How Unduly Burdensome is Unduly Burdensome?

On November 17, 2021, the California Third District Court of Appeals held an agency cannot resist disclosure of records based on the fear of releasing confidential records. Getz v. Superior Court (County of El Dorado), 72 Cal. App.5th 673,726 (3rd Dist. 2021.) In the case, Dean Getz (“Getz”) was a member of the Serrano El Dorado Owners Association (“Association”), which is a homeowners association managed by Parker Development Company. In March 2018, Getz made a request under the California Public Records Act (“CPRA”) to El Dorado County for contacts between the County and the Association and between the County and Parker Development Company. (Govt. Code Section 6250 et. seq.) The County produced an index with responsive documents, which included hyperlinks to emails and documents. 

Getz believed there were more responsive records that were not produced, so he renewed his request and defined the scope to include emails from 2013 to August 2018 between four email addresses that belonged to the Association or Parker Development Company. The County identified 42,582 emails, but this time only produced the index of emails and not the actual text of the emails. Getz requested the text of the emails but the County did not respond. Getz filed a petition for writ of mandate compelling the County to produce the emails, however the trial court found the request was over-broad as unduly burdensome. Getz filed a petition for writ of mandamus to the California Third District Court of Appeal.

The Third District held that the request was not “overboard and unduly burdensome” because the County had already located and indexed the responsive emails. In its reasoning, the Court of Appeals noted that “exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed.” Further, the Third District explained that an agency is compelled to provide nonexempt records upon a request “which reasonably describes an identifiable record, or information produced therefrom…” Here, Getz had provided a specific and focused request to the County. 

The County argued that the volume of emails made it unduly burdensome to provide the emails to Getz. However, the Court reasoned that although a huge volume of materials may be objectionable, an agency is “obligated to comply so long as the record can be located with reasonable effort.” The Court noted that the County had already located and indexed the 42,000 emails, it had just refused to produce them. The County further argued that many of the emails were likely exempt and that the need to review all the emails to determine if they were privileged was unduly burdensome. The Court did not accept this argument, stating that agency could not rely on an assumption to prevent disclosure of all the emails, rather the agency still had to disclose the responsive emails and review for privileged information. Accordingly, the Third District concluded that request was not “over-broad
 and unduly burdensome” and reversed the trial court’s decision. It ordered the County to produce the emails and their respective attachments as well as pay Getz’s costs and reasonable attorney fees. 

Similarly, in Becerra v. Superior Court, the California First District Court of Appeals also held that an agency or department cannot withhold records unless there is “a clear overbalance on the side of confidentiality.” (44 Cal. App.5th 897, 930 (1st Dist. 2020.)) In that case, the First Amendment Coalition and KQED, Inc. (“KQED”) made request under the CPRA and the newly amended Penal Code section 832.7 (SB 1421) from the California Department of Justice (“Department”) for records involving peace officer use of force, peace officer sexual assault and dishonesty-related misconduct. The Department partially denied the requests for many reasons, including that review of the responsive documents was unduly burdensome. 

The First District held that there was not a clear overbalance on the side of confidentiality over the public’s interest in obtaining those records. While the Department offered a declaration stating that some of the records had thousands of documents to review, the court stated the declaration “fell short of demonstrating that public fiscal and administrative concerns over the expense and inconvenience of responding to real parties’ records request clearly outweigh the public interest in disclosure.” The court further compared the record to American Civil Liberties Union v. Deukmejian, which the Department relied on to argue undue burden. (32 Cal.3d 440 (1982).) However, the court distinguished Deukmejian because the CPRA request was for index cards that included the identities of family members and associates of organized crime members. After redactions, the information to be disclosed was minimal and the court concluded the cost and burden of reviewing the exempt and nonexempt information outweighed the public interest in the disclosed information. Unlike Deukmejian, the request in Becerra was not overburdened with confidential information. It was just a voluminous request. The court reasoned that the Department failed to establish “ a clear overbalance on the side of confidentiality” and thus was required to disclose the responsive documents. 

Both Getz and Becerra highlight the narrow application of the CPRA overly burdensome exemption. Not only does the burden fall on the agency to prove the exemption, but exemption is highly fact specific. It does not rely solely on the volume of the responsive documents. Rather, the exemption balances in other considerations such as the proportion of information that would be redacted before disclosure, the utility of the information after redactions and public interest in the information. Overall when reviewing the exemption, courts will side of disclosure.

The Affects of Defamation to Police and How the Court of Appeal Sided With Officers

Miller v. Sawant, 2021 U.S. App. LEXIS 33399 (9th Cir. Nov. 10, 2021) 

At the end of 2021 the Court of Appeal considered a case from Seattle which concerned a 2016 officer involved shooting within city limits. It resulted with the suspect losing their life during the attempted arrest. After the story hit the news, a number of public comments by a city councilmember were made concerning the shooting. The officers involved responded by suing the councilmember for defamation. The councilmember argued the comments were only about police reform generally. But the Court of Appeal disagreed and said that the comments could reasonably be taken to be about the individual officers. 

The Facts 

Two Seattle police officers, Scott Miller and Michael Spaulding, had been attempting to arrest an African American man named Che Taylor. Mr. Taylor was shot during the arrest by the officers, and later died in hospital. Only a few days after the shooting, a Seattle councilmember named Kshama Sawant said in front of a crowd at the Seattle Police Department referring to “[t]he brutal murder of Che Taylor, just a blatant murder at the hands of the police,” and suggested race was a factor in the shooting. She called for the Police Department to be held “accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling.” After another fatal police shooting, Sawant repeated her allegation that “Che Taylor was murdered by the police.” 

The Takeaway 

The two officers sued the Councilmember for defamation in 2018 claiming that she had falsely accused them of racial profiling and murder. Initially, the District Court rejected their claim and said the comments weren’t clear enough to be viewed as being “of and concerning” the officers. The comments were instead about the broader issues of police accountability, not singling out the individual officers. 

The officers appealed this decision and the Court of Appeal sided with the officers. The court decided that the comments made were not only about the police generally, but also could be understood as about the individual officers themselves. The lower court was wrong to dismiss the claim. The court said when there’s two possible meanings of a statement, the jury should decide, not judge. The role of the court was to determine not if the words were innocent, but whether they could be reasonably taken to be defamatory against the officers. 

The councilwoman’s remarks could clearly be viewed as being against the officers themselves, not just general comments about police reform. She told the crowd that the shooting constituted, “a blatant murder at the hands of the police,” and she called for the Seattle Police Department to be held accountable “for their...individual actions.” 

The court also said that those who heard councilmember speak, including the officer’s family, friends, colleagues and even members of the public, knew they were the officers involved in the shooting. And so, they knew the remarks by the councilmember was directed at them individually. 

Going forward, this case provides a helpful basis about comments which are so often made following an officer involved shooting don’t become a free for all. The officers in this case have shown that comments like this can be interpreted as being against individual officers, and may allow for recourse from the court.

California Supreme Court Limits the Early Release of Violent Felons Under Proposition 57

In 2019, a California Appeals Court held that Proposition 57 allowed those convicted of multiple violent and nonviolent crimes to qualify for early release after serving only the sentence for one of the nonviolent crimes. The California Supreme Court found that the language in Proposition 57 was ambiguous, and upon reviewing ballot materials, concluded that the initiative did not require the early release of violent felons. Voters were told that Proposition 57 permitted early parole eligibility for state prisoners “convicted of a nonviolent felony offense” after completing the full term of their primary offense. Ultimately, sentencing courts have the authority to decide which crime to designate as the primary offense. 

Proposition 57 left it to the California Department of Corrections and Rehabilitation (CDCR) to devise the rules to determine which inmates qualified for early release. The CDCR excluded inmates serving a sentence for a violent crime from early parole consideration. 

For example, in early 2012, the named Defendant pleaded no contest to nine counts of robbery (violent felonies) and six counts of receiving stolen property (nonviolent felonies). The sentencing court designated one of the nonviolent felonies as the principal offense, with sentencing enhancements added, the total sentence was 29 years. 

After completing his three-year term for the nonviolent primary offense, the Defendant requested early parole. CDCR denied his request. The Defendant appealed, and on November 26, 2019, a three-judge panel of California’s Second District Court of Appeal granted relief because the Defendant had completed the full term of his primary offense. The Court found that under Proposition 57, the Defendant was eligible for early parole consideration even though he was also convicted and sentenced for violent offenses. The Court of Appeal interpreted the measure to mean that an inmate who is serving an aggregate sentence for more than one conviction will be eligible for an early parole hearing if one of those convictions was for “a” nonviolent felony offense. 

Ultimately, California Supreme Court’s unanimous decision overturned the 2019 appeals court ruling, concluding that the initiative did not require the early release of violent felons.

PERB Finds Duty to Bargain When a Proposed Ordinance Impacts Discipline

In a recent decision by the Public Employee Relations Board (PERB), the Board concluded that the County had a duty to bargain over the impacts of the proposed ordinance when it created new grounds for discipline. (Santa Clara County District Attorney Investigators’ Association v. County of Santa Clara (2021) PERB Decision No. 2799-M.) In this case, the Santa Clara County District Attorney Investigators’ Association (“Association”) brought an unfair practice charge against the County of Santa Clara for failing to meet and confer before unilateral implementing an ordinance that regulated County-owned surveillance technology. The ordinance created reporting requirements for County departments and made it a criminal misdemeanor to misuse County-owned surveillance technology. 

The Association met and conferred with the County over four concerns: (1) the definition of surveillance technology was too broad; (2) the increase in workload with the reporting requirements; (3) the reporting requirements would compromise employee safety by giving the public advance notice of how the technology was being used; and (4) the criminal misdemeanor criminalized workplace conduct, which created increased risk of liability when paired with a vague definition. However, the County refused to discuss the definition of surveillance technology and the language of the misdemeanor provision, stating that impact bargaining did not include changes to the ordinance. The County adopted the ordinance after two meetings with the Association and before reaching any agreements with the Association or declaring impasse. 

PERB found that the Association had to the right to bargain over the ordinance’s consequences to Association members. The County argued that the entire ordinance was a fundamental management right under section 3504. PERB balanced “the benefits of bargaining over the decision against the employer’s managerial interest in making the decision.” (Claremont Police Officers Association v. City of Claremont (2006) 39 Cal. 4th 623, 637.) The Association relied the decision from County of Sonoma to argue that the definition of surveillance technology is subject to decision-based bargaining. (County  (2021) PERB Decision No. 2772-M.) In Sonoma, Sonoma County placed an ordinance on the ballot that increased the authority of Sonoma County’s Independent Office of Law Enforcement Review and Outreach (“IOLERO”). The Mastagni Firm obtained a ruling the IOLERO ordinance was subject to decision bargaining because it directly altered an existing investigatory and disciplinary structure PERB distinguished Sonoma, reasoning that the Santa Clara Ordinance is primarily focused on privacy, and its impact on employment is secondary. Therefore, the definition of surveillance technology was not subject to decision-based bargaining but was subject to impacts bargaining. 

PERB also found that the misdemeanor provision was subject to impacts and effects bargaining. Further, the misdemeanor provision would likely be subject to decision bargaining because it creates new grounds for discipline. However, PERB decided that the County had the duty to bargain over the impacts because there was little information on how the misdemeanor provision would apply to non-employees and the ordinance had been in effect for five years. Finally, PERB determined the County violated its duty to bargain over the effects when it refused to respond to the Association’s proposals and did not reach impasse.

Does The "Alter Ego" Doctrine Apply To Workers' Compensation?

In 2021 Cal. Wrk. Comp. P.D. LEXIS 302, Mastagni Holstedt, A.P.C. with Associate Attorney, Jonathan D. Char argued that the Workers’ Compensation Appeals Board frustrated the applicant’s recovery by issuing an award only against a corporation (dissolved) and not against the owner. Upon petition for reconsideration, the Workers’ Compensation Appeals Board found the alter ego doctrine is consistent with their mission so application of the alter ego doctrine may be warranted in a Labor Code section 132a claim. 

At the trial level, the court found that the Workers’ Compensation Appeals Board did not have jurisdiction to “pierce the corporate veil” thus impose joint and several liability on an individual shareholder in a Labor Code section 132a proceeding and therefore issued the section 132a award only against a corporation (dissolved). In contrary belief, the applicant contended the Workers’ Compensation Appeals Board had authority to issue the award against the owner under the doctrine of “alter ego” because there was no difference between the owner and the corporation (dissolved).

The court explained imposition of individual owner liability lies with the civil courts and although exceptions did exist, those exceptions did not apply since the employer had workers' compensation insurance. The trial judge went on to say the Legislature enacted the Corporations Code to allow the formation of corporations with the primary purpose to allow individuals to separate their individual lives and the corporate identity and it would defeat the purpose of the Corporations Code. 

Upon reconsideration, the Workers’ Compensation Appeals Board explained courts now give more weight to whether the corporation is in fact controlled by the individual sought to be held liable. In discussion, the court explained unity of interest does not have to be complete ownership and conditions under which the corporation may be regarded as the alter ego of the stockholders vary according to the circumstances in each case. Consequently, the Workers’ Compensation Appeals Board found the alter ego doctrine is consistent with their mission so its application may be warranted in a Labor Code section 132a claim. 

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