Motion for Writ in ASIAN AMERICANS ADVANCING JUSTICE ASIAN LAW CAUCUS ET AL VS. CITY AND COUNTY OF SAN FRACNISCO ET AL| Trellis.Law

On June 18, 2019 a Motion-Secondary was filed involving a dispute between American Civil Liberties Union Of Northern, Asian Americans Advancing Justice Asian Law Caucus, California, Council On American-Islamic Relations, Council On Americanislamic Relations, and City And County Of San Fracnisco, Scott, William, United States Of America, for WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN in the District Court of San Francisco County.

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1 DENNIS J. HERRERA, State Bar #139669
City Attorney
2 WAYNE K. SNODGRASS, State Bar #148137 ELECTRONICALLY
AILEEN M. McGRATH, State Bar # 280846 F I L E D
3 Deputy City Attorneys Superior Court of California,
County of San Francisco
City Hall, Room 234
4 1 Dr. Carlton B. Goodlett Place 08/07/2019
San Francisco, California 94102-4682 Clerk of the Court
BY: RONNIE OTERO
5 Telephone: (415) 554-4691 Deputy Clerk
Facsimile: (415) 554-4699
6 E-Mail: aileen.mcgrath@sfcityatty.org

7 Attorneys for Respondents
CITY AND COUNTY OF SAN FRANCISCO, and
8 WILLIAM SCOTT, in his official capacity as the
San Francisco Police Department Chief
9

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA

11 COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

12
ASIAN AMERICANS ADVANCING Case No. CPF-19-516706
13 JUSTICE - ASIAN LAW CAUCUS,
COUNCIL ON AMERICAN - ISLAMIC MEMORANDUM OF POINTS AND
14 RELATIONS, CALIFORNIA, AND AUTHORITIES IN SUPPORT OF
AMERICAN CIVIL LIBERTIES UNION OF OPPOSITION OF RESPONDENTS CITY AND
15 NORTHERN CALIFORNIA, COUNTY OF SAN FRANCISCO AND CHIEF
OF SAN FRANCISCO POLICE
16 Petitioners, DEPARTMENT WILLIAM SCOTT TO
MOTION FOR PEREMPTORY WRIT OF
17 vs. MANDATE

18 CITY AND COUNTY OF SAN FRANCISCO, Hearing Date: August 20, 2019
AND WILLIAM SCOTT, San Francisco Police Hearing Judge: Hon. Ethan P. Schulman
19 Department Chief, Time: 9:30 a.m.
Place: Dept. 302
20 Respondents.
Reservation No.: 07010820-12
21
Date Action Filed: June 18, 2019
22
Attached Documents:
23 --Declaration of Chief of Police William Scott
--Declaration of Acting Captain Kathryn Waaland
24 --[Proposed] Order
--Proof of Service
25

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CASE NO. CPF-19-516706
1 TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ...........................................................................................................3
INTRODUCTION ...........................................................................................................................6
3
FACTS .............................................................................................................................................6
4
ARGUMENT ...................................................................................................................................9
5 I. The Public’s Right To Access Government Information Is Subject To Certain
Limitations. ..............................................................................................................9
6
II. Federal Law Prohibits Disclosure Of The White Paper.........................................10
7
III. The White Paper Is Protected By The Official Information Privilege...................12
8 A. The White Paper Was Acquired In Confidence. ........................................12
9 B. The White Paper Satisfies The Official Information Privilege’s
Additional Requirements. ..........................................................................13
10
1. Federal Law Prohibits The Disclosure Of The White Paper. ........14
11
2. The Necessity For Preserving The Confidentiality Of The White
12 Paper Outweighs The Interest In Disclosure. ................................14
a. The Sunshine Ordinance Does Not Prohibit Withholding
13 Under The Conditional Official Information Privilege. ....14
14 b. The Interest In The White Paper’s Confidentiality
Outweighs The Public Interest In Disclosure. ...................16
15
IV. The White Paper Contains Exempt Law Enforcement Materials. .........................19
16
CONCLUSION ..............................................................................................................................20
17

19
20

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1 TABLE OF AUTHORITIES
State Cases
2 Cal. State Univ. Fresno Assn., Inc. v. Super. Ct.
(2001) 90 Cal.App.4th 810 ........................................................................................................17
3

4 City of San Jose v. Super. Ct.
(1999) 74 Cal.App.4th 1008 ......................................................................................................10
5
County of Orange v. Super. Ct.
6 (2000) 79 Cal.App.4th 759 ........................................................................................................13

7 Dept. of Motor Vehicles v. Super. Ct.
(2002) 100 Cal.App.4th 363 ......................................................................................................13
8
Eden Memorial Park Assn. v. Super. Ct.
9
(1961) 189 Cal.App.2d 421 .......................................................................................................16
10
Fredericks v. Super. Ct.
11 (2015) 233 Cal.App.4th 209 ......................................................................................................18

12 Garcia v. McCutchen
(1997) 16 Cal.4th 469 ................................................................................................................15
13
Hines v. Super. Ct.
14 (1988) 203 Cal.App.3d 1231 ....................................................................................................13
15
In re J.W.
16 (2002) 29 Cal.4th 200 ................................................................................................................15

17 Marylander v. Super. Ct.
(2000) 81 Cal.App.4th 1119 ......................................................................................................17
18
People v. Cruz
19 (1996) 13 Cal.4th 764 ................................................................................................................15
20
People v. Jackson
21 (2003) 110 Cal.App.4th 280 ......................................................................................................16

22 Suarez v. Office of Admin. Hearings
(2004) 123 Cal.App.4th 1191 ...................................................................................................16
23
Times Mirror Co. v. Super. Ct.
24 (1991) 53 Cal.3d 1325 .........................................................................................................10, 17
25 Uribe v. Howie
26 (1971) 19 Cal.App.3d 194 .........................................................................................................17

27 Voters for Responsible Retirement v. Bd. of Supervisors
(1994) 8 Cal.4th 765 ..................................................................................................................15
28 3
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Warne v. Harkness
1 (1963) 60 Cal.2d 579 .................................................................................................................16
2
Wilson v. Super. Ct.
3 (1996) 51 Cal.App.4th 1136 ......................................................................................................17

4 Federal Cases
Pfeiffer v. CIA
5 (D.C. Cir. 1995) 60 F.3d 861 .......................................................................................................8

6 United States v. Napper
(11th Cir. 1989) 887 F.2d 1528 ...................................................................................................9
7
United States v. Red Lake Band of Chippewa Indians
8
(8th Cir. 1987) 827 F.2d 380 .......................................................................................................9
9
United States v. Story County, Iowa
10 (S.D. Iowa 2014) 28 F.Supp.3d 861 ......................................................................................9, 10

11 State Statutes
Cal. Evid. Code
12 § 1040 ..........................................................................................................................................9
§ 1040(a) ....................................................................................................................................11
13
§ 1040(b) ....................................................................................................................................13
14 § 1041 ........................................................................................................................................14

15 Cal. Gov. Code
§§ 6250 et seq. (Cal. Public Records Act) ......................................................................... passim
16 § 6250 ..........................................................................................................................................8
§ 6254 ..........................................................................................................................................9
17 § 6254(c) ....................................................................................................................................14
18 § 6254(f) ................................................................................................................8, 9, 14, 18, 19
§ 6254(k) ..........................................................................................................................9, 11, 14
19 § 6255 ........................................................................................................................................14
§ 6255(a) ....................................................................................................................................13
20
Federal Statutes
21 5 U.S.C.
§ 552 et seq. (Freedom of Information Act) ..........................................................................7, 10
22 § 552a (Federal Privacy Act) .................................................................................................7, 10
23
28 U.S.C.
24 § 534 ..........................................................................................................................................10
§ 534(a) ....................................................................................................................................8, 9
25 § 534(b) ..................................................................................................................................9, 12
26 44 U.S.C.
§ 2201 ........................................................................................................................................12
27
§ 3301 ..........................................................................................................................................8
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San Francisco Codes, Resolutions and Ordinances
1 S.F. Admin. Code
§ 2A.74.........................................................................................................................................7
2
§§ 67.1-67.37 (San Francisco Sunshine Ordinance).......................................................... passim
3 § 67.24(a) ...................................................................................................................................14
§ 67.24(c) ...................................................................................................................................14
4 § 67.24(d) .............................................................................................................................14, 18
§ 67.24(g) ...................................................................................................................................14
5 § 67.24(h) ...................................................................................................................................14
§ 67.24(i) ........................................................................................................................13, 14, 15
6
Other Authorities
7
SFPD General Order 8.10 ..........................................................................................................7, 18
8
SFPD Operations Bureau Order of May 8, 2011 .............................................................................7
9
References
10 Joint Terrorism Task Forces, https://www.fbi.gov/investigate/terrorism/
joint-terrorism-task-forces (as of August 7, 2019) ......................................................................5
11

19
20

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1 INTRODUCTION

2 The Petitioners in this matter have sought the disclosure of San Francisco Police Department

3 (“SFPD” or “the Department”) documents related to the Department’s former participation in the

4 federal Joint Terrorism Task Force (“JTTF”). SFPD has disclosed a variety of documents related to

5 the JTTF, but withheld the document at issue in this case: a white paper interpreting and analyzing

6 certain San Francisco laws and policies. The white paper was prepared by Federal Bureau of

7 Investigation (“FBI”) officials, and was given to SFPD Chief of Police William Scott based on an

8 agreement that he would keep the document confidential. SFPD determined that neither the San

9 Francisco Sunshine Ordinance, S.F. Admin. Code §§ 67.1-67.37, nor the California Public Records

10 Act (“CPRA”), Gov. Code, §§ 6250 et seq., required disclosure of the white paper.

11 The petition for peremptory writ of mandate should be denied because SFPD was justified in

12 withholding the white paper. The white paper is federal property and must be disclosed under federal

13 law alone. The FBI has asserted its right to control the document, so SFPD is obligated not to disclose

14 it and to return it to federal authorities. Petitioners may seek disclosure of the document, but they

15 must do so from federal officials under federal law.

16 Other, alternative reasons also support denial of the petition. The white paper is subject to the

17 official information privilege because SFPD, through Chief Scott, acquired it in confidence from FBI

18 officials. Chief Scott and FBI officials verbally agreed that the document would not be shared, and the

19 header of the document confirms this request. Because disclosure of the document would threaten

20 ongoing counterterrorism efforts, and because SFPD’s unilateral decision to ignore FBI’s

21 confidentiality request would threaten that critical relationship, the public interest in withholding the

22 document exceeds any interest in its production. In addition, the white paper contains sensitive

23 information about SFPD counterterrorism efforts, and about the JTTF itself, that could compromise

24 public safety if it fell into the wrong hands.

25 FACTS

26 Over the past year, Petitioners Asian Americans Advancing Justice – Asian Law Caucus,

27 Council on American-Islamic Relations, California, and the American Civil Liberties Union of

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1 Northern California (collectively, “Petitioners”) have sought production of documents related to

2 SFPD’s previous participation in the federal JTTF. The JTTF is a partnership between various federal,

3 state, and local law enforcement agencies aimed at detecting terrorist activities. (See Joint Terrorism

4 Task Forces, https://www.fbi.gov/investigate/terrorism/joint-terrorism-task-forces.) The FBI conducts

5 the JTTF in partnership with a number of state and local agencies, as well as other federal agencies

6 including the U.S. military and the Transportation Security Administration. (Id.) SFPD joined the

7 JTTF in 2002, and worked with the FBI pursuant to a Memorandum of Understanding that was revised

8 in 2007. (Declaration of Novella Coleman (“Coleman Decl.”) Ex. 6, at PET058.) 1 SFPD ceased

9 participation in the JTTF effective February 2017, in part based on the expiration of the ten-year

10 Memorandum of Understanding with the FBI. (See Declaration of San Francisco Chief of Police

11 William Scott (“Scott Decl.”) ¶ 6; see also Coleman Decl. Ex. 17, at PET 230.)

12 In the wake of SFPD’s withdrawal from the JTTF, Petitioners sought documents from SFPD

13 regarding that program. Specifically, on September 14, 2018, Petitioners filed a request pursuant to

14 the CPRA and the Sunshine Ordinance for, inter alia, any Memorandum of Understanding between

15 FBI and SFPD related to the JTTF, as well as any writing “relating to communications between the

16 SFPD and the FBI regarding current or potential SFPD participation in . . . the FBI’s JTTF.”

17 (Declaration of Acting Captain Kathryn Waaland (“Waaland Decl.”), Ex. A.) On October 5, 2018,

18 SFPD responded to this request by disclosing a number of documents to the Petitioners. (Waaland

19 Decl. ¶ 4 & Ex. A.) But SFPD withheld a document—a white paper— that had been attached to an

20 email from FBI Assistant Special Agent in Charge Craig Fair to Chief Scott and certain other members

21 of SFPD Command staff. (Waaland Decl. Ex. A; Scott Decl. ¶ 9.)

22 The white paper was sent to Chief Scott following a June 29, 2017 meeting between Chief

23 Scott and a number of FBI representatives, including Special Agent in Charge John Bennett, Agent

24 Fair, and Melissa Patrick, Chief Division Counsel and Supervisory Special Agent to the FBI’s San

25 Francisco Field Office. (Scott Decl. ¶¶ 4-5.) Chief Scott requested the meeting to discuss SFPD’s

26
1
27 To avoid the duplicate filing of documents, Respondents cite certain documents attached as
exhibits to the Coleman Declaration.
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1 previous participation in the JTTF, and to learn more about the interaction between the JTTF’s work

2 and various San Francisco laws and policies, including SFPD General Order 8.10, San Francisco

3 Administrative Code §2A.74, and SFPD Operations Bureau Order of May 8, 2011. (Id. ¶ 4.) Chief

4 Scott was the only member of SFPD present at this meeting. (Id. ¶ 5.) The white paper was discussed

5 at the meeting, but not shared directly with Chief Scott at that time. (Id. ¶ 6.) Instead, Agent Bennett

6 told Chief Scott that the FBI would consider sharing the white paper with Chief Scott if he agreed to

7 keep the document confidential. (Id. ¶ 7.) Chief Scott agreed he would keep the white paper

8 confidential if FBI shared it with him. (Id.)

9 On July 6, 2017, Chief Scott received an email from Agent Fair titled “FBI white paper on

10 Section 8.10.” (Id. ¶ 8 & Ex. A.) The email stated, “Chief Scott, per our meeting this past Thursday,

11 please find below the white paper which provides clarification and understanding of the JTTF-SFPD

12 MOU, 2012 Safe Streets City Ordinance, SFPD General and Bureau order.” (Id. ¶ 9 & Ex. A.) The

13 white paper was attached to that email as a document titled “SFPD JTTF.pdf.” (Id.) The email was

14 directed to Chief Scott and three members of SFPD Command staff: Assistant Chief Toney Chaplin,

15 Deputy Chief Michael Redmond, and Deputy Chief Greg McEachern. (Id. ¶ 10.) Agent Bennett and

16 Agent Patrick were copied on the email. (Id.)

17 Chief Scott understood that the FBI officials had requested him to keep the white paper

18 confidential. (Id. ¶ 11.) The email referred to the meeting where Chief Scott and Agent Bennett had

19 reached a verbal agreement that the white paper would be shared in confidence. (Id.) And the text of

20 the white paper itself confirmed this understanding. Its header states: “This information is the

21 property of the FBI and is loaned to your agency; it and its contents may be distributed to officials

22 within your agency with a need-to-know, but may not be distributed outside of your agency. Further

23 distribution without FBI authorization is prohibited.” (Id. ¶ 12.) Based in part on this statement, the

24 agreement between Chief Scott and FBI officials, and a subsequent conversation between Agent

25 Bennett and Chief Scott confirming FBI’s position regarding the white paper’s confidentiality (id.

26 ¶¶ 17-18), SFPD has not disclosed the document, either in response to Petitioners’ September 14, 2018

27 records request or their subsequent requests. (Waaland Decl. Ex. A.)

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1 On August 6, 2019, Chief Scott received a letter from Special Agent in Charge Bennett. (Scott

2 Decl. ¶¶ 20-21 & Ex. C.) Among other things, the letter states that “[t]he FBI white paper was

3 authored by a member of my staff and was originally intended for internal use . . . [and] was loaned to

4 you and SFPD for your review and consumption.” (Id.) Further, the letter refers to FBI’s authority to

5 “determine whether and to whom the FBI white paper should be disseminated,” and references several

6 federal statutes, including the “Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Federal

7 Privacy Act, 5 U.S.C. § 552a.” (Id.) It states that “[i]t is the FBI’s position that in the present case,

8 FOIA is the proper mechanism through which the Plaintiffs should request release of the FBI white

9 paper.” (Id.) In addition, the letter states that it “serves to inform SFPD that SF FBI is cancelling the

10 loan of the SF FBI white paper to the SFPD and is formally requesting that SFPD return any copies of

11 the FBI white paper that are in SFPD possession or that have been disseminated for the purposes of

12 SFPD internal review and/or use.” (Id. ¶ 22 & Ex. C.)

13 ARGUMENT

14 SFPD is justified in withholding the white paper in response to Petitioners’ CPRA and

15 Sunshine Ordinance requests, for several reasons. The white paper is the property of the FBI, and the

16 FBI has revoked SFPD’s authority to possess it. In these circumstances, SFPD cannot distribute the

17 document and must return it to the FBI. Alternatively, the white paper is properly protected by the

18 official information privilege, as it was acquired in confidence from the FBI and its disclosure would

19 threaten the ongoing, vital relationship between the FBI and SFPD. In addition, the contents of the

20 document are exempt from disclosure as a law enforcement record properly withheld under

21 Government Code section 6254(f). SFPD has complied with both the CPRA and the Sunshine

22 Ordinance in protecting the white paper’s confidentiality.

23 I. The Public’s Right To Access Government Information Is Subject To Certain
Limitations.
24
In enacting the CPRA, “the Legislature, mindful of the right of individuals to privacy, finds
25
and declares that access to information concerning the conduct of the people’s business is a
26
fundamental and necessary right of every person in this state.” (Gov. Code, § 6250.) The CPRA,
27
which was modeled after FOIA (5 U.S.C. § 552 et seq.), ensures public access to vital information
28 9
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1 about the government’s conduct of its business. (City of San Jose v. Super. Ct. (1999) 74 Cal.App.4th

2 1008, 1016.)

3 Yet, the public’s right to know is not absolute and is subject to a number of limitations. The

4 CPRA provides for a number of specific exemptions set forth in Government Code section 6254. At

5 least two such limitations are at issue here: (1) the CPRA’s exemption from disclosure for “[r]ecords,

6 the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not

7 limited to, provisions of the Evidence Code relating to privilege” (Gov. Code, § 6254(k)), and (2) the

8 exemption for law enforcement records set forth in section 6254(f). The first exemption incorporates,

9 inter alia, the privilege for official information codified at section 1040 of the Evidence Code. (Times

10 Mirror Co. v. Super. Ct. (1991) 53 Cal.3d 1325, 1339 fn. 9.) It also expressly allows public agencies

11 to withhold records where disclosure is “prohibited pursuant to federal . . . law.” The second embraces

12 law enforcement investigatory and security information, including records the disclosure of which

13 would endanger the safety of law enforcement personnel.

14 II. Federal Law Prohibits Disclosure Of The White Paper.

15 SFPD is prohibited from disclosing the white paper because it was loaned to SFPD and

16 remains FBI property, subject to federal law.

17 Federal records include:

18 All recorded information, regardless of form or characteristics, made or
received by a Federal agency under Federal law or in connection with the
19 transaction of public business and preserved or appropriate for preservation by
that agency or its legitimate successor as evidence of the organization,
20 functions, policies, decisions, other activities of the United States Government
or because of the informational value of data in them.
21
(44 U.S.C. § 3301.) By federal statute, the U.S. Attorney General—which oversees the FBI—has the
22
authority to create and preserve records and other information related to crime and law enforcement.
23
(28 U.S.C. § 534(a).) The white paper is unquestionably such a record. Its header reflects that it is
24
“the property of the FBI and is loaned to” SFPD. (Scott Decl. ¶ 12.) Case law confirms this federal
25
character. Information, memorialized in records, developed “at government expense, i.e., with
26
government materials and on government time,” is “indisputably the property of the government.”
27
(Pfeiffer v. CIA (D.C. Cir. 1995) 60 F.3d 861, 864.) The fact that a record is loaned to a local agency
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1 does not transform its federal character and purpose, nor does the physical location of a federal record

2 control or determine its federal status. (United States v. Red Lake Band of Chippewa Indians (8th Cir.

3 1987) 827 F.2d 380, 383.)

4 The FBI is also authorized to exchange its records and information with authorized officials,

5 including state and local officials. (28 U.S.C. § 534(a)(4).) Federal law expressly provides that the

6 “exchange of such records and information . . . is subject to cancellation.” (28 U.S.C. § 534(b).) The

7 FBI cancelled the dissemination of the white paper to SFPD no later than August 6, 2019 in its letter to

8 Chief Scott. (Scott Decl. ¶ 22 & Ex. C.)

9 In these circumstances, it is the FBI—not SFPD—that has the right to control the disclosure of

10 the document. The FBI’s right to control its records has been upheld in similar instances. For

11 instance, in United States v. Napper (11th Cir. 1989) 887 F.2d 1528, the Eleventh Circuit considered

12 investigative materials that the FBI had shared with the City of Atlanta. (Id. at p. 1529.) The City

13 disclosed approximately 2,300 FBI documents in connection with a lawsuit. (Id. at p. 1530.) When

14 the FBI learned of the disclosure, it made a formal demand for return of the documents based on its

15 property rights, and filed a federal lawsuit seeking enforcement. (Id.) The Eleventh Circuit affirmed a

16 grant of summary judgment to the United States. (Id.) The court held that the documents were FBI

17 property, and the United States had authority to control the dissemination of its property under federal

18 law. (Id.) Further, the court rejected the argument that Georgia’s public records law required

19 disclosure. (Id. [holding that Atlanta “has no right to disseminate” federal documents].)

20 Another more recent case is to the same effect. In United States v. Story County, Iowa (S.D.

21 Iowa 2014) 28 F.Supp.3d 861, the United States sought to prevent the dissemination of federal records

22 that were in the possession of an Iowa state agency. In that case, a state official had served on the

23 board of an authority within the federal Department of Commerce. (Id. at pp. 865-66.) While in that

24 role, the official used his state email account and state computer to prepare federal documents. (Id. at

25 p. 864.) The United States filed a declaratory judgment action seeking the return and nondisclosure of

26 the records. (Id. at p. 866.) The district court ruled in the federal government’s favor, holding that the

28 11
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1 records were federal records, and that the United States “has the right to determine whether and to

2 whom the records should be disseminated.” (Id. at p. 873.)

3 In these circumstances, SFPD may not disclose the white paper and instead must return the

4 white paper to the FBI. Federal law expressly gives the FBI the right to loan its documents and to

5 cancel a loan. (28 U.S.C. § 534.) The white paper’s status as a federal document is beyond dispute:

6 the document is the “property of the FBI” and it “may not be distributed outside of your agency.”

7 (Scott Decl. ¶ 12.) The FBI has cancelled SFPD’s access to the document, so SFPD has no right to

8 disclose it. (Id. ¶ 22.) In these circumstances, disclosure would violate federal law. (Gov. Code,

9 § 6254(k) [exempting from disclosure “[r]ecords, the disclosure of which is exempted or prohibited

10 pursuant to federal . . . law”].) Instead, Petitioners should seek disclosure of this document pursuant to

11 federal law, including FOIA, 5 U.S.C. § 552, and the Federal Privacy Act, 5 U.S.C. § 552a. 2

12 III. The White Paper Is Protected By The Official Information Privilege.

13 In the alternative, the official information privilege applies to the white paper and protects it

14 from disclosure.

15 A. The White Paper Was Acquired In Confidence.

16 As the Evidence Code makes clear, “‘[o]fficial information” is information “acquired in

17 confidence by a public employee in the course of his or her duty and not open, or officially disclosed,

18 to the public prior to the time the claim of privilege is made.” (Evid. Code, § 1040(a).) The white

19 paper easily satisfies the “acquired in confidence” standard.

20 The white paper’s text alone is enough to show that SFPD, through Chief Scott, acquired the

21 document in confidence. The header of the document states that the white paper “may be distributed

22 to officials within your agency with a need-to-know, but may not be distributed outside of your

23 agency. Further distribution without FBI authorization is prohibited.” (Scott Decl. ¶ 12.) It is

25
2
Because of its interpretation of federal law and its agreement with the FBI, SFPD has not
26 produced the white paper notwithstanding the Sunshine Task Force’s motion. (Mem. P&A In Support
Of Mot. for Peremptory Writ of Mandate (“Mot.”) at 8.) SFPD’s consistent position has been that the
27 white paper is confidential. (Scott Decl. ¶ 17.) Therefore, the Sunshine Task Force’s motion does not
relieve SFPD of its obligation to keep the document confidential absent a court order.
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1 difficult to imagine a more clear statement that the white paper was transmitted in confidence. Chief

2 Scott confirmed this understanding on multiple occasions. (Id. ¶¶ 17-18.)

3 Petitioners claim that Respondents have not satisfied the “acquired in confidence” element

4 because they have not shown that Chief Scott and FBI officials “agreed to keep the document

5 confidential before Chief Scott acquired it via email.” (Mot. at 12.) But this is incorrect. Chief Scott

6 and various members of the FBI discussed the white paper at a June 2017 meeting. (Scott Decl. ¶¶ 4-

7 6.) Agent Bennett informed Chief Scott that if FBI shared the white paper with him, SFPD would

8 need to keep the white paper confidential. (Id. ¶ 7.) Chief Scott agreed to do so. (Id.)

9 In any case, Petitioners are wrong to suggest that the “acquired in confidence” element

10 operates so mechanically. Petitioners do not cite any authority for the proposition that the FBI needed

11 to have communicated its confidentiality directive before sharing the white paper. Nor could they.

12 The case law establishes that the “acquired in confidence” element is a flexible inquiry looking at the

13 totality of the circumstances. (See, e.g., County of Orange v. Super. Ct. (2000) 79 Cal.App.4th 759,

14 765 [holding that petitioners’ “emphasis on the manner in which the file’s contents were gathered

15 misses the point,” and warning against interpreting the phrase “‘acquired in confidence’ in the literal

16 sense of that term”].) Indeed, information may be “acquired in confidence” even in the absence of a

17 specific directive or agreement. (See Dept. of Motor Vehicles v. Super. Ct. (2002) 100 Cal.App.4th

18 363, 373 [information may be “acquired in confidence” even if not transmitted in confidence].) Or

19 information may be “acquired in confidence” even if it is not transmitted at all but instead generated

20 by the person claiming the privilege. (See Hines v. Super. Ct. (1988) 203 Cal.App.3d 1231, 1234

21 [“Petitioner takes too restrictive a view of the statutory word ‘acquire.’ The term does not exclude

22 information that is generated by the person claiming the privilege.”].) Here, the record establishes that

23 SFPD acquired the white paper in confidence.

24 B. The White Paper Satisfies The Official Information Privilege’s Additional
Requirements.
25
The privilege analysis does not end with the “acquired in confidence” limitation. In addition,
26
an entity invoking the privilege must also show either that (1) disclosure is forbidden by a state or
27
federal statute; or (2) disclosure is “against the public interest because there is a necessity for
28 13
MPA ISO OPP. TO MOT. FOR PEREMPT. WRIT n:\govlit\li2019\191416\01382345.docx
CASE NO. CPF-19-516706
1 preserving the confidentiality of the information that outweighs the necessity for disclosure in the

2 interest of justice.” (Evid. Code, § 1040(b).) Here, both prongs are satisfied.

3 1. Federal Law Prohibits The Disclosure Of The White Paper.

4 As described above, federal law prohibits the disclosure of the white paper. (See pp. 8-10,

5 supra; see also 44 U.S.C. § 2201; 28 U.S.C. § 534(b).) The FBI created and disseminated the white

6 paper, and it remains federal property. Since FBI has sought return of the white paper, federal law

7 requires SFPD to return it, and prohibits SFPD from disclosing it. That should end the inquiry.

8 2. The Necessity For Preserving The Confidentiality Of The White Paper
Outweighs The Interest In Disclosure.
9
Alternatively, the white paper cannot be disclosed under the conditional official information
10
privilege, as the interest in preserving the confidentiality of the document outweighs the public interest
11
in its disclosure.
12
a. The Sunshine Ordinance Does Not Prohibit Withholding Under The
13 Conditional Official Information Privilege.

14 As an initial matter, Petitioners are wrong to argue that the Sunshine Ordinance prohibits SFPD

15 from invoking the conditional information privilege. (Mot. at 13.) Section 67.24(i) of the Sunshine

16 Ordinance states:

17 Neither the City, nor any office[r], employee, or agent thereof, may assert an
exemption for withholding for any document or information based on a finding
18 or showing that the public interest in withholding the information outweighs the
public interest in disclosure. All withholdings of documents or information
19 must be based on an express provision of this ordinance providing for
withholding of the specific type of information in question or an express and
20

Case Info

Judge

Ethan P. Schulman Track Judge’s New Case

Case No.

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Document Filed Date

August 07, 2019

Case Filing Date

June 18, 2019

County

Parties

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN Petitioner
ANDERSON, DAVID L. Attorneys for Plaintiffs
ASIAN AMERICANS ADVANCING JUSTICE ASIAN LAW CAUCUS Petitioner
CALIFORNIA Petitioner
CITY AND COUNTY OF SAN FRACNISCO Respondent
COLEMAN, NOVELLA Y Attorney
COUNCIL ON AMERICAN-ISLAMIC RELATIONS Petitioner
COUNCIL ON AMERICANISLAMIC RELATIONS Petitioner
JAMIL, JAVIER Attorney
SCOTT, WILLIAM Respondent
SNODGRASS, WAYNE KESSLER Attorneys for Defendants
TALLA, VASUDHA Attorney
UNITED STATES OF AMERICA Respondent
VAFAIE, ELICA Attorney
WANG, JEFFREY C Attorney
Dennis Herrera Attorneys for Defendants
Aileen McGrath Attorneys for Defendants
Benjamin Wolinsky Attorneys for Plaintiffs

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Motion-Secondary: ASIAN AMERICANS ADVANCING JUSTICE ASIAN LAW CAUCUS ET AL VS. CITY AND COUNTY OF SAN FRACNISCO ET AL

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