OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




               LOS ANGELES POLICE DEPARTMENT et al., Petitioners,
                                       v.
    SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES,
                                   Respondent;
          CHURCH OF SCIENTOLOGY OF CALIFORNIA, Real Party in Interest.
                                   Civ. 49339.
            Court of Appeal, Second District, Division 2, California.
                                  Jan. 5, 1977.
                As Modified on Denial of Rehearing Feb. 2, 1977.
  Los Angeles police department requested writ of mandate to set aside order of
 the Superior Court, County of Los Angeles, requiring the police department to
 furnish answers to certain written interrogatories.  The Court of Appeal, Roth,
 P.J., held that since police department records concerning any investigations
 of church were in all likelihood exempt from disclosure under the Public
 Records Act the church, seeking to have such records declared public records,
 was not entitled to compel answers to interrogatories about those records.
  Petition granted and peremptory writ of mandate issued.

 [1] RECORDS
 If record is a public record all persons have access thereto as permitted by
 the Public Records Act, and a person who may be the subject of particular
 record sought does not, because he is personally affected, have any greater
 right than any person to examine record and, conversely, subject person has no
 right to prevent disclosure of record to any other person.  West's
 Ann.Gov.Code, ss 6250-6261.

 [2] RECORDS
 Public Records Act was enacted with objective of increasing freedom of
 information and it is designed to give public access to information in
 possession of public agencies.  West's Ann.Gov.Code, ss 6250-6261.

 [3] PRETRIAL PROCEDURE
 When principal action itself seeks records which are in all likelihood not
 discoverable under the Public Records Act because of specific exemption or
 public interest, interrogatories which seek information about these records
 should not be permitted.  West's Ann.Gov.Code, ss 6250-6261.

 [4] PRETRIAL PROCEDURE
 Church whose actions sought disclosure of any records with Los Angeles police
 department concerning the church's activities and activities of its founder to
 be declared public records open to public inspection and in all likelihood such
 records were exempt from disclosure under the specific statutory exemption
 provided for records of complaints to or investigations conducted by or records
 of intelligence information or security procedures of any local police agency,
 church was not entitled to compel answers to interrogatories seeking
 information about the records.  West's Ann.Gov.Code, s 6254(f).
  *663 **576 Burt Pines, City Atty., Hilary F. Goldstone, Deputy City
 Atty., for petitioners.
  Law Offices of Mark V. Kaplan, Sherman Oaks, for real party in interest.
  Fred Okrand, Jill Jakes, Los Angeles, Mark D. Rosenbaum, Beverly Hills, Gary
 D. Sowards, Santa Monica, for amicus curiae.
  No appearance for respondent.

  *664 ROTH, Presiding Justice.
  Government Code, [FN1] sections 6250 through 6261, comprise the
 California Public Records Act (Act).  Section 6250 recites in part:

      FN1.  All Code references herein made are to the Government Code unless
     otherwise noted.

   '* * * the Legislature, mindful of the right of individuals to privacy, finds
 and declares that access to Information concerning the conduct of the people's
 business is a fundamental and necessary right of every person in this state.'
 (Emphasis added.)
  Act is a group of integrated sections which generally define public records
 and the rights of any person to inspect, copy and receive copies of such
 records.  (ss 6250, 6252, 6253, 6253.5, 6254.7, 6254.8.)
  Section 6254, however, lists 14 separate types of records which are by
 legislative fiat exempt from disclosure.  Section 6254, as is relevant here,
 recites:
   '* * * nothing in this chapter (Act) shall be construed to require disclosure
 of records that are: * * *
   (f) Records of complaints to or investigations conducted by, or records of
 intelligence information or security procedures of, * * * any * * * local
 police agency, * * *' (referred to herein as Exemption (f)). [FN2]

      FN2.  It is clear from one of the cases strongly relied on by Church,
     Black Panther Party v. Kehoe, 42 Cal.App.3d 645, 117 Cal.Rptr. 106, that
     the legislature meant to make certain types of records exempt from
     disclosure.  Thus, Justice Friedman says at page 655, 117 Cal.Rptr. at
     page 112:
     'If citizenship in a functioning democracy requires general access to
     government files, limited but genuine interests also demand restricted
     areas of Non-access.'  (Emphasis added.)

  Real Party in Interest, Church of Scientology (Church) instituted this action
 against petitioner, Los Angeles Police Department (Department) under the
 authority of Act and seeks to have any records which Department maintains of
 its activities and the activities of its founder declared to be public records
 free from any exemption and open for public inspection.
  The summary exemption provided for in Exemption (f) [FN3] in section 6254
 is reiterated **577 in section 6255.  In addition, however, section 6255
 provides for the withholding of any record embraced in Act which is not
 specifically exempted by section 6254 if public interest in non-disclosure
 'out-weighs' disclosure.

      FN3.  A helpful explanation of section 6254(f) is set out in Younger
     v. Berkeley City Council (1975) 45 Cal.App.3d 825, 832, 119 Cal.Rptr. 830,
     834:
     'Ordinarily all criminal offender record information, including that
     compiled by the Berkeley Police Department, is confidential and not
     'public' or subject to disclosure.  (Gov.Code, s 6254, subd. (f);
     People v. Wilkins (1955) 135 Cal.App.2d 371, 377, 287 P.2d 555.) While
     the Attorney General conceded in this case that the City of Berkeley could
     permit whatever access the city council deemed appropriate in the case of
     arrest records compiled by the Berkeley Police Department, the same does
     not apply to records compiled by the State Department of Justice,
     particularly where Penal Code sections 11077 and 11079 contemplate a
     continuing state interest in those records.'
     The special nature of records such as the alleged records at bench is
     further explained in Younger in a comment distinguishing Uribe v.
     Howie (1971) 19 Cal.App.3d 194, 96 Cal.Rptr. 493 a case relied upon by
     Church:
     'Uribe dealt with a routine report in a public file.  It could gain
     exemption not because of its content but only when and if it became a part
     of an investigatory file.  Here, by their very content, the criminal
     records compiled by the State Department of Justice are independently
     entitled to exemption.  (See Black Panther Party v. Kehoe (1974) 42
     Cal.App.3d 645, 654, 117 Cal.Rptr. 106.)'

  *665 Section 6255 provides:
   'The agency shall justify withholding any record by demonstrating that the
 record in question Is exempt under express provisions of this chapter Or that
 on the facts of the particular case the public interest served by not making
 the record public clearly outweighs the public interest served by disclosure of
 the record.'  (Emphasis added.)
  The procedure which enables any person to obtain judicial relief from a
 wrongful denial of access to public records is set out in section 6258:
   'Any person may institute proceedings for injunctive or declarative relief in
 any court of competent jurisdiction to enforce his right to inspect or to
 receive a copy of any public record or class of public records under this
 chapter.  The times for responsive pleadings and for hearings in such
 proceedings shall be set by the judge of the court with the object of securing
 a decision as to such matters at the earliest possible time.'
  Section 6259 provides in pertinent part:
   'Whenever it is made to appear by verified petition to the superior court of
 the county where the records or some part thereof are situated that certain
 public records are being improperly withheld from a member of the public, the
 court shall order the officer or person charged with withholding the records to
 disclose the public record or show cause why he should not do so.  The court
 shall decide the case after examining the record in camera, if permitted by
 subdivision (b) of Section 915 of the Evidence Code, papers filed by the
 parties and such oral argument and additional evidence as the court may allow.
   'If the court finds that the public official's decision to refuse disclosure
 is not justified under the provisions of Section 6254 or 6255, he shall
 order the public official to make the record public.  If the judge
 *666 determines that the public official was justified in refusing to make
 the record public, he shall return the item to the public official without
 disclosing its content with an order supporting the decision refusing
 disclosure.  Any person who fails to obey the order of the court shall be cited
 to show cause why he is not in contempt of court.  * * *.'
  After Church had filed its action, an application for a temporary injunction
 requiring disclosure was denied on the ground there was no showing that the
 records sought were not expressly exempt from disclosure by reason of
 Exemption (f).  Prior to the conclusion of the argument for a temporary
 injunction and its denial, the following exchange took place between the court
 and counsel for Church:
   'THE COURT: What about this problem: these cases which involved
 administrative agencies did not deal with situations where you have a police
 department maintaining, quote, 'intelligence information,' so, of course, the
 court wasn't dealing with that type of situation.  And yet the statute
 specifically recognizes that there can be such a thing as intelligence
 information.
   'MR. IVENER: Yes.
   'THE COURT: What must be the statutory intent regarding that?
   'MR. IVENER: Well, the statutory intent relating to intelligence files and
 relating **578 to investigatory files is that they are exempt.  * * *.'
  Church did not appeal the order denying a temporary injunction.  Church did,
 however, initiate the discovery proceedings before us by filing and serving on
 Department certain interrogatories.  Department refused to answer the
 interrogatories; [FN4] Church moved for an order requiring responses.  The
 court treated the issue as if it were a conditional privilege under Evidence
 Code section 1040; deferred ruling on the question of privilege as embraced in
 section 1040 of the Evidence Code until time of trial and then ordered the
 cited interrogatories answered and directed discovery to proceed.  Petitioner's
 request for a writ of mandate to set aside that order is before us.

      FN4.  These interrogatories are:
     'INTERROGATORY $9: Has the Defendant (Department) determined, at any time
     within the period commencing January 1, 1969 to the present, that the
     CHURCH OF SCIENTOLOGY OF CALIFORNIA, or any Scientology organization, has
     engaged, or is engaging, in acts disruptive of the public order as that
     term is defined in the Guidelines of the Public Disorder Intelligence
     Division of the Los Angeles Police Department.
     'INTERROGATORY $10: If the answer to Interrogatory $9 is affirmative,
     please state the following:
     (a) Is a file presently maintained by the Public Disorder Intelligence
     Division relating to the determination hereinabove referred in
     Interrogatory $9?
     (b) The date of the last entry of any such file hereinabove referred in
     Interrogatory $10(a).
     'INTERROGATORY $11: If the answer to Interrogatory $10(a) is affirmative,
     please state:
     (a) The person(s), if any, and title thereof, who conducted a review of any
     such file since April 10, 1975.
     (b) The date upon which such review(s) was conducted.'

  *667 Church's verified complaint to require disclosure and its declarations
 and documents filed in support of its motion for the temporary injunction,
 which was denied, clearly establish that the records which it seeks, if they in
 fact exist as claimed, are the type which are embraced in Exemption (f).  The
 complaint refers repeatedly to 'information, documents, reports and Records'
 (emphasis added) which are being allegedly maintained by Department and which
 relate to Church; and, in oral argument upon the motion for preliminary
 injunction, Church's attorney admitted that 'the statutory intent relating to
 intelligence files and relating to investigatory files is that they are
 exempt.'  It is plain that 'records of intelligence information' fall within
 the ambit of Exemption (f).  Thus, the soundness of the action itself is drawn
 into question by the binding allegations of the complaint, [FN5] as well as by
 the admission of Church at the proceedings for a temporary injunction excerpted
 above.  We are thus presented with the question, what, if any, discovery should
 take place, especially when Any proceedings under the Act is from first to last
 a form of discovery, i.e., the disclosure of certain records and/or
 information.

      FN5.  Exemption (f) refers to 'investigatory or security files compiled by
     any ( ) state or local agency for correctional, law enforcement as
     licensing purposes.'  The complaint alleges that defendant L.A.P.D.
     '. . . received, compiled, and otherwise maintained information, documents,
     reports and records pertaining to the Plaintiff herein' and, at another
     point, refers to 'records of intelligence information or security
     procedures of, or any such investigatory or security files compiled and/or
     maintained by Defendant L.A.P.D. for correctional, law enforcement or
     licensing purposes' as records which are exempt only when 'the prospect of
     future enforcement proceedings is concrete.'  What these allegations
     demonstrate is that Church well knows that records embraced in Exemption
     6254(f) exist and that, in the very terms of the allegations themselves,
     they are exempt from disclosure.

  In proceeding under Act, section 6255 provides the public entity which has
 denied a person the right of inspection two alternative justifications,
 independent of section 1040 of the Evidence Code although similar
 *668 thereto, for its decision not to open its files: (1) the information
 sought may be exempt under one or more of the fourteen exemptions listed in
 section 6254; or (2) disclosure of the information sought, although Not
 exempt, would not be in the public interest.
  Church argues in support of its position that the records are inappropriately
 kept and contain inaccurate information and asserts that upon disclosure the
 records may be corrected.  In fact, the interrogatories previously set forth,
 as well as other interrogatories, posed by Church are intended to discover
 whether Department has complied with internal administrative criteria on
 intelligence files.
  [1] **579 In this connection, it should be noted that if the record is a
 public record All persons have access thereto as permitted by Act and A person
 who may be the subject of the particular record sought does not, because he is
 personally affected, have any greater right than Any person to examine the
 record.  Conversely, a subject person has no right under Act to prevent
 disclosure of the record to any other person.  (Black Panther Party v.
 Kehoe, 42 Cal.App.3d 645, 117 Cal.Rptr. 106.)
  [2] Act was enacted with the objective of increasing freedom of
 information.  It is designed to give the public access to information in
 possession of public agencies.  Act itself does not undertake to prescribe what
 type of information a public agency may gather, nor to designate the type of
 records such an agency may keep, nor to provide a method of correcting such
 records.  Its sole function is to provide for disclosure.
  [3][4] Common sense dictates that when the principal action itself seeks
 records which are in all likelihood not 'discoverable' under Act because of
 Exemption (f) or the public interest, interrogatories which seek information
 about these records should not be permitted.  To allow the ancillary discovery
 process of written interrogatories to proceed would enable Church to accomplish
 indirectly the objective of its discovery action without any showing that
 Exemption (f) does not apply or, if it is not embraced in Exemption (f), that
 public interest requires disclosure.  When viewed in the context of the action
 at bench, neither Shepherd v. Superior Court (1976) 17 Cal.3d 107, 130
 Cal.Rptr. 257, 550 P.2d 161 nor Pitchess v. Superior Court (1974) 11 Cal.3d
 531, 113 Cal.Rptr. 897, 522 P.2d 305 relied upon by Church and the trial court
 are applicable.  Neither Shepherd nor Pitchess were actions brought under Act
 which, as *669 noted, is a special proceeding the sole object of which is
 the discovery and production of records.
  The exemption for the records of law enforcement agencies as contained in the
 quoted language of section 6254(f) 'Records of complaints to or
 investigations conducted by, or records of intelligence information * * *' is
 broad and all-encompassing.  It does not further describe the type of
 complaints or investigations or the nature of intelligence information that is
 exempt.  (See Uribe v. Howie, 19 Cal.App.3d 194, 96 Cal.Rptr. 493.)
  We conclude that the order of respondent court is erroneous and the court is
 therefore directed to vacate its order.  Accordingly, we grant the petition and
 issue the peremptory writ of mandate requiring the court to vacate its order
 requiring defendants to answer interrogatories 9, 10 and 11 and to enter a new
 and different order sustaining defendant's objections thereto.

  COMPTON and BEACH, JJ., concur.

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