janbtucker.com Blog

FOR BACKGROUND, FIRST READ:

http://janbtucker.com/blog/2010/12/22/mayor-villaraigoza-is-on-notice/

http://janbtucker.com/blog/2010/11/13/city-of-los-angeles-faces-more-allegations-of-discrimination/

http://janbtucker.com/blog/2010/12/23/holding-my-breath/

http://janbtucker.com/blog/2010/12/23/anthonys-contribution-to-antonio/

J.B. Tucker & Associates

April 1, 2011

Deputy Mayor Larry Frank

Los Angeles City Hall

200 North Spring St.

Los Angeles, CA 90012-4801

Dear Larry:

The following request is made pursuant to the California Public Records Act and the decisions in KNSD Channels 7/39 v. Superior Court (Vasquez) (1998) 63 Cal.App.4th 1200, 74 Cal.Rptr.2d 595 [No. D029949. Fourth Dist., Div. One. May 13, 1998.], Copley Press, Inc. v. Superior Court (M.P.R.) (1998) 63 Cal.App.4th 367, 74 Cal.Rptr.2d 69 [No. D029986. Fourth Dist., Div. One. Apr 20, 1998.], and Copley Press, Inc. v. Superior Court (Adams) (1992) 6 Cal.App.4th 106, 7 Cal.Rptr.2d 841 [No. D016546. Fourth Dist., Div. One. May 7, 1992.] which govern the common law and constitutional right to public access to government and judicial records. As to any judicial records I am seeking, the legislature enacted Section 77206(f) of the Government Code to require judicial rules must “ensur[e] [120 Cal.App.4th 293] that, upon written request, the trial courts provide, in a timely manner, information relating to the administration of the courts, including financial information and other information that affects the wages, hours, and working conditions of trial court employees.” (§ 77206, subd. (f).) as held in Orange County Employees Assn., Inc. v. Superior Court (2004) 120 Cal.App.4th 287, 15 CR 3^rd 201.

These laws and decisions preceded the enactment of SCA 1 (Proposition 59) which was passed overwhelmingly by the voters in November 2004. SCA 1 amended Article I, Section 3 of the California Constitution by providing that “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny” and that
”A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

In the case of Sutter’s Place Inc. v. Superior Court (City of San Jose) (2008) 161 Cal.App.4th 1370, 75 CR 3^rd 9, the court held that “”Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process” (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) and that:

The California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.), enacted by the Legislature in 1968, provides for this access via a scheme to inspect public records maintained by state and local agencies. (Gilbert v. City of San Jose (2003) 114 Cal.App.4th 606, 610.) The CPRA replaced a hodgepodge of statutes and court decisions relating to disclosure of public records and was conceived broadly to require full agency disclosure unless information is statutorily exempted. (Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759, 765 (Los Angeles Unified).)

“With the passage of Proposition 59 effective November 3, 2004, the people’s right of access to information in public settings now has state constitutional stature, grounding the presumption of openness in civil court proceedings with state constitutional roots.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 597 (Savaglio); see also Commission on Peace Officer Standards and Training v. Superior Court (2007) 2007 DJDAR 13089, 13090 [ "As a result of an initiative measure adopted by the voters in 2004, this principle now is enshrined in the state Constitution"] (Commission); International Federation of Professional and Technical Engineers v. Superior Court (2007) 2007 DJDAR 13105, 13106 [same] (International Federation); BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750 [Proposition 59 "enshrined in our state Constitution the public's right to access records of public agencies"] (BRV); Los Angeles Unified, supra, 151 Cal.App.4th at p. 765 [same].)

Previously Confidential Records May Become Public

Vallejos v. California Highway Patrol (1979) 89 Cal.App.3d 781, 152 Cal.Rptr. 846 held after initial periods of confidentiality, some records ultimately become public records: “The filing of a document imports that it is thereby placed in the custody of a public official to be preserved by him for public use. Because for a season its value is best conserved by maintaining its confidential character by excluding public gaze, it becomes no less a public record. (People v. Tomalty, 14 Cal.App. 224, 232 [111 P. 513]; Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383, 395 [121 P.2d 829].) (People v. Pearson (1952) 111 Cal.App.2d 9, 30 [244 P.2d 35].)

Therefore, if you contend that any record I am seeking is temporarily but not permanently unavailable, please identify the precise or approximate date when you believe that this record will or may become publicly available and/or the circumstances which must exist for it to become publicly available.

Litigation or Potential Litigation Irrelevant

In the event that you intend to object to release of these records because you believe that the request is somehow related to litigation, unless the records requested were expressly prepared for counsel, attorney-client privilege does not apply. Additionally, the fact that litigation exists or might come into play is fundamentally irrelevant to the California Public Records Act. See City of Hemet v. Superior Court (Press-Enterprise Co.) (1995) 37 Cal.App.4th 1411, 44 Cal.Rptr.2d 532.

Request for Tort Claims made under the California Tort Claims Act

If any of the writings I am requesting constitute demands for compensation made under the California Tort Claims Act or deposition transcripts, be advised that you cannot withhold them from me under provisions of Section 6254 of the Government Code (see Board of Trustees of California State University v. Superior Court (The Copley Press, Inc.) (2005)132 Cal.App.4th 889 , — Cal.Rptr.3d -) and Poway Unified School Dist. v. Superior Court (Copley Press Inc.) (1998) 62 Cal.App.4th 1496, 73 Cal.Rptr.2d 777). Additionally, note that medical records, when attached to documents voluntarily submitted to a government agency with a letter concerning claim settlement were deemed public records in REGISTER DIV. OF FREEDOM NEWSPAPERS, INC. v. COUNTY OF ORANGE, (1984) 158 Cal.App.3d 893, 205 CR 92. Additionally under this case, investigative reports made for risk management as opposed to law enforcement purposes, the policies and procedures for settling tort claims and the minutes of settlement committee meetings are not protected from disclosure.

I am therefore requesting copies of all writings as defined in California Government Code Section 6252(f) and California Evidence Code Section 250, constituting:

1. Any and all tort claims filed within the preceding five (5) year period alleging discrimination, harassment, and/or retaliation by Los Angeles City employees alleging violations of any civil rights laws.

Public Employee Name and Salary Information

The names of all public employees, including peace officers and their salaries, have been held by the California Supreme Court to be public records in Com. on Peace Officer etc. v. Superior Court of Sacramento County Case No. S134072 [8/27/2007] (2007) 42 Cal.4th 278, 64 CR 3^rd 661, 165 P 3^rd 462, and International Federation of Professional and Technical Engineers, Local 21, AFL-CIO et al v. Superior Court of Alameda County, Case No. S134253 [8/27/07]. These opinions are reinforced by Attorney General Opinion 07-208 (5/19/08) WL 2122596 which held that the names of officers involved in critical incidents or lethal force incidents must be disclosed. Furthermore, under Section 6253.31 of the Government Code, any contract entered into by a state or local agency subject to the laws governing the California Public Records Act that requires a private entity to review, audit, or report on any aspect of that agency is a matter of public record.

I am therefore requesting copies of all writings as defined in California Government Code Section 6252(f) and California Evidence Code Section 250, constituting:

2. The names and salaries of all Los Angeles City Employees who are or have been responsible for investigating allegations of discrimination, harassment, and/or retaliation within the preceding five (5) year period and including but not limited to all policies, procedures, rules, regulations, guidelines and job descriptions specifying the requisite background, training, education (including any continuing education requirements) and experience required by the City of Los Angeles to investigate the aforementioned allegations.

Recordings of Government Proceedings

Also preceding the enactment of the CPRA is the requirement that tape recordings of the proceedings of government bodies are public record under Attorney General Opinion 64-317 (4/17/81).

I am therefore requesting copies of all writings as defined in California Government Code Section 6252(f) and California Evidence Code Section 250, constituting:

3. Any proceedings concerning and/or discussing any of the issues raised in my letter dated September 14, 2010 to Deputy Mayor Larry Frank addressing issues of municipal corruption, discrimination, retaliation, harassment and other issues;

4/ Any and all memoranda, reports, notes, emails, and/or other communications and/or recordations made concerning my letter dated September 14, 2010 to Deputy Mayor Larry Frank, and/or concerning communications by Dwayne Wyatt, Benetta Johnson, and/or any other participant in the meeting referred to in my letter of September 14, 2010 and/or any other similar meetings with community representatives concerning the aforementioned issues.

Time for Compliance & Requirement of Written Justification for Refusal

Under Section 6253 of the Government Code you have ten (10) days to comply with this request.

If you believe that I am not entitled to the records I am requesting, you must justify your refusal within (ten) 10 days in writing under Section 6255 of the Government Code. You may only refuse to give me these records if there is an express law prohibiting you from giving them to me. In the case of California State University, Fresno Assn., Inc. v. Superior Court (McClatchy Co.) (2001) 90 Cal.App.4th 810, 108 Cal.Rptr.2d 870 [No. F037383. Fifth Dist. Jul. 16, 2001.] the court held that “The burden of proof is on the proponent of nondisclosure, who must demonstrate a ‘clear overbalance’ on the side of confidentiality. [Citations.] The purpose of the requesting party in seeking disclosure cannot be considered…. It is also irrelevant that the requesting party is a newspaper or other form of media, because it is well established that the media has no greater right of access to public records than the general public….”

Demand to Maintain Evidence

This letter constitutes a formal demand to maintain evidence as it currently exists. If you destroy, lose, misplace, damage or otherwise make these items unavailable prior to the time that a court order or subpoena duces tecum can be obtained, you may be subject to a variety of sanctions (see Willard vs. Caterpillar, Inc. [1995] 40 Cal.App.4th 892. Williams v. Russ (2008) 167 Cal.App.4th 1215 held that:

Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907, overruled on other grounds in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 (Cedars-Sinai.).) Such conduct is condemned because it “can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.” (Cedars-Sinai, supra, at p. 8.) While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars-Sinai , at p. 12.) A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.)

Such behavior may also be criminal, under California Penal Code Section 135, which states:

Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.

If any data is maintained in digital format, I strongly advise you to hire a forensic computer examiner who is qualified to clone any hard drive on which the data I am requesting currently exists if you do not intend to produce it without a court order, so that the data will be preserved intact and in an admissible format.

Legal Right to Bring Suit to Enforce Right to Access

If you fail to comply with this request, I have a legal right to bring suit to force you to comply under Section 6259 of the Government Code and if I prevail, it is mandatory that the court award me reasonable attorney fees and costs.

Thanking you for your prompt attention, and with kindest personal regards, I remain,

Respectfully Yours,

Jan B. Tucker

National Commissioner for Civil Rights

League of United Latin American Citizens