SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 0 0 Kelly A. Aviles (SBN NO FEE LAW OFFICES OF KELLY AVILES Gov. Code 0 0 Foothill Blvd., #0-0 La Verne, California 0 Telephone: (0-0 Facsimile: (0 - kaviles@opengovlaw.com Dennis A. Winston, (SBN 00 DENNIS A. WINSTON, A PROFESSIONAL LAW CORPORATION Carter Ave., Apt. Marina Del Rey, CA 0 Telephone: (0 0-0 Facsimile: (0 0- Attorneys for Petitioner SAN DIEGO COUNTY WATER AUTHORITY SAN DIEGO COUNTY WATER AUTHORITY, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA Petitioner/Plaintiff, CITY OF LOS ANGELES DEPARTMENT OF WATER AND POWER, Respondent/Defendant. FOR THE COUNTY OF LOS ANGELES Case No.: BS Complaint filed on April, 0 [Assigned for all purposes to Department, Hon. James C. Chalfant] IN SUPPORT OF PETITIONER S VERIFIED PETITION FOR WRIT OF MANDATE; EXHIBITS JJ THROUGH QQ. Date: May, 0 Time: :0 p.m. Dept:

2 0 0 Respondent s Opposition Brief weaves together a number of outright lies with factually irrelevant information in an attempt to mislead the Court into believing that its search and production of public records in this case has been in good faith. Nothing could be further from the truth. The evidence in the record is undisputed that: ( LADWP failed to make a good faith search for or production of documents for more than five months after the CPRA Request was made; ( SDCWA was forced to file this action to gain compliance; ( LADWP produced some responsive documents only after, and as a result of this lawsuit; and ( LADWP still has not made a good faith effort to search for and produce the bulk of the records described in the Request, instead dumping tens of thousands of irrelevant documents on the Water Authority. The number of untrue and irrelevant allegations made in the Opposition and supporting declarations is astounding, and should cause this Court great concern. While the Opposition and supporting declarations concede that LADWP has taken months to produce records, and allege that it has spent a great deal of money doing so, LADWP does not establish that any of that work was actually necessary or done in good faith. In fact, the problems LADWP claims to have faced in the search for, and production of public records were entirely self-created. LADWP drafted overbroad search terms, refused to work with the Water Authority, and its recent productions consist of tens of thousands of pages of irrelevant documents. The selfserving statements that LADWP sought to narrow or clarify what was sought in the Request are contradicted by the evidence, including the communications between counsel. Far from refusing to narrow its search, Petitioner has gone to extraordinary lengths to assist LADWP, including identifying specific documents, offering to help create search terms, providing a list of search terms and offering suggestions on locations to search. While it is true that litigation is pending in San Francisco Superior Court, between Petitioner and the Metropolitan Water District of Southern California ( MWD, to which Respondent is a party (the Rate Case, it is irrelevant to this California Public Records Act (CPRA case. In each case, the documents sought are different, as is the Water Authority s legal counsel in each matter. (Aviles Decl.. Also, LADWP s legal obligation related to the --

3 0 0 production of records in each case varies greatly. Despite its own admission that Petitioner in this case requested public records LADWP is legally required to produce, it has improperly delayed its production of records in this case for more than months. And, when it finally began to produce records months after this case was filed LADWP chose to comingle its production of documents in this case with discovery that was ordered in the Rate Case. Even then, it did produced massive volumes of nearly entirely unresponsive documents. There is no dispute that the documents Petitioner is seeking in this case are public records. (Opp. :; :-. Respondent has not, and cannot meet its burden to show that the public s interest in withholding records outweighs its interest in disclosure. Indeed, Respondent has admitted many times that LADWP never claimed any exemption and did not object to the Request as overbroad or unduly burdensome. (Opp. :-. Therefore, this Court should rule in favor of the Water Authority. I. The Opposition Brief and Supporting Declarations Fabricate a Story that is Inconsistent with the Evidence While there are numerous false statements in the Opposition that relate to a number of different issues, the most egregious fall into three categories: ( claims about the nature and extent and productivity of LADWP s search efforts; ( the undue burdens it claims to have faced; and ( allegations that the Water Authority refused to work with LADWP to narrow the search. The actual correspondence between counsel, set forth as Exhibits to both the Petition and the Opening Brief, and the depositions of LADWP officials, refute these claims. LADWP argues that SDCWA has never been satisfied with LADWP's good faith efforts to comply with the Request. (Opp. :- The reason is that the record shows that there has never been any evidence of a good faith effort on the part of LADWP. Whether due to ineptitude or a deliberate attempt to keep from producing relevant documents, the LADWP search was poorly crafted and sloppily executed. John Rudek, the person assigned as the lead to the Request, testified that he had no formal training regarding CPRA or its requirements, no IT background, and no knowledge of the subject matter (the Working Group of member agencies or the scope of their activities. (Aviles Decl. ; Exh. --

4 0 0 JJ. In the declarations, LADWP describes complex procedures for responding to CPRA requests, but the reality in this case is that after more than months, LADWP has produced very few documents that are actually responsive to the request. Indeed, David Pettijohn testified that he destroyed documents that would have been responsive to the CPRA Request. (Aviles Decl. ; Exh. QQ. LADWP claims that it has been so burdened by the Request that it should not have to comply with the Public Records Act. However, the entire search process, including search terms, locations to be searched, and how the computer searches were executed, was designed by LADWP. While the Water Authority offered assistance many times to help narrow the search efforts, LADWP chose not to make those changes. It even refused to inform counsel for Petitioner what search terms it was employing or to identify where it had searched. By way of example, on December, 0, the Water Authority sent correspondence to LADWP stating: This correspondence shall serve as our continued attempt to meet and confer on the outstanding issues in this matter and to check on the status of the outstanding categories of documents that we have previously discussed. By way of review, on October, 0, we sent correspondence to LADWP regarding a number of outstanding issues. We received correspondence in response to some of those issues on October, 0. Because there were additional outstanding issues not addressed by the prior response, we met on November, 0. During that meeting, we discussed a number of topics. I have outlined the issues that are still outstanding below. The December correspondence specifically asked LADWP to stop producing nonresponsive records, asked LADWP to follow through on its promise to provide the locations it had searched, and objected again to the poorly crafted search terms LADWP appeared to be utilizing. Petitioner also objected to the disorganized productions. LADWP has never responded to the December correspondence. Had there been a full-time attorney handling this matter, as now claimed by LADWP, one might reasonably expect that attorney to have responded to the December letter. Instead, LADWP s strategy has been to continue its own incompetent efforts so that it may now exaggerate the burdens it has faced. LADWP claims, [i]t has been extremely time-consuming to separate responsive records from large quantities of non-responsive documents because LADWP has no way to --

5 0 0 process this separation electronically. Each individual page must be printed out, reviewed, and manually processed. (Opposition :0- Yet despite this purported individual review of every document, in LADWP s production on April, 0 of approximately,000 documents, consisting of hundreds of thousands of pages, it included multiple photos of a baby being christened, a photo of the interior of someone s living room, a copy of someone s driver s license, a news release about the ground zero mosque in New York City, multiple, lengthy newsletters about woodworking, hundreds of daily devotionals and Bible verses, and a picture of a cat wearing headphones. (Aviles Decl. ; Request for Judicial Notice, Exhibit II. Either LADWP s statement that it has reviewed these documents individually is false, or it has intentionally provided tens of thousands of pages of irrelevant information. The most disturbing misrepresentations are about the Water Authority s purported unwillingness to meet and confer with counsel for LADWP or to assist its search for responsive records. Virtually every phone conversation and written correspondence, both before and after the litigation was filed, included offers by the Water Authority to assist in the search. These attempts were ignored for the most part, and correspondence often went unanswered. The record of communications between counsel establish that the Water Authority provided a list of specific documents it believed would be responsive, but they were not produced by LADWP. The Water Authority gave suggestions for crafting search terms that would be more likely to yield responsive records, without producing a large volume of irrelevant material, but LADWP refused to follow these suggestions. The Water Authority even went to the extraordinary lengths of crafting suggested search terms for LADWP s use, but LADWP refused to confirm that it ever used them. Contrary to the declaration of John Rudek, the Water Authority did review hundreds of pages of logs containing references to nearly 0,000 s and then asked LADWP to produce only a small portion of those s. Unless buried in its recent document dump, however, those s were never produced. LADWP never confirmed whether it would produce those s, despite Petitioner s inquiries. (Aviles Decl. ; Exhs. OO & PP. --

6 0 0 There were only two occasions when the Water Authority refused a request by LADWP. First, when LADWP produced a log of million documents, described only by file name, and asked the Water Authority to pick out which documents were responsive. The logs gave no information about the content of any document, giving the Water Authority no way of knowing whether a document listed on the logs was actually responsive. Second, the Water Authority declined when LADWP asked it to pay the costs for a third-party law firm to search for and review LADWP s own records because, as discussed below, a public agency may only charge a requestor the direct costs of duplication, which specifically excludes the search for responsive records. II. The CPRA Plans for the Type of Difficulties LADWP Claims to Have Faced LADWP belatedly claims that the difficulties it has experienced stem from the broad scope of the request and the voluminous amount of records that would need to be searched. (Opposition, :-. Even if that had been true, and even if LADWP had said so, (which it did not, the CPRA planned for this exact situation. While an initial response to a CPRA request is due within 0 days, if there are unusual circumstances, the law allows an extra days to manage the unusual circumstances, defined by Section (c, subsections -, as: ( The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request. ( The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request. ( The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein. ( The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data. The Legislature balanced the practical logistics of document production against the strong public interest in open government and provided an extended response time of weeks, within which unusual circumstances would be identified and a plan for compliance All statutory references are to the Government Code and all emphasis is added unless otherwise noted. --

7 0 0 developed. In this case, the Water Authority made numerous efforts to obtain the requested documents and waited for months before it filed this suit. LADWP claims that case law supports their position. However, the cases it cites are completely distinguishable. Rosenthal v. Hansen ( Cal.App.d, involved a agency s refusal to undertake a mass copying job, but did not involve an agency s denial of records, such as has occurred in this case. LADWP s claim that the production of records in this case would mean it is entering the printing business is absurd. Motorola Communication & Electronics, Inc. v. Department of General Services ( Cal.App.th 0, likewise, does not support the premise for which it is cited and is so factually dissimilar to this case that it is almost irrelevant. In Motorola, the court upheld denial of attorney s fees to the petitioner, distinguishing bureaucratic but inadvertent processing delays administrative problems which would not justify fee recovery, from agency intransigence, which would. Id. at. While the delay in Motorola could easily be described as the former, LADWP s conduct in this case is surely the latter. In Motorola, the Request was made on June th. The Department produced the bulk of the records by July 0 th. When Motorola came to view the requested records, it noted that a document was missing. The Department notified Motorola that it would produce the document, but could not do so until the attorney handling the production of documents returned from his vacation. Nevertheless, one day later, on July th, Motorola reserved a hearing for an ex parte application for an alternate writ, and filed its moving papers on July th. The trial court heard and granted the alternative writ on July th, but refused to grant fees because the Department had behaved reasonably. This case is the exact opposite. days will have elapsed from the date of the Request to the date of the hearing. While Motorola filed suit just days after the discovery of a single missing document, and in the face of assurances that the missing document would be produced in a few days, the Water Authority waited days to file its lawsuit, after LADWP made, then broke, numerous promises to make any reasonable production. The Request was no broader than it needed to be. The Request was intended to capture responsive records about a --

8 secret meeting group comprised of government agencies, including LADWP, from which the public and the Water Authority were excluded. The Water Authority could not have tailored its requests more specifically to particular documents because the government agencies were meeting secretly and without public notice. LADWP s purported confusion over what documents the Water Authority was requesting is laughable given the scope of its involvement in the Working Group. David Pettijohn, a top-ranking LADWP official, participated in the group (Aviles Decl. and knew exactly what records existed and how to retrieve them. The universe of records that were 0 0 searched could have been significantly narrowed had the official or LADWP been interested in doing so. Instead, the high ranking official testified that he destroyed records that would have been responsive to the CPRA Request. (Aviles Decl. ; Exh. QQ. The Opposition also fails to explain why specific documents, set forth in the Petition and in multiple meet and confer letters, were delayed or were not produced at all. LADWP makes it sound like it did the Water Authority a big favor by not responding that it believed that the CPRA Request was overbroad. But if LADWP needed more information or thought the request was overbroad, it had an express obligation to work with the Water Authority to narrow the scope. CPRA, Section., requires the public agency assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records. It is noteworthy that the Water Authority obtained timely and responsive document productions from all of the other agencies who participated in the meeting group. LADWP was the only agency has not complied with the CPRA Request. III. The MWD Rate Case and Petitioner s Alleged Motives are Irrelevant The Opposition makes much ado about the MWD Rate Case and the alleged motives for the Water s Authority s Request. But Section. makes clear that such arguments are irrelevant under the CPRA: This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is --

9 0 0 otherwise subject to disclosure. It is also explained in State Board of Equalization v. Superior Court (Associated Tax Consultants, Inc. ( 0 Cal.App.th, 0: The Public Records Act does not differentiate among those who seek access to public information. It "imposes no limits upon who may seek information or what he may do with it." (Citations Omitted What is material is the public interest in disclosure, not the private interest of a requesting party; section does not take into consideration the requesting party's profit motives or needs. In Wilder v. Superior Court (Los Angeles County Metropolitan Transportation Authority ( Cal.App.th, the claim was made that the Petitioner was seeking to circumvent the discovery process by filing a CPRA request. The trial court agreed and dismissed the petition. But the appellate court reversed and remanded stating that: We believe the trial court's analysis is incorrect. The statutory provision for enforcing the CPRA is not the equivalent of ordinary mandamus. Under the CPRA, the Legislature created an avenue whereby "every person in this state" may obtain ready access to "public records.".there is no exception for persons who may potentially have a claim for damages against a governmental agency.it is not the prerogative of the courts to insist that petitioner employ one type of remedy over another where the Legislature has expressly made both equally available. Similarly, in County of Los Angeles v. Superior Court (Axelrad (000 Cal.App.th, an attorney submitted a CPRA request, which the sheriff s department denied, alleging that the Request was an attempt to circumvent previous adverse discovery rulings. The appellate court rightly concluded, that a plaintiff who has filed suit against a public agency may, either directly or indirectly through a representative, file a CPRA request for the purpose of obtaining documents for use in the plaintiff's civil action, and that the documents must be produced unless one or more of the statutory exemptions set forth in the CPRA apply. IV. LADWP s Last-Ditch Effort to Avoid Compliance Should be Denied by the Court In yet another attempt to avoid judgment at the eleventh hour, LADWP now argues; ( that SDCWA should bear the cost of a search for records; and ( that this Court should order the Petitioner to craft the search terms that LADWP must use. Such requests are neither --

10 0 0 required nor authorized by the CPRA, and instead evidence the need for an order from this Court, educating LADWP on its duties under the CPRA. its duty. First, the burden to search is LADWP s duty and they cannot charge Petitioner to meet [E]ach agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication. ( (b. The term direct costs of duplication has been analyzed previously by the courts. In North County Parents v. Dept. of Education ( Cal.App.th,, the agency charged the requestor for staff time involved in searching the records, reviewing records for information exempt from disclosure under law, and deleting such exempt information. The court limited [t]he direct cost of duplication to the cost of running the copy machine, and conceivably also the expense of the person operating it. Direct cost does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted. North County Parents v. Dept. of Education ( Cal.App.th, -. See also, Los Angeles Unified Sch. Dist. v. Superior Court (00 Cal.App.th, 0 ( nonreimbursable indirect costs are not significant in light of [the public agency s] constitutionally mandated governmental function to disclose public records. LADWP seeks a discovery referee to oversee its document production, but this is a CPRA request, not discovery. The Court has, in fact, already rejected this argument. (Exh. Y. The Water Authority intends to deal with LADWP s lack of compliance post-judgment. III. SDCWA is Entitled to an Award of its Court Costs and Attorneys Fees The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. Section (d. The court in Belth v. Garamendi ( Cal.App.d concluded that, all the evidence suggests the Legislature intended subdivision (d to be mandatory, noting that the Legislative Counsel's Digest of the bill, which added Section (d, stated "this bill would require the award of court costs and reasonable attorneys' fees to a plaintiff who prevails in the action --

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