Judge: Keri G. Katz, Case: 37-2018-00026433-CU-WM-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Writ of Mandate Hearing on Petition 37-2018-00026433-CU-WM-CTL VOICE OF SAN DIEGO VS. SAN DIEGO UNIFIED SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Petitioners Voice of San Diego and Scott Lewis' objections to the Declaration of Jeffrey Day [ROA 284] are all OVERRULED. Petitioners' objections to the Declaration of Joseph W. Pannone [ROA 283] are all OVERRULED.

The court then rules as follows. The hearing on Petitioners Voice of San Diego and Scott Lewis' petition having commenced on December 16, 2022, with respect to Petitioners' California Public Records Act (CPRA) claims, the court issues the following ruling as to Petitioners' CCP § 526a claims.

Petitioners' petition for relief pursuant to CCP § 526a is DENIED.

Petitioners seek relief pursuant to CCP § 526a against Respondent San Diego Unified School District for SDUSD's alleged illegal expenditure of public funds. Petitioners argue that SDUSD delayed production of records in response to Petitioners' CPRA requests. The First Amended Petition alleges that such delays are as a result of SDUSD's illegal policies and practices and that such illegal policies and practices constitute an illegal expenditure of funds [FAVP ¶¶ 47, 48].

The operative First Amended Verified Petition alleges: 47. PETITIONERS are informed and believe, and on that basis allege that SDUSD implements and enforces policies and practices that violate state law providing for access to, and the retention of, public records as described heretofore.

48. SDUSD's use of local and staff moneys to implement, enforce, and/or otherwise carry out such illegal policies and practices constitutes an illegal expenditure of public funds within the meaning of CCP section 526a . . . .

In their moving papers Petitioners rely on Government Code § 7922.530 [formerly Government Code § 6253(b)] which provides: (a) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.

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3053994  3 CASE NUMBER: CASE TITLE:  VOICE OF SAN DIEGO VS. SAN DIEGO UNIFIED SCHOOL DISTRICT  37-2018-00026433-CU-WM-CTL . . .

[Emphasis added.] Petitioners also rely on Government Code § 7922.500 [formerly Government Code § 6253(d)] which provides: 'Nothing in this division shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.' Petitioners' main argument is based on the length of time between Petitioners' requests and SDUSD's final production of records. Petitioners cite to cases discussing time requirements for CPRA and Freedom of Information Act (FOIA) requests. However, as Motorola Communication & Electronics, Inc.

v. Department of General Services (1997) 55 Cal.App.4th 1340 recognizes. '[t]he Public Records Act does not specify when records must be produced to a requesting party.' Motorola, 55 Cal.App.4th at 1349. The court is not persuaded by Petitioners' reliance on the language from Citizens for Responsibility and Ethics in Washington v. Federal Election Com'n (D.C. Cir. 2013) 711 F.3d 180, that 'promptly available . . . typically would mean within days or a few weeks of a 'determination,' not months or years.' Citizens, 711 F.3d at 188. The central analysis in Citizens is as to interpretation of another term ('determination') as used in the Freedom of Information Act. Citizens, 711 F.3d at 185. ['But what constitutes a 'determination' so as to trigger the exhaustion requirement? That is the critical question here.'] The only reference to 'promptly available' in Citizens is the following brief discussion.

As to actual production, FOIA requires that the agency make the records 'promptly available,' which depending on the circumstances typically would mean within days or a few weeks of a 'determination,' not months or years. 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)(i). So, within 20 working days (or 30 working days in 'unusual circumstances'), an agency must process a FOIA request and make a 'determination.' At that point, the agency may still need some additional time to physically redact, duplicate, or assemble for production the documents that it has already gathered and decided to produce. The agency must do so and then produce the records 'promptly.' Citizens, 711 F.3d at 188–189.

Significantly, there is no analysis of 'typical' circumstances, and no analysis quantifying the 'additional time' needed to prepare documents for production. Thus, while the FOIA and the CPRA 'should receive a parallel construction' [American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 451] Citizens cannot be read to require production within 'days or a few weeks . . . not months or years' in all instances.

SDUSD submits evidence from expert Joseph W. Pannone, who states: 9. The time to respond to a records request can vary depending on the volume and type of documents, as well as the volume of other record requests and other duties of the PRA officer. In some cases, depending on the breadth of the request and the search terms, the number of records requiring review, the nature of the records reviewed, and the volume of other requests, production of records may take over one year, or more, to complete. In such cases, public agencies sometime produce records on a ' rolling' basis.

The court finds use of the term 'promptly' in Government Code § 7922.530 allows for an evaluation of a variety of factors in assessing the promptness of an entity's production of records. See, Motorola, 55 Cal.App.4th at 1350. See also, Alliance for Responsible CFC Policy, Inc. v. Costle (D.D.C. 1986) 631 F.Supp. 1469, 1470.

In this case Petitioners identify 31 CPRA requests in 'PETITIONERS' INDEX OF PUBLIC RECORDS REQUESTS' [ROA 201] in response to which, Petitioners contend, SDUSD did not make the records promptly available. (Petitioners submit an 'updated and corrected' version of this Index as Exhibit B to their opening brief.) Generally addressing Petitioners' requests, the court finds that the majority of the Calendar No.: Event ID:  TENTATIVE RULINGS

3053994  3 CASE NUMBER: CASE TITLE:  VOICE OF SAN DIEGO VS. SAN DIEGO UNIFIED SCHOOL DISTRICT  37-2018-00026433-CU-WM-CTL requests at issue are very broadly worded and cover extensive periods of time (see, e.g., FY20152016.120 and FY20172018.044). Motorola recognizes the difficulties that entities encounter in responding to overbroad and vague requests. Motorola, 55 Cal.App.4th at 1350. In addition to overbreadth, Petitioners often request information in several formats, including final documents as well as drafts, addendums and modifications (see, e.g., FY20162017.060, FY20162017.029). Based on the evidence SDUSD submits, many of Petitioners' requests require a search and review of both electronically stored and hard copy records by multiple departments within SDUSD. And, Petitioners' requests often require a review for potential redaction of student information and/or employee information. The court finds each of these circumstances allow for an increase the amount of time needed to provide responsive records. SDUSD also submits evidence that it received approximately 300 requests per year from 2015-2020. The court finds such circumstances also allow for an increase in the time for production of records. Although Petitioners cite to numerous cases discussing the importance of the timeliness of production, the court finds none requires a finding of improper delay in the circumstances of this case. Petitioners also argue that SDUSD has not produced any evidence that SDUSD 'ever . . . produced records within days or a few weeks.' However, Petitioners fail to cite to any authority holding that SDUSD has the burden of producing such evidence on this petition.

Petitioners also raise arguments as to SDUSD's designated CPRA officer Jeffrey Day's qualifications and the systems SDUSD has in place for responding to CPRA requests. However, Petitioners offer no evidence establishing that SDUSD's policies and/or practices are improper. SDUSD submits evidence to the contrary. Expert Pannone states that it is not uncommon for a governmental entity to have only one employee charged with reviewing, responding to and processing CPRA requests [Declaration of Joseph W. Pannone, ¶¶ 6, 7. Pannone also states: 13. Based on my personal knowledge, gained from my years of practicing municipal law and the knowledge I obtained by the above-described investigation, the methods SDUSD uses to comply with the PRA and those used by the above-noted cities and Public Agencies are substantially the same.

With respect to Petitioners' arguments regarding the responsiveness of records produced by SDUSD, Motorola recognizes that perfection in responding to a public records request is not the standard, especially where the request does not seek specific, identified documents but rather a class or category of documents. Such a vague request invites a response which is either overinclusive or underinclusive.

Motorola, 55 Cal.App.4th at 1350.

As to the individual requests, the court first addresses the requests where both sides agree on the production date(s): FY20152016.058 FY20152016.071 FY20152016.107 FY20152016.136 FY20152016,144 FY20162017.028 FY20162017.029 FY20162017.090 FY20162017.099 FY20162017.101 FY20162017.162 FY20172018.006 FY20182019.013 FY20182019.084 FY20182019.202 Calendar No.: Event ID:  TENTATIVE RULINGS

3053994  3 CASE NUMBER: CASE TITLE:  VOICE OF SAN DIEGO VS. SAN DIEGO UNIFIED SCHOOL DISTRICT  37-2018-00026433-CU-WM-CTL FY20192020.017 FY20192020.062 FY20192020.085 The court finds evidence of the reasons for the timing of these productions, as set forth in the two Day declarations, sufficient to establish that SDUSD did not improperly delay production of records. The court is not persuaded by Petitioners' arguments to the contrary. The circumstances detailed by Day include, the large volume of CPRA requests received by SDUSD; time spent on requests from Day to Petitioners to modify and narrow search terms of broadly worded requests; time spent on requests from Day to Petitioners for additional information as to the records requested; time spent on requests from Day to Petitioners for clarification of the format of production; the number of years of records requested, which in some instances is over 10 years of records; the large volume of responsive records; IT technical problems; employee furloughs over certain holidays; time spent on the required review by legal counsel to protect student information and attorney-client privileged information; time spent searching physical files in multiple locations including off-site storage facilities; the failure of SDUSD email export tool as a result of the breadth of requests; time spent searching for records from multiple departments; coordination of searches among multiple departments; obtaining records from third-parties; verification of the accuracy of information in the records; scanning hard copies to digital images for production; the time required to provide a Marken notice to former employees; objections by former employees to production of records; and closures as a result of COVID-19. Based on the evidence presented, the court finds Petitioners fail to establish any improper delay in production of records by SDUSD in response to these requests or that any delay was as a result of any illegal policies or practices of SDUSD.

Although Petitioners raise arguments that certain of these requests were 'minimal' and/or 'modest' and that SDUSD should have been able to produce records 'within days,' such arguments ignore the volume of CPRA requests received by SDUSD. Also, specific to FY20182019.013, SDUSD submits evidence from Day that he needed time to verify the accuracy of the information on the spreadsheet prior to production. [Declaration of Jeffrey Day, ¶ 10.] As to FY20192020.085, SDUSD submits evidence from Day that he was not able to locate responsive records, and that Day instead produced SDUSD's response to a CPRA request from another party that Day believed could be used to ascertain the information Petitioners sought via this request. [Declaration of Jeffrey Day, ¶ 11.] Such circumstances do not support a finding of improper delay by SDUSD.

Specific to FY20162017.162, based on Day's declaration, the significant delay in production was as a result of Day's own inadvertence in having gathered the documents but setting the documents aside and failing to notify Petitioners that the documents were available. While unfortunate, considering the volume of CPRA requests SDUSD receives, this instance of inadvertence does not support a finding of any improper delay in production of records. The court is not persuaded by Petitioners' pending litigation exemption arguments because the evidence before the court is that the delay was as a result of Day's inadvertence, not as a result of SDUSD asserting a pending litigation exemption. Day specifically states: 'I never told Voice that the documents were not being produced due to pending litigation privilege. I simply did not realize that I had not completed this production.' [Declaration of Jeffrey Day, ¶ 6.] The parties dispute the production date(s) for the following requests: FY20152016.120 FY20162017.022 FY20162017.033 FY20162017.060 FY20162017.095 FY20172018.044 FY20172018.152 FY20182019.181 Calendar No.: Event ID:  TENTATIVE RULINGS

3053994  3 CASE NUMBER: CASE TITLE:  VOICE OF SAN DIEGO VS. SAN DIEGO UNIFIED SCHOOL DISTRICT  37-2018-00026433-CU-WM-CTL FY20192020.143 With the exception of FY20162017.095, the difference in dates of production as to each of these requests is because Petitioners rely exclusively on the date of the last production and SDUSD relies on all production dates. Regardless, the court applies the same analysis as above with respect to these requests. For the same reasons, the court finds Petitioners fail to establish any improper delay in production of records by SDUSD in responses to these requests or that any delay was as a result of any illegal policies or practices of SDUSD.

Specifically addressing FY20172018.152, as with FY20162017.162, the Day declaration states that the significant delay in production was as a result of Day's own inadvertence. As to FY20162017.095, SDUSD submits evidence that Day made arrangements for a representative of Petitioners to review the documents on an earlier date, but that the representative did not appear at the agreed upon date and time. Neither of these instances supports a finding of an improper delay in production of records.

The remaining requests at issue involve unique circumstances.

FY20162017.112 (1917 days) This request seeks: All emails sent or received by Jenny Salkeld from January 1, 2016 to December 1, 2016 that contain one or more of the following words: 'raise'; 'pay'; 'increase'; 'salary'; 'salaries'; 'SDEA'; 'budget'; 'money'; 'cash flow'; 'TRANs'; 'negotiations'; 'negotiate'; 'bargain'; 'good'; 'bad'; 'wrong'; 'right'; 'January'; 'May'; 'revise'; 'governor'; 'San Diego County Office of Ed'; 'SDCOE'; 'Cindy'; 'Lindsay'; 'Richard'; or 'LCFF'. Please include any earlier emails part of the email chain even if they fall outside the time frame specified or do not contain one of the keywords. Please also include any and all attachments.

While Petitioners argue that this request required 'nothing more than a keyword search of a single email account,' in his declaration Day states that the 'initial email search yielded 31,771 emails, almost all of which were multiple pages' and that the 'resulting file containing the emails was too large to be exported and caused the District's IT system and computers to crash on multiple occasions' [Declaration of Jeffrey Day, ¶ 18]. Day goes on to discuss communications with Petitioners to narrow this request and that, even as narrowed by Petitioners, the search still caused the SDUSD computer system to crash.

Day also states that Petitioners requested .pdf formatted documents of all email attachments which made the search more time consuming. Eventually SDUSD was able to produce responsive records on a rolling basis commencing approximately 9 months after the request. SDUSD produced a total of 12,725 pages of records. The court finds Petitioners fail to establish any improper delay in production of records by SDUSD in response to this request or that any delay was as a result of any illegal policies or practices of SDUSD.

FY20172018.065 (486 days) This request seeks: All public records relating to any substantiated claims of sexual misbehavior and related misconduct for any employee, official, contractor, agent or volunteer of the District arising within the last 10 years.

SDUSD submits evidence that, as a result of the sensitive nature of the records requested, SDUSD was required to conduct an extensive review and redaction of the documents produced and was also required to provide Marken notices to certain employees. The court finds Petitioners fail to establish any improper delay in production of records by SDUSD in response to this request or that any delay was as a result of any illegal policies or practices of SDUSD.

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3053994  3 CASE NUMBER: CASE TITLE:  VOICE OF SAN DIEGO VS. SAN DIEGO UNIFIED SCHOOL DISTRICT  37-2018-00026433-CU-WM-CTL FY20192020.151 (906 days) In this court's ruling on Petitioners' CPRA claims as to this request this court found: 'Petitioners fail to establish that SDUSD improperly delayed production of records in response to this request.' None of the evidence Petitioners submit on this motion causes the court to alter this ruling. The court finds Petitioners fail to establish any improper delay in production of records by SDUSD in response to this request or that any delay was as a result of any illegal policies or practices of SDUSD.

FY20152016.062 (1267 days) SDUSD submits evidence that SDUSD first produced records responsive to this request within approximately 30 days of the request. Day states that, within a month thereafter, Petitioners' counsel provided additional information broadening the search. Day conducted a search and no additional responsive documents were located. As to the later production date, Day explains that, in response to another records request from the California Commission on Teacher Credentialing, responsive records in the form of hard copy documents were found in a drawer of an unoccupied desk. SDUSD thereafter produced these records to Petitioners in response to this request. [Declaration of Jeffrey Day, ¶¶ 12-14.] This court's ruling on Petitioners' CPRA claims addressed the issue of the delay in production of these later found (26 pages of) records. As set forth in that ruling this court was not persuaded by Petitioners' arguments of delay with respect to production of the 26 pages of records. This court concluded: Based on the evidence SDUSD submits, including the Declaration of Jeffrey Day, outlining the steps undertaken by SDUSD in locating records responsive to the Teachworth Requests, and the Declaration of Kari Searles, detailing the discovery of the 26 pages, the court finds Petitioner fails to establish that a reasonable effort required more than the efforts undertaken by SDUSD in responding to the Teachworth Requests.

None of the evidence Petitioners submit on this motion causes the court to alter this ruling. The court finds Petitioners fail to establish any improper delay in production of records by SDUSD in response to this request or that any delay was as a result of any illegal policies or practices of SDUSD.

Absent establishing that SDUSD improperly delayed production of records in response to Petitioners' CPRA requests, there is no basis for a finding that any delay was as a result of any illegal policies or practices of SDUSD or that there was an illegal expenditure of public funds within the meaning of CCP § 526a. Accordingly, Petitioners' petition is DENIED as to Petitioners' CCP § 526a claims.

The court orders SDUSD to submit a proposed final judgment, consistent with this ruling and consistent with prior rulings, within 10 days of this order.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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