1 JASSY VICK CAROLAN LLP
2
3
4
5

JEAN-PAUL JASSY, Cal. Bar No. 205513
jpjassy@jassyvick.com
KEVIN L. VICK, Cal. Bar No. 220738
kvick@jassyvick.com
800 Wilshire Boulevard, Suite 800
Los Angeles, California 90017
Telephone:
310-870-7048
Facsimile:
310-870-7010

6 FIRST AMENDMENT COALITION
7
8
9
10

DAVID E. SNYDER, Cal. Bar No. 262001
dsnyder@firstamendmentcoalition.org
GLEN A. SMITH, Cal. Bar No. 106341
gmith@firstamendmentcoalition.org
534 4th Street, Suite B
San Rafael, California 94901-3334
Telephone: 415-460-5060
Facsimile: 415-460-5155

11
12 Attorneys for Petitioner

FIRST AMENDMENT COALITION

13
14

SUPERIOR COURT OF THE STATE OF CALIFORNIA

15

FOR THE COUNTY OF SAN DIEGO

16
17

FIRST AMENDMENT COALITION, a non18 profit organization,

19
20

Case No.
VERIFIED PETITION FOR WRIT OF
MANDATE ORDERING COMPLIANCE
WITH THE CALIFORNIA PUBLIC
RECORDS ACT AND ARTICLE 1,
SECTION 3(b) OF THE CALIFORNIA
CONSTITUTION; COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF; EXHIBITS 1-5

Petitioner/Plaintiff,
vs.

21
COUNTY OF SAN DIEGO, SUMMER
22 STEPHAN, in her official capacity as the
District Attorney for the County of San Diego,
23 and DOES 1-10,

24

Respondents/Defendants.

25
26
27
28
-1-

PETITION FOR WRIT OF MANDATE

 1
2

Petitioner First Amendment Coalition (“Petitioner”), a non-profit organization, petitions

3 the Court, through this Verified Petition for Writ of Mandate/Complaint, to command
4 Respondents/Defendants County of San Diego, Summer Stephan, in her official capacity as the
5 District Attorney for the County of San Diego and and Does 1-10 (the County, Stephan and Does
6 1-10 are sometimes referred to collectively herein as “Respondents”) to comply with the
7 California Public Records Act (“CPRA”), Government Code §§ 6250, et seq., and California
8 Constitution, Article 1, Section 3(b), and to declare that Respondents have failed to do so. By this
9 Verified Petition/Complaint Petitioner alleges:
INTRODUCTION

10
11

1.

The CPRA and California’s Constitution give the people a right to see the records

12 of California’s public agencies and officials. James Madison explained over 200 years ago that
13 public access to information about our government and the activities of our public officials is
14 fundamental to our democracy: “Knowledge will forever govern ignorance and a people who
15 mean to be their own governors must arm themselves with the power knowledge gives. A popular
16 government without popular information or the means of acquiring it, is but a prologue to a farce
17 or a tragedy or both.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 772 (1986).
18 Consistent with this principle, the California Legislature declared in the CPRA that “access to
19 information concerning the conduct of the people’s business is a fundamental and necessary right
20 of every person in this state.” Gov’t C. § 6250. In 2004, California voters added a provision to
21 California’s Constitution reinforcing the “right of access to information concerning the conduct of
22 the people’s business, and, therefore, … the writings of public officials and agencies shall be open
23 to public scrutiny.” Cal. Const., art. 1, § 3(b).
24

2.

Through this Verified Petition/Complaint, Petitioner seeks disclosure of public

25 records relating to sexual harassment and sexual misconduct claims made against employees of
26 the San Diego County District Attorney’s Office. Such records are of significant public interest,
27 as highlighted by the increased scrutiny paid to issues of sexual harassment and misconduct within
28 the past year as highlighted by the “#MeToo Movement”—a movement that has thrown into sharp
-2-

PETITION FOR WRIT OF MANDATE

 1 relief both the right of the public to know when the powerful abuse their authority, and the
2 salutary social benefits of such transparency. While public transparency and accountability are
3 important for all governmental agencies, the San Diego County District Attorney’s Office holds a
4 special place of public trust by nature of the great power the people of San Diego County have
5 granted it—the power to limit the physical liberty, and even lives, of those it prosecutes. The San
6 Diego District Attorney’s Office website notes that each year, its 300-plus prosecutors file
7 approximately 40,000 criminal cases on behalf of the County’s more than three million residents.
8 The office has enormous discretion to pursue criminal prosecutions, or not, and the people are
9 entitled to see and understand how the office investigates misconduct by those who carry out this
10 solemn mission – and to see how it punishes, or not, those who violate the rules and regulations of
11 the District Attorney’s Office, or the laws of the State of California.
12

3.

Petitioner brings this action because although the public has a right to know about

13 sexual harassment and sexual misconduct claims lodged against those employed by San Diego
14 County District Attorney’s Office, the County has refused to provide such public records in
15 violation of the CPRA and the California Constitution.
THE PARTIES

16
17

4.

Petitioner First Amendment Coalition, formerly known as the California First

18 Amendment Coalition, is a nonprofit public interest organization based in San Rafael, California
19 and incorporated under California’s nonprofit law and tax exempt under Section 501(c)(3) of the
20 Internal Revenue Code. The First Amendment Coalition is dedicated to advancing free speech,
21 more open and accountable government, and public participation in civic affairs, including by
22 protecting and promoting the “people’s right to know” about their government so that they may
23 hold it accountable. The First Amendment Coalition is supported mainly by grants from
24 foundations and individuals, but receives some of its funding from for-profit news media, law
25 firms organized as corporations and partnerships, and other for-profit companies.
26

5.

Respondent County of San Diego (the “County”) is a public agency and local

27 agency subject to, and obligated to comply with, the CPRA and Article 1, Section 3(b) of the
28 California Constitution. Respondent Summer Stephan, sued in her official capacity, is the duly
-3-

PETITION FOR WRIT OF MANDATE

 1 elected District Attorney for the County, and is responsible for the operations of the District
2 Attorney’s Office, including, upon information and belief, without limitation compliance with the
3 CPRA and Article 1, Section 3(b) of the California Constitution. The County Administration
4 Center is located at 1600 Pacific Highway, San Diego, CA 92101. The San Diego County District
5 Attorney’s Office is a department of the County, and its main offices are located at the Hall of
6 Justice, 330 W. Broadway, San Diego, CA 92101.
7

6.

The true names of Respondents named herein as Does 1 through 10, inclusive, are

8 sued in their official capacities and are presently unknown to Petitioner, which therefore sues such
9 Respondents by fictitious names. Petitioner will amend this Complaint to show the true names
10 and identities of these Respondents when they have been ascertained. Does 1-10 are responsible
11 for the denial of access to the requested records as alleged herein.
12

7.

Petitioner is informed and believes, and thereon alleges, that each Respondent

13 herein was the agent or employee of each of the other co-Respondents and, in doing the things
14 hereinafter alleged, was acting within the course and scope of such agency or employment and
15 with the permission and consent of their co-Respondents.
VENUE AND JURISDICTION

16
17

8.

The relief sought by Petitioner is expressly authorized under Government Code

18 §§ 6258 and 6259(a), Civil Procedure Code §§ 1060 and 1085, et seq. and Article 1, Section 3(b)
19 of the California Constitution. Venue is proper under Civil Procedure Code §§ 394 and 395 and
20 under Government Code § 6259(a). Petitioner is informed and believes that some or all of the
21 materials to which it seeks access are situated in San Diego County, and that the acts and events
22 giving rise to the claims, including the denial of access to public records, occurred in the County
23 of San Diego.
GENERAL ALLEGATIONS

24
25

9.

On April 5, 2018, David Snyder, the Executive Director of the First Amendment

26 Coalition, made a written CPRA request to Tanya Sierra, the Public Affairs Officer of the San
27 Diego County District Attorney’s Office (the “April 5, 2018 Request”). That request sought: “All
28 records relating to sexual misconduct and/or sexual harassment claims lodged against
-4-

PETITION FOR WRIT OF MANDATE

 1 employees of the San Diego County District Attorney’s office, including but not limited to
2 records of investigations and discipline decisions resulting from those claims since January
3 1, 2013.” (Bold emphasis in original). A true and correct copy of the April 5, 2018 Request is
4 attached hereto as Exhibit 1 and incorporated here as if set forth in full.
5

10.

Although the County was required to respond to the April 5, 2018 Request within

6 10 days pursuant to Government Code § 6253(c), i.e., by no later than April 15, 2018, the County
7 failed to provide a timely response, nor did the County timely grant itself an extension. The
8 County’s failure to abide by Government Code § 6253(c) constitutes a waiver any claimed
9 exemptions to the April 5, 2018 CPRA Request. In any event, no exemptions warrant the
10 wholesale or partial withholding of records subject to the April 5, 2018 Request.
11

11.

On April 20, 2018, Deputy District Attorney Elizabeth Renner replied to the April

12 5, 2018 Request. Although she claimed that Petitioner’s April 5, 2018 Request was “granted in
13 part and denied in part,” she and the County refused to produce any public records responsive to
14 the request. Instead, and contrary to the requirements of the CPRA, she provided brief two15 sentence narrative “summaries” of four incidents involving employees of the San Diego District
16 Attorney’s Office, but added that “[t]o the extent that there are responsive physical records
17 containing the same information already discussed, they will not be disclosed.” (Emphasis added.)
18 Moreover, the “summaries” provided by Deputy District Attorney Renner appear to be prepared
19 with an eye towards public relations, as they were prefaced with statements such as “none of the
20 claims resulted in monetary claims or awards.” Ms. Renner also identified and provided similarly
21 terse summaries of “two additional incidents” involving a District Attorney Investigator and a
22 Deputy District Attorney, but she again did not agree to produce any responsive public records
23 regarding those two incidents. Ms. Renner also claimed that the records sought were exempt from
24 disclosure under the CPRA. A true and correct copy of Deputy District Attorney Renner’s April
25 20, 2018 letter (the “April 20 Letter”) is attached hereto as Exhibit 2 and incorporated here as if
26 set forth in full.
27

12.

On April 25, 2018, the First Amendment Coalition’s David Snyder responded. He

28 objected to the County’s refusal to produce any responsive public records and provided legal
-5-

PETITION FOR WRIT OF MANDATE

 1 authorities supporting disclosure. He also added a Supplemental Request (the “April 25, 2018
2 Supplemental Request”) seeking: “(1) All records relating to the 2015 and 2016 incidents
3 described on page 3 of the April 20 Letter; and (2) Any and all writings, as that term is
4 defined under Cal. Gov. Code Section 6252(g), relating to complaints or allegations of sexual
5 misconduct, including but not limited to sexual harassment, against any employee of the San
6 Diego County District Attorney’s office, including but not limited to investigation reports,
7 interview statements, documentary evidence reviewed during any investigation by the San
8 Diego County DA’s office, notices to employees, correspondence to or from complainants
9 and discipline or action taken by San Diego County DA’s office in response to such
10 complaints or allegations. [E]ncompasses any and all writings (as defined above) created,
11 sent or received after January 1, 2013.” (Bold emphasis in original.) Mr. Snyder added:
12 “Please note that this request is not limited to ‘formal’ allegations or complaints--i.e., complaints
13 or allegations that have been processed through any HR department--but any and all investigations
14 into alleged, reported or suspected sexual misconduct and/or harassment.” A true and correct copy
15 of the April 25, 2018 letter, which includes the April 25, 2018 Supplemental Request, is attached
16 hereto as Exhibit 3 and incorporated here as if set forth in full.
17

13.

On May 4, 2018, Elizabeth Renner from the San Diego County District Attorney’s

18 Office responded to Mr. Snyder’s April 25, 2018 letter. While Ms. Renner provided some
19 additional information regarding the various incidents she had previously mentioned in her April
20 20, 2018, she again failed to agree to disclose any public records in response to the April 5, 2018
21 Request. She also refused to provide any public records in response to the first request in the April
22 25, 2018 Supplemental Request, and stated that the County needed more time to determine
23 whether there were any documents responsive to second request in the April 25, 2018
24 Supplemental Request. Ms. Renner also claimed that the records sought were exempt from
25 disclosure under the CPRA. A true and correct copy of Ms. Renner’s May 4, 2018 letter is
26 attached hereto as Exhibit 4 and incorporated here as if set forth in full.
27

14.

On June 5, 2018, Deputy District Attorney Renner sent another letter to Mr. Snyder

28 regarding request #2 from the April 25, 2018 Supplemental Request. Once again, Ms. Renner and
-6-

PETITION FOR WRIT OF MANDATE

 1 the County refused to produce any responsive records. Ms. Renner also claimed that the records
2 sought were exempt from disclosure under the CPRA. A true and correct copy of Ms. Renner’s
3 June 5, 2018 letter is attached hereto as Exhibit 5 and incorporated here as if set forth in full.
4

15.

To date, the First Amendment Coalition has received no records in response to

5 either the April 5, 2018 Request or the April 25, 2018 Supplemental Request.
6

16.

The delay and failure to produce any records responsive to the April 5, 2018

7 Request or the April 25, 2018 Supplemental Request are unlawful.
8
9

FIRST CAUSE OF ACTION

10

(Violation of The California Public Records Act, Cal. Gov’t C. §§ 6250, et seq.

11

against all Respondents)

12

17.

Petitioner realleges Paragraphs 1 through 16 above as though fully incorporated

18.

The April 5, 2018 Request and the April 25, 2018 Supplemental Request each

13 herein.
14

15 request public records as defined by the CPRA.
16

19.

Respondents violated the CPRA by failing to produce any records in response to

17 the April 5, 2018 Request or the April 25, 2018 Supplemental Request.
18

20.

There are no exemptions or exceptions to the CPRA that warrant withholding

19 materials sought by the April 5, 2018 Request or the April 25, 2018 Supplemental Request, in
20 whole or in part, and, even if there were – which Petitioner does not concede – such exemptions
21 and exceptions have been waived.
22

21.

An actual controversy exists as to whether the materials subject to the April 5, 2018

23 Request and the April 25, 2018 Supplemental Request must be disclosed, and whether those
24 records, or any part thereof, are exempt from disclosure. Petitioner is entitled to an order
25 declaring that it is entitled to materials sought by the April 5, 2018 Request and the April 25, 2018
26 Supplemental Request, and that such materials must be made available to Petitioner and the public
27 immediately.
28

22.

Under Government Code § 6258, Petitioner also is entitled to institute proceedings

-7-

PETITION FOR WRIT OF MANDATE

 1 for a writ of mandate to enforce its rights and the public’s right to obtain materials responsive to
2 the April 5, 2018 Request and the April 25, 2018 Supplemental Request. Furthermore, under
3 Government Code § 6258, Petitioner is entitled to have the proceedings resolved on an expedited
4 basis consistent “with the object of securing a decision as to these matters at the earliest possible
5 time.” Gov’t C. § 6258.
6
7

SECOND CAUSE OF ACTION

8

(Violation of Article 1, Section 3(b) of the California Constitution against all Respondents)

9

23.

Petitioner realleges Paragraphs 1 through 22 above as though fully incorporated

24.

Article 1, Section 3(b) of the California Constitution, passed by an overwhelming

10 herein.
11

12 majority of voters in November 2004, reflects a paramount public interest in access to information
13 about how the government is conducting the people’s business.
14

25.

This constitutional amendment expressly requires that any statute, court rule or

15 other authority must be broadly construed if it furthers the public’s right of access and narrowly
16 construed if it limits the right of access. Cal. Const., art. 1, § 3(b)(2).
17

26.

The materials sought by the April 5, 2018 Request and the April 25, 2018

18 Supplemental Request are clearly encompassed within these constitutional mandates regarding the
19 public’s right of access to writings of public officials and agencies.
20

27.

Respondents have violated the mandates of Article 1, Section 3(b) of the California

21 Constitution by failing to promptly disclose materials responsive to the April 5, 2018 Request and
22 the April 25, 2018 Supplemental Request.
23

28.

An actual controversy exists as to whether the materials responsive to the April 5,

24 2018 Request and the April 25, 2018 Supplemental Request must be disclosed and whether those
25 records are exempt from disclosure. Petitioner is entitled to an order declaring that it is entitled to
26 materials sought by the April 5, 2018 Request and the April 25, 2018 Supplemental Request, and
27 that such materials must be made available to Petitioner and the public immediately.
28

29.

Petitioner is also entitled to institute proceedings for a writ of mandate to enforce

-8-

PETITION FOR WRIT OF MANDATE

 1 its and the public’s rights to obtain materials responsive to the April 5, 2018 Request and the April
2 25, 2018 Supplemental Request.
3
PRAYER FOR RELIEF

4
5

Therefore, Petitioner First Amendment Coalition prays for writ relief and judgment as

6 follows:
7

1.

That this Court issue a peremptory writ of mandate or other order under the seal of

8 this Court, directing Respondents to immediately disclose to Petitioner the requested materials at
9 issue currently being withheld; or, alternatively, that this Court immediately issue an alternative
10 writ of mandate or order to show cause under the seal of this Court, setting a hearing on this
11 matter as early as possible, preceded by an in camera review of the withheld materials at issue or a
12 representative sample thereof, and directing Respondents, to show cause why they should not
13 immediately provide the requested materials, and thereafter issue a writ of mandate or other order
14 under the seal of this Court, directing Respondents to immediately disclose to Petitioner the
15 requested materials at issue currently being withheld. See Gov’t C. §§ 6258, 6259(a); Haynie v.
16 Superior Court, 26 Cal. 4th 1061, 1073 (2001).
17

2.

That this Court issue a declaration that the withheld materials are public records as

18 defined by California Government Code § 6252(e) in that they contain information relating to the
19 conduct of the people’s business, prepared, owned, used or retained by Respondents and that
20 Respondents violated the Public Records Act by failing to promptly make the materials available
21 to Petitioner and the public.
22

3.

That this Court issue a declaration that the withheld materials are writings of public

23 officials and agencies as set forth in Article 1, Section 3(b)(1) of the California Constitution and
24 that Respondents violated the California Constitution by failing to promptly make the writings
25 available to Petitioner and the public.
26

5.

The Court enter an order awarding costs and attorneys’ fees incurred in this action

27 pursuant, inter alia, to California Government Code § 6259 and/or California Code of Civil
28 Procedure §§ 1021.5, 1032, 1033.5, and any other applicable law, in addition to any other relief
-9-

PETITION FOR WRIT OF MANDATE

 

granted.

6. The Court award Petitioner such other and further relief as is just and proper.

Dated: July 26, 2018

Dated: July 26, 2018

JASSY VICK CAROLAN LLP

By 

 

JEAN-PAUL JASSY
KEVIN VICK

Attorneys for Petitioner/Plaintiff
FIRST AMENDMENT COALITION

FIRST AMENDMENT COALITION

 

 


DA . NYDER

GL SMITH

Attorneys fOr Petitioner/Plaintiff
IRST AMENDMENT COALITION

- 10- PETITION son WRIT or 

 



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VERIFICATION
I, David Snyder,tl_o hereby certify and declare as follows:
i. - I am the Executive Director of the First Amendment Coalition. I made the requests
fot recordsand materials at issue in this matter.
2. I hate read the FOR WRIT OF MAN DATE
ORDERING COMPLIANCE WITH THE CALIFORNIA PUBLIC RECORDS ACT AND
ARTICLE 1, SECTION 3(5) OF THE CALIFORNIA COMPLAINT
FOR DECLARATORY AND INJUNCTIVE EXHIBITS LS and know the contents

thereof and I verify that the same is true of my own personal knowledge, except as to those

matters therein stated rupon information and belief and as to those matters I believe them to be true.
I declare under penalty Of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed in WB 04? on July Z93, 2018.

 

 

-1 1.. PETITION FOR WRIT OF MANDATE

 

 

Exhibit 1

April 5, 2018
Phone: 510-594-2600

Tanya Sierra
Public Affairs Officer
San Diego County District Attorney’s Office
tanya.sierra@sdcda.org
Sent via Email
Dear Ms. Sierra:
On behalf of the First Amendment Coalition (“FAC”), I hereby request the records set
forth below. This request is submitted pursuant to the California Public Records Act
(“CPRA”), Gov. Code sec. 6250 et seq.; the California Constitution, Article I, section 3;
and FAC’s rights of access under California common law.
FAC requests the following records:
All records relating to sexual misconduct and/or sexual harassment claims
lodged against employees of the San Diego County District Attorney’s office,
including but not limited to records of investigations and discipline decisions
resulting from those claims since January 1, 2013.
When charges or complaints of wrongdoing are made regarding ordinary public
employees, the right of access to public records requires disclosure of all “well-founded”
complaints, the information upon which they are based, and any discipline imposed.
(American Federation of State, County and Municipal Employees, et al. v. Regents of
University of California (1978) 80 Cal.App.3d 913, 917; Bakersfield City School District
v. Superior Court (2004) 118 Cal.App.4th 1041, 1046.) Moreover, in the case of higherranking public employees, disclosure of an investigation into misconduct is required
even if the charges are found not to be reliable and the official is exonerated. (BRV,
Inc. v. Superior Court (2006) 143 Cal. App. 4th 742, 759.)
FAC acknowledges that records relating to misconduct of sworn peace officers may be
subject to withholding under the CPRA. However, there are many employees of DA’s
office, including Assistant and/or Deputy DA’s, who are not peace officers. The DA’s
office must produce responsive records as to such employees. (See, e.g., Bakersfield,

 118 Cal.App.4th 1041; BRV, 143 Cal. App. 4th 742.)
If any portion of the records requested is exempt from disclosure by express provisions
of law, Government Code Section 6253(a) requires segregation and redaction of that
material in order that the remainder of the information may be released. If you believe
that any express provision of law exists to exempt from disclosure all or a portion of the
records FAC has requested, you must notify FAC of the reasons for the determination
not later than 10 days from your receipt of this request letter. (Cal. Gov’t. Code §
6253(c).) Any response to this request that includes a determination that the request is
denied, in whole or in part, must be in writing. (Cal. Gov’t. Code § 6255(b).)
Gov’t. Code section 6253(d) prohibits the use of the 10-day period, or any provisions of
the CPRA or any other law, “to delay access for purposes of inspecting public records.”
In addressing this request, please keep in mind that the California Constitution
expressly requires you to broadly construe all provisions that further the public’s right of
access, and to apply any limitations on access as narrowly as possible. Cal. Const.,
Art. 1, sec. 3(b)(2). The CPRA recognizes “no limitations on access to a public record
based upon the purpose for which the record is being requested, if the record is
otherwise subject to disclosure.” (Cal. Gov’t Code § 6257.5.)
Please send all responses to my email address below. Please contact me to obtain
my consent before incurring copying costs, chargeable to FAC, in excess of $100.
Thank you for your timely attention to this request.

Sincerely,
David Snyder
Executive Director
First Amendment Coalition
dsnyder@firstamendmentcoalition.org
415-460-5060

 Exhibit 2

OFFICE OF
JESUS RODRIGUEZ
ASSISTANT DISTRICT ATTORNEY

THE DISTRICT ATTORNEY
COUNTY OF SAN DIEGO
SUMMER STEPHAN

San Diego
330 West Broadway
San Diego, CA 92101
(619) 531-4040
http://www sandiegoda com

DISTRICT ATTORNEY

April 20, 2018
David Snyder
Executive Director
First Amendment Coalition
dsnyder@firstamendmentcoalition.org
Re: California Public Records Act (CPRA) Request, DA # 18-52
Dear Mr. Snyder,
I am a designated custodian of records for the Office of the San Diego County
District Attorney (SDCDA), and I am in receipt of your California Public Records Act
(CPRA) request. In your email, you stated that you seek:
“All records relating to sexual misconduct and/or sexual harassment claims lodged
against employees of the San Diego County District Attorney’s office, including but
not limited to records of investigations and discipline decisions resulting from those
claims since January 1, 2013.”
Government Code section 6254, subdivision (c) creates a CPRA exemption for
personnel, medical, or similar files, the disclosure of which would constitute an
unwarranted invasion of personal privacy. However, the CPRA supports disclosure
relating to a public employee’s wrongdoing under certain circumstances. (American
Federation of State etc. Employees v. Regents of University of California (1978) 80
Cal.App.3d 913, 918; Bakersfield City School District v. Superior Court (2004) 118
Cal.App.4th 1041, 1045-1046; and the authorities discussed further below.)
Therefore, your request is granted in part and denied in part. I have conducted a
reasonable search of our records and have identified the following four incidents as being
responsive to your request. None of the following four incidents involved Deputy
District Attorneys, District Attorney Investigators, or management. Further, none of the
claims resulted in monetary claims or awards.
• In 2013, a male staff supervisor made verbal statements to a female subordinate of
a sexual nature. The male employee resigned prior to discipline being imposed.
1

 • In 2016, a male staff supervisor commented on the propriety of a female
subordinate’s work attire and body, and made an inappropriate joke to the female
employee. The male employee was disciplined.
• In 2016, a male employee, in a non-supervisorial position, made a genderoffensive comment to a female co-worker after she received a promotion. The
male employee was disciplined.
• In 2017, a male staff supervisor made comments of a sexual nature to a female
subordinate and made unwelcome physical contact with the employee’s hair. The
male employee was disciplined.
To the extent that there are responsive physical records containing the same
information already discussed, they will not be disclosed. Employees have a significant
privacy interest in their personnel files, and the invasion of that privacy interest must be
balanced against competing public policy interests. (Marken v. Santa Monica-Malibu
Unified School Dist. (2012) 202 Cal.App.4th 1250, 1270.) Although the public has a
legitimate interest in how the SDCDA enforces its sexual harassment policy, the internal
staff employees in the above-mentioned incidents do not occupy positions of such public
trust and responsibility that the CPRA mandates the disclosure of their identities and
disciplinary records. (See Marken, supra, 202 Cal.App.4th at pp. 1275-1276.)
Therefore, a summarization of the incidents that provides information as to how the
SDCDA enforces its sexual harassment policy meets the disclosure requirements of the
CPRA. Also, the identities of any complaining individuals will not be provided, as such
knowledge does not further the public’s interest or provide information as to how the
SDCDA responded to complaints. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th
742, 759.)
Further, as you acknowledge in your request, a different analysis applies to
personnel records of sworn peace officers, such as District Attorney Investigators,
employed by the SDCDA. (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272,
1284-1286; Commission on Peace Officer Standards and Training v. Superior Court
(2007) 42 Cal.4th 278, 286, 289; Pen. Code §§ 832.5, 832.7.) Accordingly, peace officer
personnel records that may include information such as discipline records, complaints, or
investigations of complaints, are exempt from disclosure under the CPRA and cannot be
provided. (Commission on Peace Officer Standards, supra, 42 Cal.4th at pp. 289-290;
Gov. Code, § 6254, subd. (k).)
Finally, there are two additional incidents that fall outside the scope of your
request but are included because they were previously reported in the media and are
public information.

2

 • In 2015, a District Attorney Investigator made unwelcome physical contact with a
female co-worker after work hours at a non-work location. The District Attorney
Investigator was suspended and transferred to a different location. The disciplinary
information was previously made public by this Office with the Investigator’s
consent.
• In 2016, it was reported that a Deputy District Attorney took explicit photos in his
office and sent text messages and photos during work hours. Although there was
no sexual harassment or misconduct complaint, an investigation was
conducted. The Deputy District Attorney resigned prior to discipline being
imposed.

Please let me know if you have any further questions.
Sincerely,

Elizabeth Renner
Deputy District Attorney

3

 Exhibit 3

April 25, 2018
Phone: 510-594-2600

Elizabeth Renner
Deputy District Attorney
San Diego County District Attorney’s Office
330 West Broadway
San Diego, CA 92101
Elizabeth.Renner@sdcda.org
Sent via Email
Dear Ms. Renner:
This letter responds to your letter of April 20, 2018 (the April 20 Letter), which in turn
responded to the California Public Records Act (CPRA) request I submitted on behalf of
the First Amendment Coalition (FAC) on April 5, 2018.
This letter also supplements FAC’s April 5 request as set forth below.
The April 20 Letter states that “[t]o the extent there are responsive physical records”
relating to the four incidents described in that letter, “they will not be disclosed.” This is
contrary to clear CPRA authority requiring the disclosure records relating to allegations
of misconduct. (See, e.g., AFSCME v. Regents of Univ. of Calif. (1979) 80 Cal.App.3d
913, 918.)
Thus, it is insufficient under California law for the San Diego County District Attorney
(DA) to disclose only select, prepared summaries about instances where discipline was
imposed as a result of complaints or allegations of sexual harassment or misconduct.
The records themselves must be disclosed. Please do so promptly.
The April 20 Letter also states that the DA will not disclose “the identities or disciplinary
records” of the employees accused in the incidents described, because those
employees “do not occupy positions of such public trust and responsibility that the
CPRA mandates the disclosure of their identities and disciplinary records.” Here too the
DA’s position is contrary to California law. As held in cases including Bakersfield City
School District v. Superior Court (2004) 118 Cal.App.4th 1041 and AFSCME, supra, 80
Cal.App.3d 913, records relating to all “well-founded” complaints, the information upon

 which they are based, and any discipline imposed, must be produced -- irrespective of
whether whether employees are high-ranking or not. (Compare BRV, Inc. v. Superior
Court (2006) 143 Cal. App. 4th 742, 759 [distinguishing higher-ranking public
employees on the basis that disclosure of an investigation into misconduct is required
even if the charges are found not to be reliable and the official is exonerated].)
The above-noted authorities regarding complaints of misconduct hold that the privacy
exemption under Gov. Code section 6254(c) gives way to the public interest in
disclosure where complaints or allegations are “well founded.” Thus, the names of such
employees must be disclosed.
Please disclose all records relating to the incidents described in the April 20 Letter,
including the identities of those accused and/or disciplined. If FAC does not hear back
from you by Wed., May 2, 2018, we will be forced to consider enforcing the public’s
right of access in court.
Finally, the April 20 Letter notes two additional incidents involving a District Attorney
Investigator and a Deputy District Attorney, and states that these incidents “fall outside
the scope of [FAC’s] request.” It is not clear why the DA believes these incidents fall
outside the scope of FAC’s April 5 request, or whether the DA is withholding other
records relating to allegations or complaints of sexual misconduct by Deputy District
Attorneys or District Attorney Investigators.
The DA is required to state whether it has responsive records and, if it is withholding
those records, note that it is doing so and provide a basis for withholding them. (Gov.
Code 6253(c).) Thus, please state whether there are other records relating to sexual
misconduct or harassment allegations and Deputy District Attorneys or District Attorney
Investigators, and please produce such records or, if you believe they are subject to any
exemption under the CPRA, please provide the legal basis for withholding under that
exemption.
Although we believe that the incidents described at page 3 of the April 20 Letter fall
within the records FAC initially requested, we hereby supplement our request as
follows:
Supplemental Request
(1) All records relating to the 2015 and 2016 incidents described on page 3 of
the April 20 Letter;

 (2) Any and all writings, as that term is defined under Cal. Gov. Code Section
6252(g), relating to complaints or allegations of sexual misconduct,
including but not limited to sexual harassment, against any employee of
the San Diego County District Attorney’s office, including but not limited to
investigation reports, interview statements, documentary evidence
reviewed during any investigation by the San Diego County DA’s office,
notices to employee, correspondence to or from complainants and
discipline or action taken by San Diego County DA’s office in response to
such complaints or allegations. encompasses any and all writings (as
defined above) created, sent or received after January 1, 2013.
Please note that this request is not limited to “formal” allegations or
complaints--i.e., complaints or allegations that have been processed
through any HR department--but any and all investigations into alleged,
reported or suspected sexual misconduct and/or harassment.

Please send all responses to my email address below.
Thank you for your timely attention.
Sincerely,

David Snyder
Executive Director
First Amendment Coalition
dsnyder@firstamendmentcoalition.org
415-460-5060
Cc: Tanya Sierra, tanya.sierra@sdcda.org

 Exhibit 4

OFFICE OF

Sa Di
THE DISTRICT ATTORNEY 
San Diego, CA 9210]
COUNTY OF SAN DIEGO (619, 531-4040
STEPH AN sandiegodacom

DISTRICT ATTORNEY

May 4, 2018

Mr. David Snyder

Executive Director

First Amendment Coalition


Re: California Public Records Act (CPRA) Request, DA 18-52
Dear Mr. Snyder,

This letter responds to your communication on April 25, 2018, seeking records of
discipline resulting from complaints or allegations of sexual harassment or misconduct
made against employees of the San Diego County District Attorney?s Of?ce (hereafter
or ?this Of?ce?). Speci?cally, you state that the ?the names of such
employees must be disclosed.?

This Of?ce appreciates and understands the importance of transparency to public
awareness of how the government is conducting its business, how the government is
handling important issues such as sex harassment and misconduct in the workplace, and
to government accountability in general. We are also certain that the First Amendment
Coalition appreciates and understands the quite substantial interest of individual
employees in their own privacy. This is especially true where there is no compelling
public interest in publicizing the personal identities of those involved such as there might
be when the persons involved are in positions of public interaction, trust and
responsibility. The individual right to privacy must prevail where personal identities do
nothing to further illuminate the government conduct at issue.

Your request for the records and names of employees is therefore denied, because
internal staff employees have a greater expectation of privacy in their personnel ?les than
more public ?gures, and the harm to their privacy interests outweighs the public interest
in disclosure. However, in the interest of transparency, this Of?ce is providing additional
detail about the incidents.

Government Code section 6254, subdivision creates a CPRA exemption for
personnel, medical, or similar ?les, the disclosure of which would constitute an
unwarranted invasion of personal privacy.

A three-prong analysis determines whether a disclosure constitutes an
?unwarranted invasion of personal privacy? with respect to the CPRA. (Versaci v.
Superior Court (2005) 127 Cal.App.4th 805, 818 (Versaci). First, a court must determine
whether the records sought constitute a personnel ?le; second, whether disclosure of
those records would compromise substantial privacy interests; and ?nally, whether the
potential harm to privacy interests from disclosure outweighs public interest in
disclosure. (Id. at pp. 818-819.)

Applying the test in Versaci to your request, as to the ?rst prong, the SDCDA does
not dispute that any records of sexual harassment complaints and subsequent discipline
are personnel records.

As to the second prong, disclosure of the names and records relating to the
discipline of internal staff employees would compromise their substantial privacy
interests because they have a higher expectation of privacy in their personnel records than
public of?cials. Employees have a legally protected interest in their personnel ?les.
(BRV: Inc. Superior Court (2006) 143 Cal.App.4th 742, 756 (BR Further, the
expectation of privacy can vary based on the status of the public of?cial. (Id. at p. 758.)
In BRV, a school district?s board of education hired an investigator to prepare a report
analyzing allegations of verbal abuse of students and sexual harassment of female
students by the district?s superintendent. (Id. at p. 747.) After receiving the full report,
the board of education entered into an agreement with the superintendent accepting his
resignation in exchange for terms of payment and a promise to keep the report
con?dential. (Ibid.) The court of appeal found that under United States Supreme Court
precedent, a public of?cial in the position of a school superintendent has a signi?cantly
reduced expectation of privacy in the matters of his public employment. (BRV: supra, at
p. 758, citing New York Times Co. v. Sullivan (1964) 376 US. 254, 270.)

Because of the superintendent?s position of authority as a public of?cial and the
public nature of the allegations, the court of appeal found that the public?s interest in
disclosure outweighed his interest in preventing disclosure of the investigatory report.
(BR V, supra, at p. 759.) The court of appeal also found the superintendent?s status as a
public of?cial relevant to two additional points: ?rst, the court applied a lesser standard
of reliability for complaints against public of?cials than for persons who are not public
of?cials, and second, there is less relevance in knowing the identities of the persons who
are not public of?cials. Speci?cally, the court stated:

?We note, however, that the public's interest in viewing the [investigatory] report
is not furthered by knowing the identities of any of the students, parents, staff
members, or faculty members interviewed or mentioned in the report. Nothing in
the record indicates these persons are public of?cials such as [the superintendent].
Knowing their identities does not help the public understand how the Board

2

responded to the allegations involving [the superintendent]. We will thus direct
that names, home addresses, phone numbers, and job titles for such persons be
redacted before the report is released.? (BR V, supra, 143 Cal.App.4th at p. 759.)

Although a subsequent court of appeal decision disclosed investigatory reports
related to a non-public-of?cial teacher employee, that decision still took into
consideration the special position of public trust and responsibility that teachers hold, and
is distinguishable because the teacher had a lesser expectation of privacy in his personnel
?le. (Marken v. Santa Monica-Malibu Uni?ed School District (2012) 202 Cal.App.4th
1250, 1275 (Marken).)

In Marken, a student complained to a principal about harassing conduct by one of
her teachers. (Marken, supra, 202 Cal.App.4th at p. 1255.) The principal then reported
the matter to the school district, which then retained an attorney to independently
investigate the matter in accordance with district policy while the teacher was placed on
home assignment. (Ibid.) Based on the investigation report, the district issued a written
reprimand ?nding that the teacher violated the district?s board policy prohibiting sexual
harassment of students. The letter of reprimand also stated that a report of the matter
had been made to law enforcement as required by school district policy. (Id. at p. 1256.)
The court in Marken ordered disclosure of the investigation report and disciplinary
record. (Id. at p. 1276.) In Marken, the teacher therefore had a lesser expectation of
privacy with regards to sustained ?ndings of sexual harassment because district policy
required a report to law enforcement.

Accordingly, because the internal employees of the District Attomey?s of?ce are
not public ?gures, they have a higher expectation of privacy in their personnel ?les.
Unlike BR V, the internal employees mentioned here are not public of?cials and the
allegations against them are not public. Unlike Marken, here there is no requirement for
disclosure to law enforcement in the case of a sustained ?nding of sexual harassment,
Whereas it is appropriate in the case of a teacher working closely with minor children.
Therefore, any balancing test must consider the higher expectation of privacy held by
these employees.

The ?nal prong is balancing the above-mentioned privacy interests implicated
against any public interest in their disclosure. Fundamentally, the strength of the public
interest depends on the extent to which disclosure of the requested item or information
will shed light on the public agency?s performance of its duty. (Versaci, supra, 127
Cal.App.4th at p. 820.) In determining the weight of a public interest in a given case, as a
threshold matter, the weight of that interest is proportionate to the gravity of the
governmental tasks sought to be illuminated and the directness with which the disclosure
will serve to illuminate. (Los Angeles Unified School District v. Superior Court (2014)
228 Cal.App.4th 222, 242.)

A line of cases addresses that balancing test after ?ndings of misconduct;
however, they present different factual circumstances than the incidents responsive to
your request and therefore the results of applying the balancing test are different.

The ?rst case is American Federation of State etc. Employees v. Regents of
University of California (1978) 80 Cal.App.3d 913, 916 (AFSE). In AFSE, after an
employee reported ?nancial irregularities, the university?s chancellor ordered an ?audit
investigation? that produced a voluminous ?audit report.? The court of appeal ordered
disclosure of portions of an audit report about ?nancial irregularity that it determined to
be substantial in nature. (Id. at pp. 918-919.) In formulating the balancing test, the court
of appeal quoted an analogous case, Chronicle Pub. Co. v. Superior Court (1978) 54
Cal.2d 548, 575, stating:

?[W]here charges are found true, or discipline is imposed, the strong public policy
against disclosure vanishes; this is true even where the sanction is a private
reproval. In such cases a member of the public is entitled to information about the
complaint, the discipline, and the ?information upon which it was based.?
[Citations] (AFSE, supra, 80 Cal.App.3d at p. 918.)

Although the court in AFSE mandated disclosure and provided portions of a
report, it did not mandate the production of records, but rather ?information about the
complaint, the discipline, and the information upon which it was based.?

Three subsequent cases, all discussing misconduct allegations against school
district employees, emerged. In Bakers?eld City School Dist. v. Superior Court (2004)
118 Cal.App.4th 1041, 1043-1044 (Bakers?eld), the trial court reviewed unspeci?ed
documents from a, school district employee?s personnel ?le and ordered disclosure of
documents related to ?sexual type conduct, threats of violence and violence? although it
made no ?ndings concerning the truth of the allegations. The court of appeal upheld the
disclosure, applying the AFSE balancing test and holding that disclosure under the CPRA
does not require a prerequisite ?nding that the allegations are true. (Id. at p. 1047.)

In BR V, mentioned above, the school district?s board of education hired an
investigator to prepare a report analyzing allegations of verbal abuse of students and
sexual harassment of female students by the district?s superintendent. (BRV, supra, 143
Cal.App.4th at p. 747.) The court of appeal in BRVordered disclosure of the 257-page
investigatory report in its entirety, with redactions of the names of all persons mentioned
except for superintendent. (Id. at p. 760.)

Finally, in Marken, mentioned above, the school district retained an attorney to
independently investigate allegations of sexual harassment in accordance with district
policy. (Marken, supra, 202 Cal.App.4th at p. 1255.) In applying the balancing test, the

court stated:

?To be sure, [the teacher] may not be a ?high pro?le public of?cial, as was the
school district superintendent involved in BR [citation], but the court in BR 
found that designation relevant only to determine when accusations of misconduct
against a public of?cial, even if not well founded, might nonetheless be subject to
disclosure. [Citation] And it is also true the charges against [the teacher] did not
involved allegations of violence or sexual abuse, as was the case in Bakers?eld
[citation]. But [the teacher] occupies a position of trust and responsibility as a
classroom teacher, and the public has a legitimate interest in knowing Whether and
how the District enforces its sexual harassment policy. [Citation.]? (Marken,
supra, 202 Cal.App.4th at p. 1275.)

As noted earlier, your request seeks personnel record information under factual
circumstances that are distinguishable from Bakers?eld, BR V, and Marken. The core
purpose of a school district is the education of children, which will necessitate a different
balancing test than that for internal staff employees of this Of?ce. Misconduct of
teachers and school district employees in relation to students is directly related to the
school district?s performance of its duty, whereas this Of?ce is charged with the
prosecution of crimes. Even in Markers, the court of appeals noted that the balancing test
considered the teacher?s position of trust and responsibility, a position that is different
than this Of?ce?s internal staff. Therefore, the facts here yield a different result when the
balancing test from this line of cases is applied.

As addressed in our previous communication, there is, however, a legitimate
public interest in knowing how this Of?ce, as a public agency, addresses sustained
?ndings of misconduct. Balancing the increased expectation of privacy of our internal
employees, mentioned above, with that public interest, we disclosed summaries of the
events and noted that disciplinary action was taken. In your response, you stated that ?it
is insuf?cient under California law for the San Diego County District Attorney (DA) to
disclose only select, prepared summaries about instances where discipline was imposed
as a result of complaints or allegations of sexual harassment or misconduct.? You then
requested the records.

Your statement is incorrect. AFSE, mentioned above, requires disclosure of
information about the complaint, the discipline, and the information upon which it was
based. It does not require disclosure of records. In AFSE, although portions of the audit
report of ?nancial irregularities was disclosed, the factual scenario is distinguishable
from your request. Misconduct relating to the handling of the public?s money is subject
to a much higher public interest than the internal discipline of this Of?ce?s staff.

Further, ?the public interest in ef?cient and lawful personnel management by
government agencies is better served by disclosure of general agency performance rather

5

than by speci?c revelation of individual problems. . .Practically no public interest is
advanced by disclosure of the latter.? (Braun v. City of Taft (1984) 154 Cal.App.3d 332,
343, citing Campbell v. United States Civil Service Commission (1976) 539 F.2d 58, 62.)

As such, our previous disclosures were suf?cient. However, in the interest of
transparency, we are providing the following additional details about the previous four
incidents disclosed. As set forth in my earlier response, none of the following four
incidents involved Deputy District Attorneys, District Attorney Investigators, or
management. Further, none of the claims resulted in monetary claims or awards:

0 In 2013, a male staff supervisor made verbal statements to a female subordinate of
a sexual nature. The male employee resigned prior to discipline being imposed.

The retention policy requires that employee ?les be kept for three years
after an employee terminates service. This Of?ce has not located ?nal records for
this incident. The summary provided above was based on the recollection of an
individual familiar with the matter. Note that the CPRA applies to existing
records, and does not require a public agency to create a record that does not exist.
(Gov. Code, 6252, subds. In the interest of transparency, the above
information was provided.

Although a draft disciplinary letter and notice were located relating to this
incident, those drafts are exempt from disclosure because they fall within the
deliberative process exemption. This exemption generally involves a right to
exempt records that would reveal the deliberative processes of elected members,
of?cers, or employees of a government agency. This exemption protects candid
discussion within the of?ce. (Gov. Code, 6255, subd. see California First
Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 166 (Cal.

irst).) Additionally, ?[p]reliminary drafts, notes, or interagency or intra-agency
memoranda? not retained in the ordinary course of business are exempt. (Gov.
Code, 6254, subd. 

Because the draft documents in this case are unsigned by any employee and
contain no speci?c details about the incident, this Of?ce cannot determine their
veracity or accuracy. Therefore, to provide them could potentially cause the
release of misinformation to the public. As such, they are exempt from disclosure.

0 On February 18, 2016, a female employee who had been promoted reported that a
male employee was upset about not being promoted. The male employee told the
female employee that he was happy for her, that she was pretty, and had a nice
personality. He also said, ?Maybe I should grow a pair of boobs?? in reference to

6

the female employee?s promotion and gestured with his hands to appear as if he
was holding a pair of breasts. After meeting with all parties, the male employee
was verbally disciplined, and the matter was closed on March 4, 2016.

Although a substantiated complaint, this incident differs from the line of
disciplinary cases mentioned above in that there was no formal, written report to
be disclosed, just internal communications between employees regarding the
complaint and the subsequent discipline. In order to protect the candid discussion
of such matters between employees, we incorporate the references to the
deliberative process exemption as stated above.

On May 31, 2016, the Human Resources Department received a report of sexual
harassment. During a performance review in January 2016, a male supervisor
made a comment about a female employee?s work attire that speci?cally
referenced her body. The male supervisor also commented about clothing the
female had worn the prior week. In May of 2016, at an on-site gathering of
coworkers, the male supervisor made an inappropriate joke about the female
employee. On June 9, 2016, the male supervisor was disciplined with a written
warning.

The public?s interest is not furthered by a disclosure of the male supervisor?s name
or the written warning. In addition to the legal exemptions mentioned above,
disclosing further details would cause a chilling effect on reporting of future
sexual harassment incidents because complaining employees would know that the
information they provide is subject to public disclosure. Given the nature of the
written warning, the complaining employee can be identi?ed by the details
provided, even with the redaction of her name. Other coworkers were present at
one incident and would therefore know the complaining employee?s identity if the
speci?cs are made public. This, in turn, would cause embarrassment to the
complaining employee. Any public interest in the knowledge of the male
supervisor?s identity would therefore be outweighed by this Of?ce?s interest in
protecting the identity of the complaining employee.

Further, preliminary notes, communications between employees, and interviews
relating to this incident are exempt under the deliberative process exemption,
incorporated by reference above. The Human Resources Department interviewed
other individuals relating to this incident, and the disclosure of their
communications, even with redaction, could have a potential chilling effect on
future Witness cooperation within this Of?ce. Further, the disciplined employee
may not have known the identities of persons contacted by the Human Resources

7

Department. Therefore, the investigatory tactics of the Human Resources
Department, its subsequent evaluation of the evidence, and the formulation of a
disciplinary plan are exempt from disclosure.

0 On May 1, 2017, a female employee reported that her male supervisor tugged on
her ponytail whenever she was wearing one, made a derogatory comment about a
group of people based on sexual orientation, commented ?if she was my wife, I
wouldn?t let her get out of bed? whenever he saw an attractive woman, mentioned
that he would get slapped (with sexual overtones) and, when showing the female
employee a picture of another female, stated ?why doesn?t she just send me
nudes?? On May 10, 2017, the supervisor was disciplined with a written warning.

The public?s interest is not furthered by a disclosure of the male supervisor?s name
or the written warning. In addition to the legal exemptions mentioned above,
providing additional detail could potentially identify the complaining employee
and have a chilling effect on future reporting. Therefore, the public?s interest in
knowing the male supervisor?s name does not outweigh this Of?ce?s interest in
protecting the identity of the complaining employee.

Further, preliminary notes, communications between employees, and interviews
relating to this incident are exempt under the deliberative process exemption,
incorporated by reference above. As mentioned above, the Human Resources
Department contacted individuals about these incidents and the investigatory
tactics, evaluation of the information received, and the identities of any witnesses
is protected under deliberative process.

Finally, you submitted an expanded request for the following information:

1) All records relating to the 2015 and 2016 incidents described on page 3 of the
April 20 letter;

Response:

As to the 2015 incident involving the District Attorney Investigator, any
responsive records cannot be disclosed. Personnel records of sworn peace of?cers
employed by the SDCDA are exempt from production under the CPRA. (Copley
Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1284?1286; Commission on
Peace O?icer Standards and Training v. Superior Court (2007) 42 Cal.4th 278,
286, 289; Pen. Code 832.5, 832.7.) Accordingly, peace of?cer personnel
records that may include information such as discipline records, complaints, or

8

2)

investigations of complaints, are exempt from disclosure under the CPRA and
cannot be provided. (Commission on Peace Officer Standards, supra, 42 Cal.4th
at p. 289-290; Gov. Code, ?6254, subd. 

Although the Investigator previously consented to the limited disclosure of the fact
and nature of the discipline that he received, he did not consent to the disclosure of
any underlying records. Therefore, there are no additional records this Of?ce can
provide.

For the 2016 incident, which is the only incident involving a Deputy District
Attorney, pursuant to Government Code section 6253, subdivision 
additional time is needed to extract and examine multiple individual documents
from voluminous records to determine which records, if any, are responsive to
your request and not exempt from disclosure under the CPRA. You should
receive a determination of your request no later than May 18, 2018.

Any and all writings relating to complaints or allegations of sexual misconduct,
including but not limited to sexual harassment, against any employee of the San
Diego County District Attorney?s Of?ce, including but not limited to investigation
reports, interview statements, documentary evidence reviewed during any
investigation by the San Diego County of?ce, notices to employee,
correspondence to or from complainants and discipline or action taken by San
Diego County of?ce. The date range encompasses all writings created, sent
or received after January 1, 2013.

You further speci?ed that your request was not limited to ?formal? allegations or
complaints, but any and all investigations into alleged reported or suspected sexual
misconduct and/ or harassment.

Response:

This Of?ce has conducted a reasonable search of its records and has already
provided you with the disclosable information that falls within your request. The
CPRA supports disclosure when complaints of a public employee?s wrongdoing
and resulting disciplinary investigation reveal allegations of a substantial nature
and there is reasonable cause to believe the complaint is well-founded. (AFSE,
supra, 80 Cal.App.3d at p. 918; Bakers?eld, supra,118 Cal.App.4th at pp. 1045-
1046)

Therefore, your expanded request does not require further disclosure than has
already been provided.

Sin ?grely,



Elizabeth Renner
Deputy District Attorney

10

Exhibit 5

OFFICE OF 
San Diego

THE DISTRICT ATTORNEY s3ai?Dl?ii?B?iag?fgl
COUNTY OF SAN DIEGO (619) 5314040
SUMMEIUSTEPHAN 
DISTRICT ATTORNEY
June 5, 2018

Mr. David Snyder
Executive Director
First Amendment Coalition


Re: California Public Records Act (CPRA) Request, DA 18-52

Dear Mr. Snyder,

This letter is in response to your email dated April 25, 2018, wherein you
requested all records relating to the 2016 incident described on page 3 of this Of?ce?s
letter response, dated April 20, 2018.

This Of?ce appreciates and understands the need for government transparency in
the conduct of its of?cial business and how it addresses important issues such as
misconduct in the workplace. We are also certain that the First Amendment Coalition
appreciates the statutory and legal protections related to internal investigations relating to
this Of?ce?s employees. Numerous exemptions and protections apply to the information
we reviewed, such as the ?personnel ?le? exemption, the ?deliberative process?
exemption, and constitutional and statutory rights to privacy. These statutory and legal
protections must prevail when, as in this case, the public?s interest is not furthered by
disclosure of the records that you seek.

In the interest of transparency, this Of?ce is disclosing the following information
related to the records that you request:

Former Deputy District Attorney Michael MacNeil was engaged in a private
family matter when a third party obtained personal information about him. The personal
information obtained, in the form of photos and electronic communications from his
personal. non-work devices, was exchanged with another consenting adult and did not
directly relate to his employment. Part of the personal information included nude photos
taken on county property and consensually sent to another adult, while another part

1

included non-sexual photographs taken in a courtroom, in violation of San Diego County
Superior Court policy. The third party provided the personal information to a variety of
sources, including the media and this Of?ce.

This Of?ce began an internal investigation based on two grounds:

1) Release of personal and private information regarding the employee, District
Attorney employees, and others; and
2) Inappropriate conduct in the workplace.

After the third party released the personal communications on the internet, Mr.
MacNeil tendered his resignation in June of 2016 in lieu of further proceedings, and the
investigation was closed. Although Mr. MacNeil?s resignation was effective immediately
and he physically left the of?ce, he took accrued leave until November of 2016, at which
point his employment with this Of?ce formally ended.

For the reasons stated below, the disclosure of the actual records does not further
the public interest. There are two categories of information that this Of?ce examined: its
own internal investigatory records, and the information provided by the third party. We
will discuss each category of records in turn.

Internal lnvestigatorv Records

Numerous exemptions apply to the internal investigatory records of this Of?ce,
which constitute part of Mr. MacNeil?s personnel ?le. This Of?ce?s investigatory
records contain attorney work product and material related to the deliberative process, the
disclosure of which could create a chilling effect on communications and investigations
within this Of?ce. The records are also protected personnel records under the CPRA
because Mr. MacNeil has a privacy right in his personnel ?les.

First, the investigatory reports contain intra-of?ce communications that are subject
to additional exemptions under the CPRA. The deliberative process exemption protects
records that would reveal the deliberative processes of elected members, of?cers, or
employees of a government agency. This exemption protects candid discussion within
the of?ce. (Gov. Code, 6255, subd. see California First Amendment Coalition v.
Superior Court (1998) 67 Cal.App.4th 159, 166.) Disclosure of these records could have
a chilling effect on the ability of management to candidly discuss and document their

proposed resolutions to personnel issues. The investigatory materials also contain




attorney work product in the form of notes and interviews and is exempt from disclosure.
(Gov. Code, 6254, subd. Civ. Code, 2018.030, subd. Disclosure of this
information would create a chilling effect on this Of?ce?s ability to investigate and
document and analyze internal issues.

Further, Mr. MacNeil?s personnel records are exempt from disclosure because
they would constitute an unwarranted invasion of personal privacy. As mentioned in my
April 20 letter, Government Code section 6254, subdivision (0), creates a CPRA
exemption for personnel, medical, or similar ?les, the disclosure of which would
constitute an unwarranted invasion of personal privacy. The CPRA supports disclosure
when complaints of a public employee?s wrongdoing and resulting disciplinary
investigation reveal allegations of a substantial nature and there is reasonable cause to
believe the complaint is well-founded. (American Federation of State etc. Employees v.
Regents of University of California (1978) 80 Cal.App.3d 913, 918; Bakers?eld City
School District v. Superior Court (2004) 118 Cal.App.4th 1041, 1045-1046.)

The following three-prong analysis determines whether a disclosure constitutes an
?unwarranted invasion of personal privacy? with respect to the CPRA: (1) whether the
records sought constitute a personnel ?le; (2) whether disclosure of those records would
compromise substantial privacy interests; and ?nally, (3) whether the potential harm to
privacy interests from disclosure outweighs public interest in disclosure. (Versaci v.
Superior Court (2005) 127 Cal.App.4th 805, 818-819.)

Regarding the ?rst prong, the records you seek constitute ?personnel. . .or similar
?les.? (Gov. Code, 6254, subd, 

Regarding the second prong, the disclosure of the records would compromise a
substantial privacy interest. Employees have a legally protected interest in their
personnel ?les. (BRV, Inc. Superior Court (2006) 143 Cal.App.4th 742, 756 
In BR V, a school district?s board of education hired an investigator to prepare a report-
analyzing allegations of verbal abuse of students and sexual harassment of female
students by the district?s superintendent. (Id. at p. 747.) After receiving the full report,
the board of education entered into an agreement with the superintendent accepting his
resignation in exchange for terms of payment and a promise to keep the report
con?dential. (Ibid.) Because of the superintendent?s position of authority as a public
of?cial and the public nature of the allegations, the court of appeal found that the public?s
interest in disclosure outweighed his interest in preventing disclosure of the investigatory
report. (Id. at p. 759.)

 distinguishable from the situation at hand. While a deputy district attorney
is more of a public ?gure than internal staff members, the position is neither elected nor
appointed. Further, the allegations against Mr. MacNeil did not directly relate to the
performance of his duties, in contrast to the superintendent?s alleged actions concerning
students in BR V. Finally, there is a marked difference between non-consensual
allegations of sexual harassment against a superintendent of minor students and the
private, consensual exchange of information between adults. Therefore, Mr. MacNeil?s
privacy interests and expectation of privacy are greater than in BR V.

The ?nal prong is balancing the implicated privacy interests, as outlined above,
against any public interest in their disclosure. Fundamentally, the strength of the public
interest depends on the extent to which disclosure of the requested item or information
will shed light on the public agency?s performance of its duty. (Versaci, supra, 127
Cal.App.4th at p. 820.) In determining the weight of a public interest in a given case, as a
threshold matter, the weight of that interest is proportionate to the gravity of the
governmental tasks sought to be illuminated and the directness with which the disclosure
will serve to illuminate. (Los Angeles Unified School District v. Superior Court (2014)
228 Cal.App.4th 222, 242.)

Here, the public interest is not served by the disclosure of the investigatory
records. Through the media and the internet, the public is already aware of, and has
access to, the photographs that are the basis for the investigation. The photographs are
unrelated to Mr. MacNeil?s performance of trying cases as a prosecutor, and the
investigation related to them illuminates no governmental tasks other than how this
Of?ce responds to reports of such information. Although there is a public interest in how
the District Attorney?s Of?ce responded by investigating the matter, the investigatory
reports themselves do not provide any additional context that furthers the public interest.
As a practical matter, disclosure of investigatory reports to the public at large would have
a chilling effect on investigatory efforts within this Of?ce, as witnesses would be hesitant
to come forward with information. The above-provided summary, consisting of the
investigatory actions taken and the nature of Mr. MacNeil?s departure from this Of?ce, is
a less-intrusive alternative means that adequately provides you with the substance of the
information you seek.

Information Provided to This Of?ce

Further, the materials provided by the third party to this Of?ce are protected by
the California Constitution and the CPRA. The California Constitution, article 1, section
1, gives Californians the inalienable right to privacy. (Hill v. National College Athletic
Assn. (1994) 7 Cal.4th 1, 16 (Hill). The California Supreme Court in Hill set forth three
threshold factors that must be met for a constitutional right of privacy to arise: (1) there
must be a legally protected privacy interest; (2) the individual must possess a reasonable
expectation of privacy under the circumstances at hand; and (3) the intrusion must
involve a serious invasion of the privacy interest in question. (Id. at pp. 39?40.) In the
instant matter, all three factors are met.

As to the ?rst element, the court in Hill enumerated two legally recognized
privacy interests: (1) informational privacy, which is an interest in precluding the
dissemination or misuse of sensitive and con?dential information, and (2) autonomy
privacy, which is an interest in making intimate personal decisions or conducting
personal activities without observation, intrusion, or interference. (Hill, supra, 7 Cal.4th
at p. 35.) Here, Mr. MacNeil was engaged in a personal family matter and exchanged
personal information with another consenting adult. His interest in informational privacy
precludes the dissemination and misuse of those sensitive personal communications and
photos. He also has an interest in keeping matters that relate to his family private.
Therefore, the ?rst element of a constitutional right to privacy is satis?ed in this matter.

As to the second element, Mr. MacNeil had an expectation of privacy in his
communications to another consenting adult. A reasonable expectation of privacy is an
objective entitlement founded on broadly?based and widely accepted community norms.
(Hill, supra, 7 Cal.4th at p. 37.) Private communications on personal devices are highly
protected in society and by law, as re?ected by the passage of California?s own
Electronic Communications and Privacy Act (Pen. Code 1546, et. seq.). Therefore, Mr.
MacNeil has an established expectation of privacy and the second element is met.

As to the ?nal element, disclosure of the communications would be a serious
invasion of Mr. MacNeil?s privacy interests. The communications were released without
Mr. MacNeil?s consent, contained highly personal information, and were not intended for
a public audience. Much of the information in question is still readily accessible on the
intemet, and to provide it again or to provide anything further would achieve no purpose
other than to further harm and embarrass Mr. MacNeil and his family. The fact that the

information was released to the public by someone else does not allow this Of?ce to
5

further violate a constitutional privacy interest where permission has not been given by
the former employee. Therefore, the third element has been satis?ed and the California
Constitution prevents disclosure of the contents of the communications.

There are additional protections of the material related to the CPRA. Not
everything written by a public employee is subject to review and disclosure as a public
record. To qualify as a record, a writing must contain information relating to the conduct
of the public?s business. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 618
(City of San Jose), internal quotations and citations omitted.) Communications that are
primarily personal, containing no more than incidental mentions of agency business, will
not constitute public records. (Id. at pp. 618-619.) Speci?cally, the California Supreme
Court stated:

[T]he public might be titillated to learn that not all agency workers enjoy
the company of their colleagues, or hold them in high regard. However, an
employee?s electronic musings about a colleague?s personal shortcomings
will often fall far short of being a ?writing containing information relating
to the conduct of the public?s business.?

(City ofScm Jose, supra, 2 Cal.5th at p. 619.)

Resolution of the question, particularly when writings are kept in personal
accounts, will often involve an examination of several factors: the content itself; the
context in, or purpose for which, it was written; the audience to whom it was directed;
and whether the writing was prepared by an employee acting or purporting to act Within
the scope of his or her employment. (City of San Jose, supra, 2 Cal.5th at p. 608.)

As to Mr. MacNeil?s communications, which are personal messages directed to a
consenting adult on his personal devices, there is an insuf?cient nexus with agency
business to warrant disclosure.

Should there be any further responsive records, this Of?ce reserves the additional
exemptions under the ?catchall? provision of Government Code section 6255,
subdivision and the ?case ?le? exemption pursuant to Government Code section
6254, subdivision 

Therefore, due to the above-outlined exemptions and the complex and substantial
privacy interests involved in the resolution of this matter, no further records will be
disclosed.

Sin elyt

Elizabeth Renner
Deputy District Attorney