Preview
FILED
Superior Court Of Califorriia,
BB€iTBtVU±ntli
11/02/2021
1 COOLEY LLP atumar4
MATTHEW D. CAPLAN (260388)
2 (mcaplan@cooley.com) By , Dapu ly
JOSEPH D. MORNIN (307766) ease l^umber:
3 (jmomin@cooley.com) 34-2021-S0003S'
RYAN O'HOLLAREN (316478)
4 (rohollaren@cooley.com)
3 Embarcadero Center, 20"* floor
5 San Francisco, CA 94111-4004
Telephone: +1 415 693 2000
6 Facsimile: +1 415 693 2222
7 Attomeys for Petitioner
PUBLIC.RESOURCE.ORG, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 PUBLIC.RESOURCE.ORG, INC. Case No. 34-2021-80003612
13 Petitioners, PUBLIC.RESOURCE.ORG, INC.'S OPENING
BRIEF I N SUPPORT OF PETITION FOR WRIT
14 OF MANDATE
15 CALIFORNIA OFFICE OF Date: December 17, 2021
ADMINISTRATIVE LAW, and the Time: 10:00 a.m.
16 CALIFORNIA BUILDING STANDARDS Dept: 27
COMMISSION Hon. Steven M. Gevercer
17
Respondents. PQ
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
1 L INTRODUCTION
2 Petitioner Public.Resource.Org ("Public Resource") submitted requests under the
3 Califomia Public Records Act ("CPRA") to the Califomia Office of Administrative Law
4 ("OAL") and Building Standards Commission ("BSC") seeking disclosure of a complete
5 electronic copy of the Califomia Code of Regulations ("CCR"). OAL and BSC denied Public
6 Resource's request for multiple reasons, but they have not carried and cannot carry their burden
7 of identifying a statutory exemption that justifies nondisclosure.
8 In addition, two private organizations—^National Fire Protection Association, Inc.
9 ("NFPA") and Intemational Code Council, Inc. ("ICC")—have intervened in this case to block
10 disclosure on the grounds that they own copyrights in parts of Califomia's laws. But no
11 Califomia law authorizes any entity to own the law by asserting copyright over it. Nor could it, as
12 the govemment edicts doctrine holds that the law cannot be copyrighted, even when it
13 incorporates portions of works authored or published by private parties.
14 Because OAL and BSC have failed to comply with their obligations under the CPRA,
15 Public Resource filed this petition seeking a writ of mandate commanding them to disclose the
16 CCR in response to Public Resource's CPRA requests. See Verified Pet'n for Writ of Mandate,
17 filed Mar. 17, 2021 ("Pet'n"), at 7-13. The Court should order them to produce electronic copies
18 ofthe CCR in response to Public Resource's CPRA requests.
19 II. BACKGROUND
20 A. Parties
21 Public Resource is a Califomia nonprofit that aims to improve public access to
22 govemment records and primary legal materials. See generally Pet'n at 7-13; see also
23 https://www.voutube.com/watch?v=2tOJdGaMvVw (explaining Public Resource's mission).
24 OAL oversees the publication and distribution of the CCR. Id. at 8-9. Its purpose is to
25 "ensure that agency regulations are clear, necessary, legally valid, and available to the public."'
26 BSC administers Califomia's building code, coordinates and manages the model code
27 adoption process, reviews and approves building standards, and publishes the Califomia Building
28 ' https://oal.ca.gov/about-the-office-of-administrative-iaw/.
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
1 Standards Code as Title 24 of the CCR. M at 7, 11.
2 NFPA and ICC are private organizations that coordinate the development of technical
3 standards, which they provide to govemment entities for incorporation into law. Pet'n at 11; see
4 also Mot. to Intervene, filed August 27, 2021, at 4-5. Elements of some of the model codes they
5 claim to own have been adopted as Califomia law in Title 24 of the CCR. Pet'n at 11.
6 B. Facts
7 In December 2020, Public Resource submitted CPRA requests to OAL and BSC seeking
8 complete electronic copies ofthe CCR in a structured, machine-readable format. Id. at 9-13. Both
9 agencies refused on several grounds. OAL responded that it does not have a stmctured, machine
10 readable version of the CCR, and that it has an outdated version on a CD-ROM, but each section
11 would need to be individually extracted and copied. Id. at 10. BSC responded that print editions
12 of Titie 24 are available for inspection at certain public libraries; that it can be purchased in whole
13 or part from certain private entities; and that BSC "does not have the publishing rights to Title 24
14 and therefore cannot provide free copies to the public" because "Title 24 is based on and includes
15 model codes produced by the publishing entities, and they then publish Califomia's codes,
16 retaining copyright protections." Id. at 12-13. Public Resource responded with letters explaining
17 why OAL and BSC had not provided lawfiil reasons for refusing to disclose the CCR under the
18 CPRA. Id. at 9-13. After OAL and BSC continued to refiise. Public Resource filed its petition
19 with the Court seeking a writ commanding OAL and BSC to respond to its CPRA requests.
20 In May 2021, NFPA and ICC sought to intervene to prevent disclosure of the CCR based
21 on the claim that they own copyrights in parts of Califomia's laws and that disclosure would
22 infringe their exclusive rights. The Court granted their motion to intervene on August 27, 2021.
23 I I I , ARGUMENT
24 A. The CPRA requires disclosure of public records.
25 The Califomia Constitution states that the "people have the right of access to information
26 conceming the conduct of the people's business, and, therefore,... the writings of public
27 officials and agencies shall be open to public scmtiny." Cal. Const. Art. I § 3(b)(1). The CPRA
28 protects this "fundamental and necessary" right by giving the people a means of enforcing it. Cal.
COOLEY LLP 2
ATTORNEYS AT LAW
SANFRANOSCU PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
1 Gov't Code § 6250; see also Cty. of Santa Clara v. Super. Ct, 170 Cal. App. 4th 1301, 1335
2 (2009) (the CPRA is designed to "increase[e] freedom of information by giving members of the
3 public access to information in the possession of public agencies"); CBS, Inc. v. Block, 42 Cal. 3d
4 646, 651-52 (1986) ("Implicit in the democratic process is the notion that govemment should be
5 accountable for its actions. In order to verify accountability, individuals must have access to
6 govemment files.").
7 An agency must disclose records in response to a CPRA request if (1) the records "qualify
8 as 'public records'" within the meaning of § 6252(e); and (2) the records are "in the possession of
9 the agency." Anderson-Barker v. Super. Ct,l> \ Cal. App. 5th 528, 538 (2019). All public records
10 are subject to disclosure unless the legislature has expressly provided to the contrary. Cal. Gov't
11 Code § 6253(b). An agency must disclose public records unless the record falls under one of the
12 exemptions listed in the statute. Id. Cal. Gov't Code § 6255; Citizens for A Better Env't v. Dep't
13 ofFood&Agric, 171 Cal.App. 3d 704, 711 (1985) ("Grounds to deny disclosure of information
14 'must be found, if at all, among the specific exceptions to the general policy that are enumerated
15 in the Act.'" (quoting State of Cal. v. Super. Ct, 43 Cal. App. 3d 778, 783 (1974))). The agency
16 "opposing disclosure bears the burden of proving that an exemption applies." Cty. of Santa Clara,
17 170 Cal. App. 4th at 1321 (citing Bd. ofTrs. of Cal. State Univ. v Super. Ct., 132 Cal. App. 4th
18 889, 896 (2005)); see also LA. Unified Sch. Dist v. Super. Ct., 228 Cal. App. 4th 222, 239
19 (2014).
20 Public records must be provided by the agency in "any electronic format in which it holds
21 the information" and any format "used by the agency to create copies for its own use or for
22 provision to other agencies." Cal. Gov't Code § 6253.9(a)(l)-(2).
23 The Califomia Constitution directs that any applicable statute or authority "shall be
24 broadly constmed if it furthers the people's right of access, and narrowly constmed if it limits the
25 right of access." Cai. Const. Art. I § 3(b)(2); LA. Cty. Bd. Of Supervisors v. Super. Ct, 2 Cal. Sth
26 282, 290-91 (2016). The general policy of disclosure "can only be accomplished by narrow
27 constmction of the statutory exemptions." Fairley v. Super. Ct., 66 Cal. App. 4th 1414, 1419-20
28 (1998).
COOLEY LLP 3
ATTORNEYS AT LAW
SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE No. 34-2021-80003612)
1 B. The CCR is a public record.
2 OAL and BSC have not disputed that the CCR is a "public record," which the CPRA
3 defines as "any writing containing information relating to the conduct of the public's business
4 prepared, owned, used, or retained by any state or local agency regardless of physical form or
5 characteristics." Cal. Gov't Code § 6252(e). The CCR is a body of law regulating a vast range of
6 public and private conduct in Califomia, and accordingly, there is no doubt that it "relate[s] to the
7 conduct ofthe public's business." See Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498,
8 1507 (2020) ("Every citizen is presumed to know the law, and it needs no argument to show . . .
9 that all should have free access to its contents." (intemal quotations omitted)).
10 Additionally, Califomia has mandated the creation and maintenance ofthe CCR. Cal.
11 Gov't Code § 11342.4 ("[OAL] shall adopt, amend, or repeal regulations for the purpose of
12 carrying out the provisions of this chapter."); Cal. Health & Safety Code § 18930(a) ("Any
13 building standard adopted or proposed by state agencies shall be submitted to, and approved or
14 adopted by, the Califomia Building Standards Commission prior to codification."). This fact
15 independently qualifies the CCR as a public record. League of Cal. Cities v. Super. Ct, 241 Cal.
16 App. 4th 976, 987 (2015) ("Any record required by law to be kept by an officer, or which he
17 keeps as necessary or convenient to the discharge of his official duty, is a public record.").
18 C. OAL and BSC possess the CCR.
19 As Public Resource explained in its Petition, OAL and BSC possess the entirety ofthe
20 CCR. Pet'n at 15-16. BSC has not denied possession, and OAL's statement that it "does not have
21 a copy of a CCR Master Database" (id. at 15 & Ex. D at 31) is contrary to Califomia law.
22 OAL has contracted with West Publishing Corporation ("West") to publish a copy of the
23 CCR, but OAL maintains possession of its contents. Under that contract. West is tasked with
24 maintaining "the Official Califomia Code of Regulations (CCR) in an electronic database" called
25 "the 'Master Database.'" Pet'n at 8; Notice of Supplemental Auth. in Support of Petition for Writ
26 of Mandate ("Notice"), Ex. J at 52. West must "update the Master Database as soon as feasible
27 after OAL provides the contractor with regulations that have been endorsed by the Secretary of
28 State, preferably within 15 days but in no event longer than 30 days after OAL delivers the
, COOLEY LLP 4
I ATTORNEYS AT LAW
j SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
1 regulation text." Pet'n at 15; Notice, Ex. J at 52. The contract says that West "shall not alter the
2 text of regulations, notices of any other materials fumished by OAL for publication, except as
3 expressly directed or authorized by OAL." Id. at 59. OAL has the right to "inspect[], revis[e] and
4 correct[]" the CCR Master Database and dictate revisions to West. Id. And the contract states that
5 OAL maintains all rights to the Master Database, notwithstanding the fact that West publishes a
6 copy of it. Id. at 65.
7 For purposes of the CPRA, Califomia courts define "possession" to "mean both actual and
8 constructive possession." Bd. of Pilot Comm 'rs v. Super. Ct., 218 Cal. App. 4th 577, 598 (2013).
9 Specifically, "an agency has constmctive possession of records if it has the right to control the
10 records, either directly or through another person." Consol. Irrigation Dist. v. Super. Ct., 205 Cal.
11 App. 4th 697, 710(2012).
12 OAL indisputably "has the right to control" the CCR Master Database. That right is
13 explicitly spelled out in its contract with West. Not only does OAL claim to reserve all
14 intellectual property rights in the CCR Master Database, but it has the exclusive contractual rights
15 to inspect, amend, and revise its contents. Pet'n at 15-16; Notice, Ex. J at 52, 59, 65. OAL
16 therefore has constmctive possession of the CCR Master Database under Califomia law.
17 Indeed, the Califomia legislature has explicitly prohibited agencies from avoiding CPRA
18 obligations by outsourcing publication to third parties. Cal. Gov't Code § 6270(a) states:
19 "Notwithstanding any other provision of law, no state or local agency shall sell, exchange,
20 fumish, or otherwise provide a public record subject to disclosure pursuant to this chapter to a
21 private entity in a manner that prevents a state or local agency from providing the record directly
22 pursuant to this chapter." Thus, OAL cannot escape its CPRA obligations by asserting that the
23 CCR is in the possession of a private party. See City of San Jose v. Super. Ct., 2 Cal. 5th 608,
24 623-24 (2017) ("The statute's clear purpose is to prevent an agency from evading its disclosure
25 duty by transferring custody of a record to a private holder and then arguing the record falls
26 outside CPRA because it is no longer in the agency's possession.... It simply prohibits agencies
27 from attempting to evade CPRA by transferring public records to an intermediary not bound by
28 the Act's disclosure requirements.").
COOLEY LLP
A TTORNEYS AT LAW
SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE No. 34-2021-80003612)
1 D. OAL and BSC have not complied with the CPRA.
2 OAL and BSC have provided no documents in response to Public Resource's CPRA
3 request. Pet'n at 9-13. Instead, they point to the availability of (1) hard copies at certain public
4 libraries and (2) various online versions available from third parties that carry strict limits on their
5 access and use. Pet'n Ex. D at 35 & Ex. G. As Public Resource explained in its Petition (see Pet'n
6 at 18-20), neither response satisfies the agencies' obligations under the CPRA.
7 First, paper copies are insufficient. The CPRA is clear that "any agency that has
8 information that constitutes an identifiable public record not exempt from disclosure pursuant to
9 this chapter that is in an electronic format shall make that information available in an electronic
\Q format when requested by any person." Cal. Gov't Code § 6253.9(a).
\1 Second, the online versions cited by OAL and BSC are not "publicly available" under
12 Califomia law. These resources are subject to an array of technological and legal restrictions that
13 prevent users from engaging in a variety of lawful activity, including text-searching, copying and
14 pasting, or distributing any of those provisions of the CCR. Pet'n at 20. These "end user
15 restrictions" "are incompatible with the purposes and operation of the CPRA." Cty. of Santa
16 Clara, 170 Cal. App. 4th at 1335. Public records must be provided by the agency in "any
17 electronic format in which it holds the information" and any format "used by the agency to create
18 copies for its own use or for provision to other agencies." Cal. Gov't Code § 6253.9(a)(l)-(2).
19 BSC and OAL cannot avoid this obligation by pointing to highly restricted versions on third-party
20 websites; they must comply with the statute and provide the records in the formats they
21 themselves possess.
22 E. No statutory exemption permits OAL or BSC to withhold the CCR.
23 As explained above, an agency must disclose public records unless the record falls under
24 one ofthe exemptions listed in the CPRA. Cal. Gov't Code § 6255; CBS, 42 Cal. 3d at 651-52.
25 OAL and BSC have not cited a single exemption to justify withholding the CCR in response to
26 Public Resource's CPRA requests. Accordingly, they have failed to carry their burden, and the
27 Court should compel them to disclose the CCR. See Cty. of Santa Clara, 170 Cal. App. 4th at
I
28 1321 (the agency "opposing disclosure bears the burden of proving that an exemption applies").
I
COOLEY LLP 6
ATTORNEYS A T L A W
'SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
1 The intervenors, NFPA and ICC, cite two exemptions in their answer—Cal. Gov't Code
2 §§ 6254(k) and 6255(a)—but neither exemption justifies withholding the CCR. Section 6254(k)
3 exempts records where disclosure is "exempted or prohibited pursuant to federal or state law,
4 including, but not limited to, provisions of the Evidence Code relating to privilege." And Section
5 6255(a) provides a catch-ail exemption that applies when "the public interest served by not
6 disclosing the record clearly outweighs the public interest served by disclosure of the record."
7 NFPA and ICC appear to argue that both exemptions apply because NFPA and ICC claim
8 copyrights in certain model codes, and elements of those model codes have been incorporated
9 into Califomia law in Title 24 of the CCR. Answer at 11 ("Federal copyright law prohibits
10 Respondents from disclosing Intervenors' Copyrighted Works in the manner requested.").
11 Similarly, in its response to Public Resource's CPRA request, BSC stated that it cannot disclose
12 Title 24 because it contains copyrighted material (although BSC did not identify a statutory
13 exemption that would justify nondisclosure). Pet'n Ex. G.
14 Copyright is not a basis for nondisclosure here. Under the govemment edicts doctrine, the
15 CCR cannot be copyrighted at all, and therefore no entity owns copyrights in Califomia's laws.
16 Georgia, 140 S. Ct. at 1508 (copyright does not vest in the law and legal materials issued in the
17 name ofthe state). Title 1 of the CCR states that materials incorporated by reference carry the
18 same weight as regulations in the code itself. Cal. Code. Regs Title 1 § 20(e) ("Where a
19 regulation which incorporates a document by reference is approved by OAL and filed with the
20 Secretary of State, the document so incorporated shall be deemed to be a regulation subject to all
21 provisions of the APA."). Thus, materials incorporated by reference in the CCR are the law, and
22 under the govemment edicts doctrine, "no one can own the law." Georgia, 140 S. Ct. at 1507.
23 Numerous courts have held that codified laws are unambiguously in the public domain,
24 even when they incorporate elements of model codes authored by private entities. See, e.g.. Am.
25 Soc'y for Testing & Materials v. Public.Resource.Org Inc., 896 F.3d 437, 451 (D.C. Cir. 2018)
26 ("the express text of the law falls plainly outside the realm of copyright protection"); Veeck v. S.
27 Bldg Code Cong Int'l, Inc., 293 F.3d 791, 793 (5th Cir. 2002) (en banc) (when model codes
I 28 have been "adopted by a legislative body and become 'the law,' . . . . the model codes enter the
COOLEY LLP 7
ATTORNEYS AT LAW
SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
1 public domain and are not subject to the copyright holder's exclusive prerogatives"); Building
2 Officials & Code Adm 'rs v. Code Tech., Inc., 628 F.2d 730, 734 (1 st Cir. 1980) ("The citizens are
3 the authors of the law, and therefore its owners, regardless of who actually drafts the provisions,
4 because the law derives its authority from the consent of the public, expressed through the
5 democratic process."); Int'l Code Council, Ihc. v. UpCodes, /nc. No. 17 Civ. 6261 (VM), 2020
6 WL 2750636, at *7 (S.D.N.Y. May 27, 2020) (explaining that "a private party cannot exercise its
7 copyrights to restrict the public's access to the law" and concluding that a plaintiff "cannot claim
8 actionable infringement based only on Defendants' accurate posting of the [plaintiffs codes] as
9 [ajdopted, which are essentially enacted state and local laws").
10 Moreover, even if Califomia's laws could be copyrighted (and they cannot), "[s]tate law
11 determines whether [an agency] may claim copyright in [its] office's creations." Cty. of Santa
12 Clara, 170 Cal. App. 4th at 1331; see also City of Inglewood v. Teixeira, No. CV-15-01815-
13 MWF (MRWx), 2015 U.S. Dist. LEXIS 114539, at *7-8 (CD. Cal. Aug. 20, 2015) ("[W]hether
14 state and local governments can claim copyright protection is govemed by state law."). Thus,
15 when an agency asserts copyright as the basis for refusing to disclose records in response to a
16 CPRA request, courts assess whether Califomia law explicitly allows the agency to obtain and
17 assert copyrights in the records in question. See, e.g., Cty. of Santa Clara, 170 Cal. App. 4th at
18 1333 (because no "express authorization to secure copyrights" existed for GIS data, the county
19 could not assert copyright protection as a basis for nondisclosure); City of Inglewood, 2015 U.S.
20 Dist. LEXIS 114539, at *8-9 (because the city could identify "no affirmative grant of authority
21 that permits it to obtain and assert a copyright for the City Council Videos," the court held that
22 the city could not withhold the videos on copyright grounds); Cty. of Santa Clara, 170 Cal. App.
23 4th at 1335 (holding that the CPRA's mandate to provide public records "overrides a govemment
24 agency's ability to claim a copyright in its work unless the legislature has expressly authorized a
25 public records exemption"). Here, the legislature has not permitted any entity to hold copyrights
26 in the CCR.
27 Accordingly, BSC and OAL cannot assert copyright as a basis for nondisclosure. Because
I 28 no statutory exemption permits OAL and BSC to withhold the CCR, the Court should compel
I
CdOLEYLLP 8
ATTORNEYS AT LAW
SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE No. 34-2021-80003612)
1 them to respond to Public Resource's CPRA request.
2 IV. CONCLUSION
3 Public Resource respectfully requests that the Court issue a writ of mandate commanding
4 OAL and BSC to disclose a stmctured, machine-readable version of the CCR in response to
5 Public Resource's CPRA requests.
6
7 Dated: November 2, 2021 COOLEY LLP
8
9 By: /s/Matthew D. Caplan
10 Matthew D. Caplan
Attorneys for Petitioner
11 Public.Resource.Org, Inc.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF
(CASE NO. 34-2021-80003612)
I
Preview
FILED Superior Court Of Califorriia, BB€iTBtVU±ntli 11/02/2021 1 COOLEY LLP atumar4 MATTHEW D. CAPLAN (260388) 2 (mcaplan@cooley.com) By , Dapu ly JOSEPH D. MORNIN (307766) ease l^umber: 3 (jmomin@cooley.com) 34-2021-S0003S' RYAN O'HOLLAREN (316478) 4 (rohollaren@cooley.com) 3 Embarcadero Center, 20"* floor 5 San Francisco, CA 94111-4004 Telephone: +1 415 693 2000 6 Facsimile: +1 415 693 2222 7 Attomeys for Petitioner PUBLIC.RESOURCE.ORG, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 PUBLIC.RESOURCE.ORG, INC. Case No. 34-2021-80003612 13 Petitioners, PUBLIC.RESOURCE.ORG, INC.'S OPENING BRIEF I N SUPPORT OF PETITION FOR WRIT 14 OF MANDATE 15 CALIFORNIA OFFICE OF Date: December 17, 2021 ADMINISTRATIVE LAW, and the Time: 10:00 a.m. 16 CALIFORNIA BUILDING STANDARDS Dept: 27 COMMISSION Hon. Steven M. Gevercer 17 Respondents. PQ 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) 1 L INTRODUCTION 2 Petitioner Public.Resource.Org ("Public Resource") submitted requests under the 3 Califomia Public Records Act ("CPRA") to the Califomia Office of Administrative Law 4 ("OAL") and Building Standards Commission ("BSC") seeking disclosure of a complete 5 electronic copy of the Califomia Code of Regulations ("CCR"). OAL and BSC denied Public 6 Resource's request for multiple reasons, but they have not carried and cannot carry their burden 7 of identifying a statutory exemption that justifies nondisclosure. 8 In addition, two private organizations—^National Fire Protection Association, Inc. 9 ("NFPA") and Intemational Code Council, Inc. ("ICC")—have intervened in this case to block 10 disclosure on the grounds that they own copyrights in parts of Califomia's laws. But no 11 Califomia law authorizes any entity to own the law by asserting copyright over it. Nor could it, as 12 the govemment edicts doctrine holds that the law cannot be copyrighted, even when it 13 incorporates portions of works authored or published by private parties. 14 Because OAL and BSC have failed to comply with their obligations under the CPRA, 15 Public Resource filed this petition seeking a writ of mandate commanding them to disclose the 16 CCR in response to Public Resource's CPRA requests. See Verified Pet'n for Writ of Mandate, 17 filed Mar. 17, 2021 ("Pet'n"), at 7-13. The Court should order them to produce electronic copies 18 ofthe CCR in response to Public Resource's CPRA requests. 19 II. BACKGROUND 20 A. Parties 21 Public Resource is a Califomia nonprofit that aims to improve public access to 22 govemment records and primary legal materials. See generally Pet'n at 7-13; see also 23 https://www.voutube.com/watch?v=2tOJdGaMvVw (explaining Public Resource's mission). 24 OAL oversees the publication and distribution of the CCR. Id. at 8-9. Its purpose is to 25 "ensure that agency regulations are clear, necessary, legally valid, and available to the public."' 26 BSC administers Califomia's building code, coordinates and manages the model code 27 adoption process, reviews and approves building standards, and publishes the Califomia Building 28 ' https://oal.ca.gov/about-the-office-of-administrative-iaw/. COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) 1 Standards Code as Title 24 of the CCR. M at 7, 11. 2 NFPA and ICC are private organizations that coordinate the development of technical 3 standards, which they provide to govemment entities for incorporation into law. Pet'n at 11; see 4 also Mot. to Intervene, filed August 27, 2021, at 4-5. Elements of some of the model codes they 5 claim to own have been adopted as Califomia law in Title 24 of the CCR. Pet'n at 11. 6 B. Facts 7 In December 2020, Public Resource submitted CPRA requests to OAL and BSC seeking 8 complete electronic copies ofthe CCR in a structured, machine-readable format. Id. at 9-13. Both 9 agencies refused on several grounds. OAL responded that it does not have a stmctured, machine 10 readable version of the CCR, and that it has an outdated version on a CD-ROM, but each section 11 would need to be individually extracted and copied. Id. at 10. BSC responded that print editions 12 of Titie 24 are available for inspection at certain public libraries; that it can be purchased in whole 13 or part from certain private entities; and that BSC "does not have the publishing rights to Title 24 14 and therefore cannot provide free copies to the public" because "Title 24 is based on and includes 15 model codes produced by the publishing entities, and they then publish Califomia's codes, 16 retaining copyright protections." Id. at 12-13. Public Resource responded with letters explaining 17 why OAL and BSC had not provided lawfiil reasons for refusing to disclose the CCR under the 18 CPRA. Id. at 9-13. After OAL and BSC continued to refiise. Public Resource filed its petition 19 with the Court seeking a writ commanding OAL and BSC to respond to its CPRA requests. 20 In May 2021, NFPA and ICC sought to intervene to prevent disclosure of the CCR based 21 on the claim that they own copyrights in parts of Califomia's laws and that disclosure would 22 infringe their exclusive rights. The Court granted their motion to intervene on August 27, 2021. 23 I I I , ARGUMENT 24 A. The CPRA requires disclosure of public records. 25 The Califomia Constitution states that the "people have the right of access to information 26 conceming the conduct of the people's business, and, therefore,... the writings of public 27 officials and agencies shall be open to public scmtiny." Cal. Const. Art. I § 3(b)(1). The CPRA 28 protects this "fundamental and necessary" right by giving the people a means of enforcing it. Cal. COOLEY LLP 2 ATTORNEYS AT LAW SANFRANOSCU PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) 1 Gov't Code § 6250; see also Cty. of Santa Clara v. Super. Ct, 170 Cal. App. 4th 1301, 1335 2 (2009) (the CPRA is designed to "increase[e] freedom of information by giving members of the 3 public access to information in the possession of public agencies"); CBS, Inc. v. Block, 42 Cal. 3d 4 646, 651-52 (1986) ("Implicit in the democratic process is the notion that govemment should be 5 accountable for its actions. In order to verify accountability, individuals must have access to 6 govemment files."). 7 An agency must disclose records in response to a CPRA request if (1) the records "qualify 8 as 'public records'" within the meaning of § 6252(e); and (2) the records are "in the possession of 9 the agency." Anderson-Barker v. Super. Ct,l> \ Cal. App. 5th 528, 538 (2019). All public records 10 are subject to disclosure unless the legislature has expressly provided to the contrary. Cal. Gov't 11 Code § 6253(b). An agency must disclose public records unless the record falls under one of the 12 exemptions listed in the statute. Id. Cal. Gov't Code § 6255; Citizens for A Better Env't v. Dep't 13 ofFood&Agric, 171 Cal.App. 3d 704, 711 (1985) ("Grounds to deny disclosure of information 14 'must be found, if at all, among the specific exceptions to the general policy that are enumerated 15 in the Act.'" (quoting State of Cal. v. Super. Ct, 43 Cal. App. 3d 778, 783 (1974))). The agency 16 "opposing disclosure bears the burden of proving that an exemption applies." Cty. of Santa Clara, 17 170 Cal. App. 4th at 1321 (citing Bd. ofTrs. of Cal. State Univ. v Super. Ct., 132 Cal. App. 4th 18 889, 896 (2005)); see also LA. Unified Sch. Dist v. Super. Ct., 228 Cal. App. 4th 222, 239 19 (2014). 20 Public records must be provided by the agency in "any electronic format in which it holds 21 the information" and any format "used by the agency to create copies for its own use or for 22 provision to other agencies." Cal. Gov't Code § 6253.9(a)(l)-(2). 23 The Califomia Constitution directs that any applicable statute or authority "shall be 24 broadly constmed if it furthers the people's right of access, and narrowly constmed if it limits the 25 right of access." Cai. Const. Art. I § 3(b)(2); LA. Cty. Bd. Of Supervisors v. Super. Ct, 2 Cal. Sth 26 282, 290-91 (2016). The general policy of disclosure "can only be accomplished by narrow 27 constmction of the statutory exemptions." Fairley v. Super. Ct., 66 Cal. App. 4th 1414, 1419-20 28 (1998). COOLEY LLP 3 ATTORNEYS AT LAW SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE No. 34-2021-80003612) 1 B. The CCR is a public record. 2 OAL and BSC have not disputed that the CCR is a "public record," which the CPRA 3 defines as "any writing containing information relating to the conduct of the public's business 4 prepared, owned, used, or retained by any state or local agency regardless of physical form or 5 characteristics." Cal. Gov't Code § 6252(e). The CCR is a body of law regulating a vast range of 6 public and private conduct in Califomia, and accordingly, there is no doubt that it "relate[s] to the 7 conduct ofthe public's business." See Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 8 1507 (2020) ("Every citizen is presumed to know the law, and it needs no argument to show . . . 9 that all should have free access to its contents." (intemal quotations omitted)). 10 Additionally, Califomia has mandated the creation and maintenance ofthe CCR. Cal. 11 Gov't Code § 11342.4 ("[OAL] shall adopt, amend, or repeal regulations for the purpose of 12 carrying out the provisions of this chapter."); Cal. Health & Safety Code § 18930(a) ("Any 13 building standard adopted or proposed by state agencies shall be submitted to, and approved or 14 adopted by, the Califomia Building Standards Commission prior to codification."). This fact 15 independently qualifies the CCR as a public record. League of Cal. Cities v. Super. Ct, 241 Cal. 16 App. 4th 976, 987 (2015) ("Any record required by law to be kept by an officer, or which he 17 keeps as necessary or convenient to the discharge of his official duty, is a public record."). 18 C. OAL and BSC possess the CCR. 19 As Public Resource explained in its Petition, OAL and BSC possess the entirety ofthe 20 CCR. Pet'n at 15-16. BSC has not denied possession, and OAL's statement that it "does not have 21 a copy of a CCR Master Database" (id. at 15 & Ex. D at 31) is contrary to Califomia law. 22 OAL has contracted with West Publishing Corporation ("West") to publish a copy of the 23 CCR, but OAL maintains possession of its contents. Under that contract. West is tasked with 24 maintaining "the Official Califomia Code of Regulations (CCR) in an electronic database" called 25 "the 'Master Database.'" Pet'n at 8; Notice of Supplemental Auth. in Support of Petition for Writ 26 of Mandate ("Notice"), Ex. J at 52. West must "update the Master Database as soon as feasible 27 after OAL provides the contractor with regulations that have been endorsed by the Secretary of 28 State, preferably within 15 days but in no event longer than 30 days after OAL delivers the , COOLEY LLP 4 I ATTORNEYS AT LAW j SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) 1 regulation text." Pet'n at 15; Notice, Ex. J at 52. The contract says that West "shall not alter the 2 text of regulations, notices of any other materials fumished by OAL for publication, except as 3 expressly directed or authorized by OAL." Id. at 59. OAL has the right to "inspect[], revis[e] and 4 correct[]" the CCR Master Database and dictate revisions to West. Id. And the contract states that 5 OAL maintains all rights to the Master Database, notwithstanding the fact that West publishes a 6 copy of it. Id. at 65. 7 For purposes of the CPRA, Califomia courts define "possession" to "mean both actual and 8 constructive possession." Bd. of Pilot Comm 'rs v. Super. Ct., 218 Cal. App. 4th 577, 598 (2013). 9 Specifically, "an agency has constmctive possession of records if it has the right to control the 10 records, either directly or through another person." Consol. Irrigation Dist. v. Super. Ct., 205 Cal. 11 App. 4th 697, 710(2012). 12 OAL indisputably "has the right to control" the CCR Master Database. That right is 13 explicitly spelled out in its contract with West. Not only does OAL claim to reserve all 14 intellectual property rights in the CCR Master Database, but it has the exclusive contractual rights 15 to inspect, amend, and revise its contents. Pet'n at 15-16; Notice, Ex. J at 52, 59, 65. OAL 16 therefore has constmctive possession of the CCR Master Database under Califomia law. 17 Indeed, the Califomia legislature has explicitly prohibited agencies from avoiding CPRA 18 obligations by outsourcing publication to third parties. Cal. Gov't Code § 6270(a) states: 19 "Notwithstanding any other provision of law, no state or local agency shall sell, exchange, 20 fumish, or otherwise provide a public record subject to disclosure pursuant to this chapter to a 21 private entity in a manner that prevents a state or local agency from providing the record directly 22 pursuant to this chapter." Thus, OAL cannot escape its CPRA obligations by asserting that the 23 CCR is in the possession of a private party. See City of San Jose v. Super. Ct., 2 Cal. 5th 608, 24 623-24 (2017) ("The statute's clear purpose is to prevent an agency from evading its disclosure 25 duty by transferring custody of a record to a private holder and then arguing the record falls 26 outside CPRA because it is no longer in the agency's possession.... It simply prohibits agencies 27 from attempting to evade CPRA by transferring public records to an intermediary not bound by 28 the Act's disclosure requirements."). COOLEY LLP A TTORNEYS AT LAW SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE No. 34-2021-80003612) 1 D. OAL and BSC have not complied with the CPRA. 2 OAL and BSC have provided no documents in response to Public Resource's CPRA 3 request. Pet'n at 9-13. Instead, they point to the availability of (1) hard copies at certain public 4 libraries and (2) various online versions available from third parties that carry strict limits on their 5 access and use. Pet'n Ex. D at 35 & Ex. G. As Public Resource explained in its Petition (see Pet'n 6 at 18-20), neither response satisfies the agencies' obligations under the CPRA. 7 First, paper copies are insufficient. The CPRA is clear that "any agency that has 8 information that constitutes an identifiable public record not exempt from disclosure pursuant to 9 this chapter that is in an electronic format shall make that information available in an electronic \Q format when requested by any person." Cal. Gov't Code § 6253.9(a). \1 Second, the online versions cited by OAL and BSC are not "publicly available" under 12 Califomia law. These resources are subject to an array of technological and legal restrictions that 13 prevent users from engaging in a variety of lawful activity, including text-searching, copying and 14 pasting, or distributing any of those provisions of the CCR. Pet'n at 20. These "end user 15 restrictions" "are incompatible with the purposes and operation of the CPRA." Cty. of Santa 16 Clara, 170 Cal. App. 4th at 1335. Public records must be provided by the agency in "any 17 electronic format in which it holds the information" and any format "used by the agency to create 18 copies for its own use or for provision to other agencies." Cal. Gov't Code § 6253.9(a)(l)-(2). 19 BSC and OAL cannot avoid this obligation by pointing to highly restricted versions on third-party 20 websites; they must comply with the statute and provide the records in the formats they 21 themselves possess. 22 E. No statutory exemption permits OAL or BSC to withhold the CCR. 23 As explained above, an agency must disclose public records unless the record falls under 24 one ofthe exemptions listed in the CPRA. Cal. Gov't Code § 6255; CBS, 42 Cal. 3d at 651-52. 25 OAL and BSC have not cited a single exemption to justify withholding the CCR in response to 26 Public Resource's CPRA requests. Accordingly, they have failed to carry their burden, and the 27 Court should compel them to disclose the CCR. See Cty. of Santa Clara, 170 Cal. App. 4th at I 28 1321 (the agency "opposing disclosure bears the burden of proving that an exemption applies"). I COOLEY LLP 6 ATTORNEYS A T L A W 'SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) 1 The intervenors, NFPA and ICC, cite two exemptions in their answer—Cal. Gov't Code 2 §§ 6254(k) and 6255(a)—but neither exemption justifies withholding the CCR. Section 6254(k) 3 exempts records where disclosure is "exempted or prohibited pursuant to federal or state law, 4 including, but not limited to, provisions of the Evidence Code relating to privilege." And Section 5 6255(a) provides a catch-ail exemption that applies when "the public interest served by not 6 disclosing the record clearly outweighs the public interest served by disclosure of the record." 7 NFPA and ICC appear to argue that both exemptions apply because NFPA and ICC claim 8 copyrights in certain model codes, and elements of those model codes have been incorporated 9 into Califomia law in Title 24 of the CCR. Answer at 11 ("Federal copyright law prohibits 10 Respondents from disclosing Intervenors' Copyrighted Works in the manner requested."). 11 Similarly, in its response to Public Resource's CPRA request, BSC stated that it cannot disclose 12 Title 24 because it contains copyrighted material (although BSC did not identify a statutory 13 exemption that would justify nondisclosure). Pet'n Ex. G. 14 Copyright is not a basis for nondisclosure here. Under the govemment edicts doctrine, the 15 CCR cannot be copyrighted at all, and therefore no entity owns copyrights in Califomia's laws. 16 Georgia, 140 S. Ct. at 1508 (copyright does not vest in the law and legal materials issued in the 17 name ofthe state). Title 1 of the CCR states that materials incorporated by reference carry the 18 same weight as regulations in the code itself. Cal. Code. Regs Title 1 § 20(e) ("Where a 19 regulation which incorporates a document by reference is approved by OAL and filed with the 20 Secretary of State, the document so incorporated shall be deemed to be a regulation subject to all 21 provisions of the APA."). Thus, materials incorporated by reference in the CCR are the law, and 22 under the govemment edicts doctrine, "no one can own the law." Georgia, 140 S. Ct. at 1507. 23 Numerous courts have held that codified laws are unambiguously in the public domain, 24 even when they incorporate elements of model codes authored by private entities. See, e.g.. Am. 25 Soc'y for Testing & Materials v. Public.Resource.Org Inc., 896 F.3d 437, 451 (D.C. Cir. 2018) 26 ("the express text of the law falls plainly outside the realm of copyright protection"); Veeck v. S. 27 Bldg Code Cong Int'l, Inc., 293 F.3d 791, 793 (5th Cir. 2002) (en banc) (when model codes I 28 have been "adopted by a legislative body and become 'the law,' . . . . the model codes enter the COOLEY LLP 7 ATTORNEYS AT LAW SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) 1 public domain and are not subject to the copyright holder's exclusive prerogatives"); Building 2 Officials & Code Adm 'rs v. Code Tech., Inc., 628 F.2d 730, 734 (1 st Cir. 1980) ("The citizens are 3 the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, 4 because the law derives its authority from the consent of the public, expressed through the 5 democratic process."); Int'l Code Council, Ihc. v. UpCodes, /nc. No. 17 Civ. 6261 (VM), 2020 6 WL 2750636, at *7 (S.D.N.Y. May 27, 2020) (explaining that "a private party cannot exercise its 7 copyrights to restrict the public's access to the law" and concluding that a plaintiff "cannot claim 8 actionable infringement based only on Defendants' accurate posting of the [plaintiffs codes] as 9 [ajdopted, which are essentially enacted state and local laws"). 10 Moreover, even if Califomia's laws could be copyrighted (and they cannot), "[s]tate law 11 determines whether [an agency] may claim copyright in [its] office's creations." Cty. of Santa 12 Clara, 170 Cal. App. 4th at 1331; see also City of Inglewood v. Teixeira, No. CV-15-01815- 13 MWF (MRWx), 2015 U.S. Dist. LEXIS 114539, at *7-8 (CD. Cal. Aug. 20, 2015) ("[W]hether 14 state and local governments can claim copyright protection is govemed by state law."). Thus, 15 when an agency asserts copyright as the basis for refusing to disclose records in response to a 16 CPRA request, courts assess whether Califomia law explicitly allows the agency to obtain and 17 assert copyrights in the records in question. See, e.g., Cty. of Santa Clara, 170 Cal. App. 4th at 18 1333 (because no "express authorization to secure copyrights" existed for GIS data, the county 19 could not assert copyright protection as a basis for nondisclosure); City of Inglewood, 2015 U.S. 20 Dist. LEXIS 114539, at *8-9 (because the city could identify "no affirmative grant of authority 21 that permits it to obtain and assert a copyright for the City Council Videos," the court held that 22 the city could not withhold the videos on copyright grounds); Cty. of Santa Clara, 170 Cal. App. 23 4th at 1335 (holding that the CPRA's mandate to provide public records "overrides a govemment 24 agency's ability to claim a copyright in its work unless the legislature has expressly authorized a 25 public records exemption"). Here, the legislature has not permitted any entity to hold copyrights 26 in the CCR. 27 Accordingly, BSC and OAL cannot assert copyright as a basis for nondisclosure. Because I 28 no statutory exemption permits OAL and BSC to withhold the CCR, the Court should compel I CdOLEYLLP 8 ATTORNEYS AT LAW SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE No. 34-2021-80003612) 1 them to respond to Public Resource's CPRA request. 2 IV. CONCLUSION 3 Public Resource respectfully requests that the Court issue a writ of mandate commanding 4 OAL and BSC to disclose a stmctured, machine-readable version of the CCR in response to 5 Public Resource's CPRA requests. 6 7 Dated: November 2, 2021 COOLEY LLP 8 9 By: /s/Matthew D. Caplan 10 Matthew D. Caplan Attorneys for Petitioner 11 Public.Resource.Org, Inc. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANOSCO PUBLIC.RESOURCE.ORG'S OPENING BRIEF (CASE NO. 34-2021-80003612) I