carmel communications v. city of carmel-by-the-sea (m125118)

7/27/2019 Carmel Communications v. City of Carmel-By-The-sea (m125118)

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NEILL. SHAPIRO (State Bar No. 51547)LAW OFFICES OF NEILL. SHAPIRO21 00 Garden Road, Suite CMonterey, California 93940Telephone: (831) 372-3700Facsimile: (831) 372-3701Attorneys for PetitionerCARMEL COMMUNICATIONS, INC.

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SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF MONTEREY

1011 CARMEL COMMUNICATIONS, INC., Case No.: M12511812 Petitioner, PETITION FOR WRIT OF MANDATE13 v.14 CITY OF CARMEL-BY-THE-SEA, andDoes 1 through 10, inclusive151617

Respondents.

18 Petitioner Carmel Communications, Inc. ("Petitioner") complains of Respondent City of19 Carmel-By-The-Sea ("City" or "Respondent") as follows:202122 1.

PARTIESPetitioner Carmel Communications, Inc., is a California corporation with its

23 principal place of business in the County ofMonterey, State ofCalifornia, and publishes a weekly24 newspaper known as the Pine Cone.25 2. Respondent City is a "local agency" within the meaning ofGovernment Code26 6252.27 3. Petitioner is ignorant of the names and capacities of other persons or entities who o28 which may be responsible for the violations of the Public Records Act alleged herein, and

1PETITION FOR WRIT OF MANDATE


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1 Petitioner therefore identifies such respondents as "Doe 1 through Doe 10." Petitioner is informed2 and believes that each of the respondents so named contributed to the violations of the Public3 Records Act addressed herein.4

56 4.

FACTSOn or about August 26, 2013, Robert Mullane started his employment by City as its

7 Community Planning and Building Director, filling a job that had been vacant for approximately a8 decade. His selection to that position was announced to the public on August 6, 2013. On August9 8, 2013, Petitioner submitted an oral request to City, seeking access to and a copy ofMr.10 Mullane's resume.11 5. On or about August 19,2013, Heather Coffman, an attorney with the law firm of12 Liebert Cassidy Whitmore, by letter to Petitioner acknowledged the City's receipt of the oral13 request, promised to "provide a further response pursuant to the Public Records Act by August 26,14 2013," and represented that "should the City identify non-privileged, non-exempt, responsive15 records, these will be made available for review at the City Clerk's Office." A true and correct16 copy of the letter ofAugust 19, 2013, is attached hereto as Exhibit A.17 6. On or about August 26, 2013, Heather Coffman sent another letter to Petitioner in18 which she on behalfof the City set forth the contention that Mr. Mullane's resume "is not subject19 to disclosure under the [Public Records Act], as Mr. Mullane's resume does not constitute a public20 record, as defined by the Act." The letter further asserted that "even if construed as a record21 subject to (Public Records Act], Mr. Mullane's resume is not subject to disclosure, because it22 would constitute an unwarranted invasion of privacy," citing one appellate authority that actually23 supports the opposite conclusion, and "Cal. Govt. Code 6254(c)," which it describes as24 "exempting personnel records based on privacy concerns." That statute actually exempts25 "[p ersonnel, medical, or similar files, the disclosure ofwhich would constitute an unwarranted26 invasion of personal privacy." A true and correct copy of the letter of August 26,2013, is attached27

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1 hereto as Exhibit B.

APPLICABLE LAW

234 7. Under the Public Records Act, Government Code 6250 et seq., the City as a5 "local agency" is obligated to grant public access to, and for a fee of no more than the actual cost6 of copying to provide copies of, any public records to a member of the public who properly7 requests such access or copies, unless any specific record is exempt from disclosure by the8 provisions ofGovernment Code 6254 et seq. or 6255. Government Code 6252 (e) provides9 that the term "'public records" includes "any writing containing information relating to the conduc10 of the public's business prepared, owned, used, or retained by any state or local agency regardless11 ofphysical form or characteristics." Petitioner is informed and believes that the resume ofMr.12 Mullane was used by City in its process of selecting him as a candidate for the position for which13 he was later hired, and in hiring him for that position. As such, it is a "public record" and is not14 exempt from disclosure by the terms of the Public Records Act.15 8. Petitioner performed all requirements placed on it by law to entitle it to access to,16 and a copy of, the resume ofMr. Mullane by making the request sufficiently specific as to its17 scope, and by giving City the ten full days arguably specified in the California Public Records Act18 to respond to the request and to provide a copy ofthe requested record. Because of Petitioner's19 compliance with the applicable legal requirements, and because the record sought is not exempt20 from disclosure under the law, Petitioner has a clear, present, and substantial right to the21 performance by Respondent City of its duties.22 9. Because Petitioner has in all respects complied with the requirements placed on it23 by the Public Records Act, and because the record to which it sought and seeks access and of24 which it sought and seeks a copy, was not and is not exempt from disclosure under the provisions25 of the Public Records Act, Respondent has a clear, present and absolute duty to provide access to26 that documents and, for the aforementioned fee a copy of that document. Respondent failed to2728 3PETITION FOR WRIT OF MANDATE


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1 perform its duties in that regard by refusing to provide Petitioner access to, or a copy of, the2 specific document requested.3 10. The Public Records Act grants Petitioner the right to seek the relief sought herein.4 Government Code 6258 provides that "[a]ny person may institute proceedings for injunctive or5 declaratory relief or writ ofmandate in any court of competent jurisdiction to enforce his or her6 right to inspect or to receive a copy of any public record or class of public records under this7 chapter."8 11. Petitioner has no plain, speedy, and adequate remedy at law other than the relief9 sought by way of this Petition. Without the issuance of a Writ of Mandate as prayed herein,10 neither Petitioners nor the public it serves will be granted access to or a copy of a document that11 contains substantive information about the operation and conduct of an important part of the12 public's government.13 12. Government Code 6259(a) provides that "[w]henever it is made to appear by14 verified petition to the superior court of the county where the records or some part thereof are15 situated that certain public records are being improperly withheld from a member of the public, the16 court shall order the officer or person charged with withholding the records to disclose the public17 record or show cause why he or she should not do so." This Court should issue an Alternative18 Writ, compelling Respondent to disclose Mr. Mullane's resume, or to show cause before this Cour19 why it should not be required to do so.20 WHEREFORE, PETITIONER PRAYS AS FOLLOWS:21 l. That this Court issue an Alternative Writ of Mandate, commanding Respondent22 City to allow the inspection of, and upon payment of the statutory fee to provide a copy of, Mr.23 Mullane's resume, or to show cause before this Court at a date and time to be specified by the24 Court why it has not done so, and why it should not be compelled to do so; and25 2. That on the return of the Alternative Writ and the hearing of this Petition, this Cour26 issue its Peremptory Writ of Mandate commanding Respondent City to allow inspection of and,2728 4PETITION FOR WRIT OF MANDATE


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1 upon payment of the statutory fee to provide a copy of, Mr. Mullane's resume.234

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For an award of attorney's fees to petitioners pursuant to Government Code 6259;For costs of suit incurred herein; andFor such other and further relief as this Court deems just and proper.

Dated: October 4, 2013 NEIL L. SHAPIROLAW OFFICE OF NEILL. SHAPIRO

Attorneys for PetitionerCARMEL COMMUNICATIONS, INC.

5PETITION FOR WRIT OF MANDATE

carmel communications v. city of carmel-by-the-sea (m125118)

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