Case No. 5218066 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF SAN JOSE; SAN JOSE REDEVELOPMENT AGENCY, HARRY MAVROGENES, in his official capacity as Execut ve Director of the San Jose Redevelopment Agency; MAYOR CHUCK REED, in his official capacity as Mayor of the City of San Jose, and PETE CONSTANT, ASH KALRA, SAM LICCARDO, PIERLUIGI OLIVERO, MADISON NGUYEN, ROSE HERRERA, JUDY CHIRCO, KANSEN CHU, NORA CAMPOS, NANCY PYLE, in their official capacities as individual Council members for the City of San Jose, Pet .tioners,

SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent, TED SMITH, an individual, Real Party in Interest.

After an Order by the Court of Appeal, Sixth Appellate District, Case No. H039498, Santa Clara County Superior Court Case No. 1-09-CV-150427

APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND [PROPOSED] BRIEF OF AMICI CURIAE IN SUPPORT OF REAL PARTY IN INTEREST, TED SMITH

DAVID E. MASTAGNI, ESQ. (SBN: 204244) ISAAC S. STEVENS, ESQ. (SBN: 251245) JEFFREY R.A. EDWARDS, ESQ. (SBN: 265597) MASTAGNI HOLSTEDT, APC 1912 "I" Street, Sacramento, California 95811-3151 Telephone: (916) 446-4692, Facsimile: (916) 447-4614

Attorneys for the Amicus Curiae, VALLEJO POLICE OFFICERS' ASSOCIATION SACRAMENTO POLICE OFFICERS' ASSOCIATION STOCKTON POLICE OFFICERS' ASSOCIATION DEPUTY SHERIFFS' ASSOCIATION OF ALAMEDA COUNTY STATEWIDE UNIVERSITY POLICE ASSOCAITION SACRAMENTO COUNTY LAW ENFORCEMENT MANAGERS ASSOCIATION SAN BERNADINO COUNTY PUBLIC ATTORNEYS ASSOCIATION SACRAMENTO AREA FIREFIGHTERS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 522, AFL-CIO PALO ALTO FIREFIGHTERS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1319, AFL-CIO RIALTO PROFESSIONAL FIREFIGHTERS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 3688, AFL-CIO ONTARIO POLICE OFFICERS' ASSOCIATION FEDERATED UNIVERSITY POLICE OFFICERS' ASSOCIATION SACRAMENTO DEPUTY SHERIFFS' ASSOCIATION SAN MATEO COUNTY DEPUTY SHERIFFS' ASSOCIATION PLACER COUNTY DEPUTY SHERIFFS' ASSOCIATION ELK GROVE POLICE OFFICERS ASSOCIATION LOS ANGELES AIRPORT PEACE OFFICERS' ASSOCIATION

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 8.208 The following entities or persons have either (1) an ownership interest of 10 percent or more in the party or parties filing this certificate or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves: VALLEJO POLICE OFFICERS' ASSOCIATION; SACRAMENTO POLICE OFFICERS' ASSOCIATION; STOCKTON POLICE OFFICERS' ASSOCIATION; DEPUTY SHERIFFS' ASSOCIATION OF ALAMEDA COUNTY; STATEWIDE UNIVERSITY POLICE ASSOCAITION; SACRAMENTO COUNTY LAW ENFORCEMENT MANAGERS ASSOCIATION; SAN BERNADINO COUNTY PUBLIC ATTORNEYS ASSOCIATION; SACRAMENTO AREA FIREFIGHTERS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 522, AFL-CIO; PALO ALTO FIREFIGHTERS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1319, AFL-CIO; RIALTO PROFESSIONAL FIREFIGHTERS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 3688, AFL-CIO; ONTARIO POLICE OFFICERS' ASSOCIATION; FEDERATED UNIVERSITY POLICE OFFICERS' ASSOCIATION; SACRAMENTO DEPUTY SHERIFFS' ASSOCIATION; SAN MATEO COUNTY DEPUTY SHERIFFS' ASSOCIATION; PLACER COUNTY DEPUTY

SHERIFFS' ASSOCIATION; ELK GROVE POLICE OFFICERS ASSOCIATION; LOS ANGELES AIRPORT PEACE OFFICERS' ASSOCIATION July 20 , 2015

MASTAGNI HOLSTEDT, APC

VID E. MASTAGNI ISAAC S. STEVENS JEFFREY R.A. EDWARDS Attorneys for the Amici Curiae

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APPLICATION TO FILE AMICI CURIAE BRIEF IN SUPPORT OF REAL PARTY IN INTEREST TED SMITH TO THE HONORABLE CHIEF JUSTICE TAM GORRE CANTIL-SAKAUYE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Pursuant to Cal. Rules of Court, Rule 8.520(f), the Amici Curiae respectfully ask for leave to file the attached brief of Amici Curiae in support of Ted Smith. This application is timely made within the extension of time this Court granted to file and serve this application and proposed brief. THE AMICI CURIAE This application is submitted on behalf of the Sacramento Police Officers' Association ("Sacramento POA"); the Stockton Police Officers' Assoc'ation ("Stockton POA"); the Sacramento County Deputy Sheriffs' Association ("SCDSA"); the Sacramento County Law Enforcement Managers Association ("Sacramento County LEMA"); the San Bernardino County Public Attorneys Association ("San Bernardino County PAA"); the Deputy Sheriffs' Association of Alameda County ("Alameda County DSA"); the Statewide University Police Association ("SUPA"); the Sacramento Area Firefighters, Inte ational Association of Firefighters, Local 522, AFL-CIO ("Sacramento Area Firefighters"); the Palo Alto Firefighters, International Association of Firefighters, Local 1319, AFL-CIO ("Palo Alto Firefighters"); the San Mateo County Deputy Sheriffs' Association

("SMCDSA"); the Rialto Professional Firefighters, International Association of Firefighters, Local 3688 ("Rialto Firefighters"); the Vallejo Police Officers' Association ("Vallejo POA"); the Elk Grove Police Officers' Association ("EGPOA"); the Ontario Police Officers' Association ("Ontario POA"); the Placer County Deputy Sheriffs' Association ("PCDSA"), the Elk Grove Police Officers Association ( EGPOA"); the Federated University Police Officers' Association ("FUPOA"); and the Los Angeles Airport Peace Officers' Association ("LAAPOA"). Sacramento POA represents approximately 721 police officers, sergeants, community service officers, dispatchers and park rangers. Formed in 1969, the association represents its sworn and civilian members on matters involving wages, benefits and working conditions. The Sacramento POA regularly uses the California Public Records Act ("CPRA") and MeyersMilias-Brown Act ("MMBA") disclosure provisions to obtain information regarding the functioning and financial condition of Sacramento's Police Department, including requests for the ema ls of public officials. Currently, the City of Sacramento is embroiled in litigation which disclosed communications by the mayor on personal electronic devices relating to the City's public contribution towards an arena for the Sacramento Kings. This information directly relates to the City's ability to pay market wages to the POA' s me be s and hire adequate numbers of police officers.

Stockton POA represents approximately 340 sworn police officers and sergeants. The union has an interest in whatever such information is exempt from the CPRA. Stockton POA represents it members in negotiations over wages, hours, terms and conditions of employment. The union submitted multiple CPRA requests to obtain critical financial information from the City through normal negotiations. The union also made several requests for emails from City officials. During the eligibility hearings, mails were disclosed revealing City officials instructed outside financial consultants via email to modify their eports and findings relating to the City's finances. Officials directed the consultants to revise reports to agree with the City Manager's conclusions. The appellate court's opinion incentivizes officials to conceal such emails on personal accounts. The Stockton POA believes a municipal bankruptcy is quintessential public business and the public record should include all communications with taxpayer funded consultants regardless of the medium of communication. The Sacramento County Deputy Sheriffs' Association ("SCDSA") represents over 1500 sworn and civilian Sheriff Department employees, including deputy sheriffs and sergeants. The SCDSA is actively involved in political and concerted action to promote public safety and improve the law enforcement profession. The SCDSA regularly uses the CPRA to obtain public records to educate the public on the impacts of police staffing and early inmate release policies. As part of its collective bargaining and member 3

representation, the SCDSA relies upon the CPRA to supplement the MMBA in obtaining public information regarding County policies, finances, and the conduct of its elected and appointed officials. Sacramento County LEMA represents approximately 82 managers from the Sacramento County Sheriff's Department, Probation Department, District Attorney's Office, Department of Human Assistance and the Public Defender's Office. The association is dedicated to supporting its members by securing wages, benefits, and working conditions for its members. Sacramento County LEMA recently participated in an interest arbitration proceeding where it relied on the CPRA to obtain evidence of its members' workloads and the County's financial condition. Sacramento County LEMA has an interest in being able to obtain private emails of public officials relating to public business. San Bernardino County PAA represents over 300 deputy district attorneys, deputy public defenders, and child support attorneys and was formed in 2002. It regularly utilized the CPRA to obtain information for negotiations with the County of San Bernardino over wages, benefits, and working conditions. Because relevant information is often contained in public official's personal and county mails, the union has an interest in the outcome of this appeal. Alameda County DSA represents approximately 928 deputy sheriffs and sergeants. It collectively bargains to enhance wages, benefits and 4

working conditions. In representing its members, the Alameda County DSA exercises its statutory rights to obtain disclosure of public records. Alameda DSA has an interest in preventing public officials from shielding public emails from disclosure by using personal devices. Sacramento Area Firefighters represents approximately 1,396 members employed in various fire employee classifications of the Sacramento County Fire & Rescue Aircraft Fire Department, Folsom Fire Department, Consurnnes Fire Department, Sacramento Fire Department, Sacramento Metro Fire District, and West Sacramento Fire Department. The union represents its members in collective bargaining and is dedicated to mproving the wages, hours and working conditions of its members. The union frequently relies upon the CPRA to obtain records documenting response times, budget allocations to the fire departments, the procurement of state and federal grants, financial condition, and information pertaining to possible conflicts of interest or violations of the Brown Act. The union has pending CPRA requests for emails between various public officials that it suspects may reveal corruption or unfair labor pract ces. The union has already obtained emails between the City of Sacramento and CalPERS which directly contradict claims by City representatives that supplanting fire-based medics will save costs. The union has an interest in accessing al public officials' emails involving public business. The union fears the records

sought may be in private email accounts and remain concealed absent a reversal in this appeal. Palo Alto Firefighters is a labor association representing approximately 95 professional firefighters employed by the City of Palo Alto. Local 1319 negotiates member wages, benefits and working conditions with the City of Palo Alto. The association regularly utilizes the CPRA and MMBA to obtain information used in representing its members. The union has an interest in establishing access to all emails of public officials that pertain to the people's business. The San Mateo County Deputy Sheriffs Association represents approximately 450 members. It regularly uses the CPRA and MMBA to obtain information relevant to representing its members. The union has an interest opposing the loop-hole to the CPRA created by the appellate court. The Placer County Deputy Sheriffs' Association represents approximately 250 deputies, sergeants and district attorney investigators. The union frequently requests information from the County through the CPRA regarding law enforcement issues and County finances. Placer DSA has an interest challenging the ability of public officials to secretly conduct public business on personal devices. Rialto Firefighters represents approximately 121 professional firefighters employed by the City of Rialto. Local 3688 is part of the International Association of Firefighters. Local 3688 negotiates member 6

wages, benefits and working conditions with the City of Rialto. The union uses the CPRA and has interest in accessing all emails from public officials involving public business. The Elk Grove Police Officers' Association ("EGPOA") represents approximately 165 police officers and sergeants. The EGPOA regularly requests information involving a variety of subjects utilizing the CPRA, including requests for emails and electronic communication. The appellate court ruling in this appeal sign ficantly under cuts the EGPOA's ability to access information, particularly information that may involve misuse of authority or communications by public officials that contradict their public statements. Statewide University Police Association ("SUPA") is a labor organization representing the police officers, corporals and sergeants of the California State University Police System. There are approximately 300 SUPA members spread amongst twenty-two CSU campuses. SUPA members provide law enforcement services to the CSU campuses. SUPA relies heavily on the CPRA to obtain information relating to campuses where its members work. SUPA has an interest in opposing the appellate opinion created loop-hole that CSU officials can use to shield certain public emails

Vallejo POA represents approximately 110 police capta ns, ieutenants, sergeants, corporals and officers. The association is dedicated to 7

protecting the collective interests of and negotiating for its members. The union has an interest in establishing the ability to obtain emails from public officials without regard to ownership of the email account. Ontario POA represents approximately 190 sworn police officers, corporals, and detectives with the Ontario Police Department. The association is dedicated to representing its members in issues related to employer-employee relations. In safeguarding the rights, benefits, and privileges of each member, the union has an interest in establishing access to public officials' emails regarding public business. FUPOA represents more than 250 police officers who provide law enforcement services at all University of California campuses. FUPOA represents members on matters involving wages, benefits, and working conditions. FUPOA is currently involved in litigation over its members being subjected to audio and video recording without their knowledge or consent. The nature and extent of UC Irvine's surveillance of FUPOA's members were revealed in a significant part by FUPOA's CPRA request for emails of public officials. FUPOA believes the appellate court ruling, if upheld, will prevent access to such information in the future. The appellate opinion incentivizes transmitting such communications on personal accounts to avoid scrutiny. LAAPOA represents the sworn police officers and firefighters of the Los Angeles Airport Police Department assigned to protect and serve Los

Angeles International Airport, LA/Ontario International Airport and Van Nuys Airport. LAAPOA has an interest in protecting its rights under the CPRA and IVIMBA to obtain public information contained in mails about the City of Los Angeles' policies, finances, and the conduct of its elected and appointed officials. INTEREST OF AMICI CURIAE The Arnici are public safety labor associations representing thousands of state and local safety employees directly affected by the appellate court's ruling. The Amici have a significant interest in the resolution of this issue, because they rely on the California Public Records Act ("CPRA") to obtain information they need to represent their members and expose public corruption.

This Court's decision will establish whether written

communications about government business that are sent or received by public officials through personal accounts or devices, are "public records" within the meaning of the CPRA. The determination of this issue will likely instruct whether public officials can conceal from Amici communications regarding public business pursuant to collective bargaining statutes. As first responders, Arnici also have an interest in preventing public officials from concealing abuses of power or corruption from public scrutiny by using personal devices. Working within a public agency public safety employees can witness government corruption and misconduct first-hand. For example, peace officers are in positions to observe abuse of power, such 9

as selective enforcement, quota requirements, or manipulation of crime statistics. Emails from public officials often provide a more candid view of the conducting of public business and can substantiate misuses of power. Because public officials are likely to exploit a loop-hole for personal emails and text messages, Amici have a special interest in ensuring the CPRA covers such modes of communication. Further, Amici have a special interest in this case because the Court's analysis of what communications are "public records" under the CPRA will impact their right to obtain communications relating to matters within the scope of representation for their members (under the CPRA and collective bargaining statutes). The CPRA and these collective bargaining statutes give Amici the right to access public information relevant to representing their members. This appeal will inform future disputes over access to public officials' personal emails and text messages about matters within the scope of representation. The CPRA is an important tool for acquiring information relevant to the representation of Amici's members. Content-based exceptions to disclosure under the CPRA and California's collective bargaining statutes are well established. The appellate court improperly created a new locationbased exception. Amici have an interest in presenting unique considerations and adverse impacts originating from the appellate court's creation of an

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arbitrary method for public officials to conceal public business. Accordingly, the Amici possess a significant interest in this appeal. NEED FOR FURTHER BRIEFING The Amici are familiar with the issues before the Court and the scope of their presentation. They believe further briefing is necessary to address matters not fully considered by the parties' briefs, to ensure that the issues affecting the Amici are fully heard and considered by this Court. As public safety representatives, Amici are uniquely positioned to raise important considerations regarding the impacts of the appellate court's opinion on access to information for representational duties and first responders' ability to corroborate abuses of power they observe. Their perspective will assist the Court in appropriately balancing the interests of public employees in accessing accurate information about government data and affairs. These considerations have not been raised by the other parties. The Amici will assist the Court in fully considering the policy implications of the Sixth District's narrow construction of the CPRA. CONCLUSION For the foregoing reasons, the Amici respectfiffly request this Court accept the accompanying brief for filing in this case.1

1 Pursuant

to California Rule of Court 8.520(0(4), no party to this case authored the accompanying amicus brief in whole or in part, and no party other than the amici made a monetary contribution intended to fund the preparation or submission of the brief. 11

Respectfully submitted, July 20 , 2015

MASTAGNI HOLSTEDT, APC

E. MASTAGNI ISAAC S. STEVENS JEFFREY R.A. EDWARDS Attorneys for the Amici Curiae

TABLE OF CONTENTS INTRODUCTION ............. ... ......................... .... ......... I. The CPRA and California Constitution Require Disclosure of Public Officials' Electronic Communications About Government Business Stored on Personal Devices.

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A. The CPRA Applies to Public Officials' Electronic Communications About Government Business Stored on Personal Devices.

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1. Public Official Governmental Records Are Public Agency Records

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2. The Content of Electronic Communication Controls, Not Means of Sending It 7 3. The CPRA Does Not Provide a "Personal Devices" Exemption

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B. The City Did Not Meet Its High Burden in Section 6255 Balancing

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1. The City Must Meet a High Burden to Avoid Disclosure Under Section 6255 9 2. Requiring Disclosure of Emails Sent From Personal Accounts Does Not Impose a Substantial Burden. 10 3. Public Officials' Limited Privacy Rights Do Not Outweigh the Public's Right to Access Public Officials' Communications about Government Business 11 4. Section 6255 Balancing Must be Conduc ed on an Individual Basis II. The Appellate Court's Decision Significantly Impairs Employee Associations' Collective Bargaining and Watchdog Roles A. The Appellate Court's Decision Will Impair Employee Organizations' Rights Under Collective Bargaining Laws

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13 14

B. Allowing Public Officials to Use Personal Devices to Circumvent Scrutiny Invites Agencies to Hide Information 20 CONCLUSION

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TABLE OF AUTHORITIES STATE CASES Am. Civil Liberties Union Found. v. Deukmejian (1982) 32 Ca1.3d. 440 ............... ............................. ......... . ... ................ 9 Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353 4, 5 CBS Broadcasting v. Superior Court (2001) 91 Cal.App.4th 892 11 CBS, Inc. v. Block (1986) 42 Ca1.3d 646 3, 20 City of San Jose, et al. v. Superior Court of Santa Clara County (2014) 225 Cal.App.4th 75 1 Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Ca1.4th 278 4, 7, 13 Connell v. Superior Court (2007) 56 Cal.App.4th 601 11 Copley Press, Inc. v. Superior Court (2006) 39 Ca1.4th 1272 9 Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001 8 County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301 9 Dixon v. Superior Court (2009) 170 Cal.App.4th 1271 3 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Ca1.4th 319 6, 7, 12, 20 Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Ca1.4th 59 13 People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984)36 Ca1.3d 591 17 Service Emp. Intern. Union, Local 22, AFL-CIO v. Roseville Community Hospital (2013) 24 Cal.App.3d 400 15 Wildlife Alive v. Chickering (1976) 18 Ca1.3d 190 8 Williams v. Superior Ct. (1993) 5 Ca1.4th 337 8 FEDERAL CASES NLRB v. Truitt Mfg. Co. (1956) 351 U.S. 149

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PERB CASES California Nurses Assn. (2010) PERB Decision No. 2094-H, p. 26 [34 PERC ¶ 41] San Diego Municipal Employees Assn. (2013) PERB Case No. LA-CE-746-M [37 PERC ¶ 173] Stockton Unified School District (1980) PERB Decision No. 143 [4 PERC ¶ 11189] STATE STATUTES Gov. Code § 3301 Gov. Code"§ 3500 Gov. Code § 3512 Gov. Code § 3525 Gov. Code § 3540 Gov. Code § 3560 Gov. Code § 6250 Gov. Code § 6252 Gov. Code § 6254 Gov. Code § 6255 Gov. Code § 71600 Gov. Code § 71800 Gov. Code '§ 99560 Gov. Code § 110000

16 17 15

2 14, 15 14 14 14 14 9 3 8 3, 8, 9, 12 14 14 14 14

OTHER AUTHORITIES 52 Ops.Cal.Atty.Gen. 136 (1970) 3 Bizjak, Mayor Kevin Johnson Deleted Text Messages About Arena Deal, 19 Sacramento Bee (June 30, 2015) Blake, E-Mails Suggest Top Christie Aide Used Lane Closures For Retribution (Jan. 8, 2014) Washington Post 22 California Constitution, Article I, Section 3(b) 1, 3, 5, 6 Davey & Yaccino, Aides' Emails Provide Detailed Look at Wisconsin's 22 Governor (Feb. 19, 2014) N.Y. Times Stalcup & Barreira, California Police Union Files Lawsuit Against UC Board of Regents, UC Irvine Police, Others, The Daily California 25 (November 19, 29014)

INTRODUCTION The Sixth District Court of Appeal erred in holding communications between public officials using personal cell phones or email accounts were not "public records" within the meaning of the California Public Records Act ("CPRA"). The Amici Curiae urge the Court to everse the holding in City of San Jose, et al. v. Superior Court of Santa Cla a County (2014) previously pub. at 225 Cal.App.4th 75 [169 Cal.Rptr.3d 840], review granted June 25, 2014, S218066 (hereinafter "slip opinion"). The appellate court's reasoning violates the plain meaning and legislative intent of the CPRA and Article I, section 3(b) of the California Constitution. Regardless of the medium used to transmit the , a public official's communications regarding the conduct of government business are the "writings of public officials" which "shall be open to public scrutiny." (Cal. Const., art. I § 3, subd. (b).) A goverment official's alleged privacy interest does not supersede the public's right to accurate information about government affairs, particularly where the official chooses to conduct government business on personal equipment. The appellate court's narrow interpretation of "public records" infringes on the rights of public employees under the CPRA and will affect their ability to obtain information under California's collective bargaining statutes. As such, this holding has the potential to ignite the labor unrest

which the Legislature sought to avoid in the law enforcement arena. (Gov. Code § 3301.) If so-called private emails between public officials concerning government business are not "public records," public employee representatives' ability to gather information will be impaired. The appellate court imprudently established a roadmap for public officials to conceal controversial public business and evidence of public corruption. Presumably, public officials would not conduct government business on personal devices unless they desired to shield the records from disclosure. As such, significant public interest exists in these communications, which provide a more candid insight into the functioning of government. Amici have a particular interest in such disclosures as they are more likely to cast light upon questionable financial dealing affecting budgetary allocations and misuses of authority. If upheld, the appellate opinion will significantly undercut Am ci's ability to access information needed to fully represent their members. Amici Curiae urge this Court to follow its prior holdings that the content, not the location, of the material governs application of the CPRA. ARGUMENT The CPRA and California Constitution Require Disclosure o Public Officials' Electronic Communications About Government Business Stored on Personal Devices. The CPRA was passed to ensure the public access to vital information about government business and conduct. (CBS, Inc. v. Block (1986) 42

Cal.3d 646, 656.) The CPRA embodies a strong policy in favor of disclosing public records and should only be construed narrowly where it limits the people's right of access. (Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1275-76; Cal. Const. art. I, § 3, subd. (b), par. (2).) The Legislature defines a public record broadly as "any writing containing information relating to the conduct of the public's business prepared owned, used, or retained by any state or local agency regardless of physical form or characteristics." (Gov. Code § 6252, subd. (e).) In an opinion letter, the Attorney General defined a public record as covering every conceivable type of record involved in the governmental process and any new form of recording keeping instrument as it is developed. (52 Ops.Cal.Atty.Gen. 136, 140-43 (1970)) Only purely personal information unrelated to the conduct of government business should be considered exempt, such as the "shopping list phoned from home or a letter from a friend that does not discuss governmental activities." (Id) In this appeal, the City of San Jose advances several arguments in connection with its claim the CPRA does not apply to public officials' electronic communications pertaining to government business stored on personal devices. None have merit. This Court should apply the CPRA to these records. The only possible basis for withholding such records is Government Code section 6255's, balancing. This Court has rejected blanket

application of section 6255 exemptions. Public officials will rarely be able to satisfy the section 6255 balancing. A. The CPRA Applies to Public Officials' Electronic Communications About Government Business Stored on Personal Devices. I. Public Official Governmental Records Are Public Agency Records By determining that public officials' records do not belong to public agencies, the appellate court's construction of section 6252 subdivision (e) defeats the purpose of the CPRA. In Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Ca1.4th 278, 290 (hereinafter POST), this Court instructed that statutes must be construed with a view toward "promoting rather than defeating the statutes' general purpose." Applying the appellate court's logic, only documents produced by a city council as an agency would be considered public records. Broad swaths of documents that this Court previously found to be public records would no longer be classified as public records. Even the trial court admitted agencies can only act through their officers and their employees. (Slip opinion at p.3). To reconcile Article I, section 3(b) and the CPRA, public officials' communications must be considered communications of the agency the officials work for. The appellate court's decision narrowly construes the CPRA to restrict public access to government records, defeating the CPRA's purpose of enhancing access to such records.

Recently, in Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 374, the Court of Appeal for the First District, Division Four stated an email relating to government business written and retained by an agency employee on his or her personal computer or cell phone was a writing within the meaning of the CPRA and subject to disclosure. "[T]o permit a different rule simply because the employee is conducting public business from his or her home computer would allow a public agency to shield documents from disclosure simply by instructing its employees to use their private email accounts." (Id at 374-75.) The City cannot credibly argue the emails at issue here would be exempt from disclosure if sent from a city email address. Thus, the appellate court relied upon an arbitrary distinction. As Bertoli held, such distinctions provide public agencies with an easy scheme to avoid the disclosure of public information. (Bertoli, supra, 233 Cal.App.4th at pp. 374-75.) Moreover, this distinction contradicts the California Constitution. Article I, section 3, paragraph (b) of the Constitution elevates the disclosure requirements of the CPRA and provides an independent right of access to the writings of public officials that contains no exceptions from disclosure based upon whether electronic documents are stored and transmitted on personal mediums. The CPRA is used to further the purposes of Article I, section 3, subdivision (b), paragraph (1). Article I, section 3, subdivision (b), paragraph (7) states that in order to ensure public access to the meetings of public bodies

and the writings of public officials and agencies, "each local agency is hereby required to comply with the California Public Records Act..." After the people of California overwhelmingly voted to amend the Californ a Constitution in 2004, this Court recognized that, "openness in government is essential to the functioning of a democracy." (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328.) The government should be accountable for its actions, and in order to verify accountability, individuals must have access to government files. (Id. at p. 328-29.) Public access to this information permits checks against the arbitrary exercise of official power and secrecy in the political process. (Ibid.) The express references in Article I, section 3, subdivision (b), paragraph (1) to the writings of public officials confirms the CPRA applies to individual public officials, not merely the public agencies they work for (Cal. Const. art. I, § 3, subd. (b), par. (1).) Article I, section 3, subdivis'on (b) states "the writings of public officials and agencies shall be open to public scrutiny." (Emphasis added.) Here, the appellate court ignored the plain text of the Constitution granting a right of access to the writings of public officials. Instead, it ruled that private messages discussing government business do not fall within the scope of "public records." (Slip opinion at p. 13.) This interpretation of the CPRA directly conflicts with the reference to individual public officials in Article I, section 3(b). Since the Constitution

acknowledges "public scrutiny" applies both to public officials and to agencies, the appellate court's reliance on distinguishing between the two is unsupported by the Constitution. 2. The Content of Electronic Communication Controls, Not Means of Sending It In POST, this Court stated "we consider it unlikely the Legislature intended to render documents confidential and not subject to PRA disclosure based on their location, rather than their content." (POST, supra, 42 Ca1.4th at p. 291.) In Local 21, the court also stated that whether a particular type of record is exempt should not depend on the peculiar practice of the government entity at issue. (Local 21, supra, 42 Ca1.4th at p. 336.) But in this case, the appellate court tried to distingu sh POST on the grounds that in POST whether the records were "public records" was not at issue, while in this case they are at issue. (Slip opinion at p.15-16.) Here, the City must concede the records at issue would have been subject to disclosure if sent from a city-owned device or email account. The means used to communicate does not determine whether the information communicated is a public record. The Court should reject this arbitrary distinction, just as it did in POST 3. The CPRA Does Not Provide a "Personal Devices" Exemption The intent of the CPRA is to cover every conceivable kind of record involved in the governmental process, unless the Legislature has expressly

provided to the contrary. (Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006; Williams v. Superior Ct. (1993) 5 Ca1.4th 337, 346.) The appellate court's exemption for personally-owned emails and text messages is unsupportable under the canon of expressio unius est exclusio alterius. Where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190,195). Government Code section 6254 provides an exhaustive list of exemptions to the CPRA's disclosu e requirements. However, it does not exempt otherwise public documents contained in personal emails or text messages. The fact that the Legislature spec fied exemptions to the CPRA prohibits the Court from finding that other exemptions were implied or presumed. Coupled with the constitutional presumption of open records, the canon of expression unius est exclusion alterius forecloses the appellate court's interpretation of the CPRA. B. The City Did Not Meet Its High Burden in Section 6255 Balancing Since the CPRA applies to public officials' electronic communications about government business stored on personal devices, the only way the City could avoid disclosure is to meet its high burden in section 6255 balanc ng. The City failed to meet that burden.'

Government Code § 6255(a) states '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 disclosing the record clearly outweighs the 2

1. The City Must Meet a High Burden to Avoid Disclosure Under Section 6255 In enacting the CPRA in 1968, the Legislature declared that, while "mindful of the right of individuals to privacy,...access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Gov. Code § 6250; see also County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1319-20.) Given these considerations, "judicial decisions interpreting the [CPRA] seek to balance the public right to access to information,' the government's need, or lack of need, to preserve confidentiality, and the individual's right to privacy." (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282.) Under Government Code section 6255's balancing test, public information contained in personal email and text messages must be disclosed. Gove ment Code section 6255 provides for weighing the benefits and costs of disclosing public information. (Gov. Code § 6255; Am. Civil Liberties Union Found. v. Deukmejian (1982) 32 Ca1.3d. 440, 452.) Withholding public information is only appropriate if the public interest served by not disclosing it clearly outweighs the public interest served by disclosure. (Gov.

public interest served by disclosure of the record." This Court has consistently rejected blanket refusals to disclose categories of records under section 6255. Such determinations must be made on a case by case basis and are rarely granted.

Code § 6255.) Public officials can already withhold or redact personal communications unrelated to government business. As such, public officials have no legitimate interest in withholding otherwise public records simply because they were transmitted or stored electronically on a personal account. A determination to the contrary is tantamount to authorizing public officials to conceal public documents simply by choosing to create them on personal computers or take them home. 2 Requiring Disclosure of Emails Sent From Personal Accounts Does Not Impose a Substantial Burden. The City overstates the burden and cost to search the personal electronic accounts of its employees when claiming such searches would overwhelm local agencies. (Slip opinion at p. 9.) Public agencies routinely must conduct electronic searches of emails and messages on agency owed equipment in response to CPRA requests, as well as civil discovery. By searching key terms, electronic searches are much more efficient than searches for physical documents. The City failed to show how conducting similar electronic searches on personal email or messaging accounts would be sign ficantly more difficult than doing so on City-owned equipment. The gravamen of the City's burdensome argument seems to be having to disclose emails and messages regardless of what account they are sent from. This argument is specious. The burden of conducting e ectronic searches is minimal.

Even assuming, for the sake of argument, that searching private accounts creates a significant additional burden, such a burden alone would not defeat a Public Records Act request. (Connell v. Superior Court (2007) 56 Cal.App.4th 601, 615 [holding agencies may be forced to bear a tangible burden in complying with the CPRA].) For example, in CBS Broadcasting v. Superior Court, the Court rejected the agency's assertion that costs of $43,000 to compile a list of ind*viduals granted criminal conviction exemptions was a valid reason to proscribe disclosure of the identities of individuals. (CBS Broadcasting v. Superior Court (2001) 91 Cal.App.4th 892, 909.) Certainly, the cost requiring a public official to search email accounts is insignificant compared to the cost in CBS Broadcasting and the cost associated with a variety of other CPRA requests. If agencies want to avoid searching pe sonally owed accounts, they must require employees to conduct government business only on public email and messaging accounts. Incentivizing such policies enhances the public's interest in both open records and trust of the government. The recent controversies over Secretary of State Hillary Clinton and Sacramento Mayor Kevin Johnson conducting public business on personal email accounts evidence the folly of allowing government business to be conducted on personally owned devices. 3. Public Officials' Limited Privacy Rights Do Not Outweigh the Public's Right to Access Public Officials' Communications about Government Business

This Court should reject the City's claims about public officials' privacy interests because it has previously rejected more robust public official privacy concerns in the Government Code section 6255 context. In weighing public official privacy rights against the interest in disclosure, this Court ordered disclosure of public employee salaries, both because public access makes it possible to uncover "corruption, incompetence, inefficiency, prejudice and favoritism," and because salary disclosure "is information regarding an aspect of government operations" which contributes to the public's understanding and oversight of those operations. (Local 21, supra, 42 Ca1.4th at p. 333, 340.) A party claiming an invasion of privacy must show (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest. (Id. at 338.) Here, public officials cannot reasonably claim they have a protected privacy interest in communications they make in their official capacities that would otherwise be public records if they sent them through government email accounts or devices. When a public official chooses to conduct government business on a personal electronic device, he or she must expect the scrutiny which comes with being a public official. The official cannot reasonably expect such communications would remain private.

12

4. Section 6255 Balancing Must be Conducted on an Individual Basis This Court recently concluded vague or generalized concerns are not enough to tip the balance against disclosure. (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 74. [holding general concerns regarding officer safety cannot prohibit disclosure of the names of officers involved in critical incidents].) If a public official can demonstrate on the facts of a particular case that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record, then withholding the record would be warranted. However, this Court unequivocally rejected blanket rules barring disclosure under Government Code section 6255. (Id. at p. 75.) Furthermore, "the Act provides that if material that is exempt from disclosure reasonably can be segregated from material that is not exempt, segregation is required." (POST, supra, 42 Cal.4th at p. 301.) Thus, information contained in emails or text messages discussing government business should be presumptively open, with a heavy burden for nondisclosure. The public interest is not served by withholding otherwise public records simply because they were sent or eceived using' a personal email account. IL

The Appellate Court's Decision Significantly Impairs Employee Associations' Collective Bargaining and Watchdog Roles

The appellate court's decision impairs public sector employee associations' ability to bargain collectively and act as critical watchdogs of government activities. It creates a roadmap for public officials to hide important information from labor. Labor associations rely on public information requests and the exercise of similar informational rights emanating from California's collective bargaining laws to bargain for their members and keep a watchful eye on public administration. The appellate court's decision not only impairs labor associations' access to information under the CPRA, but collaterally impairs labor association's access to information in the collective bargaining process. Without labor associations empowered to play these roles, serious mismanagement and corruption problems will go undiscove ed. A. The Appellate Court's Decision Will Impair Employee Organizations' Rights Under Collective Bargaining Laws Californ a's collect've bargaining statutes govern labor relations between employee associations and public employers.3 While these statutes

See Meyers-Milias-Brown Act, Gov. Code §§ 3500 et seq. (local government employees); Education Employment Relations Act, Gov. Code §§ 3540 et seq.; Dills Act, Gov. Code § 3512 et seq. (line staff in State service); Higher Education Employer Employee Relations Act, Gov. Code §§ 3560 et seq.; Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act, Gov. Code §§ 99560 et seq.; Trial Court Act, Gov. Code §§ 71600 et seq.; Court Interpreter Act, Gov. Code §§ 71800 et seq.; Excluded Employees Bill of Rights, Gov. Code §§ 3525 et seq. (line supervisors and managers in State service); In-Home Supportive Services Employer-Employee Relations Act, Gov. Code §§ 110000 et seq.

differ in some respects, their central feature requires governing bodies of public agencies to meet and confer in good faith with employee organizations regarding terms and conditions of their members' employment. (Service Emp. Intern. Union, Local 22, AFL-CIO v. Roseville Community Hospital (2013) 24 Cal.App.3d 400, 407-08.) This "duty to meet and confer in good faith," in turn, requires governing bodies to give employee associations access to information through discovery that is necessary and relevant to the discharge of employee associations' duty of representation.

(Stockton

Unified School District (1980) PERB Decision No. 143 [4 PERC ¶ 11189], citing NLRB v. Truitt Mfg. Co. (1956) 351 U.S. 149.4) This includes information relevant to collective barga ning agreements, the representation of members, retaliation against members, and discipline of members. (Gov. Code § 3500.) It also includes information regarding the employer's finances. (NLRB v. Truitt Mfg. Co., supra, 351 U.S. at pp 152-53.) But there are limits on a public agency's duty to provide nformation. When an employee association asks a public employer for information in the possession of third parties with whom the employer has a business relationship, the employer is excused from producing it if the third party

The Supreme Court in Truitt explained, "good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy." (Truitt Mfg. Co., supra, 351 U.S. at 152-53.) 4

refuses to disclose it. (California Nurses Assn. (2010) PERB Decision No. 2094-H, p. 26 [34 PERC ¶ 41].) Because of this limitation, the appellate court's distinction between public officials and public agencies will likely have a significant impact on employee associations' access to information. The appellate court's decision sets the precedent that a public official's email belongs to the official, not the public agency she works for, unless it is sent through agency servers or email accounts. (Slip opinion at p. 14-15.) Likewise, the decision establishes that such emails are not "used" or "retained" by the agency unless sent through the agency servers or email accounts. (Ibid.) If upheld, this view ould allow public agencies to claim that emails and text messages their officials sent regarding matters within the scope of representation, such as agency financial information, are not subject to disclosure under California's collective bargaining statutes. This would greatly restrict employee associations' access to information, because officials could merely refuse to allow their agencies to produce their emails and texts, and the agencies could withhold them from disclosure. As set forth below, officials in agencies employing Amici's members already use both personal and agency emails to conduct government business. The appellate court's decision, if upheld, would encourage public officials to misuse this new exception to deprive Arnici of the information they need to represent their members.

To circumvent laws governing labor relations, public officials have increasingly tried to blur the line between public business and personal actions. For instance, a PERB Administrative Law Judge ("ALF) recently ruled the mayor of San Diego violated the MMBA and People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Ca1.3d 591 by spearheading a ballot initiative to reduce pensions without meeting and conferring with the unions. (San Diego Municipal Employees Assn. (2013) PERB Case No. LA-CE-746-M [37 PERC ¶ 173].) The mayor claimed he was acting as a private citizen, not in his official capacity, and therefore he was not bound by the MMBA's bargaining obligations. The ALJ based the ruling on the legal principle of agency liabil ty, finding that, as the City's chief negotiator, the mayor was acting with actual and apparent authority on behalf of the City. (Ibid.) Given the extent to which public business is conducted over emails, the personal email exemption created by the appellate court will inevitably result in the use of personal email to avoid disclosing embarrassing emails. For example, local entities often contract with outside consulting firms, such as Management Partners, to analyze important public affairs including their financial condition, labor relations rules, employee compensation analysis, optimum safety staffing, and crime analysis. Public officials will typically communicate with the consultants through emails and text messages. The officials frequently g ve input about draft reports before they are finalized 17

and made public. Since the public pays for these reports, strong public interests support disclosing communications as they reveal the public officials' influence. These communications are essential for both Amici and the public to assess the reliability and independence of such reports. These reports are used to influence budgetary decisions, collective bargaining and even municipal bankruptcies. For example, the Stockton POA discovered that City of Stockton officials heavily influenced a purportedly independent financial consultant's financial assessment report through email com unications. During the bankruptcy eligibility hearing in the Eastern D'strict of California, Deputy City Manager Laurie Mantes was publicly confronted with her email directing Management Partners to change their assessment of the city's financial condition to minimize the incompetence of city officials and ratify their assessments. In her January 23, 2012 email, Ms. Montes expressed then City Manager Bob Deis' concerns that "it reads a little too much like we've been asleep at the switch" and "the report should say that you're not seeing anything (or little) new...say that you concur with what staff has been saying." (In re: City of Stockton, Case No. 12-32118-c-9, Doc 833, filed 03/27/13, "Reporter's Transcript of. Daily Proceedings," pp. 203-205.) The public's interest in the independence and accuracy of a report on a public entity's financial condition in the run up to a municipal bankruptcy is beyond dispute. Ms. Montes even admits in her email, "Simple changes to how 18

things are stated can make a big difference." (In re: City of Stockton, Case No. 12-32118-c-9, Exhibit 217, STOCK 107902, as referred in Doc 833, filed 03/27/13, "Reporter's Transcript of Daily Proceedings, pp. 203-205.) If this Court affirms appellant court's decision, public officials will almost certainly send such emails from personal accounts to avoid the scrutiny Ms. Montes appropriately received during her cross-examination. Amici need disclosures like this to scrutinize the veracity and reliability of financial assessments upon which public safety staffing and compensation determinations are made. Similarly, a recent lawsuit over a deal to build a new arena for the Sacramento Kings revealed the City of Sacramento's Mayor Kevin Johnson used his personal phone to discuss the proposed terms of a deal via text message. (Bizjak, Mayor Kevin Johnson Deleted Text Messages About Arena Deal,

Sacramento Bee (June 30, 2015)

http://www.sacbee.com/news/local/c ty-arena/article25848493.html> as of [July 15, 2015].) In the case, the plaintiffs alleged the City gave the Kings owners' rights to advertise on digital billboards that would generate millions of dollars in revenues, but failed to disclose the value of the rights when disclosing the terms of the arena deal to the public. At a June 30, 2015 hearing in the case, Mayor Johnson admitted he deleted text messages he sent and received that discussed the deal. This kind of information is often relevant to the Amici's representative activities. For example, information 19

about the value of the City of Sacramento's billboard advertising rights is relevant to the Sacramento POA's bargaining with the City because it shows how much money the City could spend on additional police officers, or wage increases to address recruitment and retention problems. B. Allowing Public Officials to Use Personal Devices to Circumvent Scrutiny Invites Agencies to Hide Information Public employee associations regularly rely on access to records to expose government malfeasance. But the appellate court's decision in this case provides a loophole for public officials to avoid CPRA requests by using personal accounts to send communications. The decision ignores concerns of potential misconduct by public officials, stating, "we must presume public officials are conducting city business in the public's best interest." (Slip opinion at p. 8.) History has shown this presumption is unjustified. "In order to verify accountability, individuals must have access to government files. Such access permits checks aga nst the arbitrary exercise of official power and secrecy in the political process." (CBS, Inc. v. Block, supra, 42 Ca1.3d at p. 651.) As this Court explained in Local 21, "public access makes it possible for members of the public to expose corruption, ncompetence, inefficiency, prejudice and favoritism." (Local 21, supra, 42 Ca1.4th at p. 333.) Employee associations, particularly those representing public safety professionals, play a critical role uncovering public officials' misconduct and

corruption. For example, FUPOA members discovered the University of California Irvine Police began surreptitiously recording confidential communications of their members and university students. To investigate these potential violations of California Penal Code Section 632, FUPOA requested all emails received and sent concerning any audio/visual recording devices installed at the UC Irvine Police Station. The university's response revealed information confirming the unauthorized recordings and exposed the purported destruction of such record'ngs. The CRPA disclosures contributed to FUPOA' s decision to commence a federal class action lawsuit to protect its members' privacy rights. (See Federated University Police Officers Association et al v. The Regents of the University of California et al, United States District Court for the Central District, Case No. 8:15-cv00137.) The disclosure of this misconduct led to wide spread media attention. (See e.g., Stalcup & Alexander, California Police Union Files Lawsuit Against UC Board of Regents, UC Irvine Police, Others, The Daily California

(November

19,

29014)

hap ://www.dailycal.org/2014/11/19/ca forn a-police-union-files-la suituc-board-regents-uc-irvine-police-others/ as [July 17, 2015].) Under the appellate court's arbitrary exception to the CPRA, these essential emails could have been concealed from FUPOA if the public officials in question used personal accounts.

Recent events outside California also show that public officials use personal email accounts and communication devices to hide corruption and other misdeeds. In Wisconsin, for example, Governor Scott Walker's aides used personal computers and email to conceal they were mixing government and campaign business, a practice which led to criminal convictions. (Davey & Yaccino, Aides' &mils Provide Detailed Look at Wisconsin's Governor (Feb

19,

2014)

N.Y.

Times


Post


politics/wp/2014/01/08/e-mails-suggest-top-christ e-a de-used-laneclosures-for-retribution/ [as of July 16, 2015].) The public must have access to documents showing what their public servants are doing in their name. Such access is essential for rooting out corruption and exposing government misdeeds. As public employees, Amici's members are often the first to detect government malfeasance, and the appellate court's ruling in this case would prevent them from finding the information needed to expose such misconduct. 22

If this Court allows the appellate court's "personal device" exemption to stand, City officials will use personal email and text messages to communicate about controversial matters and obscure misconduct, evading disclosure to the public and public employees. Without access to this information, Amici and their members will be handicapped from holding public officials accountable. CONCLUSION For the foregoing reasons, the Arn ci respectfully ask this Court to reverse the appellate court's decis'on in this case.

Respectfully submitted, July '20 , 2015

MASTAGNI HO STEDT, APC

E. MASTAGNI ISAAC S. STEVENS JEFFREY R.A. EDWARDS Attorneys for the Arnici Curiae

CERTIFICATE OF WORD COUNT Pursuant to Rule 8.204(c)(1) of the California Rules of Court, I certify that this brief consists of 8,848 words, as counted by the computer program used to generate the document. July,)0 , 2015

MASTAGNI HOLSTEDT, APC

DAVID E. MASTAGNI ISAAC S. STEVENS JEFFREY R.A. EDWARDS Attorneys for the Amici Curiae

PROOF OF SERVICE BY MAIL I am a citizen of the United States and a resident of the County of Sacramento. I am over the age Hof eighteen years and not a party to the within above-entitled action; my business address is 1912 I Street, Sacramento, California 95811. On July 20, 2015 I served the within: APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND [PROPOSED] BRIEF OF AMICI CURIAE IN SUPPORT OF REAL PARTY IN INTEREST, TED SMITH on the parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in California, addressed as follows:

Sixth District Court of Appeal 333 West Santa Clara Street Suite 1060 San Jose, CA 95113

Superior Court of Santa Clara County Honorable James P. Kleinberg 720 9th Street, Room 102 Sacramento, CA 95814

Margo Laskowska Office of the City Attorney City of San Jose 200 East Santa Clara Street San Jose, CA 95113-1905

Matthew Todd Schechter McManis Faulkner & Morgan 50 W. San Fernando Street, 10th Floor San Jose, CA 95113

Christine Elizabeth Peek McManis Faulkner & Morgan 50 W. San Fernando Street, 10th Floor San Jose, CA 95113

Richard Tyler Atkinson McManis Faulkner 50 West San Fernando S reet, 10th Floor San Jose, CA 95113

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Karl Olson Richard Hopp Levy Ram & Olson, LLP P.O. Box 3601 555 Montgomery Street, Suite 820 Van Nuys, CA 91407 San Francisco, CA 94111

I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 20, 2015 at Sacramento, California.

PATRICK, Paralegal

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