A Sonoma County judge has rejected an attorney’s bid under the California Public Records Act to search the official and private computers of city staff, elected officials and consultants for information to be used in a personal injury lawsuit stemming from the injuries to a teenager struck by a car two years ago while using a crosswalk in Sebastopol. The judge called the attempt an abuse of the law deserving of an attorney’s fees sanction as “clearly frivolous,” reported Frank Robertson for the Sonoma West Times & News on June 15. But in seeking review from the Court of Appeal, the attorney will be arguing an issue so far left unanswered: When, if ever, does the records act reach the official business messages of officials sent and stored on their private e-mail accounts?

A judge this week said the city of Sebastopol does not have to hand over the personal computers and e-mail of city staffers and the City Council to be searched by an attorney who is suing the city in a traffic accident case.

Sonoma County Superior Court Judge Mark Tansil agreed with the city’s attorneys that the request amounted to an “unprecedented fishing expedition” on the part of David Rouda, the attorney seeking access to city electronic records.

Rouda wanted a court order forcing the city to let him search electronically stored information on both municipal and personal computer hard drives of 34 current and former city staffers as well as City Council members and city traffic consultants.

The city argued that Rouda’s request was overly broad, burdensome and went far beyond the requirements of the California Public Records Act, which Rouda cited as the legal basis for his request.

Tansil noted the city has already given Rouda access to 65,000 pages of paper records related to the case of Julia Bertoli, a Sebastopol teenager who was seriously injured in a downtown traffic accident two years ago.

Bertoli’s parents have filed suit against the city, the state Department of Transportation (Caltrans) and the county of Sonoma alleging their negligence caused Bertoli to be struck by a car as she was crossing Healdsburg Avenue at the Florence Avenue crosswalk.

Having received Rouda’s request for public information pursuant to the Public Records Act, “Sebastopol gave him access to over 65,000 pages of documents, during a search of records spanning a three-month period,” wrote Tansil in a tentative ruling this week.

“Unsatisfied with this remarkable degree of openness and cooperation, the attorney next demanded to copy electronically stored information … located on both municipal and personal computer hard drives. The unprecedented fishing expedition would constitute an alarming invasion of privacy rights, an extravagant use of limited city resources, and an unwanted green light for immoderate discovery,” said Tansil.

“While the underlying lawsuit is indeed serious, the petition for a writ of mandate is blatantly frivolous,” said Tansil.

“There is patently no basis for an adversarial attempt to gain access to the personal computer records. The 34-named individuals were never served with a request to produce computer hard drives. Declarations, which were submitted by most of the impacted persons, amply show that there are no public records on the computers, only private matters,” said Tansil. “Surfing personal computer records is not acceptable.”

Tansil ruled there is “no basis to grant access” to the municipal computer hard drives, involving nine departments, including the police department.

Rouda wanted access to nearly four dozen city computers including 20 computers used in the police station alone, said Tansil.

“This prodigality would significantly compromise interests in privacy and confidentiality,” said Tansil’s ruling. “The petition is not consistent with public interest. The burden to be imposed would be excessive, and the precedent to be set would be undesirable.”

Tansil said the city  has “reasonably complied” with access obligations pertaining to electronically stored information and did not unreasonably restrict access to public records.

“In these times of fiscal austerity, undisciplined and unrestrained efforts to search through government records can defy common sense and stretch the doctrine of free information to a breaking point,” said Tansil’s ruling.

“The petition itself was clearly frivolous. In nearly 25-years of judging, this court has not seen discovery disproportionality of this magnitude before,” said Tansil’s ruling in the city’s favor.

For his part, attorney Rouda tells CalAware there are several shortcomings in Judge Tansil’s ruling.

“The related case and the Petitioner herein is an in forma pauperis brain damaged 15 year old hit in a crosswalk in Sebastopol.   Judge Tansil, the assigned judge for both the underlying case and the Petition for Writ under the CPRA hit Julia Bertoli and her her attorney David Rouda, as Petitioners,  with potentially over $42,000 in attorneys fees for making the offer to alleviate the city’s claimed burden of searching for the city’s responsive electronically stored emails and information (“ESI”) by offering to pay for a neutral third party professional e-discovery company to conduct such search and produce the results to the City for privilege review prior to production to Petitioners.

“Prior to the Petition, despite numerous written requests by Petitioner, the City refused to inform Petitioner of the number, location and custodians of computers on which responsive city-business-related emails were stored in violation of Govt Code Section 6253(a).  Having no way to know where the sought emails were stored, and to comply with the mandate of Tracy Press v. Superior Court, Petitioner named all city departments and individuals which Petitioner reasonably believed were involved in projects or knew about conditions and complaints concerning Healdsburg Avenue where Petitioner was grievously injured.

“In the City’s May 31,2011 late served Response to the Petition for Writ, for the first time, the City produced declarations from every city employee named (except for one councilmember, Jennifer Thille) stating the number, location and custodians of computers on which responsive city business related emails could be stored.  This included declarations from city councilmembers stating all city related email were received and created exclusively on their off-site individual commercial machines, not on a server within the city offices.   It also included declarations from non-city councilmember employees that all of their city business related emails were located on their machines in city departments, and not on their offsite commercial machines.

“The Superior Court Judge, a long time resident of the City of Sebastopol, in an uncharacteristic oversight, assumed that Petitioner knew prior to filing her Petition all the information contained in these declarations concerning the location of the emails.  However no such information was provided to Petitioner by the City prior to serving its Response on May 31, 2011 a year after Petitioners CPRA Requests.   The Judge erroneously assumed Petitioner was intentionally targeting private hard drives of individual employees, including their private information, with Petitioner’s offered solution to pay for a neutral third party professional e-discovery company to conduct searches and reduce city claimed search burden.

“This is not what the Petition or Petitioners required.  As stated repeatedly in the Petition, and during oral argument, Petitioner simply demanded production of responsive city business related ESI regardless of where it was stored, as the CPRA expressly allows, and argued that the City could not shield public records from production by storing them on individual commercial machines outside of city departments.  Since the City was claiming a burden to conduct any email search on their computers, Petitioners proposed and asked for the neutral third party solution to be authorized by Judge Tansil. The Petition and Reply expressly state Petitioners did not care who did the search based on their specific search terms, as long as the searcher were reputable and produced the public records responsive to her PRA request wherever the public document emails were stored.

“Petitioner was required to name all the individual employees because prior to the filing of the Petition, the City refused to inform Petitioner of the number, location and custodians of computers on which responsive city business related emails were stored. Petitioner also named all known custodians of the responsive public record ESI because Petitioner reasonably believed she needed to thoroughly comply with the holding of Tracy Press v. Superior Court which refused to consider a CPRA Petition because of failure to name an individual city employee by name who held public records on her individual commercial machine.   In fact, upon being served with the Petition, City counsel told Petitioner’s counsel his understanding that Petitioner was naming such persons because of the Tracy Press holding.  Such naming was not “clearly frivolous” given the lack of City disclosure to Petitioner of the location, custodian and machines storing responsive ESI, the City’s knowing storage of public record ESI on individual’s commercial machines, and the holding of Tracy Press.

“There are many other misconceptions by Judge Tansil, including confusing the Discovery Act with the Public Records Act, and re. the “65,000” pages of paper documents he thinks city so generously made open to Petitioner.  It was quite a different story than that as detailed in the brief.  Also he repeatedly refers to Sebastopol as a “town” when in fact it has been an incorporated “City” for the last several years.   He also fails to clearly articulate why he believes the city would be overly burdened to conduct an email search on their harddrives to provide responsive emails to a brain damaged teen seeking to investigate what happened to her.  There are many more misunderstandings by the Judge.  It appears he doesn’t understand technology and the ease of producing emails nor how prevalent emails are to day to day city business.”