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NEIL L. SHAPIRO (State Bar No. 5154 7)
LAW OFFICES OF NEILL. SHAPIRO
2100 Garden Road, Suite C
Monterey, California 93940
Telephone: (83 1) 372-3700
Facsimile: (83 1) 372-3701
Attorneys for Petitioner
IRAN PARENCY IN GOVERNME T
FILED
AUG 0 5 2014
TERESA A. RISI
CLERK OF THE SUPERIOR COURT
DEPUTY
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CARMEN B. OROZCO
UPERJOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MO TEREY
11 TRANSPARENCY IN GOVERNMENT, an
unincorporated association,
Case No.:
12 876 6
PETITION FOR WRIT OF MANDATE
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Petitioner,
V.
CITY OF CARMEL-BY-THE-SEA, and
15 Does 1 through 10, inclusive
16 Respondents.
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Petitioner Transparency in Govemment (" Petitioner") compl ains of Respondent City of
Carmel-By-The-Sea ("City" or "Respondent") as follows:
PARTIES
1. Petitioner Transparency in Government is an unincorporated association of
individual s who bel ieve that government represents its consti tuents best when it operates openly,
and when the publi c has ready access to the information it needs to monitor the actions of its
governmental representatives. Petitioners also believe that governmental entities should be
required to comply with laws protecting their ri ght to such access, including t he Cali fornia Public
Records Act, Government Code 6250 el seq. (the "PRA'').
I
PETITION FOR WRIT OF MANDATE
1 2. Respondent City is a "local agency" within the meaning of Government Code
2 6252.
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3. Petitioner is ignorant of the names and capaci ti es of other persons or enti ties who or
4 which may be responsible for the violations of the Publi c Records Act alleged herein, and
5 Petitioner therefore identifies such respondents as "Doe 1 through Doc 1 0." Petitioner is informed
6 and beli eves that each of the respondents so named contributed to the violations of the PRA
7 addressed herein.
8 FACTS
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4. On July 10,2014, Petitioner submitted to City by email a request (the "Request")
10 "pursuant to the provisions of the Public Records Act" for ' access to and copies of (1) all requests
11 made pursuant to the Public Records Act and recei ved by the City of Cam1el during the period
12 January 1, 2014, through June 30,2014, (2) the responses, if any, to each ofthe requests
13 referenced in ( 1 ), and (3) records reflecting the amount of legal fees incurred by the City of Carmel
14 with respect to the requests referenced in (1), individually and in the aggregate."
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5. On July 21,2014, the City, through its City Administrator Jason Stilwell, responded
16 to t he Request by Jetter transmitted by email that said, inter alia, " [a ]fter review of your Records
17 Request, the City has determined that due to the need to search for, collect and appropriatel y
18 examine a voluminous amow1t of separate and distinct records that are demanded in a single
19 request, the City requires an extension of time pursuant to Cali fornia Government Code Section
20 6253 in order to adequately determine whether the Records Request, in whole or in part, seeks
21 copies of di sclosable public records in the possession of the City and provide notice of the reasons
22 therefore." That letter ("the First Extension") also said t hat the "City expects to provide its
23 determinati on no later than August 1, 2014.
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6. On August 1, 201 4, the City, through its Interi m City Clerk Lori Frontella,
25 transmitted another letter by email that said, inter alia, " [ a ]fter review of your Records Request,
26 the City has determined that due to the need to search for, collect and appropriately examine a
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PETlTION FOR WRJT OF MANDATE
1 voluminous amount of separate and distinct records that are demanded in a single request, the City
2 requires an extension of time pursuant to California Government Code Section 6253 in order to
3 adequately determine whether the Records Request, in whole or in part, seeks copi es of disclosablc
4 public records in the possession of the City and provide noti ce of the reasons therefore. " That
5 letter ("the Second Extension") also said that the 'City expects to provide its detem1ination no later
6 than August 15, 2014."
7 7. The City has not allowed Petitioner to have access to, or to obtain a copy of, a
8 si ngle one of the public records sought by and described in the Request.
9 APPLICABLE LAW
10 8. Under the Public Records Act, Government Code 6250 et seq., the City as a
11 " local agency" is obli gated to grant public access to, and for a fee of no more than the actual cost
12 of copying to provide copies of, any public records to a member of the public who properly
13 requests such access or copies, unl ess any specific record is exempt from disclosure by the
14 provisions of Government Code 6254 el seq. or 6255. Government Code 6252 (e) provides
15 that the term "public records" includes "any writing containing information relating to the conduct
16 of the publ ic's business prepared, owned, used, or retained by any state or local agency regardl ess
17 of physical form or characteri stics." Petitioner is informed and beli eves that records described in
18 the Request were used and retained by the City to record and document its receipt ofPR.A requests
19 and responses thereto and its payment of tax dollars to outside counsel in connection with such
20 receipt and responses. As such, the records described in the Request are "publ ic records' and are
21 not exempt from disclosure by the terms of the Public Records Act.
22 9. Peti tioner performed all requirements placed on it by law to entitle it to access to,
23 and to copies of, the records descri bed in the Request by making the request sufficiently specifi c as
24 to its scope, and by giving City the ten full days arguabl y specified in the PRAto respond to the
25 request and to provide copies of the requested records. Because of Petitioner's compliance with
26 the applicable legal requirements, and because the records sought are not exempt from disclosure
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PETITION FOR WRJT OF MANDATE
1 under the law, Petitioner has a clear, present, and substantial ri ght to the performance by the City
2 of its duti es with respect to access to and copies of those records.
3 10. Because Petitioner has in all respects complied with the requirements placed on it
4 by the PRA, and because the records to which it sought and seeks access and of which it sought
5 and seeks copies, were not and are not exempt from di sclosure under the provisions ofthe PRA,
6 the City has a cl ear, present and absolute duty to provide access to those documents and, for the
7 aforementioned fee, copies ofthose document. Respondent City failed to perform its dut ies in that
8 regard by refusing to provide Petiti oner access to, or copies of, documents requested.
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11. Peti tioner is informed and beli eves that the City's granting to itself of the Fi rst
10 Extension, ostensibly because of " the need to search for, collect and appropri ately examine a
11 voluminous amount of separate and di stinct records that are demanded in a single request," was a
12 stalling tactic by the City that lacks legal justifi cation and constitutes a violati on of the PRA by
13 improperly purporting to extend the statutory response time mandated by the PRA. Petitioner is
14 informed and believes that all of the requests and responses sought are logged, and retained, by a
15 single individual - the City Clerk- in a single location. or did the City need additional time to
16 determine that requests made pursuant to the PRA and the City's responses to those requests are
17 themselves public records that must be disclosed under the PRA.
18 12. Petitioner is informed and believes that the City' s granting to itself of the econd
19 Extension, ostensibly on the same basis as it granted itself the First Extension, equal ly lacks legal
20 justifi cation and violates the PRA. Moreover, Government Code 6253(c), which authorizes an
21 extension of time beyond the initial ten-day statutory deadline for response in limited, " unusual
22 circumstances" express! y provides that "[ n]o noti ce [of an extension] shall specify a date that
23 would result in an extension for more than 14 days" for determinati on and, if appropriate, access to
24 and the provision of copies. The Second Extension that the City purported to grant itself results in
25 "an extension of more than 14 days" in violation of the cited statutory provi sion; the PRJ\ does not
26 permit sequential extensions to extend the statutory deadline by more than a total of " 14 days."
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PETITION FOR WRIT OF MANDATE
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13. The Public Records Act grants Petitioner the right to seek the reli ef sought herein.
2 Government Code 6258 provides that " [a)ny person may institute proceedings for injunctive or
3 declaratory relief or wri t of mandate in any court of competent jurisdicti on to enforce his or her
4 ri ght to inspect or to receive a copy of any publi c record or class of public records under this
5 chapter.
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14. Petitioner has no plain, speedy, and adequate remedy at law other than the relief
7 sought by way of thi s Petition. Without the issuance of a Writ of Mandate as prayed herein,
8 neither Petitioners nor other members of the public will be granted access to or a copies of
9 documents that contain substantive information about the operation and conduct of an impmtant
10 part of the public's government - the Citys compliance with, or lack of compliance with, the
11 PRA.
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15. Goverrm1ent Code 6259(a) provides that "[w]henever it is made to appear by
13 verified petiti on to the superior court of the county where the records or some part thereof are
14 situated that certain public records are being improperly withheld from a member of the public, the
15 court shall order the officer or person charged wi th withholding the records to disclose the publi c
16 record or show cause why he or she should not do so." This Court should issue an Alternative
17 Writ, compelling Respondent to disclose the records described in the Request, or to show cause
18 before this Court why it should not be required to do so.
19 WHEREFORE, PETITIO ER PRAYS AS FOLLOWS:
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That this Court issue an Alternati ve Writ of Mandate, commanding Respondent
21 City to all ow the inspecti on of, and upon payment of the statutory fee to provide copies of, all
22 requests made pursuant to the Public Records Act and received by the City of Carmel during the
23 period January 1, 2014, through June 30. 2014, (2) the responses, if any, to each ofthc requests
24 referenced in (1), and (3) records refl ecting the amount oflegal fees incurred by the City of Carmel
25 with respect to the requests referenced in (1 ), indi viduall y and in the aggregate, or to show cause
26 before this Court at a date and time to be specified by the Court why it has not done so, and why it
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PETITION FOR WRJT OF MA DATE
1 should not be compelled to do so; and
2 2. That on the return of the Alternati ve Writ and the hearing of t hi s Petition, thi s Court
3 issue its Peremptory Writ of Mandate commanding Respondent City to all ow inspection of and,
4 upon payment of the statutory fee to provide copies of, all requests made pursuant to the Public
5 Records Act and received by the City of Carmel during the peri od January 1, 20 I 4, through June
6 30,2014, (2) the responses, if any, to each of the requests referenced in ( 1) . and (3) records
7 reflecting the amount of legal fees incurred by t he City of Cam1el with respect to the requests
8 referenced in (1), individuall y and in the aggregate.
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For an award of attorney's fees to Petitioners pursuant to Govenm1ent Code 6259;
For costs of sui t incurred herein; and
For such other and further relief as this Court deems just and proper.
Dated: August 5, 2014 NEIL L. SHAPIRO
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LAW OFFICES OF NEILL. SHAPIRO
Attorneys for Petitioner
TRANSPARENCY IN GOYERMENT
PETITI ON FOR WRlT OF MANDATE
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VERIFICATION
I, Neil L Shapiro, declare:
I am counsel of record for Transparency in Government, the Petitioner in this action. I
execute this Verification on behalf of Petitioner because I have greater knowledge of the factuaJ
mat1ers alleged above than does any member of Petitioner. I have reviewed the foregoing Petition
for Writ of Mandate, and know the contents thereof. I know of my own personal knowledge that
the facts set forth above are true and COITect, except for those alleged on information and belief,
and as to them I believe them to be true and correct.
Executed at Monterey, California, thi s 5th day of August, 2014. I declare under penalty of
perjury that the foregoing is true and correct.
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PETITION FOR WRIT OF MANDATE