1 DUFFY CAROLAN (CA State Bar No. 154988) 1 DAVIS WRIGHT LLP 2 sos Montgomery suoot, sono soo . San Francisco, California 94111 SWIBIIQI Of CBRIGFYH 1 3 1 gelephoiaez Sacramento acs1m1 e: - 4 Email: MH Pfam? 1 - antennas 5 Attorneys for Petitioner/Plaintiff By dem] 6- . CENTER FOR INVESTIGATIVE REPORTING casa Mumbai.: 1 34-201 2-SBB01 044 7 1 . 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 1 IN AND FOR THE COUNTY OF SACRAMENTO 10 UNLIMITED JURISDICTION 11 1 CENTER FOR INVESTIGATIVE REPORTING) Case No. Q-t Lj 12 1 Plaintiff} CENTER FOR INVESTIGATIVE 1 . VERIFIED PETITION 13 V- FOR WRIT OF MANDATE TO COIVIPEL 1 - DISCLOSURE OF PUBLIC 14 1 DEPARTMENT OF PUBLIC COMPLAINT FOR 15 1 . Defendant. (Cal. Gov't Code 6250, et `seq.; Cal. ConstINTRODUCTION 19 1 1. Petitioner/Complainant Center for Investigative Reporting and its 20 California investigative team, California Watch, petitions this Court, through its Verified Petition 21 I1 for W1?it of Mandate/Complaint for Access to Public Records to command Respondent/Defendant 22 California Department of Public Health to produce in unredacted or minimally-reclacted 23 1 form citations issued by DPH from January 1, 2002 to the present to seven of the State's largest 24 residential facilities for persons with developmental disabilities. These citations chronicle 1 25 1 violations of state and federal law and involve, among other things, substantiated cases of patient 26 abuse, injury of unknown origin and death at these centers. These state-owned and operated 27 facilities house nearly 2_,000 of Ca1ifornia's most severely developmentally-disabled residents and 28 access to citations reflecting serious violations of law relating to the care and treatments of this 1 . 1 -- 1 1 Petition for Writ of Mandate; Complaint for Injunctive and Declaratory Relief DWT 18558388vl 0200236-000001 I . I 1 vulnerable population allows the public to fulfill its oversight role with respect to these state-run 2 rneiunes. 3 i 2. To vindicate CIR's and the public's constitutional and statutory rights of access to 4 these public records, for a declaration of DPH's obligations under this State's access laws, and to 5 prevent future violations of said rights, CIR herein alleges as follows: 6 VENUE AND JURISDICTION 7 3. The relief sought by CIR is expressly authorized under Government Code Section 8 6258, Civil Procedure Code Section 1085 et seq., and Article 1, Section 3(b) ofthe California 9 Constitution. Seg Deglgsi v. Cool_g, 29 Cal. 4th 333, 338 (2002) Hee speech clause of 10 _artic1e 1, section 2(a) 'is self-executing, and even without any effectuating legislation, all na 11 branches of government are required to comply with its terms. Furthermore, it also is clear that, 12 like many other constitutional provisions, this section supports an action, brought by a private 13 plaintiff against a proper defendant, for declaratory relief or for injunction.") (Emphasis in 14 original.) CIR is informed and believes that the writings to which it seeks access are owned by 15 DPH or were used by it and are situated its offices located in Sacramento, California. The 16 denial of access to public records has been undertaken by and through ofiicers and employees of Eg 17 i DPH, and has all occurred within the County of Sacramento and, therefore, venue in Sacramento 18 County is proper. 19 rr-rr: PARTIES 20 ll 4. Petitioner/Complainant CIR, founded in 1977, is the nation's oldest non-profit 21 news organization. It produces and distributes multi-media reports on important topics that are 22 critical to people's lives. Califomia Watch, a non-incorporated entity launched by CIR in 2009, is 23 i the largest investigative team in the State, focusing on sweeping challenges facing_Ca1ifornians at 24 i community, regional and statewide levels. A California Watch investigative reporter, Ryan . 25 i Gabrielson, made the requests for access at issue here in connection with California Watch's 26 ongoing investigation into cases of patient abuse, injury and death at the State's largest 27 developmental centers, the State's handling of the investigations and specifically that of the 28 i Petition for Writ of Mandate; Complaint for Injunetive and Declaratory Relief lt 1 intemal police force, called the OHice of Protective Services, charged with protecting this 2 vulnerable population. - I 3 5. RespondentfDefendant DPH, acting through its officials and employees, is a "state 4 agency" within the meaning ofthe Public Records Act. (Cal. Gov't Code 6252 DPH 5 operates within the Health and Human Services Agency of the State of California. 6 FACTS GIVING RISE TO CLAIMS 7 California Watch's Public Records Act Request and DPH's Response: 8 6. On or about May 4, 2011, Mr. Gabrielson spoke to Ms. Cheryl Munir, DPH's 9 acting assistant deputy over field operations, about the type of documents generated in the course 10 of investigating abuse allegations at developmental centers and the type of information _contained Q4 11 in incident reports and citation reports. Ms. Munir directed Mr. Gabrielson to submit in writing 5 12 directly to the DPH any Public Records Act request for documents pertaining to incident reports or 13 citations reports despite clear law that a public agency may not require that Public Records Act 14 requests be in writing2011, Mr. Gabrielson sent an email to Howard Baker, Interim Director 16 of DPH, containing a letter, dated May 4, 2011, requesting under the Public Records Act "records 17 I relating to citations issued by the California Department of Public Health from January 1, 2002 to 18 the present to the following facilities: Lanterman Developmental Center (Facility ID: 170001773, li 19 170001774); Porterville Developmental Center (170001878, 170001877, 170001876); Sonoma 20 Developmental Center ((15000230, 15000229); Fairview Developmental Center (170001769, 21 170001770), Canyon Springs (170001776); Agnews Developmental Center; and Sierra Vista 22 I Developmental Center." A true and correct copy of this Public Records Act request is attached 23 hereto as Exhibit 1. 24 8. On or about May 9, 2011, Ralph Montano, Office of Public Affairs of DPH, called 25 Mr. Gabrielson continuing receipt of California Watch's May 4, 2011 Public Records Act request, 26 and in that conversation he informed Mr. Gabrielson that he wants to "manage some expectations 27 here" with respect to what DPH will provide in response to the request for citations. He further 28 stated that citation reports, if provided, will be "entirely redacted." Mr. Gabrielson, nevertheless, I 3 Petition for Writ of Mandate; Complaint for injunctive and Deelaratory Relief owr 02002%-000001 4 1 asked that DPH proceed in responding to the request and in making responsive records available 2 to California Watch. . 3 9. In a letter dated May 16, 2011, more than 10 days after the Public Records Act 4 request, Mr. Montano of DPH responded to the request. Without denying that responsive records 5 exist or confirming that DPH has conducted any search for responsive records, as it is obligated to 6 do under the Public Records Act, Mr. Montano stated that DPH is "required by statute to only 7 maintain records for the last four years for these facilities," thus, self-servingly foreclosing public 8 access to citations issued by DPH for five of the nine-year period in the request.1 Mr. Montano 9 further stated that citations would be redacted in accordance with California Welfare 10) Institutions Code Section 5328, which provides for confidentiality of "information and records 11 1 obtained in the course of providing services" to developmentally disabled persons, among others, :11 12 i under various divisions of the Welfare Institutions Code. Invoking Section 6253(c) of the 13 Government Code, Mr. Montano further stated that because the requested records were located in 14 multiple offices and/or facilities, DPH was extending its time to reply to the request until May 28, 15 2011, at which time it would notify Mr.- Gabrielson as to which records would be available for 16 5 review. A true and correct copy of Mr. Montano's May 16, 2011 letter is attached hereto as 17 Exhibit 2. . 18 10. On June 1, 2011, after receiving no response from DPH, Mr. Gabrielson called Mr. 19 Montano to check on the status of the records request. On that same day, Mr. Montano emailed 20 Mr. Gabrielson and told him that he would check on the status of the request and get back to him 21 when he knew more. On June 2, 2011, Mr. Montano emailed Mr. Gabrielson stating that DPH had 22 in located 55 citations for the developmental centers identified and was in the process of redacting 23 the 55 documents. On June 3, 2011, Mr. Montano emailed Mr. Gabrielson and told him that the 24 redactions were to be completed by June 17, 2011. A true and correct copy of these email 25 communications, and minor others, is attached hereto as Exhibit 3. 26 27 I On infomiation and beliefQ?CIR.alleges that- document retention schedules applicable. to IDPH 28 enforcement records, mcludmg citations, indicates that citations are requ1red to be maintamed for more than four years. i 4 Petition for Writ of Mandate; Complaint for Injunetive and Deolaratory Relief 18558388vl 0200236-000001 1 11. On or about June 13, 2011 Mr. Gabrielson received a disk containing the redacted 2 citations from DPH. True and correct copies of the redacted citations are attached hereto as 3 Exhibit 4. No citations were produced for years 2002-2006. Each of the 55 citations was 4 extensively redacted of all information except licensee information, oblique statutory references 5 and some, factually-devoid statements about the violations or rights at issue on the initial page of 6 the citation. The citations, with minor exceptions, were otherwise completely redacted. 7 12. On June 23, 2011, in connection with another Public Records Act request regarding 8 incident reports, Mr. Gabrielson wrote Ron Chapman, Director of DPH, explaining that 9 "investigations of reported incidents, especially those involved in possible abuse against the 10 developmentally disabled, cannot be defined as a service rendered to patients. Patient names and Q-1 11 certain medical records may be redacted to protect privacy. All other categories of information -- jj 12 particularly those detailing the nature of the incident, the chronology of events and developmental 13 center employees' actions - are subject to public disclosure." A true and correct copy of this Jime 14 23, 2011, letter is attached hereto as Exhibit 5. - 15 13. On July 7, 2011, Mr. Gabrielson emailed Mr. Montano requesting that DPH justify 16 in writing, as required under Section 6255 of the Government Code, the statutory basis for the @7 17 claimed exempt status of information extensively redacted from the produced citations. VJ 18 14. On July 7, 2011, Mr. Montano responded by email saying that the redactions were 19 in accordance with Welfare Institutions Code Section 5328. A true and correct copy of these 20 email communications, or their true content, is attached hereto as Exhibit 6. 21 15. On July 8, 2011, Mr. Montano emailed Mr. Gabrielson in response to the argument 22 he raised in his June 23 Public Records Act request regarding the meaning of the provision of 23 services to developmentally disabled patients. Alter quoting Mr. Gabrielson's argument, Mr. 24 Montano stated solely that DPH "respectfully disagrees with your interpretation? Mr. Montano 25 further suggested that Mr. Gabrielson have CIR's legal counsel contact DPH Senior Counsel 26 Carrie Camerena. LL, p. 2-3. 27- 16. On July 18, 2011, CIR's outside counsel wrote Carrie Camerena regarding 28 DPH's response to the May 4, 2011 Public Records Act request explaining that the "Department's 1 1 1 aggressive redaction of responsive documents goes well beyond that authorized under the law and 2 is inconsistent with the Department's obligations under the Public Records Act and Califomia 3 Constitution to narrowly construe statutory exemptions to the public's right. of access." CIR's 4 cotmsel stated that the consistent redaction of "large portions of the narrative section of the reports 5 render[ed] them virtually useless as a tool to monitor the Department's performance of its duties in 6 overseeing the State's largest developmental centers housing the State's most severely 7 developmentally disabled residents, and the intemal police force charged with protecting this 8 vulnerable population." Citing relevant case law, CIR's counsel also explained that because 9 wrongful disclosure of information falling with Section 5328 of the Welfare Institutions Code is 10 actionable, courts have been careful to construe Section 5328 narrowly. 11 17. CIR's counsel fmther explained that the citations at issue "are not generated in the :11 12 course of a patient receiving services or treatment within the meaning of the various divisions E. 13 referenced in section 5328; rather, they are an after-the-fact assessment of a complaint of abuse 14 I generated as a final decision of the Department following an intemal review." Counsel 15 acknowledged, however, that patient identifying information, information pertaining to an 16 individual patient's treatment or services -rendered or individually identifiable health information ig 17 was the type infomration subject to redaction. DPH's practice of using patient identifiers in the Z2 18 citations rather than patient names, suffices to protect those interests, as explained by CIR's 5: 19 counsel. Given CIR's view that DPH's withholding is not supported by law and -is contrary to the 20 constitutional mandate to construe exemptions to the public's right of access narrowly, CIR's 21 counsel asked DPH to reconsider its position with respect to its production in response to the May 22 4, 2011 Public Records Act request. A true and correct copy ofthe July 18, 2011 letter from 23 CIR's counsel to Ms. Camarena is attached hereto as Exhibit 7. I 24 18. On July 26, 2011, Ms. Camerena responded via email confirming that DPH would 25 not reconsider its blanket redactions and instead claiming that the citations were "aggressively 26 9 redacted inlorder to comply with state law." In addition to Section 5328.15, governing disclosure 27 of infomration and records obtained in the course of providing services under Division 5 28 (pertaining to community mental health service under the Lanterman-Petris-Short Act), Division 6 i 1 (pertaining to admissions and judicial commitments), or Division (pertaining to mental 2 institutions), to either voluntary or involuntary recipients of services, DPH for the first time cited a 3 parallel provision under Section 4514. That Section similarly governs the disclostne of 4 information and records obtained "in the course of providing intake, assessment and se1?vices" to 5 developmentally disabled persons under Division 4.1 (pertaining to developmental services), 6 Division 4.5 (pertaining to services for the developmentally disabled), Division 6, or Division 7 7 (commencing with Section 7100). 8 19. ln the July 26, 2011 email, Ms. Camerena stated that both provisions prohibited the 9 Department hom "releasing infonnation about services provided to persons with developmental 10 disabilities unless the release is lawfully required by a criminal, civil, or administrative Q-4 11 proceedings." Ir1 an attempt to counter the "assumption" by CIR that the redacted portions ofthe 5 12 citations do not contain "information obtained while providing services or treatment to patients in 13 state hospitals," Ms. Camerena stated, is important to note that, with rare exception, any - 14 citation describing patient abuse will inherently rely on information obtained by staff while 15 providing services to that patient." For example, Ms. Camerena wrote, "if the Department is 16 I investigating allegations of patient abuse, it will interview relevant hospital staff that provided Eg 17 serves to that patient near or at the time of the alleged abuse. The questions asked and the 18 statements elicited will reflect infomiation about services the staff` provided to the patient Z: 19 when did the restraint occur and why? What was the alleged medical justification for the restraint" 20 What did the RN 1 do during the period that the patient was restrained?)" Ms. Camerena further 21 stated that tl:1e investigation will also include a review of the patient's medical records. A true and 22 correct copy of Ms. Camerena's July 26, 2011 email is attached hereto as Exhibit 8. 23 DPH's Prior Disclosures of Citations With Minimal Redactionsl Failure To Segregate 24 Exempt from Non--Exempt Infomation Contained in the Citations Requested: 25 i 20. On information and belief, CIR alleges that DPH has regularly provided citations in 26 unredacted or minimally-redacted form to several non-governmental entities and-organizations not 27 otherwise authorized to receive information obtained in the course of providing services to 28 patients under the provisions cited by DPH in withholding information from California Watch. I Petition for Writ of Mandate; Complaint for Injunctive and Deelaratoiy Relief owr 0200236-000001 1 21. Some of these unredacted citations, obtained by California Watch through 2 coniidential sources, include the same citations "aggressively" redacted by DPH in its response to 3 California Watch's request. 4 22. A comparison of the unredacted citations provided to other entities and 5 organizations to those identical citations "aggressively" redacted by DPH in response to California 6 i Watch's request shows that DPH's withholdings violate its obligation to segregate exempt from 7 i non--exempt information, as required under Section 6253 of the Government Code, and that its 8 claimed justification for its blanket withholdings are not supported by laws designed to protect . 9 i information obtained in the course of providing services to patients. For example: 10 A June 13, 2007 citation issued to Sonoma Developmental Center (citation number Q-I 11 . 15-1594-0003172-S) details an RN nurse's eyewitness observations of a staff 5 12 member striking a client in the head and shoulder while being treated at a local - 13 emergency room, and the conclusion that "the facility failed to ensure that Client 1 14 was treated with dignity and respect and was kept free from the harm of abuse 15 i while ill and hospitalized in a possibly unfamiliar environment with unfamiliar 16 staff These actions may have potentially caused anxietyand an increase in Client gl 17 . l's behavior." This information was completely redacted from the same citation F2 18 i produced to California Watch. True and correct copies of the unredacted citation E: 19 and that provided to California Watch are marked as Exhibit 9 and have been 20 separately lodged with the Court temporarily under seal, pending an application to 21 seal, given DPH's position that they contain confidential information. 22 An April 29, 2008 citation issued to Porterville Developmental Center (citation 23 i number 17-1361-0004958-S) reveals that the facility failed to "[r]eport an incident 24 of alleged or suspected verbal and emotional abuse of clients to the Department 25 i immediately or within 24 hours." The citation includes eye-witness observations of 26 i staff member's verbal abuse of a client and an account of a staff search of client's 27 lockers after management had denied a request to search. The citation also includes 28 i substantial portions summarizing facility policies goveming incident reporting and I 8 - Petition for Writ of Mandate; Complaint for injunctive and Declaratory Relief owr 0200236-000001 @2 1 defining what constitutes verbal abuse. All this information was redacted from the 2 I same citation produced to California Watch. True and correct copies of the 3 tmredacted citation and that provided to California Watch are marked as Exhibit 10 4 A and have been separately lodged with the Cotut temporarily under seal, pending an . 5 application to seal, given DPH's position that they contain confidential 6 1 information. 7 A March 8, 2007 citation issued to Sierra Vista (citation number 15-1l5-0003779- 8 S) details accounts of a male client repeatedly punching a female client in the face, 9 along with other abuse incidents, and concluding that a review of plans of care at 10 the time of the assault included no plan to address the male client's aggressive Q-. 11 behavior: "Though Client A has a history of assaults and is known to frequently :11 12 target females, he was placed in a facility with female clients without a documented 13 plan to protect them and male peers from assault." This infomation was redacted gn 14 from the same citation produced to Califomia Watch. True and correct copies of 15 the unredacted citation and that provided to California Watch are marked as Exhibit 16 ll and have been separately lodged with the Court temporarily under seal, pending SE 17 an application to seal, given DPH's position that they contain confidential 18 information. 3: 19 A February 13, 2007 citation issued to Agnews State Hospital (citation number 15- 20 1040-0003 5 57-S) concludes that "[t]he facility failed to implement the Individual 21 Program Plan by not closely supervising a client when in the community." The 22 citation includes an account of a client being left alone in a community park after a 23 group outing; a park ranger's accotmt that the client was found '\?vandering alone in 24 a parking lot"; and, the facilities response that no clients were missing, followed by 25 . the belated discovery that the client was missing. All this information was redacted 26 from the citation produced to California Watch. True and correct copies ofthe- 27 unredacted citation and that provided to California Watch are marked as Exhibit 12 28 and have been separately lodged with the Court temporarily under seal, pending an Petition for Writ of Mandate; Complaint for Injunctive and Deelmteiy Relief 1 application to seal, given DPH's position that they contain confidential 2 information. I 3 A December 13, 2010 citation issued to Canyon Springs (citation number 17-1731- 4 0007499-S) concludes that the facility failed to "[p]rotect Client 1 Eom being 5 subjected to sexual abuse by an employee contracted to work at the facility." The 6 citation includes the client's statement that she twice had sex with a janitor at the 7 facility; statements by a Standards Compliance Coordinator about the facility's 8 policy titled "Alleged Neglect, Mistreatment or Abuse: Client Death" and the 9 policy definition of sexual abuse, as updated. All of this information was redacted 10 fiom the citations produced to California Watch. True and correct copies of the ni 11 unredacted citation and that provided to California Watch are marked as Exhibit 13 5 12 and have been separately lodged with the Court temporarily under seal, pending an 13 application to seal, given DPH's position that they contain confidential . 14 inf`ormation. 15 ln 23. CIR is informed and believes that these unredacted citations are illustrative of the 16 type of information contained in the other citations "aggressive1y" redacted by DPH and produced SE 17 to Califomia Watch. CIR also is informed and believes that of the 55 citations produced by DPH 18 approximately 35 have been identified as potentially involving patient abuse. :2 19 24. CIR is informed and believes that substantial portions of the citations currently 20 being withheld cannot justifiably be withheld under provisions of the Welfare Institutions Code 21 pertaining to information "obtained in the course of providing services" to developmentally 22 disabled patients at these state-run institutions and, therefore, are being improperly withheld from 23 CIR and the public. 24 FIRST CAUSE OF ACTION 25 (Violation of Art. 1, Section 3(b) of the California Constitution) 26 25. CIR realleges paragraphs 1-24 above as though fully incorporated herein. 27 26. Article 1, Section of the Califomia Constitution states: 28 The people have the right of access to information conceming the conduct of the people's busmess, and, therefore, the meetings of public bodies and 10 . Petition for Writ of Mandate; Complaint for injunctive and Deelaratory Relief owr 0200236??000001 1 ;hceu\;;itings of public officials and agencies shall be open to public . y. 2 27. This constitutional amendment, passed by an overwhelming number of voters in 3 _November of 2004, reflects the paramount public interest in access to information about how the - 4 government is conducting the people's business. I 5 28. Article 1, Section 3(b) expressly requires that any statute, court rule or other 6 authority must be broadly construed if it furthers the public's right of access and narrowly 7 construed if it limits the right of access. Cal. Const. Art. 1, 8 29. The citation reports issued by the DPH to the state run facilities that are the subject 9 of California Watch's request are clearly encompassed within these constitutional mandates 10 regarding the public's right of access to writings of public officials and agencies. nj ll 30. DPH has violated the mandates set forth in Article 1, Section 2(b) by failing to 12 disclose in unredacted or minimally redacted form the citations requested and in failing to produce 13 any citations dated before 2007. 14 31. An actual controversy exists between CIR and DPH in that CIR contends that the 15 citations it seeks are public records required to be disclosed under Article 1, Section 2(b) of the 16 Califomia Constitution and are not exempt, or exempt to the extent claimed by DPH, from this I 17 constitutional mandate. DPH, on the other hand, claims that its near total and blanket redactions 18 are justified under Sections 5328, or 4514 ofthe Welfare Institutions Code, and that 19 it has no obligation to produce records before 2007 because it is not legally required to maintain 20 records beyond four years, whether they are actually maintained or not. Therefore, CIR and the 21 public are, and will continue to be, unable to obtain access to public writings reflecting the 22 workings of DPH and state-run developmental centers housing the State's most severely I 23 developmentally disabled population. Accordingly, CIR is entitled to an order declaring that the . 24 writings sought are public records within the meaning of Article 1, Section 3(b) and must be 25 disclosed, or disclosed in a substantially less redacted form than that initially produced by DPH. 26 32. CIR is also entitled to institute proceedings for a writ of mandate to enforce its 27 rights and the public's right to obtain all citations issued from January 1, 2002 to the present to the 28 facilities set forth in the May 4, 2011 request. Degagsi v. Coolg, 29 Cal. 4th 333 (2002). I ll Petition for Writ of Mandate; Complaint for Injunctive and Declaratory Relief 0200226-000001 i 1 33. CIR has incrured and will continue to incur attomeys' fees and costs in connection 2 with DPH's constitutional violations and any further proceedings necessary to secure the specihc 3 relief requested herein. 4 SECOND CAUSE OF ACTION 5 (Violation of the Public Records Act, Cal. Gov't Code Section 6250, et seq.) 6 34. CIR realleges paragraphs 1-33 above as though fully incorporated herein. 7 35. The writings requested by Califomia Watch, through its reporter Ryan Gabrielson, 8 are public records as defined by Government `Code Section 6252(e) in that they contain 9 information relating to the conduct ofthe people's business, prepared, owned, used or retained by 10 5 a state agency. 11 i 36. DPH violated Government Code Section 6253 and controlling caseauthority by Zi 12 5 requiring California Watch to make its Public Records Act request in writing. 13 37. DPH violated Government Code Section 6253 by failing to disclose any citations 14 i before 2007 and by "aggressive1y" redacting, and therefore withholding in substantial part, 15 information contained in the citations that were produced. lj 16 .38. DPH violated Government Code Section 6254(a) by failing to justify withholding 17 EUR the requested records, in whole or in part, under any provision of law. 18 39. DPH violated Government Code Section 6253 by failing to segregate exempt from 5: 19 non-exempt information and by failing to produce the non-exempt information contained in the 20 citations. - 21 40. DPH violated Government Code Sections 6253 and 6255(a) by asserting statutory 22 exemptions knowing those exemptions had been waived under Section 6254.5 of the 23 Code by voluntarily disclosing to non-governmental entities or organizations the same citations 24 being sought by CIR. 25 i 41. An actual controversy exists between CIR and DPH in that CIR contends that the 26 citations it seeks are public records required to be disclosed under the Public Records Act and 27 i controlling California authority. DPH, on the other hand, claims that its near total and blanket 28 redactions are justiied under Sections 5328, or 4514 ofthe Welfare Institutions i 1 Code, and that it has _no obligation to produce records before 2007 because it is not legally - 2 required to maintain records beyond four years, whether or not those records are presently . 3 maintained by DPH or any other state repository of DPH records. Therefore, CIR and the public 4 I are, and will continue to be, unable to obtain access to public writings reflecting the workings of 5 DPH and state-run developmental centers housing the State's most severely developmentally 6 disabled population. Accordingly, pursuant to Govermnent Code Section 6258, CIR is entitled to 7 an order declaring that the citations sought by CIR are public records within the meaning of the 8 Public Records Act and must be disclosed, or disclosed in a substantially less redacted form than 9 that initially produced by DPH. u10 i 42. Under Government Code Section 6258, CIR is entitled to institute proceedings for Q-. 11 a writ of mandate to enforce its rights and the public's right to obtain the writings requested. ij 12 Further, under Section 6258, CIR is entitled to have the proceedings resolved on an expedited I 13 basis consistent "with the object of securing a decision as to these matters at the earliest possible 14 I time." Cal. Gov't Code 6258. I 15 43. CIR has incurred, and will continue to incur, attomeys' fees and costs associated 16 with DPH's violations and any further proceedings necessary to secure the specific relief ED 17 requested herein. 18 RELIEF DEMANDED 19 Therefore, CIR demands judgment as follows: i 20 1. That this Court order DPH to search for citations throughout the entire time frame 21 i set forth in the May 4, 2011 Public Records Act request, and report back to the Court as to 22 whether any citations within the time frame set forth in the request are in the possession, custody 23 I and control of DPH and have yet to be produced; 24 2. That this Court immediately conduct an in camera review of the unredacted 25 citations (both those citations produced to California Watch and those remaining in the custody, 26 possession or control of DPH but which have yet to be produced in any form to 27 28 13 Petition for Writ of Mandate; Complaint for injunctive and Declaratory Relief 0200236-000001 I - 1 3. That this Cotut issue a peremptory writ of mandate under the seal of this Court, I 2 directing DPH to immediately disclose to CIR all responsive citations in unredacted form or 3 1 minimally redacted form; or, altematively, set a hearing on this matter as early as possible; 4 4. That this Court issue a declaration that the citations sought are writings of public 5 ofiicials and agencies as set forth in Article 1, Section of the California Constitution and 6 that DPH violated CIR's constitutional right of access by refusing to make the citations available 7 to the public and by failing to segregate exempt from non-exempt information in "aggressively" 8 redacting those citations that were produced. 9 5. That this Court issue a declaration that the citations sought are writings within the 10 definition of Section 6252(e) of the Govemment Code ir1 that they contain information relating to 11 the conduct of the people's business, prepared, owned, used or retained by DPH and that DPH . 12 violated the Public Records Act by refizsing to make the citations available to the public and by 13 failing to segregate exempt from non-exempt infomation in "aggressive1y" redacting those 14 i citations that were produced. - 15 6. That this Court issue a declaration that DPH violated the Public Records Act by . 16 A requiring California Watch to make its records request in writing. Eg 17 7. The Court enter an order awarding CIR its costs and reasonable attomeys' fees 18 incurred in this action pursuant to- California Govemment Code Section 6259 and California Civil 19 Procedtue Section 1021.5; and, 20 8. The Court award CIR such other and further relief as is just and proper. 21 DATED this 19th da ofJan 2012 22 I uafyi - 23 DAVIS wiuoirr LLP 24 26 Di?rv i Attorneys for CENTER FOR - 27 INVESTIGATIVE REPORTING 28 14 Petition for Writ of Mandate; Complaint for injunctive and Deetaiatory Relief owr ozoozss-000001 . sf;) -1) 2 i VERIFICATION 3 I, Ryan Gabrielson, do hereby certify and declare as follows: 4 1. I a staff reporter for California Watch, a reporting team ofthe Center for 5 I Investigative Reporting, Petitioner/Complainant in this action, and as a reporter I made the Public 6 Records Act request that this the subject of this actionhave read the foregoing Verified Petition for Writ of Mandate to Compel 8 Disclosure of Public Records/Complaint for Declaratory and Injunctive Relief and know the 9 1 contents thereof and I verify that the same is true of my own personal knowledge, except as to 10 I those averments that are independently verified by counsel for CIR, and except as to those matters 11 therein stated upon information and belief and as to those matters I believe them to be true. 12 I declare under penalty of perjury under the laws of the State of California that the 2 1 foregoing is true and correct. 14 Executed in Berkeley, California on January 2012Petition for W1-it of Mandate; Complaint for Injunctive and Declaratory Relief- uwr 0200236-000001 1 -2 1 . 2 1 VERIFICATION 3 I, Duffy Carolan, do hereby certify and declareattorney licensed to practice law in the State of Califomia and am a partner 5 in the law firm of Davis Wright Tremaine LLP, attomeys of record for Petitioner/Complainant 6 Center for Investigation Reporting. 7 2. I have read the foregoing Verified Petition for Writ of Mandate to Compel 8 1 Disclosure of Public Records/Complaint for Declaratory and Injunctive Relief and know the 9 contents thereof and I verify that the averments in paragraphs 16-19 are true of my own personal 10 knowledge and as to the remainder of the averments, I believe them to be true. I 1 I declare under penalty of perjury under the laws of the State of California that the 12 1 foregoing is true and correct. 2 13 Executed in San Francisco, Califomia on January 19, 2012. 14 1 15 Duffy