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Donald Freeman SBN 047833

Perrv & Freeman
PO Box 805, Carmel, CA 93921-0805
Telephone: (831) 624-5339 x11

NO FILING FEE REQUIRED

GOVT. CODE~103

Attorney for City of Carmel-By-The-Sea

MAR 1 0 20i5

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

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CITY OF CARMEL-BY-THE-SEA,
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Moving Party,

PETITION TO QUASH
SUBPOENA

v.

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MONTEREY COUNTY CIVIL GRAND JURY,

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Case NoM131242

Respondent.

Date: March 19, 2015

Time: 8:30 a.m.
Dept: TBD
Judge: Villarreal

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MOTION.

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The City of Carmel-By-The-Sea (hereinafter "City"), acting in its capacity o

custodian of the records sought, moves to quash the sl4bpoena attached to this motio
as Exhibit "A" (filed under seal as it is marked "Confidential").

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POINTS AND AUTHORITIES

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1. The Subpoena The County of Monterey Superior Court, acting on behalf o

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the civil Grand Jury, has served a subpoena duces tecum on the City. The subpoen
seeks production of personnel records for ten current and former City employees.
Personnel records are confidential under the privacy provisions of the Californi
Constitution, Article 1, Section 1.

City's Petition to Quash Subpoena- Ml31242

The purpose of this motion is to protect th

Page 1

confidential records sought by the subpoena. The scope of the records sought is vast.

There is no explanation of the scope of the Grand Jury's investigation. It is impossibl

to know whether the breadth of the subpoena coincides with or exceeds the scope o

the investigation it is intended to aid. The breadth of the unsupported request is reaso

enough to quash the subpoena. The primary defect in the subpoena is that it seeks t

invade constitutional protection without authority or due process.

2. Petition to Quash is Proper. This petition to quash is the proper method o

City of Woodlake v. Tulare County Grand Jury,

addressing a Grand Jury subpoena.

(2011) 197 Cal. App. 4th 1293. The Woodlake court said this about a "freestandin

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motion" to quash grand jury subpoena:

In the present case, however, the appeal is not from an order enforcing th
subpoena nor is it merely an order concerning discovery in an ongoing action.
Instead, this appeal is from an order denying enforcement of the subpoena in whic
enforcement or nonenforcement was the only issue before the superior court. Th
motion to quash was, in effect, a freestanding proceeding that sought no furthe
relief, similar to a motion to obtain a subpoena ... " (197 Cal. App. 4th 1293, 1298)
While the motion to quash was raised by filing an action, the Woodlake court did

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not treat the motion as part of a civil proceeding. The court treated the motion to quash

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as part of the judicial process:

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In all its functions, the grand jury operates under the general supervision of the courts
and is deemed to be a judicial body or an instrumentality of the courts. (citations omitted)
It is, broadly speaking, "an integral part of the court system, subject to the court's
general supervision." (citations omitted) An investigation by the grand jury is not a civil
proceeding for purposes of the statutory framework for discovery in civil proceedings.
The grand jury is not adjudicatory, and it does not provide relief to parties who appear
before it, which are the fundamental elements of a civil proceeding. (ld at 1300)

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It is not necessary, therefore, to file a judicial action prior to bringing a motion t

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quash a grand jury subpoena.

3. The Right of Privacy Belongs to the Employee. Not the Citv. The right o
privacy, like any right, belongs to the holder of the right, here the current and former Ci

City's Petition to Quash Subpoena-Ml31242

employees. It should be equally self-evident that any effort to abridge the current an

former City employees' privacy rights must be directed to the parties whose rights ar

affected because they are the Real Parties In Interest. To do otherwise would violat

individual due process rights as well as rights of privacy. There is no indication that th
Grand Jury has made an effort to notify the current and former City employees abou

the subpoena. The City has contacted all of the current and former City employees an
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has given them notice of the Grand Jury's desire to review their personnel records. AI
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but three of the subject current and former City employees are either refusing to allo
the City to divulge their private records, or have failed to respond to the City's inquiry.

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The form letter used for that notice is attached as Exhibit "8" and incorporated herein b

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this reference.

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4. The Custodian Has Standing To Assert Confidentiality Objection.

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Electronics v. Superior Court (2007) (40 Cal.4th 360) the identity of a potential clas

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member was sought. Held: "... Pioneer, as custodian of the relevant documents, ha

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standing to assert the privacy interests of its customers in the identifying informatio
they gave to Pioneer." (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3

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652, 658, 125 Cal. Rptr. 553.)

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5. City Has a Duty To Assert Third Party Right To Privacy. The court commente
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in Binder v. Superior Court (1987) (196 Cai.App.3d 893 at p.899) that:

Dr. Binder, as custodian of his patients' records, has the duty to assert the privacy right
of his patients in the contents of those records. (citation omitted)

6. Context of Motion. This is a rarely seen "freestanding" motion. This dispute i

part of a grand jury investigation.

It is not part of a judicial proceeding.

That i

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important because nearly all of the case law on privacy arises in the context of litigation,

City's Petition to Quash Subpoena-Ml31242

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usually in discovery. A grand jury investigation is not a civil proceeding for purposes o

discovery. The court must, therefore, distinguish the cases, including the cases cited i

this brief, from which this dispute arises.

ARGUMENT

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I.

THE GRAND JURY'S SUBPOENA POWER IS LIMITED TO "OFFICERS."

The Grand Jury apparently relies on Penal Code section 925a for the propositio

that the personnel records sought are subject to its subpoena power. Penal Code 925
reads in pertinent part:
The grand jury may ... examine the books and records of any incorporate
city . .. in the county.... fnhe grand jury may investigate and report upon th
operations, accounts, and records of the officers, departments, functions,
and the method or system of performing the duties of any such city ... an
make such recommendations as it may deem proper .... (emphasis added)
The Penal Code does not define the term "officer. "1

According to mos

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dictionaries the term "officer" or "public officer" is "[o]ne who holds or is invested with

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public office; a person elected or appointed to carry out some portion of a government'

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sovereign powers." (Black's Law Dictionary). The court in People v. Olsen (1986) (18

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Cai.App.3d 257, at 265-66) relied on secondary authority for the proposition that th

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term "officer" connotes someone clothed with constitutional, or at least statutory, status:

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(4) However, "[o]ne of the prime requisites [of a public office] is that [it] b
created by the constitution or authorized by some statute. And it is essential tha
the incumbent be clothed with some portion of the sovereign functions o
government, either legislative, executive, or judicial to be exercised in the interes
of the public. There must also be a duty or service to be performed, and it is th
nature of this duty, not its extent, that brings into existence a public office and
public officer.[footnote omitted] Thus, an officer, as a general rule, is based on

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PC 830-832 defines peace officer, public officer, etc. These definitions pertain exclusively to person
with authority to make an arrest. See, e.g. PC 831. (a) A custodial officer is a public officer, not a pea
officer, employed by a law enforcement agency of a city or county who has the authority an
responsibility for maintaining custody of prisoners.

City's Petition to Quash Subpoena-MI31242

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some Jaw that defines the duties appertaining to it and fixes the tenure, and
exists independently of the presence of a person in it." (52 Cai.Jur.3d, Publi
Officers and Employees,12, pp. 176-177, fns. omitted.)
The employees whose records are sought here were not "officers" as defined i

People v. Olsen. They were general employees; most were clerical workers.

Exhibit "C" attached hereto (under seal) and incorporated herein by this reference.

None of their positions arose from the constitution or statute, and none held elective o

appointive office. Accordingly, PC 925a. does not apply to the current and former Ci

employees whose records are sought here.

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The City has been unable to find case law or secondary authority for th

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proposition that the legislature intended the term "officer" to apply to general employees.

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In the absence of authority to the contrary, the usual canon of construction pertains.

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Expressio unius est exclusio alterius (expression of one thing is the exclusion o

another). The Grand Jury is limited to discovery of police personnel records. (Pena
Code 832.7) Neither PC 832.7 nor PC 925a. grant access to other personnel record
for other public employees. If the legislature had intended such a sweeping grant o
authority it surely would have stated so in Penal Code 925a.

Since the legislatur

confined the Grand Jury's subpoena power to "officers" the court is left without
statutory ambiguity to interpret. That which is clear on its face admits no interpretation.

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The protected nature of personnel records commands the narrowest constructio

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of PC 925a. The statute affords no authority for the subpoena. The California Suprem

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Court has held in several cases that the powers of a grand jury are narrowl
circumscribed by its enabling statutes, in this case Penal Code 925a. The high cou
summarized the status of the law in Goldstein v. Superior Court (2008) (45 Cal.4th 218,
85 Cal. Rptr. 3d 213, 199 P 3d 588). The opinion begins with this summary:
In Daily Journal Corp. v. Superior Court (1999) (20 Cal.4th 1117, 86 Cai.Rptr.2
623, 979 P.2d 982), this court ruled that "the superior court's powers to disclos
City's Petition to Quash Subpoena - M131242

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grand jury testimony are only those which the Legislature has deemed
appropriate." (ld. at p. 1128, 86 Cai.Rptr.2d 623, 979 P.2d 982.) "[l]f superio
courts could disclose materials based only on their inherent powers, the statuto
rules governing disclosure of grand jury testimony would be swallowed up in tha
large exception." (Ibid.)-

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If the power to disclose is limited to express statutory authority it follows that th

power to obtain records must also be restricted to express statutory authority.
II.

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THE PUBLIC RECORDS ACT PROTECTS PERSONNEL RECORDS.

Government Code section 6254 exempts personnel records from public scrutin

under the Public Records Act. GC 6254 reads in pertinent part:

6254. Except as provided in Sections 6254.7 and 6254.13, nothing in thi

chapter shall be construed to require disclosure of records that are any o
the following:
(a) Preliminary drafts ...
(b) Records pertaining to pending litigation ....
(c) Personnel, medical, or similar files, the disclosure of which would
constitute an unwarranted invasion of personal privacy. (emphasis added)

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This statute is unqualified. Had the legislature intended to exempt the grand ju

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from the prohibition in GC 6254, it could have done so. Article I, Section 1 of th
California constitution makes it unnecessary to demonstrate that disclosure of personne
records "would constitute an unwarranted invasion of personal privacy" because eve
disclosure of personnel records, except police officers or those who hold public office, i
unwarranted.

Ill.

PERSONNEL RECORDS ARE CONSTITUTIONALLY PROTECTED

The personnel records sought by the Grand Jury are confidential under Californi

Constitution Article 1 Section 1, Declaration of Rights:

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SECTION 1. All people are by nature free and independent and have inalienabl
rights. Among these are enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining safety
happiness, and privacy. (emphasis added)
According to the California Supreme Court, the right of privacy was added t

City's Petition to Quash Subpoena-MI31242

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Article 1 to protect the individual against increased surveillance and data collection b

government and business. White v. Davis, (1975) (13 Cal. 3d 757, 774, 120 Cal. Rptr.

94, 105).

amendment published in the Proposed Amendments to Constitution, Propositions an

Proposed Laws Together With Arguments, at 26 [California Election Pamphlet, Genera

Election (Tuesday, Nov. 7, 1972)]. The White court quoted the Election Brochure a

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The court in White relied on the ballot argument in favor of the privac

follows:
The proliferation of government snooping and data collecting is threatening t
destroy our traditional freedoms. Government agencies seem to be competing t
compile the most extensive sets of dossiers of American citizens.
Computerization of records makes it possible to create "cradle-to-grave" profile
of every American. II At present there are no effective restraints on th
information activities of government and business. This amendment creates
legal and enforceable right of privacy for every Californian." (13 Cal. 3d at 774,
533 P.2d at 233, 120 Cal. Rptr. at 105)

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According to the White court, one purpose of the privacy amendment was t
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eliminate the improper use of information properly obtained for a specific purpose, sue
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as personnel records compiled to evaluate employee performance, from bein

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disclosed to a third party, such as the grand jury, and used for an unintended purpose
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Elaborating on the need for constitutional protection in this area, proponents of th

amendment stated:

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Fundamental to an employee's privacy is the ability to control circulation o

personal information. This is essential to social relationships and persona
freedom. The proliferation of government records over which an employee ha
no .control limits the ability to control our personal lives. Often we do not kno
that these records even exist and we are certainly unable to determine who ha
access to them.

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This quotation explains the voters' intent to protect individuals from

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violations by the government. The constitutional provision is "self-executing"; White v.

Davis, (13 Cal. 3d at 775, 120 Cal. Rptr. at 106). That objective sheds a bright light o

the Grand Jury's subpoena.

In the subpoena several of the current and former Ci

City's Petition to Quash Subpoena- Ml31242

employees' record requests follow this template:

Employee #7. All employment contracts and any extensions or amendment

there to, all writings relating to hiring, termination, suspension, evaluation o
performance or paid administrative leave status; the recruiting file from th
recruiting agency through which [Employee #7] was recruited, and all intervie
notes supporting the recommendation of the recruiting agency or the decision b
the City of Carmel By the Sea to hire [Employee #7].

That request is vastly over-broad. Several categories of information the City i

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required to protect are encompassed by the phrase "all writings relating to hiring,

termination, suspension, evaluation of performance or paid administrative leave."

The subpoena is prefaced with this qualifying language:

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[T]he Grand Jury is not requesting the production of social security numbers
benefrt information, medical records or information, or similar records o
information ...

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Even as qualified, the request is impermissibly over-broad.

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For example, i

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Employee #7 had been the victim of sexual harassment, experienced a financia

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embarrassment, or had his/her salary deposited directly into a numbered account, th

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records pertaining to those things would be encompassed by the subpoena of his/he

records. His/her right of privacy overrides any curiosity of the Grand Jury. Furthermore,
it is impossible to know what the Grand Jury means by the phrase "or similar records o
information."

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Should the Court grant the Grand Jury's request for production of document
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City respectfully requests the Court set a time and date for an in camera hearing.
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IV.

GRAND JURY RECORDS ARE NOT ALWAYS CONFIDENTIAL

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The City, and the current and former City employees whose records are sought,
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must recognize that the Grand Jury may decide to make these records public. Pena
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Code Section 929 provides:

As to any matter not subject to privilege, with the approval of the presidin
judge of the superior court . . . , a grand jury may make available to the publi
part or all of the evidentiary material, findings, and other information relie
upon by, or presented to, a grand jury for its final report in any civil grand ju
City's Petition to Quash Subpoena- Ml31242

investigation provided that the name of any person, or facts that lead to th
identity of any person who provided information to the grand jury, shall no
be released. Prior to granting approval pursuant to this section, a judge rna
require the redaction or masking of any part of the evidentiary material, findings,
or other information to be released to the public including, but not limited to, th
identity of witnesses and any testimony or materials of a defamatory or libelou
nature. (emphasis added)

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These personnel records are confidential but not privileged.

With judicia

approval, therefore, these records may be made public. Confidentiality is not absolute.
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In light of the press coverage given to this investigation it would be relatively easy t
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identify the current and former City employees whose records are subject t
discretionary disclosure.

v.

PERSONNEL RECORDS MAY NOT BE SELECTIVELY DISCLOSED

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If the records sought by this subpoena are disclosed to the Grand Jury, there is

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danger they will become public records under the Public Records Acf despite th

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protections of Penal Code 925a. The local press and other interested parties can b

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expected to argue that if these constitutionally protected records have been given to

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third party, such as the Grand Jury, they must be made available to others since th

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cloak of confidentiality will have been lost.

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VI.

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CASE LAW PROTECTS PERSONNEL RECORDS

There are a surprisingly large number of cases arising under the constitution'

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privacy guarantee.

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subpoenas of personnel records for public employees. Nearly all of the cases dealing

There is a regrettably small number of cases dealing wit

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Government Code 6252(e) "Public records" includes any writing containing information relating to the conduct o
the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form o
characteristics. See also Government Code 6253 (public records subject to disclosure) See also Government Cod
6254.5 " ...local agency discloses a public record which is otherwise exempt...shall constitute a waiver of t
exemptions specified in Sections 6254 ... ) and Ardon v. City of Los Angeles (2014) (232 Cai.App.4th 175; 181
Cai.Rptr.3d 324)

City's Petition to Quash Subpoena- Ml31242

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with public employee personnel records arise in the context of Pitchess motions3 . Cit

of Woodlake v. Tulare County Grand Jury, (2011) (197 Cal. App. 4th 1293) is the onl

case we can find that deals with a grand jury subpoena of personnel records. It arise

in the context of police personnel records. The Woodlake case turned on a statute tha

pertains only to police. The court addressed that salient fact thus:
Penal Code section 832.7 expressly provides that its designation
confidentiality of peace officer personnel records "shall not apply
investigations or proceedings concerning the conduct of peace officers .
conducted by a grand jury." Additionally, the grand jury does not seek record
pursuant to the authority of the Public Records Act, that is, as a member of th
general public; instead, it acts pursuant to the express statutory authori
afforded to grand juries by Penal Code sections 925 and 925a. ld at 1302.
(emphasis added)

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Since Woodlake is confined to police records, it affords no guidance here.

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records at issue here are for general employees not police officers. As the Woodlak
court pointed out, those general employees are protected by the constitution's privac
provision.
The legislature could have opened all public personnel records to grand ju

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scrutiny, but it did not. The legislature's decision not to subject all employees to th
diminished protection afforded police officers must be accorded the intentionality i
plainly commands. The reason the legislature granted the grand jury access to poli
personnel records, but did not extend that access to other public employees, can b
explained; Police occupy a unique position of trust, confidence, authority and power.
When the police are corrupted it is essential that the public have recourse to thei
employment records. The same public concern does not apply to general employees.
It would be a mistake to decide this motion as if the employees concerned ar

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Pitchess v. Superior Court, (1974) 11 Cal.3d 531 .

City' s Petition to Quash Subpoena- Ml31242

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equivalent to armed and sworn peace officers with "life and death power'' over eve

person they encounter.

Since the Woodlake case is not helpful we are forced to fall back on privac

cases arising in the normal course of civil litigation. Those cases fall overwhelmingly o

the side of protecting the confidential records.

Board of Trustees v. Superior Court (1981) (119 Cai.App.3d 516, 526) found n

compelling state interest to require disclosure of personnel, tenure and promotion file

in a defamation action.

ElDorado Savings & Loan Assn. v. Superior Court (1987) (190 Cai.App.3d 342)

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Gender and age employment discrimination case; Plaintiffs sought all personnel record

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of the only male in a comparable position. The trial court ordered production of th

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entire personnel file of that non-party.

The Court of Appeal reversed because th

record was inadequate to support discovery of the entire personnel file. The trial cou
was instructed to consider less intrusive means of discovery and in camera inspections.
In Board of Trustees v. Leach (1968) (258 Cal. App. 2d 281, 65 Cal. Rptr. 588

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the court stated that it is common knowledge that such matters [employee personne
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files] are among the most confidential and sensitive records kept by a private or publi
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employer, and their use remains effective only so long as the confidence of the records
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and the confidences of those who contribute to those records, are maintained.
In applying these theories to the employee records at issue in this case, it i
useful to consider what such records usually entail. The City's personnel files are

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collection of many different types of data. It is this diverse variety and large quantum o

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information which has probably attracted the Grand Jury's attention and piqued it

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interest.

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employment, medical (not requested by the Grand Jury in this matter), educational an

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family data. Additionally, they often contain material collected about the employee whil

They may include information elicited from the employee, such as pas

at work, such as payroll data, job performance reports, documentation of medica

City's Petition to Quash Subpoena - M131242

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problems (not requested by the Grand Jury in this matter) and disciplinary actions.
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References, recommendations, psychological information and comments on attitud

may also find their way into personnel files.

which individuals themselves do not readily reveal. Additionally, personnel files typical!

contain some financial and medical data (not requested by the Grand Jury in thi

matter).

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Almost every file contains informatio

As such, this is exactly why Article 1, Section 1 exists in the Californi

Constitution.
VII.

THE COUNTY'S PROPOSED PROTECTIVE ORDER IS INADEQUATE

The court should grant the City's petition to quash and thereby deny the Gran

Jury's effort to invade the privacy of the former and current City employees whos
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confidential employment records are sought. The information sought does not belong t
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the City. The City is merely the custodian of the information. California Constitution,
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Article 1, Section 1 vests in the employee the proprietary interest in the informatio
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sought.

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In the event that the Court disagrees with the City's analysis disclosure must b

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narrowly tailored to achieve the Grand Jury's legitimate investigative purpose in th

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least intrusive manner possible.

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ordered to inform the Court of the precise grounds for this subpoena so that the Court'

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order may be narrowly tailored to protect the former and current City employees

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paramount constitutional rights.

To satisfy that protection the Grand Jury must b

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Furthermore, the protective order conjoined to the disclosure must limit th

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permissible disclosure of the records, and it must require that the records be returned t

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the City at the close of the Grand Jury investigation. The County's proposed form o

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Protective Order fails to include either of those protections.

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VIII.

CONCLUSION
Numerous courts have held that personnel files must be protected in the absen

of a focused need to obtain specific information. See, e.g. Harding Lawson Assoc. v.
City's Petition to Quash Subpoena- Ml31242

Superior Court (1992) (1 0 Cal. App.4th 7, at 10,11 ). In Harding Trial Court had ordere

production 56 categories of information in personnel records. On appeal a perempto

writ was issued "to vacate its order insofar as it required disclosure of confidentia

material in the personnel files of employees other than [plaintiff]."

explained that personnel files are protected unless the party seeking discovery "ca

show a compelling need for the particular documents and that the information canna

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/d.

The cou

reasonably be obtained through depositions or from nonconfidential sources." Hardin

Lawson Assoc. v. Superior Court (1992) (10 Cal. App.4th 7, at 10) See also Alch v.
Superior Court (2008) (165 Cai.App.4th 1412, 1432) re: "confidential" nature of th
particular documents in the personnel file.

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In the instant case it appears the Grand Jury did not ask the employees whos
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personnel documents are being subpoenaed if they would waive their right o
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confidentiality and allow the City to produce the documents, or alternatively, subpoen
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the employees and their personnel records directly.

Therefore, the Court is obligated to quash the Grand Jury's subpoena.

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Respectfully submitted,
Dated: March____, 2015

~w~'

DONALDG:fREMAN
City Attorney
City of Carmel-by-the-Sea

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EXHIBITS:
Exhibit "A" -the Civil Grand Jury Subpoena (Under Seal) - not attached to the
Petition served on the Respondent Employees/Real Parties in Interest
Exhibit "B" - City's letter to former and current employees re waiver of
confidentiality rights
Exhibit "C" - Declaration of City of Carmel-by-the-Sea City Administrator
Regarding Employee Employment Status (Under Seal) - not attached to the
Petition served on the Respondent Employees/Real Parties in Interest

City's Petition to Quash Subpoena - Ml31242

Page 1

Dear_ _ _ _ _ _ _ _

_.J

Earlier this month, I apprised you that the Monterey County Civil Grand Jury (CGJ) had
requested your personnel file. The City declined to provide that document to the Jury.
Yesterday, the City received a subpoena from the Civil Grand Jury, demanding the City provide
the following information to the Office of the County Counsel from your file:

The City is to produce and present the information on or before Wednesday, 4 March. You may
wish to contact your independent legal counsel regarding this matter. Should you have any
questions, please contact me.

Very Truly Yours,

Douglas J. Schmitz
City Administrator
25 February 2015

EXHIBIT "B"

MAR 0 6 2015
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L.Newen

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CITY OF CARMEL-BY-TilE-SEA,
Petitioner,

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v.
2014-2015 MONTEREY COUNTY CIVIL
GRAND JURY
Respondent.

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Case No.

M131242

ORDER SHORTENING TIME FOR

HEARING ON PETITION TO QUASH
SUBPOENA DUCES TECUM
Date: March 19,2015
Time: 8:30am.
Dept: To be determined
Judge: To be determined
Date petition filed: To be determined
Trial date: N/A

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Good cause appearing, the ex parte application of the City of Carmel-by-the-Sea and the
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2014 - 2015 Monterey County Civil Grand Jury to shorten time for a hearing on a Petition to
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IT IS HEREBY ORDERED that the petition and supporting papers be filed and served on
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counsel for the Grand Jury no later than March 10, 2015; that responsive pleadings be filed and

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served no later than March 13, 2015; any reply filed and served no later than March 17, 2015;
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and that a hearing on the petition be held in a Department to be determined on March 19,2015,
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at 8:30 am. Service shall be personal or by facsimile.
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IT IS SO ORDERED.

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Dated: March JQ_, 2015

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City ofCarmel-By-The-Sea v. 2014-2015 Monterey County Civil Grand Jury.

Case No.