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DENNIS J. HERRERA, State Bar #139669
City Attorney
WAYNE K. SNODGRASS, State Bar #148137
AILEEN M. McGRATH, State Bar #280846
Deputy City Attorneys
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place F
San Francisco, California 94102-4682 Superior Court of California.
Telephone: (415) 554-4691 County of San Francisco
Facsimile: _ (415) 554-4699
E-Mail: aileen.mcgrath@sfcityatty.org : AUG 29 2019
CLERK OF THE COURT
Attorneys for Respondents : ten
CITY AND COUNTY OF SAN FRANCISCO, and BY:
ee : 7 Deputy Clerk
WILLIAM SCOTT, in his official capacity as the
San Francisco Police Department Chief
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
ASIAN AMERICANS ADVANCING Case No. CPF-19-516706
JUSTICE - ASIAN LAW CAUCUS,
COUNCIL ON AMERICAN - ISLAMIC [ ER DENYING
RELATIONS, CALIFORNIA, AND PETITIONERS’ MOTION FOR
AMERICAN CIVIL LIBERTIES UNION OF | PEREMPTORY WRIT OF MANDATE
NORTHERN CALIFORNIA,
Petitioners,
Hearing Date: August 27, 2019
vs. Hearing Judge: Hon. Ethan P. Schulman
Time: 9:30 a.m.
CITY AND COUNTY OF SAN FRANCISCO, | Place: Dept. 302
AND WILLIAM SCOTT, San Francisco Police
Department Chief, Reservation No.: 07010820-12
Respondents. . Date Action Filed: June 18, 2019
"+ [PROROSED] ORDER DENYING MOT PEREMPT. WRIT n:\govlit\li2019\191416\01387499.docx
CASE NO. CPF-19-516706Co DP DD HW FF WN
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‘
Petitioners’ Motion for Peremptory Writ of Mandate came on regularly for hearing on August
27, 2019, at 9:30 a.m., in Department 302 of the San Francisco Superior Court, the Honorable Ethan P.
Schulman presiding. Counsel of Record, Novella Coleman appeared on behalf of Petitioners, and
Deputy City Attorney Aileen M. McGrath appeared on behalf of Respondents.
Having considered the papers filed in support of and in opposition to the writ petition, as well
as any statements of counsel and/or petitioner on August 27, 2019, this Court orders as follows:
Petitioners Asian Americans Advancing Justice — Asian Law Caucus, Council on American-
Islamic Relations, California, and American Civil Liberties Union of Northern California’s motion for
peremptory writ of mandate is denied. Petitioners seek to compel disclosure of a white paper authored
by the Federal Bureau of Investigation (FBI) which “provides clarification and understanding” of the
Joint Terrorism Task Force-San Francisco Police Department Memorandum of Understanding, the.
City’s 2012 Safe Streets City Ordinance, and SFPD’s General Order 8.10, “Guidelines for First
Amendment Activities.” The motion is denied because the white paper is property of the federal
government and Respondents are prohibited by federal law from disclosing it. Petitioners’ remedy is
to seek its disclosure directly from the FBI under the federal Freedom of Information Act.
The PRA does not apply to records, “the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating
to privilege.” (Gov. Code § 6254(k).) Under federal law, the U.S. Attorney General is charged with
the mandatory duty of preserving “identification, criminal identification, crime, and other
records.” (28 U.S.C. § 534(a).) The same statute authorizes the Attorney General to “exchange such
records and information with, and for the official use of, . . . the States, including . . . cities,” but
provides that such exchange is “subject to cancellation if dissemination is made outside the receiving
departments or related agencies.” (28 U.S.C. § 534(b).) The white paper sought by Petitioners was: :
authored by the FBI and is therefore property of the federal government. (Scott Decl. fj 12, 14, 21,
Ex. C; 44 U.S.C. § 3301(a)(1)(A) [federal records include information made by a federal agency under
federal law]; see Pfeiffer v. C.I.A. (D.C. Cir. 1995) 60 F.3d 861, 864 [report created at federal
government expense was “indisputably” federal government property].) The FBI shared it with SFPD
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on the condition that SFPD keep it confidential, and the header of the white paper expressly identified
it as “the property of the FBI,” stated that it was being “loaned” to SFPD, and prohibited its
distribution outside that agency. (Scott Decl. { 12,21.) Further, once this litigation was filed, the FBI
revoked the loan and formally requested that SFPD “return any copies of the FBI white paper that are
in SFPD possession or that have been disseminated for the purposes of SFPD intemal review and/or
use.” (Scott Decl. 4 12, 21-22, Ex. C.)
Thus, the FBI was authorized by federal law to loan its white paper to SFPD, but the white
paper remained FBI property. The FBI subsequently canceled its loan of the white paper, meaning
that it exercised its right to prevent dissemination of the document and effectively forbade’
dissemination of it pursuant to federal law. (Scott Decl. { 22, Ex. C.) “As the owner of the records,
the United States, not [SFPD or the City], has the right to determine whether and to whom the records
should be disseminated.” (United States v. Story County, Iowa, 28 F.Supp.3d 861, 873.)
Petitioners’ interpretation of the federal statute would limit the Attomey General’s authority to
maintaining criminal records such as rap sheets. But the statute is broadly worded to encompass
various crime and investigatory records. (See 28 U.S.C. § 534(a)(1) [Attorney General shall “acquire,
collect, classify, and preserve identification, criminal identification, crime, and other records.”]
[emphasis added].) In light of the “other records” catchall, the white paper is within the scope of the
Attorney General’s powers. !
That the FBI loaned the white paper to the San Francisco Police Department, as authorized by
federal law, did not alter its character as federal property. The loan of a record to a local agency such
as SFPD does not transform its federal character, nor does the physical location of a federal record
control or determine its federal status. (See Kissinger v. Reporters Committee for Freedom of the
Press (1980) 445 U.S. 136, 137 [physical location of records is not dispositive of their status as agency -
records; rather, the analysis under FOIA turns on how the records were generated and who has control
over them]; United States v. Red Lake Band of Chippewa Indians (8th Cir. 1987) 827 F.2d 380, 383
[determining that although tribal court records were located within a sovereign tribal reservation, such
3
[PR@PE6SED] ORDER DENYING MOT PEREMPT. WRIT
CASE NO. CPF-19-516706records are property of the United States because they were created by courts organized under the
Bureau of Indian Affairs, a federal agency].)
Perhaps more importantly, federal cases compel the conclusion that the FBI, not SFPD, has the
right to control disclosure of federal records such as the FBI white paper even though SFPD, a local
entity subject to state and local public records law, is in physical possession of the records. For
example, in United States v. Napper (11th Cir. 1989) 887 F.2d 1528, the court held that FBI
documents loaned to the City of Atlanta were federal property and that the city had no right to
disseminate the documents under Georgia’s public records law. (Jd. at 1530.) Just as in this case,
most of the documents in question bore the legend, “‘This document . . . . is the property of the FBI
and is loaned to your agency; it and its contents are not to be distributed outside your agency.”” (/d. at
1529; see also United States v. Story County, Iowa (S.D. Iowa 2014) 28 F.Supp.3d 861, 864-866, 873
[federal government had right to determine whether and to whom records should be disseminatéd even
when Iowa state official serving on a board of an authority within the federal Department of
Commerce used his staté computer and email address to prepare the federal documents].)
Petitioners misconstrue Respondents’ citation to Napper and Story County. Respondents do
not contend that the PRA and San Francisco Sunshine Ordinance are preempted by federal
law. Rather, those cases make clear that under 28 U.S.C. § 534 and federal law generally, the federal
government may control the dissemination of federal documents entrusted to local, state, and tribal
agencies. Petitioners fail to point to any binding authority to support their position that the PRA and
Sunshine Ordinance may be used to compel the release of a federal document that the United States
has made clear it forbids releasing. City of San Jose v. Superior Court stands for the proposition that
records prepared by persons outside of a state or local agency may fall within the PRA’s scope, but
that case did not involve a document authored by a federal agency and loaned to a local entity while
the federal agency retains the authority to revoke the loan. (City of San Jose, 2 Cal.5th at 622.) Asa
result, Petitioners cannot mandate Respondents City and County of San Francisco and Chief of Police
William Scott to release the white paper where the FBI retains control of the document and has
revoked Respondents’ right to possess it. The proper avenue for Petitioners to seek disclosure of the
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[PROPOSED] ORDER DENYING MOT PEREMPT. WRIT
CASE NO. CPF-19-516706y
white paper is via a FOIA request to the FBI. (See 5 U.S.C. § 552 [FOIA procedures for disclosure of
federal documents].)
IT IS SO ORDERED.
ones, 4, 20/9 Ful GY
The Honorable Ethan P. Schulman
JUDGE OF THE SUPERIOR COURT-
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[PROPOSED] ORDER DENYING MOT PEREMPT. WRIT
CASE NO. CPF-19-5167060 ON DH FF BW HY Ye
Yb YW NN NY NY Be Be Be Be Be ee ewe ei
BeRaRRBREKHEE Se DR AEEHRSS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ASIAN AMERICANS ADVANCING
JUSTICE — ASIAN LAW CAUCUS, et al.,
Petitioners,
ve
CITY AND COUNTY OF SAN FRANCISCO,
etal.,
Respondents.
| Case No. CPF-19-516706
CERTIFICATE OF MAILING
(CCP 1013a (4) )
I, Sean Kane, Deputy Clerk of the Superior Court of the County of San Francisco, certify that Iam
not a party. to the within action.
On August 29, 2019, I served the attached ORDER DENYING PETITIONERS’ MOTION FOR
PEREMPTORY WRIT OF MANDATE by placing a copy thereof in a sealed envelope, addressed as follows:
Novella Y. Coleman, Esq.
POLICYLINK
1438 Webster Street, Suite 303
Oakland, CA 94612
Aileen M. McGrath, Deputy City Attorney
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
Benjamin J. Wolinsky, Assistant United
States Attorney ~
450 Golden Gate Avenue, Box 36055
San Francisco, CA 94102-3495oO Om YN DH FF BW NY
Boe Be Be Be we Be ew ek
BNRRFRBRBBRRSSERDTABDESHRES
and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA 94102
on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date
following standard court practices.
Dated: August 29, 2019 T. MICHAEL YUEN, Cletk
. By: (06
Sean Kane, Deputy Clerk
Preview
0 Oe ND HW FF WN BN YN YN N NN NY Be Bee Be Be Be Be Be Be Se on A A KR YW DH =F SD we A DH FF WYN KF x DENNIS J. HERRERA, State Bar #139669 City Attorney WAYNE K. SNODGRASS, State Bar #148137 AILEEN M. McGRATH, State Bar #280846 Deputy City Attorneys City Hall, Room 234 1 Dr. Carlton B. Goodlett Place F San Francisco, California 94102-4682 Superior Court of California. Telephone: (415) 554-4691 County of San Francisco Facsimile: _ (415) 554-4699 E-Mail: aileen.mcgrath@sfcityatty.org : AUG 29 2019 CLERK OF THE COURT Attorneys for Respondents : ten CITY AND COUNTY OF SAN FRANCISCO, and BY: ee : 7 Deputy Clerk WILLIAM SCOTT, in his official capacity as the San Francisco Police Department Chief SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION ASIAN AMERICANS ADVANCING Case No. CPF-19-516706 JUSTICE - ASIAN LAW CAUCUS, COUNCIL ON AMERICAN - ISLAMIC [ ER DENYING RELATIONS, CALIFORNIA, AND PETITIONERS’ MOTION FOR AMERICAN CIVIL LIBERTIES UNION OF | PEREMPTORY WRIT OF MANDATE NORTHERN CALIFORNIA, Petitioners, Hearing Date: August 27, 2019 vs. Hearing Judge: Hon. Ethan P. Schulman Time: 9:30 a.m. CITY AND COUNTY OF SAN FRANCISCO, | Place: Dept. 302 AND WILLIAM SCOTT, San Francisco Police Department Chief, Reservation No.: 07010820-12 Respondents. . Date Action Filed: June 18, 2019 "+ [PROROSED] ORDER DENYING MOT PEREMPT. WRIT n:\govlit\li2019\191416\01387499.docx CASE NO. CPF-19-516706Co DP DD HW FF WN NY NY NY YN NN HD Bee we ewe we ewe eB Be eB oN DW HN F&F Ww NY FF DO Oe QD DH F&F BY NY SK SOS ‘ Petitioners’ Motion for Peremptory Writ of Mandate came on regularly for hearing on August 27, 2019, at 9:30 a.m., in Department 302 of the San Francisco Superior Court, the Honorable Ethan P. Schulman presiding. Counsel of Record, Novella Coleman appeared on behalf of Petitioners, and Deputy City Attorney Aileen M. McGrath appeared on behalf of Respondents. Having considered the papers filed in support of and in opposition to the writ petition, as well as any statements of counsel and/or petitioner on August 27, 2019, this Court orders as follows: Petitioners Asian Americans Advancing Justice — Asian Law Caucus, Council on American- Islamic Relations, California, and American Civil Liberties Union of Northern California’s motion for peremptory writ of mandate is denied. Petitioners seek to compel disclosure of a white paper authored by the Federal Bureau of Investigation (FBI) which “provides clarification and understanding” of the Joint Terrorism Task Force-San Francisco Police Department Memorandum of Understanding, the. City’s 2012 Safe Streets City Ordinance, and SFPD’s General Order 8.10, “Guidelines for First Amendment Activities.” The motion is denied because the white paper is property of the federal government and Respondents are prohibited by federal law from disclosing it. Petitioners’ remedy is to seek its disclosure directly from the FBI under the federal Freedom of Information Act. The PRA does not apply to records, “the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” (Gov. Code § 6254(k).) Under federal law, the U.S. Attorney General is charged with the mandatory duty of preserving “identification, criminal identification, crime, and other records.” (28 U.S.C. § 534(a).) The same statute authorizes the Attorney General to “exchange such records and information with, and for the official use of, . . . the States, including . . . cities,” but provides that such exchange is “subject to cancellation if dissemination is made outside the receiving departments or related agencies.” (28 U.S.C. § 534(b).) The white paper sought by Petitioners was: : authored by the FBI and is therefore property of the federal government. (Scott Decl. fj 12, 14, 21, Ex. C; 44 U.S.C. § 3301(a)(1)(A) [federal records include information made by a federal agency under federal law]; see Pfeiffer v. C.I.A. (D.C. Cir. 1995) 60 F.3d 861, 864 [report created at federal government expense was “indisputably” federal government property].) The FBI shared it with SFPD 2 [P2@RQSED] ORDER DENYING MOT PEREMPT. WRIT CASE NO. CPF-19-516706oO ND HW BF WN NHN NY NY NY YN N YN Oey ee te eI DAA BB NH F&F SD we NIN DH BF BW YY & DS on the condition that SFPD keep it confidential, and the header of the white paper expressly identified it as “the property of the FBI,” stated that it was being “loaned” to SFPD, and prohibited its distribution outside that agency. (Scott Decl. { 12,21.) Further, once this litigation was filed, the FBI revoked the loan and formally requested that SFPD “return any copies of the FBI white paper that are in SFPD possession or that have been disseminated for the purposes of SFPD intemal review and/or use.” (Scott Decl. 4 12, 21-22, Ex. C.) Thus, the FBI was authorized by federal law to loan its white paper to SFPD, but the white paper remained FBI property. The FBI subsequently canceled its loan of the white paper, meaning that it exercised its right to prevent dissemination of the document and effectively forbade’ dissemination of it pursuant to federal law. (Scott Decl. { 22, Ex. C.) “As the owner of the records, the United States, not [SFPD or the City], has the right to determine whether and to whom the records should be disseminated.” (United States v. Story County, Iowa, 28 F.Supp.3d 861, 873.) Petitioners’ interpretation of the federal statute would limit the Attomey General’s authority to maintaining criminal records such as rap sheets. But the statute is broadly worded to encompass various crime and investigatory records. (See 28 U.S.C. § 534(a)(1) [Attorney General shall “acquire, collect, classify, and preserve identification, criminal identification, crime, and other records.”] [emphasis added].) In light of the “other records” catchall, the white paper is within the scope of the Attorney General’s powers. ! That the FBI loaned the white paper to the San Francisco Police Department, as authorized by federal law, did not alter its character as federal property. The loan of a record to a local agency such as SFPD does not transform its federal character, nor does the physical location of a federal record control or determine its federal status. (See Kissinger v. Reporters Committee for Freedom of the Press (1980) 445 U.S. 136, 137 [physical location of records is not dispositive of their status as agency - records; rather, the analysis under FOIA turns on how the records were generated and who has control over them]; United States v. Red Lake Band of Chippewa Indians (8th Cir. 1987) 827 F.2d 380, 383 [determining that although tribal court records were located within a sovereign tribal reservation, such 3 [PR@PE6SED] ORDER DENYING MOT PEREMPT. WRIT CASE NO. CPF-19-516706records are property of the United States because they were created by courts organized under the Bureau of Indian Affairs, a federal agency].) Perhaps more importantly, federal cases compel the conclusion that the FBI, not SFPD, has the right to control disclosure of federal records such as the FBI white paper even though SFPD, a local entity subject to state and local public records law, is in physical possession of the records. For example, in United States v. Napper (11th Cir. 1989) 887 F.2d 1528, the court held that FBI documents loaned to the City of Atlanta were federal property and that the city had no right to disseminate the documents under Georgia’s public records law. (Jd. at 1530.) Just as in this case, most of the documents in question bore the legend, “‘This document . . . . is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.”” (/d. at 1529; see also United States v. Story County, Iowa (S.D. Iowa 2014) 28 F.Supp.3d 861, 864-866, 873 [federal government had right to determine whether and to whom records should be disseminatéd even when Iowa state official serving on a board of an authority within the federal Department of Commerce used his staté computer and email address to prepare the federal documents].) Petitioners misconstrue Respondents’ citation to Napper and Story County. Respondents do not contend that the PRA and San Francisco Sunshine Ordinance are preempted by federal law. Rather, those cases make clear that under 28 U.S.C. § 534 and federal law generally, the federal government may control the dissemination of federal documents entrusted to local, state, and tribal agencies. Petitioners fail to point to any binding authority to support their position that the PRA and Sunshine Ordinance may be used to compel the release of a federal document that the United States has made clear it forbids releasing. City of San Jose v. Superior Court stands for the proposition that records prepared by persons outside of a state or local agency may fall within the PRA’s scope, but that case did not involve a document authored by a federal agency and loaned to a local entity while the federal agency retains the authority to revoke the loan. (City of San Jose, 2 Cal.5th at 622.) Asa result, Petitioners cannot mandate Respondents City and County of San Francisco and Chief of Police William Scott to release the white paper where the FBI retains control of the document and has revoked Respondents’ right to possess it. The proper avenue for Petitioners to seek disclosure of the 4 [PROPOSED] ORDER DENYING MOT PEREMPT. WRIT CASE NO. CPF-19-516706y white paper is via a FOIA request to the FBI. (See 5 U.S.C. § 552 [FOIA procedures for disclosure of federal documents].) IT IS SO ORDERED. ones, 4, 20/9 Ful GY The Honorable Ethan P. Schulman JUDGE OF THE SUPERIOR COURT- 5 [PROPOSED] ORDER DENYING MOT PEREMPT. WRIT CASE NO. CPF-19-5167060 ON DH FF BW HY Ye Yb YW NN NY NY Be Be Be Be Be ee ewe ei BeRaRRBREKHEE Se DR AEEHRSS SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ASIAN AMERICANS ADVANCING JUSTICE — ASIAN LAW CAUCUS, et al., Petitioners, ve CITY AND COUNTY OF SAN FRANCISCO, etal., Respondents. | Case No. CPF-19-516706 CERTIFICATE OF MAILING (CCP 1013a (4) ) I, Sean Kane, Deputy Clerk of the Superior Court of the County of San Francisco, certify that Iam not a party. to the within action. On August 29, 2019, I served the attached ORDER DENYING PETITIONERS’ MOTION FOR PEREMPTORY WRIT OF MANDATE by placing a copy thereof in a sealed envelope, addressed as follows: Novella Y. Coleman, Esq. POLICYLINK 1438 Webster Street, Suite 303 Oakland, CA 94612 Aileen M. McGrath, Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4682 Benjamin J. Wolinsky, Assistant United States Attorney ~ 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102-3495oO Om YN DH FF BW NY Boe Be Be Be we Be ew ek BNRRFRBRBBRRSSERDTABDESHRES and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices. Dated: August 29, 2019 T. MICHAEL YUEN, Cletk . By: (06 Sean Kane, Deputy Clerk