Litigation & Case Law Update

• Publication year: 2019
• Author: By Katherine Cook and Nicholas Norvell *

Litigation & Case Law Update

By Katherine Cook and Nicholas Norvell *

Katherine Cook is an Attorney with the California High-Speed Rail Authority.

Nicholas Norvell is an Associate at Best Best & Krieger LLP's San Diego office.

OPEN MEETINGS / PUBLIC RECORDS

Anderson-Barker v. Superior Court (2019) 31 Cal.App.5th 528.

The fact that a public agency has the right to access records of its private vendor is not sufficient to compel disclosure of the documents under the California Public Records Act.

In Anderson-Barker, the Second District Court of Appeal held that to establish an agency's duty to disclose under the California Public Records Act (the Act), one must show that (1) the record qualifies as a public record, and (2) the record is in the possession of the agency. The agency has constructive possession if it has the right to control the records—either directly or through an individual. The mere right to access the records of a vendor storing them through its work for the agency is not sufficient, the appellate court held, finding that "[t] o conclude otherwise would effectively transform any privately-held information that a state or local agency has contracted to access into a disclosable public record."

The records at issue related to the private companies hired by the Los Angeles Police Department (LAPD) to tow and store impounded vehicles. The tow companies are referred to as "Official Police Garages" (OPGs). The OPGs each have a nearly identical contract with LAPD, which grants the agency access to records the OPGs store within the Vehicle Information Impound Center (VIIC) and also a Laserfiche database. The VIIC resides on a server owned and maintained by the Official Police Garage Association of Los Angeles (OPGLA), a private organization made up the OPGs. The Laserfiche database is owned and maintained by a separate document storage company via a contract with OPGLA. LAPD prepares a form for each vehicle impound ordered, and then different portions of the form are retained by LAPD and the OPGs. The OPG conducting the impound scans its portion of the LAPD form into the Laserfiche database.

The contracts with the OPGs require them to input information into the VIIC and to "participate in the (Laserfiche) System maintained by the OPGLA." The contracts do not have specifics on what information must be entered or exactly which documents must be saved to the Laserfiche system.

A critical contract provision addresses requirements on record retention and inspection. It states that all records kept by the OPG under the contract are "subject to periodic inspection by [the City]," and that "all data and records . . . related to the towing or storage services provided under [the] Agreement" must be "made available without notice." The same contract provision prohibits an OPG from preventing or interfering with LAPD access to the records. This contract provision controlled, the court held, despite a more general provision elsewhere stating that LAPD owned all work product related to the agreement. The more general provision contained the phrase "unless otherwise provided for herein," and this meant that the more detailed provision on record storage and access prevailed.

LAPD submitted evidence showing that it "had never actually accessed 'most of the electronic data in VIIC and . . . Laserfiche.'" The City showed that it used very limited portions of the VIIC, via internet access, to ensure contract compliance only. The decision relied heavily on a 1980 U.S. Supreme Court decision, Forsham v. Harris ...