Thursday, January 24, 2019
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Court of Appeal:
Los Angeles’s Access to Data Doesn’t Establish ‘Possession’
By a MetNews Staff Writer
The Court of Appeal for this district has denied a civil rights lawyer’s bid to force compliance with her public records request to the Los Angeles Police Department for information about impounded vehicles, declaring that the city’s right to access the relevant data doesn’t amount to possession of it.
The opinion, filed Tuesday, was written by Justice Laurie D. Zelon of Div. Seven. It denies a petition for a writ of mandate, sought by Los Angeles attorney Cynthia M. Anderson-Barker, directing the Los Angeles Superior Court to order that her request under the California Public Records Act (“CPRA”) be honored. Los Angeles Superior Court Judge Amy D. Hogue on Sept. 12, 2017 had denied relief, finding that the LAPD to provide did not “possess or control” the records being sought.
The lawyer sought disclosure of data housed in the Vehicle Information Impound Center (“VIIC”), a database containing information about Los Angeles Police Department (“LAPD”) vehicle impounds. While the VIIC is accessible by the city, pursuant to contract, it is housed on servers owned and operated by the Official Police Garage (“OPG”) Association of Los Angeles, a private association of official police garages which handle the towing and storage of impounded vehicles.
Under Government Code §6253(c), an agency receiving a CPRA request must “determine whether the request seeks public records in the possession of the agency that are subject to disclosure.”
No Authority Cited
Zelon wrote:
“Anderson-Barker has cited no legal authority supporting the proposition that an agency’s right to access the records of a private entity constitutes a form of constructive possession. For purposes of the CPRA, the term ‘constructive possession’ means ‘the right to control the records.’…The term ‘control’ is generally defined as ‘the power or authority to manage, direct, or oversee.’…As the trial court noted in its order, the City presented evidence showing that it does not direct what information the OPGs place on the VIIC and Laserfiche databases, and has no authority to modify the data in any way.”
She continued:
“The mere fact that it can ‘access’ the data does not equate to a form of possession or control. To conclude otherwise would effectively transform any privately-held information that a state or local agency has contracted to access into a disclosable public record. Nothing in the text or history of the CPRA suggests it was intended to apply so broadly.”
Extracted Information
Zelon went on to say that “the City might have a duty under the CPRA to disclose any data it has actually extracted from the VIIC or Laserfiche databases, and then used for a governmental purpose,” adding:
“Anderson-Barker’s CPRA request, however, is not limited in such a manner. Instead, she seeks disclosure of all information the OPGs have entered into the VIIC and Laserfiche databases regarding City-related impoundments based solely on the fact that the City has the authority to access that information.”
The case is Anderson-Barker v. Superior Court, 2019 S.O.S. 388.
Previous Opinion
Tuesday’s opinion was the second one in the case. On March 2, 2017, Div. Seven held, in an opinion by Zelon, that the Civil Discovery Act does apply to proceedings under the CPRA, as asserted by Anderson-Barker and found by Los Angeles Superior Court Judge Joanne B. O’Donnell.
However, it reversed O’Donnell’s order to the extent that it required the city to respond to the discovery requests without any further objections and to pay discovery sanctions in the amount of $5,560.
Anderson-Barker’s attorney in the case, Donald Cook, previously represented Colleen Flynn—herself a lawyer—who had asked the LAPD for the VIIC data.
Anderson-Barker, Cook and Flynn share a Koreatown address and have been involved in several other CPRA cases seeking disclosure of the same or similar documents from various state and local agencies. Anderson-Barker and Flynn are both on the executive board of the National Lawyers Guild, Los Angeles Chapter.
Copyright 2019, Metropolitan News Company