offenders could exploit information concerning the background checks of its employees and the goals of staff training to evade monitoring. This information shall not be redacted.
65	116	GRANT IN PART	It is not readily apparent how information concerning petitioner’s background check and data segmentation requirements could be used to evade monitoring. This information shall not be redacted. With respect to petitioner’s crime scene correlation capabilities, however, the Court finds that the information could be used to evade monitoring, which implicates public safety and outweighs the public interest in disclosure. (Murnock Decl. ¶ 7.) The information concerning crime scene correlation shall be redacted.
66	117	GRANT	Information concerning how petitioner’s device tracks offenders could be exploited to evade monitoring. (Murnock Decl. ¶ 7.)
67	118	GRANT	Information concerning how petitioner’s software could be used to track offenders could be exploited to evade monitoring. (Murnock Decl. ¶ 7.) As the information pertains to petitioner’s central goal of tracking the location of offenders, petitioner derives independent economic value from its efforts to keep the information secret. (Murnock Decl. ¶ 9.)
68	119	GRANT	Same as #67.
69	120	GRANT	Same as #67.

70	121	GRANT	Same as #67 with respect to how petitioner’s software can be used to track offenders. How CDCR Parole Agents can use SmartLINK to verify offender attendance at appointments and treatment locations may defeat monitoring of the offender and shall be redacted. With respect to the identities of petitioner’s employees, the Court agrees that, for personal safety reasons, this information shall be redacted.
71	122	GRANT IN PART	Information concerning how petitioner would respond to a subpoena does not implicate public safety that would warrant non-disclosure. Nor does this information imparts any independent economic value on petitioner. On its face, how petitioner would respond to a subpoena does not reveal communications between a client and lawyer. (See Evid. Code § 954.) This information shall not be redacted. With respect to the goals of its Quality Control program, i.e., the information after Question 50, the Court agrees that the information imparts independent economic value on petitioner and would pose a threat of competitive harm if revealed. This information shall be redacted.
72	123	GRANT	With respect to the goals of its Quality Control program, the Court agrees that the information imparts independent economic value on petitioner and would pose a threat of competitive harm if revealed. With respect to the identities of petitioner’s employee, the Court agrees that, for personal safety reasons, this information shall be redacted.
73	124	GRANT	With respect to the identities of petitioner’s employee, the Court agrees that, for personal safety reasons, this information shall be redacted.

132

DENY

The title, business telephone number, and business email address (as opposed to home phone numbers and addresses) of petitioner’s customers do not implicate any public safety concern that would outweigh the public interest in disclosure. Petitioner also does not show that it has taken measures to maintain the secrecy of the identity of its customers.

For the foregoing reasons, the Court finds that petitioner has demonstrated a probability of demonstrating at trial that certain information, as specified in the table above, should be redacted in the interest of public safety and/or to protect trade secrets. This is particularly so given that the CDT has not provided the identity of the requestor to petitioner (Supp. Hansen Decl. ¶ 4),

Petitioner has also demonstrated the harm that would result from denial of a preliminary injunction to enjoin disclosure of the information that the Court has deemed should be redacted, as set forth above. Should respondent CDT disclose the information subject to redaction prior to trial, confidentiality of the information can no longer be ensured.

For the foregoing reasons, petitioner’s request for a preliminary injunction is GRANTED IN PART as set forth in the table above. The Court’s Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction issued on 10/28/24 is DISCHARGED.

III. MOTION TO FILE RECORDS UNDER SEAL

For the reasons stated above with respect to petitioner’s request for a preliminary injunction, petitioner’s UNOPPOSED motion to seal is GRANTED IN PART. Exhibits A and B to the declaration of Lisa Kralik Hansen in support of the motion to seal (i.e., the parties’ respective proposed redaction to petitioner’s response to the Request for Proposal) shall be filed under seal, as it is impracticable to separate redactable information from non-redactable information contain in electronic files located on USB drives.

However, “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1210.) California recognizes a common law and First Amendment right of access to court records. (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 483; see also Rule of Court 2.550(c) [court records presumed to be open].)

Accordingly, pursuant to the general right of access to court records, by no later than 11/20/24, petitioner BI Incorporated shall file a version of its response to the RFP with the redactions approved by the Court as set forth in the table above, so there is a public record of what this Court decided may and may not be preliminarily enjoined from disclosure pursuant to the CPRA.