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6 1 I 9 10 1l 12 Petitioner/Plaintiff.
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SUFERIOR CCIURT OF THE STATE OF CALIFORNIA FOR THE COI-INTY OF STANISLAUS

CALIFORNIANS AWARE, a non-proflt corporation,

Case No.: 652873 Department: 24 ORDER

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CALIFORNIA STATE LINIVERSITY

1 5 STANISLAUS, a public university, 16
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Respondent/D fendant, e CSU STANISLAUS FOLTNDATION,a nonprofit arxiliary of California StateUniversity Stanislaus, Real Party in Interest.

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The matter of the Petition for Writ of Mandate, an Injunction, and Declaratory Relief for violations of the California Public Records Act, Government Code sections 6250 et seq., filed by Petitioner Californians Aware against Respondent Califomia State University, Stanislaus,came on for hearing on July 16,2010, in Department24 of the above-entitledcourt,

2 5 Judge Roger M. Beauchesne presiding. Dennis Winston of Dennis A. Winston, A Professional 26
Law Corporation,Kelly Aviles of the Law Offices of Kelly A. Aviles, and JosephT. Francke

2 7 appearedon behalf of Petitioner. Dawn Theodora of the Califomia State University Office of 2 8 the General Counsel appearedon behalf of RespondentBoard of Trustees of the California
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ORDER

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State University (erroneously served and sued as California State University Stanislaus) ("University"). John A. Ramirez of Rutan & Tucker, LLP appearedon behalf of Real Party in Interest CSU Stanislaus Foundation ("Foundation"). Upon conclusion of oral argumentson July 16, 2010, the court invited proposed orders from counsel which were due on August 2, 2010. The court took the matterunder submission August 2,2010. on After due consideration and based upon the papers filed by the parties and oral argument,for good causeshown, the Court makesthe following rulings and ORDERS:

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Petitioner's request for Declaratory Relief is GRANTED as to the University

and DENIED as to the Foundation. This Court declares that the University violated the California Public RecordsAct in that:

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(a)

University is a state agency or state body within the meaning of Government Code S 6252(a);

(b)

Petitioner made a public records requeston March 31,2010 (the "Request"), for "all University records, other than those specifically preparedfor public release, concerningthe planned appearance ofex-Governor SarahPalin as guestofhonor at the University's50ft AnniversaryGala on June25,2010";

(c)

On April 6, 2070, Gina B. Leguria responded to the Request on behalf of University by stating that, "The University has no documentsthrt areresponsive to your request;" and that the requestwould be referred to the Foundation;

24 25 26 27 28 -2(d) Petitioner Californians Aware attempted to clarify the responseto the Request and to determine whether the Universitv actuallv had documents that were responsiveto the Request.

ORDER

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(e)

Despite Petitioner'sattemptsat clarification, University did not frrther contact Californians Aware concerning the Request until after University was servedwith the Petition in this action.

4 5 6 7 8 9 10 11 (f) Documents produced after this litigation was commenced show that

Respondent'soriginal responsethat it had no recordswas incorrect.

(e)

GovernmentCode $ 6258 providesin part that: Any person may institute proceedingsfor injunctive or declarativerelief or writ of mandatein any court of competentjurisdiction to enforce his or her right to inspector to receivea copy ofany public record or classofpublic recordsunder this chapter.

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Code of Civil Procedure $1060provides: Any person interested... who desiresa declarationof his or her rights or duties with respect to anothef, ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ... for a declarationof his or her rights and duties ... and the court may make a binding declarationof these rights or duties, whether or not further relief is or could be claimedat the time....

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(i)

GovernmentCode $ 6253.1(a)requiresthat: When a member of the public requeststo inspect a public record or obtain a copy of a public record, the public agency, in order to assistthe member of the public make a focused and effective requestthat reasonablydescribesan identifiable record or records, shall do all of the following, to the extent : reasonableunder the circumstances (1) Assist the member of the public to identiS records and information that are responsive to the request or to the purpose of the request, if stated. (2) Describe the information technology and physical location in which the records exist. (3) Provide suggestions for overcoming any practical basis for denying accessto the recordsor information sought. (Emphasisadded)

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The CSU RecordsAccess Manual (Petitioner'sExhibit BB, page 5) statesthat:

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ORDER

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CSU may, when appropriate,respond to a Public Records Act requestby stating that no records exist that respondto the requestand therefore none can be produced. However, this response permissibleonly if CSU has is first made a reasonableeffort to obtain additional clariffing information from the requestorthat will help identiff the record(s) sought, and where appropriate,conducteda reasonablesearch.

(k)

The University failed to follow the proceduresrequired by the Public Records Act, as set forth above, in respondingto Petitioner'sRequest.

0)

The University failed to produce any public records called for by Petitioner's Requestuntil after the initiation and service of the instant lawsuit, which records established that the University did possess public records responsive to the Requestas of the University's April 6 response.

(m)

The University's failures to follow the procedures of the California Public Records Act, and to produce public records when and as requested,whether deliberate,negligent or inadvertent, constitute violations of its obligations under the California Public Records Act, which contains no requirementthat bad faith or a similar mensrea be proven in order to establishan actionableviolation. The sole legal issue is rather whether "the decision to refuse disclosure (was) . . . justified nnder Section6254 or 6255 . . ." (Government Code 56259, subd. ft)).

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(n)

The reasonableinference from the evidenceproduced is that the University, in its official capacity, has "used" the contract between the Washington Speakers Bureau in the conduct of the public's business;therefore, said contract is also a public record and should have been producedto Petitioner.

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The Petition for Writ of Mandate by Petitioner is GRANTED as to Respondent University and DENIED as to the Foundation in that:

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ORDER

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(a)

On April 9,2010, Petitionerfollowed up on the Request explainingthat by Petitioner sought a copy of a contract enteredinto betweenthe Washington SpeakersBureau and ex-Governor SarahPalin as well as "all public records related to the Palin appearance possession any University official or in of employee,regardless whetherthoseofficials or employees also officers or are of employeesof the University Foundation."

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(b)

The Foundation is deemedto be an auxiliary organization pursuantto Education Cade $ 89901. It is a non-profit, charitable,firndraising entity in accordance private legal entity with Internal RevenueCode $ 501(c)(3). It is also a separate, not.subjectto the Public RecordsAct. (emphasisadded). SeeGovernmentCode

$ 62s2(e).
In California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal. App.4th753, the Fifth District Court of Appeal held that California State like the Foundation,are not subject University-affiliated auxiliary orgarnzations, to the California Public RecordsAct. Therefore,the current statusof the law the designates Foundation in the caseat issue outside of the ambit of the Public RecordsAct. There was no convincing evidencepresentedfor this Court to concludeotherwise.

(c)

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(d)

Petitioner's argumentthat becausecertain University employees and/orleaders may either be Foundation membersor those chargedwith oversight responsibility transforms the otherwiseprivate activities of the Foundationinto public onessubjectto disclosureis unpersuasive. acceptPetitioner's To argumenton this point would result in the non-privatization of all California StateUniversity Foundationsand would evisceratethe holding in the California StateUniversit-y.FresnoAssn case,supraas to the distinction betweena private

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ORDER

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foundation and a stateagency or body.

The contract enteredinto between

Ms. Palin and the Washington Speakers Bureau was therefore a private contract not subject to disclosrneby the Foundation.

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(e)

However, the court does find that the evidenceshows that university employees,specifically California StateUniversity Chancellor CharlesReed, "used" the contract. For the purpose of construing the words "used" and "use" within the context of the Public RecordsAct, the court is compelledto interpret thoseterms liberally.

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Government Code section 6250 defines a public record to include "any writing containing information relating to the conduct of the public's businessprepared, ormed, used,or retainedby *y stateor local agency..."

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(e)

Once ChancellorReed "used"the contract,it becamea public recordsubjectto disclosure. Regardlessof whether or not there is a confidentiality agreement amongstthe Washington SpeakersBureau, Ms. Palin and the Foundation,the contract is ultimately one of the following: a public record subjectto disclosure, or; a public record not subjectto disclosure, not a public record. The court or; finds the contract in issue is a public record subject to disclosureby the University but not the Foundation.

(h)

This finding is supportedin part by Respondent's CSU RecordsAccessManual, which states: All records maintained bv the CSU are potentiallv subiect to disclosure under the Act" includins both electronic and hard copy. unless thev fall into a clearlv authorized exceotion. Records of auxiliarv orsanizations become subiect to disclosure under the Act where thev have been made a part of CSU records. or used bv a CSU emnlovee in the nerformance of his/her iob. Gxhibit AA. Pase3)

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ORDER

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...tAluxiliarv orsanization records that have been. or are being. used bv Universitv officials in the nerformance of their Universitv duties are subiect to disclosure. CSU records remain oublic even when transferredto an auxiliary organization. (Exhibit AA, Page26)

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(i)

Further, Petitioner'srequestwas sufficiently broad to include documentation related to the use of University property, personnel,facilities, or services provided in connectionwith the Gala for which the university sought or will seekreimbursementfrom the Foundation. Sincethe evidencerevealsthat the Foundation pays for the use of the University's public resources'the Court concludesthat any documentsrelated to the use of and payment for University facilities must be/shouldhave been disclosedby the University.

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The multiple requestsfor documentsby the Petitioner and the piecemeal disseminationof some documentsby the University even after the petition was frled only reinforces the importanceof compliance with GovernmentCode (i) in referenced Section1, subsection of this order. Had the parties $6253.1(a) more carefully met and conferred to discuss:whether or not documentscurrentl)' exist; if they do not exist, whether or not they will exist, and when they might be available, etc., the current lawsuit may have been preventable.

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(k)

The court is awarethat some documentsrequestedby petitioner have been to subsequent the filing of the Petition as recentlyas July 16,2010' released (SeePetitioner'sRequestfor Judicial notice filed on August 2,2010). Whether or not the document releaseon July 16,2010,the samedate as the hearing on the petition and aday after the posting of the court's tentative ruling, is coincidental shall remain for others to decide'

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(l)

The Court acknowledgesPetitioner's Proposition 59 argumentembodiedin califomia constitution, Art 1, $ 3(bX1)-(2). In part, it reads: "The peoplehave

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the right of accessto information concerningthe conduct of the people's business,and . . . [a] statute,court rule, or other authority . . . shall be broadly construedif it furthers the people's right of access,and narrowly construedif it limits the risht of access."

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3.

The court is not persuadedby Petitioner's alter ego argument. Such legal argument is inapt to the facfual scenariopresented.

4.

Each party's requestfor judicial notice is grantedincluding Petitioner'sRequest for Judicial Notice filed on August 2,2010. Each parfy's objectionsto evidence are sustainedin their entire8.

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5. Petitioner, Californians Aware, is awarded its costs and attomeys' fees incurred in this action according to proof upon noticed motion pursuant to Government Code

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$62se(d).
IT IS SOORDERED

o,qt'eo@.2olo --0-

ROGERM. BEAUCHESNE Judge the Superior of Court

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ORDER

PROOF OF SERVICE BY MA]L [1013a(3) STATE OF CALIFORNIA ) SS ) COUNTY OF STANISLAUS)

c.C.P.]

the C OU f t Of and employed hrr l "l .ro Qrrno "i Of J am over the age of 18 years h-rl _\/ ^^^ lLv o fhe w ;fhi n vv*u ^af uffu lluL o dIlLl of Stanlslaus, County of California, ParLJ State ORDER by placing a copy of the attached I served that I certify action. to the following: addressed said copy in an envelope

EsQ. Kelly A. Aviles, A. Aviles of Kelly Law Offices Blvd., 15Q2- FoothiLl #103-140 Co 91750 La Verne, EsQ. Dennis A. Winston, A Professional Dennis A. Winston, I2823 Dewey Street Ca 90066 Los Angeles, Esq. Joseph T. Francke, at Law Attorney 22LB Homewood Way Ca 95608 Carmichael, Esq. Dawn S. Theodora, UniversitY State California Counsel of General Office 4'n F-loor 401 GoIden Shore, Long Beach, Ca 90802-4210

Esq. John A. Ramirez, LLP Tucker, Rutan & 14th Floor 677 Anton Blvd., Costa Mesa, Cd 92626-1931

Law Corp.

prepaid, ancl fully thereon and postage Sair-t en\zolone was then seafed States in the United deposited was an _Q323/?Jff--______, thereafter by United service That t,here ts delivery California. mail at Modesto, by lJnited communication or regular so addressed, at the place mail States place so addressed. and the of mailing mail between the place States I declare under on PenaltY 0B/23/2010 \
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SUPERIOR COURT OF THE STATE OF CALIFORNIA ]N AND FOR THE COUNTY OF STANISLAUS
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KATHY GAB IELSON,

Deputy

Clerk

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