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Bertoli Amicus Brief

Bertoli Amicus Brief

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Published by Terry Francke

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Published by: Terry Francke on Dec 04, 2012
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06/30/2014

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Court of Appeal No._A132793(Sonoma County Superior Court Case No. SCV 249181Hon. Mark Tansil)COURT OF APPEAL OF THE STATE OF CALIFORNIAFIRST APPELLATE DISTRICT, DIVISION FOUR  ________________________________________ JULIA ANNA BERTOLI, a minor, by and through her Guardian adLitem, VALERIE BERTOLI and JOSEPH BERTOLI, and DAVIDROUDAPetitionersv.SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF SONOMA,Respondent.CITY OF SEBASTOPOL; SEBASTOPOL CITY COUNCIL AND CITYCOUNCIL MEMBERS FROM 1998 TO PRESENT, SARAH GLADEGURNEY, SAM PIERCE, LINDA KELLEY, LARRY ROBINSON,CRAIG LITWIN, WILLIAM ROVENTINI, ROBERT ANDERSON,MICHAEL KYES, GUY WILSON, PATRICK SLAYTER, KATHLEENSHAFFER; JENNIFER THILLE; SEBASTOPOL ENGINEERINGDEPT., SUE KELLY REBECCA MANSOUR; SEBASTOPOLPLANNING DEPT, KENYON WEBSTER, JOCELYN IMMACOLATO, NAOMI METZ, MARY GOURLEY; SEBASTOPOL PUBLIC WORKSDEPT, RICHARD EMIG; SEBASTOPOL POLICE DEPT., JEFFWEAVER, GREG DEVORE, GORDON PITTER, CELESTE DWYER;SEBASTOPOL BUILDING DEPT., GLENN SCHAINBLATT, TODDCUNNINGHAM; CITY MANAGER’S OFFICE, DAVID BRENNAN,JACK GRIFFIN; MAYORS CRAIG LITWIN, GUY WILSON, SAMSPOONER; CITY CLERK’S OFFICE, HOLLIE FIORI, MARYGOURLEY; SEBASTOPOL ADMINISTRATIVE SERVICES ANDFINANCE DEPT., RON PUCCINELLI, KAREN CANO, PATTIEMURPHY; SEBASTOPOL FIRE DEPT., JOHN ZANZI,Real Parties in Interest
------------------------------------------------------------------------------BRIEF OF AMICUS CURIAE CALIFORNIANS AWARE INSUPPORT OF PETITIONERS JULIA ANNA BERTOLI, a minor,and DAVID ROUDA------------------------------------------------------------------------------
JOSEPH T. FRANCKE (SNB 88654)(916) 487-7000 terry@calaware.org2218 Homewood Way, Carmichael, CA 95608ATTORNEYS FOR PROPOSED AMICUS CURIAECALIFORNIANS AWARE
 
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I. INTRODUCTION
Californians Aware (“CalAware”) respectfully submits this brief supporting the Petition for Extraordinary Writ of Mandate (“Petition”)submitted by Petitioner Bertoli and her attorney, David Rouda. Thetrial court’s ruling that city councilmembers are not subject to theCalifornia Public Records Act (“CPRA”) and that city business-relatedemails are not public records when stored on municipal and personalcomputers1 of City employees and councilmembers was erroneous.The trial court’s ruling would allow local agencies to exemptthemselves from the disclosure requirements of the CPRA and theDeclaration of Rights in the California Constitution as amended byProposition 59 of 2004 (Prop.59).As emailing becomes a routine means of transacting government business, the trial court’s ruling would allow a significant part of the public business to be performed in private, circumventing the public policies underlying the principles of the public records laws.This Court also should hold that it was an abuse of discretion for the trial court to award attorney fees against a public records requester,the instrument for the vindication of the public policies of opengovernment and disclosure of public records underlying the CPRA,Prop. 59, the Brown Act, the Bagley-Keene Open Meeting Act, and thecommon law.
1 As used in this discussion, “personal computer” means not just a certain compact hardwaredevice suitable for individualized business or home use—a “PC”—but one that is the personal property of an individual agency officer, staff member or consultant.
 
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WHY THE PETITION SHOULD BE GRANTED
The issues presented by Julia Anna Bertoli’s Petition will have a profound impact on how government agencies interpret their disclosureobligations under the CPRA.The trial court erred in concluding with very little factual supportand very little analysis that producing the requested public recordswould compromise privacy interests and create an excessive burden.The trial court’s rulings would allow large portions of the public’s business to be conducted in the shadows because all the public agencyhas to do is conduct the public’s business on personal computers and personal email accounts.By ruling that the Petition was clearly frivolous and awardingattorney fees to the government agency, the trial court’s erroneousruling would have a chilling effect on future public records requesters.That would clearly be contrary to the underlying policies of the CPRA.The trial court erroneously accepted the Respondents’ distortions of the facts below that Petitioners’ motives were improper by naming“private individuals” to the Petition and that Petitioners sought“private” information. The record shows, however, that the requestswere for specific public records - specific records that dealt with the public’s business of vital interest to the public. The record also showsthat the City kept Petitioners in the dark about the location and identityof custodians of public records, which uncertainty required Petitionersto name all potential custodians.Because the trial court’s decision would allow governmentagencies to circumvent the CPRA, Prop. 59 and the common law, the

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