Judge: Mary H. Strobel, Case: 21STCP02804, Date: 2022-10-04 Tentative Ruling

Case Number: 21STCP02804    Hearing Date: October 4, 2022    Dept: 82

            Petitioner Xingfei Luo (“Petitioner”) petitions for a writ of mandate directing Respondent County of Los Angeles (“Respondent” or “County”) to disclose all records responsive to Petitioner’s request under the California Public Records Act (“CPRA”) for the “manual and userguide” for certain forensic software used by the Los Angeles County Sheriff’s Department (“LASD”).  Petitioner also seeks a judicial declaration that Respondent violated the CPRA in the manner it responded to her request. 

Background and Procedural History

            On August 23, 2021, Petitioner submitted a CPRA request to Respondent for “the name of the forensic software that LASD uses for data collection and analysis from cell phones” and “the manual and userguide for the said software.”  (Luo Decl. ¶ 2, Exh. 1.)

            On August 23, 2021, LASD’s Discovery Unit responded by email, as follows: “LASD is unable to provide records responsive to your request Computer software developed by a state or local agency is not itself a public record.  Any such software is exempt from disclosure under the State of California Public Records Act under Government Code § 6254.9.”  (Id. Exh. 1.)  On August 23, 2021, Petitioner responded to this email, as follows: “The software is not itself a public record.  However, the name, manual and userguide of the software are public.”  (Ibid.)

On August 26, 2021, Petitioner filed a verified petition against Respondent for writ of mandate and for injunctive and declaratory relief for violations of the CPRA.  Respondent has answered the petition. 

            On September 21, 2021, LASD’s Risk Management Bureau sent Petitioner a further response, stating: “LASD uses the following forensic software for cell phone data collection: Cellubrite, XRY, Graykey, Axiom, EnCase, and Xways.  LASD is continuing to search for the user guide of for these software.”  (Id. ¶ 4, Exh. 2.)

            On September 27, 2021, LASD’s Risk Management Bureau provided Petitioner a further response, stating in relevant part: “The LASD does not have any manuals or user guides for the software; therefore, no records are responsive to your request.”  (Id. ¶ 5, Exh. 3.)

            On August 5, 2022, Petitioner filed her opening brief in support of the petition.  The court has received Respondent’s opposition and Petitioner’s reply.

Summary of CPRA; Burden of Proof; and Standard of Review

Pursuant to the CPRA (Gov. Code § 6250, et seq.), individual citizens have a right to access government records.  In enacting the CPRA, the California Legislature declared 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; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)  The CPRA defines “public records” as follows:

(e) “Public records” includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.  (Gov. Code § 6252(e).)

Government Code section 6253(b) states that “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.”  (See also Id. § 6253(c) [subject to extension in unusual circumstances, agency shall respond to CPRA request within 10 days].) 

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) “To establish an agency has a duty to disclose under [the CPRA], the petitioner must show that: (1) the record ‘qualif[ies] as [a] ‘public record[ ]’ within the meaning of section 6252, subdivision (e); and (2) the record is ‘in the possession of the agency.’”  (Anderson-Barker v Sup.Ct. (2019) 31 Cal.App.5th 528, 538.)  “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…. The duty to disclose applies only when the petitioner has satisfied both elements.”  (Id. at 539.)

CPRA exemptions must be narrowly construed and the agency bears the burden of showing that a specific exemption applies.  (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) 

Analysis

Petitioner seeks “the name of the forensic software that LASD uses for data collection and analysis from cell phones” and “the manual and userguide for the said software.”  (Luo Decl. ¶ 2, Exh. 1.)  It is undisputed that Respondent disclosed the names of the forensic software requested by Petitioner, but that it did not produce any manual or user guides for the software.  Respondent asserted in its response that it is not in possession of any manual or user guide for the software.  (Luo ¶ 5, Exh. 3.)    

Petitioner has the burden to prove that Respondent has possession of a manual or user guide for the software.  (Anderson-Barker, supra, 31 Cal.App.5th at 538.)  “In the context of the CPRA, the term ‘possession’ has been defined to ‘mean[s] both actual and constructive possession.’ [Citations.] ‘[A]n agency has constructive possession of records if it has the right to control the records, either directly or through another person.’”  (Ibid.) 

Here, Petitioner submits no evidence with her opening brief or reply to satisfy her burden of proving that Respondent has actual or constructive possession of any responsive manual or user guide for the software.  Petitioner argues in her brief that “[i]t is difficult to believe the County did not train its employees on how to use forensic softwares.”  (Opening Brief (“OB”) 4.)  This terse legal argument, without citation to evidence, is speculative and unpersuasive.  Respondent could have trained its employees on the software and also, for any number of reasons, not have a manual or user guide for the software currently in its possession or control.  The court cannot find that Respondent has current possession of a manual or user guide based solely on speculation that Respondent has used a manual or user guide for training. 

Petitioner argues that “County’s responses to Petitioner’s CPRA request have demonstrated a pattern of deception and appear to be a sham.”  (OB 4.)  In reply, Petitioner asserts that “County admits that its employees are untrustworthy by making no attempts to explain why county employee lied to Petitioner that the software was developed by a state or local agency.”  (Reply 1.)  Petitioner does not prove that any county employee lied to her.  The initial response to which Petitioner refers, dated August 23, 2021, seemed to misconstrue Petitioner’s CPRA request as seeking the computer software itself.  While the Discovery Unit suggested that the software is developed by a state or local agency, Petitioner cites no evidence that statement was intentionally false or misleading when made.  Moreover, Respondent subsequently provided a proper response to Petitioner’s request for the names of the software and for any manual or user guide.  (Luo Decl. Exh. 1-3.) The inaccuracy of Respondent’s initial response is not determinative of whether Respondent currently maintains possession of a responsive manual or user guide. 

Because Petitioner does not meet her burden to show, with evidence, that Respondent has possession of any responsive manual or user guide, the burden of proof did not shift to Respondent on the issue of possession.  However, even if it did, Respondent has submitted a declaration from Lieutenant Sheriff S. Morsi of the Risk Management Bureau, which states in pertinent part: “The LASD conducted a reasonable search, which included inquiring with the Fraud and Cyber Crimes Bureau – the actual unit that utilizes the forensic software – whether it had any manuals or user guides for the forensic software in its possession. However, no or [sic] user guides for the forensic software identified above have been located in the LASD’s possession.”  (Morsi Decl. ¶ 5.)  Morsi is the operations lieutenant for LASD’s Risk Management Bureau and the custodian of records for LASD’s Discovery Unit.  In those capacities, he shows personal knowledge for his testimony about the search.  (Id. ¶¶ 1-4.) 

Morsi’s sworn declaration, paragraph 5, appears to include a typographical error at page 7, line 28 and page 8, line 1 where the word “manual” is omitted.  Respondent’s counsel should clarify at the hearing whether omission of the word manual was a typographical error.  Subject to correction or notice of errata, the court tentatively interprets the Morsi’s declaration as evidence, which has not been rebutted, that Respondent does not have possession or control of any responsive manual or user guide. 

Petitioner’s request for a judicial declaration that Respondent violated the CPRA is largely derivative of the arguments analyzed above and is denied for the same reasons.  To the extent Petitioner contends that Respondent’s initial responses were too slow or inaccurate, the court does not agree that a violation of the CPRA occurred.  Respondent provided its initial response on August 23, 2021, the same date Petitioner made the CPRA request.  While the initial response seemed to misconsstrue Petitioner’s CPRA request as seeking the computer software itself, Respondent subsequently provided on September 21 and 27, 2021, proper responses to Petitioner’s request for the names of the software and for any manual or user guide in Respondent’s possession.  (Luo Decl. Exh. 1-3.)  The court does not find this delay sufficient to constitute a violation of the CPRA, especially where Respondent had already corresponded with Petitioner within the statutory period required by section 6253(c).

Conclusion

            The petition for writ of mandate and complaint for injunctive and declaratory relief are DENIED.

Respondent is to prepare, serve, and lodge a proposed form of judgment in accordance with local rule 3.231(n).