Metropolitan News-Enterprise


Tuesday, July 16, 2002


Page 1


S.C. Rejects City’s Attempt to Short-Circuit Public Records Process


By ROBERT GREENE, Staff Writer


Cities and other public entities may not block an expected Public Records Act lawsuit by filing a preemptive declaratory relief action, the state Supreme Court ruled yesterday.

Ruling in a case involving a resident’s request for personnel records of a Manhattan Beach police captain, the unanimous court said California laws creating a detailed procedure for requesting government records do not permit agencies to short-circuit the process by going to court first.

To decide otherwise would be to frustrate the purpose of the Public Records Act by forcing Californians who want government information to defend lawsuits by discouraging them from requesting records in the first place, Chief Justice Ronald George said.

“Whatever a public agency’s motivation for initiating a declaratory relief action in these circumstances, authorizing the agency to commence such an action would…clearly thwart the Act’s purpose of ensuring speedy public access to vital information regarding the government’s conduct of its business,” George wrote.

Manhattan Beach City Attorney Robert V. Wadden Jr. downplayed the impact of the decision on continuing efforts to keep from releasing data about police Capt. Paul Marshall.

“Our position is still the same,” Wadden said. “We are covered by statutory confidentiality privileges.”

Suit Questioned

Attorney Steve Filarsky, a Manhattan Beach resident who sparked the case with efforts to review documents on the city’s hiring of Marshall in 1999, said that despite the legal victory he did not know whether he would now file a Public Records Act suit to view Marshall’s records.

“He’s been there three years now,” Filarsky said of Marshall. “It doesn’t look like there’s any hope of getting rid of him.”

The California State Association of Counties and the League of California Cities A number of public agencies joined with Manhattan Beach as amici in the case. Joining Filarsky was the California First Amendment Coalition, represented by Kelli Sager of Davis Wright Tremaine.

Sager said use of declaratory relief actions to head off a records requests was rare, but that the issue was of crucial importance.

“The fear was that if this was allowed it would have gutted the Public Records Act,” Sager said.

Marshall had been fired from the Pismo Beach police force in 1984 on an excessive force charge. When the officer challenged the firing, the city hired Filarsky—a municipal law expert—to keep Marshall out of the department.

Filarsky succeeded, and Marshall obtained a post in the Sacramento police department, where he was promoted to lieutenant and maintained a clean record up to his hiring by Manhattan Beach.

As a captain, Marshall is one of two high-ranking supervisors who report directly to the city’s police chief.

Campaign Started

Wadden said Filarsky began a campaign of letter-writing and spoke before the city council in an effort to get Marshall discharged. Filarsky demanded Marshall’s application and resume, the names of the people who interviewed him for the position, the board rating sheets, the eligibility list, the city’s background investigation on Marshall’s service and firing in Pismo Beach, and the city’s background probe on Marshall’s criminal prosecution for use of excessive force.

Wadden labeled Filarsky’s attempts “harassment.” The city turned over only a small portion of the documents.

In a letter to the city, Filarsky noted that the Public Records Act allows anyone to sue for injunctive or declaratory relief to inspect a public record, and that prevailing plaintiffs are entitled to recover costs and attorney fees.

The city responded by letter on April 26, 1999, that it would welcome “the guidance of the court” and that it might start the process itself. That same day, it did, with its declaratory relief suit seeking a determination that it was correct in denying the records.

Filarsky, whose Manhattan Beach firm is Filarsky & Watt represented himself throughout the process.

Los Angeles Superior Court Judge Jean Matusinka found the records were exempt from disclosure. The Second District Court of Appeal, in an opinion by Presiding Justice Joan Dempsey Klein, affirmed and held that the city was entitled to file the declaratory relief action.           Filarsky, whose Manhattan Beach firm is Filarsky & Watt, represented himself throughout the process.

The Supreme Court’s opinion did not reach the question of whether Marshall documents were privileged.

The city argued that since the Public Records Act was based on the federal Freedom of Information Act, similar rationale applies to interpreting the law. But Gorge said there were significant differences between the two statutory schemes. He also distinguished ordinary declaratory relief actions an those specifically authorized under the PRA.

The case is Filarsky v. Superior Court, City of Manhattan Beach RPI, S091308.


Copyright 2002, Metropolitan News Company