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CARMEL COMMUNICATIONS V. CITY OF CARMEL-BY-THE-SEA (M125118).pdf

CARMEL COMMUNICATIONS V. CITY OF CARMEL-BY-THE-SEA (M125118).pdf

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Published by L. A. Paterson
The Carmel Pine Cone, Monterey County Superior Court, City of Carmel-by-the-Sea
The Carmel Pine Cone, Monterey County Superior Court, City of Carmel-by-the-Sea

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Published by: L. A. Paterson on Oct 27, 2013
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11/13/2013

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NEILL.
SHAPIRO (State Bar No. 51547)LAWOFFICES OF
NEILL.
SHAPIRO
21
00 Garden Road, Suite CMonterey, California 93940Telephone: (831) 372-3700Facsimile: (831) 372-3701Attorneys for PetitionerCARMEL COMMUNICATIONS, INC.
8
9
SUPERIOR COURT OF
THE
STATE OF CALIFORNIACOUNTY OF MONTEREY
10
11
CARMEL COMMUNICATIONS, INC.,
Case No.:
M125118
12
Petitioner,
PETITION FOR
WRIT
OF MANDATE
13
v.
14
CITY OF CARMEL-BY-THE-SEA, andDoes 1 through 10, inclusive
15
1617
Respondents.
18
Petitioner Carmel Communications, Inc. ("Petitioner") complains
of
Respondent City
of
19
Carmel-By-The-Sea ("City" or "Respondent") as follows:
20
21
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1.
PARTIES
Petitioner Carmel Communications, Inc., is a California corporation with its
23
principal place
of
business in the County
of
Monterey, State
of
California, and publishes a weekly
24
newspaper known as the
Pine Cone.
25
2.
Respondent City is a "local agency" within the meaning
of
Government Code
26
§6252.273.Petitioner is ignorant
of
the names and capacities
of
other persons or entities who or
28
which may be responsible for the violations
of
the Public Records Act alleged herein, and
1
PETITION
FOR
WRIT OF MANDATE
 
1
Petitioner therefore identifies such respondents
as
"Doe 1 through Doe 10." Petitioner
is
informed2 and believes that each
of
the respondents so named contributed
to
the violations
of
the Public
3
Records Act addressed herein.
45
6
4.
FACTS
On or about August 26, 2013, Robert Mullane started his employment
by
City as its7 Community Planning and Building Director, filling a job that had been vacant for approximately a
8
decade. His selection to that position was announced to the public on August
6,
2013. On August
9
8, 2013, Petitioner submitted an oral request to City, seeking access to and a copy
of
Mr.
10
Mullane's resume.
11
5.
On or about August 19,2013, Heather Coffman, an attorney with the law firm
of
12
Liebert Cassidy Whitmore,
by
letter to Petitioner acknowledged the City's receipt
of
the oral
13
request, promised to "provide a further response pursuant to the Public Records Act by August 26,
14
2013," and represented that "should the City identify non-privileged, non-exempt, responsive
15
records, these will be made available for review at the City Clerk's Office." A true and correct
16
copy
of
the letter
of
August
19,
2013, is attached hereto as Exhibit A.
17
6.
On
or
about August 26, 2013, Heather Coffman sent another letter to Petitioner in
18
which she on behalf
of
the City set forth the contention that Mr. Mullane's resume "is not subject
19
to
disclosure under the [Public Records Act], as Mr. Mullane's resume does not constitute a public
20
record, as defined by the Act." The letter further asserted that "even
if
construed as a record
21
subject to (Public Records Act],
Mr.
Mullane's resume is not subject to disclosure, because
it
22
would constitute an unwarranted invasion
of
privacy," citing one appellate authority that actually
23
supports the opposite conclusion, and "Cal. Govt.
Code§
6254(c)," which it describes as
24
"exempting personnel records based on privacy concerns." That statute actually exempts
25
"[p
ersonnel, medical, or similar files, the disclosure
of
which would constitute an unwarranted
26
invasion
of
personal privacy." A true and correct copy
of
the letter
of
August 26,2013, is attached
27
28
2PETITION FOR WRIT OF MANDATE
 
1
hereto
as
Exhibit
B.
APPLICABLELAW
23
4
7.
Under the Public Records Act, Government Code §§6250 et seq., the City as a
5
"local agency" is obligated to grant public access to, and for a fee
of
no more than the actual cost
6
of
copying to provide copies of, any public records to a member
of
the public who properly
7
requests such access or copies, unless any specific record is exempt from disclosure by the
8
provisions
of
Government Code §§6254
et seq.
or 6255. Government Code §6252 (e) provides
9
that the term "'public records" includes "any writing containing information relating to the conduct
10
of
the public's business prepared, owned, used, or retained
by
any state or local agency regardless
11
of
physical form or characteristics." Petitioner
is
informed and believes that the resume
of
Mr.
12
Mullane was used by City in its process
of
selecting him as a candidate for the position for which
13
he
was later hired, and in hiring him for that position. As such, it is a "public record" and is not
14
exempt from disclosure by the terms
of
the Public Records Act.
15
8.
Petitioner performed all requirements placed on it by law to entitle it to access to,
16
and a copy of, the resume
of
Mr. Mullane by making the request sufficiently specific as to its
17
scope, and by giving City the ten full days arguably specified in the California Public Records Act
18
to
respond to the request and to provide a copy
ofthe
requested record. Because
of
Petitioner's
19
compliance with the applicable legal requirements, and because the record sought is not exempt
20
from disclosure under the law, Petitioner has a clear, present, and substantial right to the
21
performance by Respondent City
of
its duties.
22
9.
Because Petitioner has in all respects complied with the requirements placed on it
23
by the Public Records Act, and because the record to which it sought and seeks access and
of
24
which it sought and seeks a copy, was not and
is
not exempt from disclosure under the provisions
25
of
the Public Records Act, Respondent has a clear, present and absolute duty to provide access to
26
that documents and, for the aforementioned
fee
a copy
of
that document. Respondent failed to27
28
3
PETITION FOR WRIT
OF
MANDATE

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