Amitai Schwartz (SEN 55187) LAW OFFICES OF AMITAI SCHWARTZ 2000 Powell Street, Suite 1286 Emeryville, California, 94608 . Tcl(510) 597?1775, ext 102 Fax (510) 597?0957 in Era} attorneys@schwartzaw.com 1' MTV Alan L. Schlosser (SBN 49957) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drum Street San Francisco, CA 94111 Phone: 415.621.2493 Fax: 415.255.8437 aschlosser@aclunc.org Attorneys for Plaintiff Nationa Lawyers Guild, San Bay Area Chapter CLEQK SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAIVJEDA Unlimited Civil Jurisdiction NATIONAL LAWYERS GUILD, NO. SAN FRANCISCO BAY AREA CHAPTER, Petitioner, VERIFIED PETITION FOR VS. DECLARATORY AND DIANE URBAN in her'of?cial capa01ty as Chief of Police, C1 of Hagard, California; ADAM . PE Z, 1n h1S_ of?c1a1 ca _a01ty as Records Administrator, . 1ty of Hayward Californla, Police Department THECITY OF Callfornia, and DOES 1 Respondents. Veri?ed Petition for Declaratory and Injunctive Relief and Writ of Mandate r7 aal?i cut: id" NIL-H, INJUNCTIVE RELIEF and WRIT OF MANDATE California Public Records Act, Government Code 6250 et seq. 1 2 For its verified petition pursuant to the California Public Records Act (Gov. 3 Code, §§ 6250 et seq.), petitioner hereby alleges: 4 5 PARTIES 1. Petitioner NATIONAL LAWYERS GUILD, SAN FRANCISCO 6 BAY AREA CHAPTER is a not-for-profit organization. The National Lawyers 7 Guild, San Francisco Bay Area Chapter is an association dedicated to the need for 8 basic change in the structure of our political and economic system. It seeks to 9 unite lawyers, law students, legal workers and jailhouse lawyers to function as an 10 effective force in the service of the people, to the end that human rights shall be 11 regarded as more sacred than property interests. Its goals include promoting justice 12 in the administration of the law, eliminating racism and protecting civil rights and 13 liberties. 14 2. Petitioner NATIONAL LAWYERS GUILD, SAN FRANCISCO 15 BAY AREA CHAPTER is a "person" and a "member of the public" within the 16 meaning of Government Code §§ 6252(b), (c) and 6259(a). 17 3. Respondent DIANE URBAN is the Chief of Police of the City of 18 Hayward, California. Respondent URBAN is sued in her official capacity. 19 4. Respondent ADAM D. PEREZ is the Records Administrator the City 20 of Hayward Police Department. Respondent PEREZ is sued in his official 21 capacity. 22 5. The City of Hayward is "local agency" within the meaning of the 23 California Public Records Act, Government Code § 6252(a). 24 6. Petitioner does not know the true names and capacities of 25 Respondents Does I through X, inclusive, who are therefore sued by such 26 fictitious names. Petitioner is informed and believes and therefore alleges on 27 information and belief that each person designated as Does I through X, is 28 responsible in some manner for improperly withholding and charging fees to 2 1 obtain public records as alleged herein. Petitioner will seek leave to amend this 2 petition when the true names and capacities of each Doe defendant has been 3 ascertained. 4 5 FACTS 7. On January 27, 2015, Petitioner, through its president, sent a Public 6 Records Act request pursuant to California Government Code §§ 6250 et seq. to 7 The City of Hayward Police Department. The request included eleven categories 8 of records relating to the City of Hayward Police Department’s participation in 9 mutual aid within the City of Berkeley, California in connection with public 10 demonstrations on December 6, 2014, protesting the deaths of Michael Brown and 11 Eric Garner, which had received national attention and notoriety. The records 12 requested are "public records" within the meaning of Government Code § 6252(e). 13 The request stated that the Public Records Act required a response within 10 days 14 of the request. 15 8. In its request, Petitioner asked the Police Department to produce 16 records as they become available, and if portions of records are exempt from 17 disclosure, to provide non-exempt portions. 18 9. In its request, Petitioner asked the Police Department to email any 19 records in electronic form without incurring any copying costs. 20 10. In its request, Petitioner asked the Police Department to waive any 21 fees that would normally be applicable to a Public Records Act request. 22 11. In its request, Petitioner asked the Police Department to seek 23 clarification of the scope of the request if clarification will help it comply with the 24 request. 25 12. The Police Department responded by letter from respondent ADAM 26 D. PEREZ, dated February 23, 2015. The letter stated that the Department is in 27 possession of documents responsive to all eleven categories and that documents 28 would be produced on a rolling basis, but that all documents would be produced Verified Petition for Declaratory and Injunctive Relief and Writ of Mandate 3 1 by April 15, 2015. The letter stated that documents exempt from disclosure would 2 not be produced. It did not identify any such documents. 3 13. On March 18, 2015, after further communication between Petitioner 4 and the Police Department, Petitioner temporarily narrowed the request as it 5 pertained to police body camera and hand held videos as follows: 6 “In terms of our request for all body camera video, as we discussed, for now 7 we can narrow that request to the following times on December 6, 2014, and 8 December 7, 2014: 9 10 7:56pm-8:30pm Sgt. Corsollini Ofc. McGiboney 11 12 9:52pm-10:30pm Ofc. Blum Ofc. Green Ofc. McGiboney Sgt. Linteo Sgt. Corsollini 13 14 15 16 12:55am-1:10am Ofc. Blum Ofc. Green Ofc. McGiboney Sgt. Linteo Sgt. Corsollini 17 18 19 20 21 22 23 24 25 26 27 28 14. On May 15, 2015, Petitioner was informed by the Police Department that the available videos requested (as described in the narrowed request) were ready for pick-up, but the cost would be $2,938.58. Petitioner was informed that this figure is based on the cost of the DVD ($1.00) as well as the staff time necessary to accommodate the PRA request ($2,937.58). 15. On May 18, 2015 the Police Deparftment informed Petitioner “we cannot release the videos or allow duplication of them for you unless this fee is paid.” Verified Petition for Declaratory and Injunctive Relief and Writ of Mandate 4 1 16. On July 24, 2015, Petitioner identified and requested that additional 2 body camera and handheld videos in the possession of the Respondents pertaining 3 to the same events on December 6, 2014 and December 7, 2014 be produced, as 4 follows. 5 6 7 8 9 10 11 12 13 1) All body camera and other police video taken by Lt. Matthews, Lt. Deplitch, Sgt. Ormsby, Sgt. Linteo, Sgt. Corsollini, Sgt. Lunger, Sgt. Sill, Sgt. Wagner, Det. Valderrama, Det. Maloney, Det. Tong, Det. Humpert, Ofc. McGiboney, Ofc. Niedenthal, Ofc. Harden, Ofc. Blum, Ofc. Green, Ofc. Naik, Ofc. Marion, Ofc. Waters, Ofc. Carrasco, Ofc. Bell, Ofc. Agustin, Ofc. Wilson or any other Hayward Police Officers during the time period of 7:56pm-8:30pm on December 6, 2014. 2) All body camera and other police video taken by Lt. Matthews, Lt. Deplitch, Sgt. Ormsby, Sgt. Linteo, Sgt. Corsollini, Sgt. Lunger, Sgt. Sill, Sgt. Wagner, Det. Valderrama, Det. Maloney, Det. Tong, Det. Humpert, Ofc. McGiboney, Ofc. Niedenthal, Ofc. Harden, Ofc. Blum, Ofc. Green, Ofc. Naik, Ofc. Marion, Ofc. Waters, Ofc. Carrasco, Ofc. Bell, Ofc. Agustin, Ofc. Wilson or any other Hayward Police Officers during the time period of 9:52pm-10:30pm on December 6, 2014. 16 3) All body camera and other police video taken by Lt. Matthews, Lt. Deplitch, Sgt. Ormsby, Sgt. Linteo, Sgt. Corsollini, Sgt. Lunger, Sgt. Sill, Sgt. Wagner, Det. Valderrama, Det. Maloney, Det. Tong, Det. Humpert, Ofc. McGiboney, Ofc. Niedenthal, Ofc. Harden, Ofc. Blum, Ofc. Green, Ofc. Naik, Ofc. Marion, Ofc. Waters, Ofc. Carrasco, Ofc. Bell, Ofc. Agustin, Ofc. Wilson or any other Hayward Police Officers during the time period of 12:55am-1:10am on December 7th, 2014. 17 17. 14 15 On August 18, 2015 Petitioner paid the City of Hayward $2,938.58. 18 The Police Department produced copies of the available videos requested by the 19 March 18, 2015 narrowed request, as described in paragraph 13 above. 20 18. The videos identified in paragraph 16 have not been produced for 21 inspection and copies have not been made available to Petitioner. 22 19. Respondents will not allow inspection, nor produce copies of videos, 23 nor allow Petitioner to make its own copies of videos identified in paragraph 16, 24 unless and until Petitioner pays fees comparable to and on the same basis as the 25 fees charged on August 18, 2015. 26 20. On or about August 25, 2015 Petitioner filed a claim with the City of 27 Hayward for return of $2,938.58 previously paid for production of the videos 28 described in paragraph 13. As of the filing of this Petition, the City of Hayward Verified Petition for Declaratory and Injunctive Relief and Writ of Mandate 5 1 has not granted or rejected the claim. 2 FIRST CLAIM FOR RELIEF 3 (California Public Records Act) 4 21. Petitioner realleges and incorporates herein by reference each and 5 every allegation of paragraphs 1 through 20. 6 22. The requested documents and information consist of "public records" 7 within the meaning of Government Code § 6252(e), and such records are within 8 the possession, custody or control of the Respondents. 9 23. The documents and information requested are not exempt from public 10 disclosure. 11 24. Petitioner has the right to inspect and obtain copies of the information 12 and documents requested. Gov. Code §§ 6253(a) and (b). 13 25. "Public records are open to inspection at all times during the office 14 hours of the state or local agency and every person has a right to inspect any 15 public record," except those within the Act's specifically enumerated exceptions. 16 Gov. Code § 6253(a). 17 26. The agency, "upon a request for a copy of records that reasonably 18 describes an identifiable record or records, shall make the records promptly 19 available to any person upon payment of fees covering direct costs of duplication, 20 or a statutory fee if applicable. Upon request, an exact copy shall be provided 21 unless impracticable to do so" Gov. Code § 6253(b). 22 27. Information that is in an electronic format must be made available in 23 an electronic format when requested by any person and, when applicable, must 24 comply with the following: (1) The agency shall make the information available in 25 any electronic format in which it holds the information. (2) The agency shall 26 provide a copy of the electronic record in the format requested if the requested 27 format is one that has been used by the agency to create copies for its own use or 28 for provision to other agencies. The cost of duplication shall be limited to the Verified Petition for Declaratory and Injunctive Relief and Writ of Mandate 6 1 direct cost of producing a copy of a record in an electronic format. Gov. Code § 2 6253.9(a). 3 28. An agency is only permitted to impose additional charges when the 4 request would require data compilation, extraction, or programming to produce the 5 record. Gov. Code § 6253.9(b). 6 29. The body camera video requested do not require compilation, 7 extraction or programming. 8 30. Respondents have failed to make the records "promptly available" as 9 required by Government Code § 6253(b). 10 31. Respondents require payment of unauthorized and excessive charges 11 for the duplication and production of police body camera and hand held videos as 12 a condition of producing such records to members of the public. 13 32. Petitioner is informed and believes and therefore alleges on 14 information and belief that, unless enjoined by this court, the Respondents will 15 continue to require payment of unauthorized and excessive charges for the 16 duplication and production of police body camera videos as a condition of 17 produced such records to members of the public. 18 33. The costs charged for the production of body camera and hand held 19 videos are unauthorized and excessive. 20 PRAYER FOR RELIEF 21 Wherefore Petitioner respectfully prays, pursuant to Government Code § 22 6259: 23 1. For an order requiring Respondents to refund the money previously 24 paid, or an order to show cause why they should not be required to do so. 25 2. For a declaratory judgment declaring that the requested records are 26 public records and that the Respondents may not charge a member of the public 27 more than the direct costs of duplication. 28 3. For a peremptory writ of mandate requiring Respondents immediately Verified Petition for Declaratory and Injunctive Relief and Writ of Mandate 7 KC 00 a] (11.43- in?a to permit the inspection and to provide copies of the requested records and documents without requiring payment in excess of the direct costs of duplication. 4. In the alternative, for appropriate injunctive relief requiring Respondents immediately to permit the inspection and to provide copies of the requested records and documents without requiring payment in excess of the direct costs of duplication. 5. For an order awarding PetitiOner its costs of suit and reasonable attorneys' fees pursuant to Government Code 6259 and Code of Civil Procedure 1021.5. 6. For such further relief as this court deems proper. Dated: September 14, 2015 Respect?illy submitted, LAW OFFICES OF AMITAI SCHWARTZ AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA By: Ed SM Armtal Schwartz. Attorney for National La ers Guild, San Bay Area apter Veri?ed Petition?for Declaratory and Injunctive Relief and Writ of Mandate 8 VERIFICATION I, Amitai Schwartz, have read the foregoing pleading. I am informed and believe the matters therein to be true and on that ground allege that the matters stated therein are true. I make this veri?cation on behalf of Petitioner because it is absent from the county where I have my of?ce. I declare under penalty of perjury that the foregoing is true and correct. Executed at Emeryville, California this 14th day of September, 2015. woodman-I:me Veri?ed Petition for Declaratory and lnjunctive Relief and Writ of Mandate A164 SM Armtai Schwartz