A Recent Decision in Santa Clara County
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E-FILED Mar 19, 2013 9:16 AM 2 David H. Yamasaki Chief Executive Officer/Clerk 3 Superior Court of CA, County of Santa Clara Case #1-09-CV-150427 Filing #G-52309 By R. Walker, Deputy 4 5 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CLARA 10 II TED SMITH, an individual, Case No.: 1-09-CV-150427 12 Plaintiff, 13 ORDER AFTER HEARING ON vs. MARCH 15, 2013 14 CITY OF SAN JOSE, a municipal entity; SAN [(1) Motion by Defendants CITY OF 15 JOSE REDEVELOPMENT AGENCY, a SAN JOSE; SAN JOSE REDEVELOPMENT AGENCY; 16 municipal entity; HARRY MAVROGENES, in HARRY MAVROGENES, MAYOR his official capacity as Executive Director of the CHUCK REED, and CITY OF SAN 17 San Jose Redevelopment Agency; MAYOR JOSE COUNCIL MEMBERS PETE CHUCK REED, in his official capacity as CONSTANT, ASH KALRA, SAM 18 LICCARDO, PIERLUIGI Mayor of the City of San Jose; PETE OLIVERIO, MADISON NGUYEN, 19 CONSTANT, in his official capacity as a ROSE HERRERA, JUDY CHIRCO, Councilmember for the City of San Jose; ASH KANSEN CHU, NORA CAMPOS 20 KALRA, in his official capacity as a and NANCY PYLE for Summary Councilmember for the City of San Jose; SAM Judgment; (2) Motion by Plaintiff 21 TED SMITH for Summary LICCARDO, in his official capacity as a Judgment]] 22 Councilmember for the City of San Jose; PIERLUIGI OLIVERO, in his official capacity 23 as a Councilmember for the City of San Jose; Trial Date: Not set 24 MADISON NGUYEN, in her official capacity Judge: Hon. James P. Kleinberg as a Councilmember for the City of San Jose; Dept.: I (Complex Civil) 25 ROSE HERRERA, in her official capacity as a Councilmember for the City of San Jose; ruDY 26 CHIRCO, in her official capacity as a Complaint Filed: August 21, 2009 27 Councilmember for the City of San Jose; KANSEN CHU, in his official capacity as a 28 Councilmember for the City of San Jose; NORA CAMPOS, in her official capacity as a Smith v. City ofSan Jose, et al. Santa Clara County Superior Court, Case No. 1-09-CV-150427 Order After Hearing on March 15, 2013 E-FILED: Mar 19, 2013 9:16 AM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-150427 Filing #G-52309 Councilmember for the City of San Jose; NANCY PYLE, in her official capacity as a 2 Councilmember for the City of San Jose; and 3 DOES 1 through 20, 4 Defendants. 5 6 7 8 9 The above-entitled matter came on regularly for hearing on Friday, March 15, 2013at 10 9:00 a.m. in Department 1 (Complex Civil Litigation), the Honorable James P. Kleinberg 11 presiding. The appearances are as stated in the record. The Court, having reviewed and 12 considered the written submission of all parties, having heard and considered the oral argument 13 of counsel, and being fully advised, orders that Exhibit A attached to and incorporated herein is 14 the Order of the Court. 15 IT IS SO ORDERED. 16 17 Dated: March 18,2013 l~fl~ :_, Oi"funorable James P. Kleinberg\ 18 Judge of the Superior Court 19 20 21 22 23 24 25 26 27 28 Smith v. City ofSan Jose, eta!. Santa Clara County Superior Court, Case No. l-09~CV-l 50427 Order After Hearing on March 15, 2013 E-FILED: Mar 19, 2013 9:16 AM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-150427 Filing #G-52309 EXHIBIT A E-FILED: Mar 19, 2013 9:16 AM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-150427 Filing #G-52309 Calendar line 3 Case Name: Smith vs. City ofSan Jose, et al. Case No.: 1-09-CV-150427 This is a dispute over whether certaiu electronic messages sent or received by a public official via a personal digital assistant ("PDA") that concern public busiuess are subject to the California Public Records Act ("PRA"), Cal. Gov't Code, § 6250 et seq. In the Complaint for declaratory and injunctive relief, plaintiff Ted Smith ("Plaintiff') alleges that he served a written PRA request for '"any communications, documents, correspondence, e-mails, calendar entries or meeting notes,' created or received by the City of San Jose, the City's Redevelopment Agency, or any City Officials including the Mayor and City Councihnembers, relating to Tom McEnery, Joho McEnery, San Pedro Square Properties, Urban Markets, Barry Swenson, Sarah Brouillette, and several other downtown issues." 13 Plaintiff also sought "all electronic information relatiug to public business, sent or received by Mayor Reed, Councilmember Oliverio and Councihnember Liccardo usiug his or her private electronic 14 -~~ --~-~~ devices." --- -- - -- The Complaiut alleges that on July 24, 2009 the City Attorney responded to Plaintiffs counsel by statiug that he would not produce communications created or maintained by the "Mayor, members of the City Council or their staff using any type of personal digital assistant." The Complaiut further alleges that on August 16,2009 the San Jose Mercury News (the "Mercury") published an article entitled "Many Records Still Secret Despite San Jose's Promises of Openness" statiug that City Attorney Rock Doyle's position was that "unless the City Council, the Legislature or a court compels him to do otherwise, San Jose will not consider e-mails or text messages stored outside the city servers as official public records-regardless of whether the messages pertain to city business or even whether the phone or PDA used was partly paid for via city subsidy." Plaintiff also alleges that on August 17, 2009, Mayor Chuck Reed issued a memorandum of recommendations for the "Sunshine Reform Task Force," includiug a recommendation that '"[r]ecords of city busiuesses created with personal equipment, such as personal email, text messages, cell phones, social networking websites, and other new technologies should be covered by the [PRA]."' 15 The Complaint asserts one cause of action for declaratory relief against defendants City of San Jose, San Jose Redevelopment Agency, Harry Mavrogenes, Mayor Chuck Reed, and City of San Jose Council members Pete Constant, Ash Kalra, Sam Liccardo, Pierluigi Oliverio, Madison Nguyen, Rose Herrera, Judy Chirco, Kansen Chu, Nora Campos, and Nancy Pyle ("Defendants"). Plaiutiff alleges that there is an actual controversy between the parties "related to their respective rights and duties. Plaiutiff contends, and defendants deny, that the City must produce the records sought by plaintiff in his CPRR including e-mails, text messages, and other electronic information relatiug to public business, regardless of whether they were created or received on the City owned computers and servers or the City Officials' 13 Compl.'\!4. A copy of Plaintiffs' full written PRArequest is attached to his Complaint as Exhibit A. 14 Cornpl. 1[5. "A copy of this Memo is attached to the Complaint as Exhibit B. 1 E-FILED: Mar 19, 2013 9:16 AM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-150427 Filing #G-52309 personal electronic devices." 16 "Plaintiff desires a judicial determination and declaration that defendants are required to produce all records pertaining to the public's business, created or received by City Officials, regardless of what electronic device was used." 17 Plaintiff and Defendants now bring cross-motions for summary judgment. 18 Judicial Notice In opposition to Defendants' motion and in support of his motion, Plaintiff requests judicial notice of: (1) August 16, 2009 San Jose Mercury News article (Exh. A); (2) Minutes of the February 24, 2009 San Jose City Council meeting (Exh. B); (3) Memorandum by Mayor Chuck Reed to the San Jose City Council, dated August 17, 2009 (Exh. C); (4) Minutes of the August 18,2009 San Jose City Council meeting (Exh. D); (5) Minutes of the March 2, 2010 San Jose City Council meeting (Exh. E); (6) Resolution No. 75293, passed by the San Jose City Council on March 2, 2010 (Exh. F); (7) Charter of the City of San Jose (Exh. G); (8) Minutes of the January 24, 2012 San Jose City Council meeting (Exh. H). The request is GRANTED as to Exhibits B-H, as they constitute legislative enactments of a public entity in the United States. (See Evid. Code, § 452, subds. (b); Evans v. City ofBerkeley (2006) 38 Cal. 4th 1, 9, fu. 5 [judicial notice of city council meeting minutes].) As for the August 16, 2009 Mercury article, the existence of the article is not reasonably subject to dispute, so the request is GRANTED as to the existence of the article for purposes of context, but not for the truth of anything stated in it. (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 900, fu. 3.) Defendants challenge the relevance of these matters, but the Court feels the~ are sufficiently relevant to Plaintiffs interpretation of the PRA and the records subject to it. 1 Parties' Arguments Defendants argue they are entitled to summary judgment and Plaintiff is not because Plaintiff seeks communications by Mayor Reed and Council members and their staff stored solely in private, non-City accounts inaccessible to the City through City servers. Defendants argue these are not records "prepared, owned, used, or retained" by a public agency for purposes of the definition of "public record" under the PRA because the records must be within the public entity's custody or control, and must be "prepared, owned, used or retained" by the public agency. (Gov. Code,§ 6252, subd. (e).) Defendants cite analogous case law from a Michigan court interpreting the federal Freedom oflnformation Act ("FOIA") finding the FOIA did not render the individual plaintiffs' personal emails public records solely because they were captured in the public body's email system's digital memory.