Metropolitan News-Enterprise


Tuesday, June 13, 2017


Page 1


Press Denied Records Thought to Reflect Racist Messages

San Jose Mercury News Loses Bid for Copies of Exchanges Among Jail Guards


By a MetNews Staff Writer


Cellphone text-message records seized pursuant to a warrant served on the service provider, Verizon, and not admitted into evidence, are not public records, the Appellate Division of the Santa Clara Superior Court held in an opinion released yesterday.

The San Jose Mercury News sought the 2015 records believing that they included racist text messages between the owner of the cellphone, Ryan Saunders, then a correctional officer in the Santa Clara Sheriff’s Department, and other jailers.

The newspaper reported on Dec. 4, 2015:

“At least a dozen guards in Santa Clara County’s troubled jails repeatedly exchanged racist text messages over the past year—mixing vile slurs with casual brutality, and even sharing images of a Nazi swastika and a lynching, this newspaper has learned.”

The article went on to say:

“Dozens of racist texts were found on Officer Ryan Saunders’ phone over a period of several months, sources said. He appears to have been among those who regularly received the messages rather than sent them. However, he sent at least one message: ‘I know you are on vacation, going to be more f——- up than a n——-’s checkbook by 4 p.m.’ ”

Criminal Investigation

The records were gathered in the course of an investigation of Ryan on suspicion of unlawfully accessing the county criminal-information database and disseminating the information to members of the Hell’s Angels motorcycle gang. Although Ryan was charged with eight misdemeanor counts, the records were not used.

Santa Clara Superior Court Judge Arthur Bocanegra ordered that the records, with some redactions, be disclosed to the newspaper, and Ryan sought a writ in the Appellate Division. That court put disclosure on hold pending action on the petition.

Its April 28 opinion announcing the issuance of a writ was posted on the Judicial Council website yesterday after the Sixth District Court of Appeal determined that transfer to itself was unnecessary.

PRA Inapplicable

In her opinion for the Appellate Division, Presiding Judge Helen E. Williams pointed out that the Public Records Act is not implicated because procedures of the act were not followed and, in any event, the records had been deposited with the Superior Court and courts are not subject to the PRA.

Williams acknowledged that in Sander v. State Bar of California (2013) 58 Cal.4th 300, the California Supreme Court permitted public access to certain records of the State Bar—which is not subject to the PRA—under a common law right of access. Applying the principles to the instant case, she said:

“Unlike the CPRA, the common law right of public access does not recognize a presumptive right of access to every record in possession of a government agency that is in any way related to the public’s affairs….Thus, whether there is a common law right of public access to particular records in the hands of a court that are neither an official record historically treated as such nor a court’s informal and preliminary predecisional materials but instead fall into the ‘marginal’ third category, comes down to whether there is a legitimate public interest in the records and whether that interest is not outweighed by other interests.”

In Sander, she noted, in which a researcher sought materials reflecting on law school admissions practices, there was found to be a public interest in workings of the State Bar.

“It is therefore the activities of the particular public agency holding the records, here the court, that is the focus of this public-interest analysis of records falling into the marginal third category,” Williams reasoned, adding:

“The Mercury News skews and muddles this analysis by misplaced focus on the urged public interest in Saunders’s position and activities as a custodial officer and public employee. But the proper focus when applying the common law right of public access to records falling within the ‘marginal’ category remains on whether disclosure would contribute significantly to public understanding of the particular agency’s—here, the court’s—activities.”

Public disclosure of Saunders’ text messages, Williams said, “would contribute little to nothing to the public’s understanding of the court’s activities.”

Penal Code Section

Citing Penal Code §1534, the newspaper argued that “California law provides that after execution of a search warrant, the warrant and related documents are required to be made public as court records.”

Williams responded:

“This is a true statement of the law as far as it goes. But this does not mean that property or things seized under a search warrant, like Saunders’s cell-phone records, are warrant materials that fall under Penal Code section 1534. They are not. By its contention, the Mercury News has conflated the warrant documents, which by statute become available to the public, with property or things seized under the warrant.”

She also found that the newspaper could not gain the records on the basis of Art. I, §3(b) of the California Constitution which declares that the “people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

Williams wrote:

“But the Mercury News cites no authoritative or persuasive authority, and our own independent research has yielded none, holding or suggesting that the records here…fall within the quoted language of the constitutional provision. The plain text presupposes that a ‘writing’ subject to this provision qualifies as a public record, court or otherwise. And to the extent this constitutional provision requires us to liberally construe the Penal Code sections relating to search warrants to further the people’s right of access, we have no power to disregard the statutory text that as we have explained, clearly distinguishes between warrant materials on the one hand and property or things seized under a warrant on the other hand. Thus, while article I, section 3 of the State Constitution broadly promotes the people’s right of access to public business, it does nothing for the Mercury News here because Saunders’s seized cell-phone records are not court or judicial records affected by its coverage.”

In weighing the newspaper’s “tenuous showing of public interest in disclosure” against Saunders’ “significant right to privacy,” it was an abuse of discretion to order disclosure.

The case is Saunders v. Superior Court, 16AP002041.


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