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1 ROBBONTA
Attomey General of Califomia
2 MICHELLE M . MITCHELL FliiO/ENDORSED
Supervising Deputy Attomey General
3 KEITH L . WURSTER
Deputy Attomey General
MAY 10 1022
4 State Bar No. 198918
LAURA A. RANDLES-LITTLE .
5 Deputy Attomey General
State Bar No. 232930
6 1300 I Street, Suite 125
P.O. Box 944255
7 Sacramento, CA 94244-2550
Telephone: (916)210-6504
8 E-mail: Laura.RandlesLittle@doj .ca.gov
Attorneys for Respondent
9 Office of Administrative Law
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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CIVIL DIVISION
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15 PUBLIC.RESOURCE.ORG, INC., Case No. 34-2021-80003612
16 Petitioner, NOTICE OF ENTRY OF ORDER AND
JUDGMENT
17 V.
Date: May 10,2022
18 Dept:, 27
CALIFORNIA OFFICE OF Judge: Steven M. Gevercer
19 ADMINISTRATIVE LAW, and the Action Filed: March 17, 2021
CALIFORNIA BUILDING STANDARDS
20 COMMISSION,
21 Respondents.
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24 Please take notice that on April 11, 2022, the Honorable Steven M. Gevercer in Department
25 27 of the Superior Court of the State of Califomia, County of Sacramento, entered an Order
26 denying Petitioner's Verified Petition for a Writ of Mandate as to Respondent Califomia Office
27 of Administrative Law. A true and correct copy of that Order is attached hereto as Exhibit 1.
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1
. Notice of Entry of Order and Judgment (34-2021-80003612)
1 In addition, please take notice that on that same day, April 11,2022, the Honorable Steven
2 M. Gevercer in Department 27 of the Superior Court of the State of California, County of
3 Sacramento, entered judgment in the above-captioned matter in favor of Respondent Califomia
4 Office of Adniinistrative Law. A tme and correct copy of the Judgment is attached hereto as
5 Exhibit 2.
6 Dated: May 10, 2022 Respectfully submitted,
7' ROB BONTA
Attomey General of Califomia
8 MICHELLE M . MITCHELL
. - Supervising Deputy Attomey General
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LAURA A. RANDLES-LITTLE
12 Deputy Attomey General ;
Attomeys for Respondent
13 Office of Administrative Law
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Notice of Entry of Order and Judgment (34-2021-80003612)
EXHIBIT 1
! ROB BONTA ,
Attorney General:of California
2. MicriELLE M I : M ' ^
iSupen/isingvDepUty-Attorney'Ge
.3 kEim:L..WURST^^ '
•Deputy Attoniey General
4" State Bar l^io;'^.! 989.18:'
LAtlRA At^RXNDLESrLlfTl^
5 . .Deputy, Attorney! General
Stite Baf N6.-232930
6; - l:3tiO'1^Street, Suite 125.:
P;0; Bbx 944255'
7 Skramentbj.eA 94244-2550
Telei^hionei. (91;6);2i0-65P4
8 Fax:.' ' '
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E-mail: LauravRaridiesLltt!e@doj^.
9 AtlqrheysfqrResponden^^^
d^ce/o/'Admiriistr^^
10 Building Stqriddr:ds: Gommjssion
li
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
1,3
CIVIL DIVISION
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16. PUBLIG^iESbyfrcEip 34-2021-80003612:'
1,7 Retitipher, lED] OltoER
v:
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eALlFORNiA OFFICE. OF
20 ADiMINiSTRATIVE LAW, and the
CALIFORNIA BUILDING STANDARDS
2i. COMMISSION^ ~
22 Respondents.
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After consideration df the papers;submitted by the parties and'Inteiwentors, tHe Honpra
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Steven M. Geyerce'r issued a tentatiy^ regard tp^tKe Verified;^
26;
Mandate filed"by Petitioner PuBliciResource.Grg, Inc. against,th^^
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Adiriiiilsti-atlVe'Law ahd:the,California Building Standards'C^^ The pai^ies did not
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[ft upuuuilj Qrcler (34-2021 -80003612)
\ request a heanhg aiid the tehtative.rulingbecam the ruling of, the'Court. For the reasons stated in
2 .the tentative ruling, attached here as Exhibit A and ihcprpbrated here by referericej Petitioner's
•J- Verified Petition for Writ pf Mandate is denied as to Respondent California Office pf
4 . Adhiinistratiy As'to Respohdent Building Standards Cornmissi6n,,the Petitb
'5'- Verified Petition for Wriji^pf.Mahdat^ p'ending;resdlutibniO^the^ jn'
-6 Exhibit/V;
7 IT IS SO ORDERED.
8 ;Dated'ApfilJi,:2022;
9
ONORABLE STEVEN M. GEVERCER
10 GE OFTHE SUPERIOR ieOlK^
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i[Pr6posea];Order (34-2021 -80003612)
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
DATE/TIME: March 25, 2022 2:00 p.m. DEP. NO.: 27
JUDGE: HON. STEVEN M. GEVERCER CLERK: N.SMITH
Public.Resource.Org., Inc., Case No. 34-2021 -80003612
Petitioner,
/- . •
V.
California Office of Administrative Law, and
the California Building Standards
Commission,
Respondents.
Nature of Proceedings: Petition for Writ of Mandate
I. TENTATIVE RULING.
The following shall constitute the Court's tentative ruling on the above matter, set for
hearing in Department 27, on Friday, March 25, 2022, at 2:00 p.m. The tentative ruling '
shall become the ruling ofthe Court, unless a party desiring to be heard so advises the
Clerk of Departnnent 27 no later than 4:00 p.m. on the Court day preceding the hearing,
and further advises the Clerk that such party has notified the other side of its intention to
appear.
The Court strongly encouraoes parties to appear remotelv for the hearing on the
tentative ruling through the Court's Zoom Application. But any party wishing to appear in
person may do so, provided that party notifies the Court by 4:00 the Court day before
the hearing. '
The parties may join the Zoom session for hearing on the tentative ruling by audio
and/or video through the following link/telephone number:
https.7/sacCOUrt.200m.US/my/dept27a | (888) 475-4499 ID; 553-829-7195
Petitioner, Public.Resource.Org, Inc. has filed a petition for writ of mandate (Petition)
against Respondents Office of Administrative Law (OAL) and the California Building
Standards Commission (BSC), directing Respondents to comply with the Public
Records Act (Gov. Code, §§ 6250 etseq.) (PRA). As to Respondent OAL, the Petition /
is denied. As to Respondent BSC, the Petition is stayed pending resolution of a final
judgment from the District of Columbia District Court in American Society for Testing
and Materials, et al v. Public.Resource.Org (D.C. Cir. 2018) 896 F.Sd 437; 441.
Page -1 - of 12
1. Bacltground.
On December 29, 2020, Petitioner^ sent a PRA request to OAL for Titles 1-5, 7-23, and
25-28 ofthe California Code of Regulations (collectively, CCR).^ (Petition, T|13, Exh. C.)
Petitioner requested that OAL jsrovide the information "in all formats, in your
possession, including (but not limited to) structured, machine-readable digital formats,
such as XMF or PDF files," pursuant to Government Code section^ 6250, subdivision
(a)(1). (Petition, Exh. C.) Petitioner also informed OAL that it must produce a copy of an
electronic record in any format that has been used by it to create copies for its own use
or for provision to other agencies, pursuant to Section 6250, subdivision (a)(2). (Ibid.)
' i '
OAL responded, stating that it could provide a paper copy of the CCR to Petitioner, and
offered to scan each page of the print version, to serve as an "electronic" copy.
(Petition, Exh. D.) OAL also directed Petitioner to a website that contained the most "up
to date" version ofthe CCR. {Ibid.) OAL also offered to provide a CD-ROM with past
versions ofthe CCR, but noted that the contents of the CD-ROM cannot be copied in
whole or transferred to another storage device. {Ibid.) Petitioner and OAL
corresponded further, and Petitioner contended that OAL's response was insufficient,
and that the website to which it directed Petitioner was not "publicly available."
(Petition, ini14-19.)
Also on December 29, 2020, Petitioner also made a nearly identical, separate PRA
request for .Title 24 of the CCR (Title 24) to the Office of Public Affairs, which contains
the Department of General Services, and BSC. (Petition, Exh. F.) Again, Petitioner
requested an electronic copy of Title 24, and sought Title 24 in all formats in BSC'S
possession, including "structured, machine-readable formats." (Ibid.)
BSC-also responded that it could not produce the records. BSC stated that a hard copy
of Title 24 was available for irispection at BSC'S office, and noted that hard copies of
Title 24 were available for public viewing and copying at state document depository
libraries or at city of county building or planning departments. (Petition, Exh. G.) BSC
stated that Title 24 may be viewed online on the BSC'S website, but because BSC did
not have publishing rights, it could not provide copies to.the public. {Ibid.) BSC
explained that this is because Title 24 is based on and includes model codes produced
by standards developing organizations (SDOs), Interveners National Fire Protection
Association (NFPA), International Codes Council (ICC), and the International
Association of Plumbing and Mechanical Officials. {Ibid.) BSC also responded that
^ Petitioner is a non-profit organization with the mission of providing public access to government records
and legal materials. (Petition, 115.)
^ Respondent OAL oversees the. publication and distribution of Titles 1-5, 7-23, and 25-28 ofthe CCR.
(Petition, 116.) Respondent BSC administers the adoption of, and codifies and publishes the California
Building Standards Code as Title 24 of the CCR. (Petition, ^7.)
^ Unless otherwise specified, all statutory references shall be to the Government Code.
P a g e - 2 - o f 12
individual parts or a full set of Title 24 may be purchased from these three publishing
entities. {Ibid.)
Petitioner then filed a petition for writ of mandate, alleging that OAL and BSC violated
the PRA. On August, 27, 2021, the Court granted NFPA's and ICC's motion for leave to
intervene in this proceeding.
2. Discussion.
a. Claims Against OAL.
Petitioner argues that OAL has violated the PRA by refusing to produce the records and
insufficiently responding to its request, namely by failing to provide an "electronic" copy
ofthe CCR in a "structured, machine-readable" format. (Opening Brief, 9:4.)
Responderit OAL responds that the Legislature, In enacting the pertinent provisions of
the Administrative Procedure Act (APA), dictated how the CCR should be made publicly
available, and that In any event it, has complied with the PRA in responding to
Petitioner. ^
i. PRA Statutes.
Under the PRA, a public agency must make public records promptly available to any
person who submits a PRA request that "reasonably describes an identifiable record or
recoi'ds." (Gov. Code, § 6253, subd. (b).) The PRA enables persons to seek "irijunctlve
or declarative relief or writ of mandate" to enforce that person's right to Inspect or
receive copies of public records. (Gov. Code, §§ 6258, 6259.)
The PRA is constrijed broadly in favor of access. {Am. Civil Liberties Union Foundation
V. Superior Court (2017) 3 Cal.5th 1032, 1040.) Exemptions from disclosure must be
narrowly construed. {Id.) The agency withholding the records bears the burden of
proving that an exception from disclosure applies. {California First. Amend. Coal. v.
Superior Court {California Firsf) (1998) 67 Cal.App.4th 159, 167.) ~
The PRA imposes on agencies an affirmative obligation to make available to the public"
any public records in their possession, unless the agency can demonstrate that a
responsive record is otherwise exempt from disclosure. (Gov. Code, §§ 6253, 6254,
6255.) Public records may be exempted from disclosure if they fall within a particular
specific statutory basis fbr exempting the records. (Gov. Code, § 6254). Additionally,
public records may also be exempt from disclosure if the agency can show that "on the
facts ofthe particular case the public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure ofthe record." (Gov. Code, § 6255,
subd. (a).) If "the requester has alternative, less intrusive means of obtaining the
information sought" the public interest in disclosure is minimal, although the "existence
of an alternative means does not wholly undermine the public interest in disclosure."
{County of Santa Clara v. Superior Court (Santa Clara) (2009) 170 Cal.App:4th 1301,
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1325 [citing City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008,1020,
1025].)
Section 6253.9 governs an agency's duty to produce electronic copies of records under
the PRA. It provides:
a) Unless otherwise prohibited by law, any agency that has information that
constitutes an identifiable public record not exempt from disclosure...that is in
an electronic format shall make that information available ;n an electronic
format when requested by any person and, when applicable, shall comply
with the following:
(1) The agency shall make the information available in any electronic format
in which it holds the information.
(2) Each agency shall provide a copy of an electronic record in the format
requested if the requested format is one that has been used by the agency
to create copies for its own use or for provision to other agencies. The
cost of duplication shall be limited to the direct cost of producing a copy of
a record In an electronic format. ' ' "
(b) ...the requester shall bear the cost of producing a copy ofthe record,
including the cost to construct a record, and the cost of programming and
• computer services necessary to produce a copy of the record when either of the
following applies:
(1) In order to comply with the provisions of subdivision (a), the public
agency would be requiredJo produce a copy of an electronic record
and the record is one that is produced orTly at otherwise regularly
scheduled intervals.
(2) The request would require data compilation, extraction, or
programming to produce the record.
• (c) Nothing in this section shall be construed to require the public agency to
reconstruct a record ia an electronic format if the agency no^longer has the
record available in an electronic format.
(d) If the request is for information in other than electronic format, and the
information also is in electronic format, the agency may inform the requester that
the information is available in electronic format.
(e) Nothing in this section shall be construed to permit an agency to make
information available only in an electronic format
Page - 4 - of 12
(f) Nothing in this section shall be construed to require the public agency to
release an electronic record in the electronic form in which it is held by the
agency if its release would jeopardize or compromise the security or integrity of
the original record or of any proprietary software in which it is maintained.
(g) Nothing in this section shall be construed to permit public access to records
held by any agency to which access is othenwlse restricted by statute.
(Gov. Code, § 6253.9.) Thus, a government agency is required by the PRA to produce
non-exempt responsive computer records in the same manner as paper records, and
can be required to compile, redact or omit information from an electronic record. (See
Sander v. Superior Court (2018) 26 Cal.App.5th 651, 669.) Section 6253.9
contemplates that public agencies can be required to gather and segregate disclosable
electronic data from nondisclosable exempt information and perform data compilation,
extraction or computer programming if "necessary to produce a copy of the record."
{Ibid, [citing Gov. Code, § 6253.9, subdivision (b)].) However, the PRA does not require
an agency to create a new record: an agency "cannot be required to create a new
record by changing the substantive content of an existing record or replacing existing
data with new data." {Ibid, [citing Yeagerv. Drug Enforcement Admin. (D.C. Cir. 1982)
678 F.2d 315, 323 and noting that "Segregating and extracting data is a far cry froni
requiring public agencies to undertake the extensive 'manipulation or restructuring of
the substantive content ofa record.'"].) Additionally, agencies need not draft summary
or explanatory material, perform calculations on data, or create inventories of data in
response to a records request. (/Vaf/ona/ Lawyers Guild, San l^rancisco Bay Area
Chapter v. City of Hayward (2020) 9 Cal.5th 488, 502; Haynie v. Superior Court (2001)
26 Cal.4th 1061,1075; see also Sander v. Superior Court', supra, 26 Cal.App.5th, at p.
669.)
ii. Pertinent Law Governing the Public Availability of CCR.
The Administrative Procedure Act (APA) (see Gov. Code §§ 11340, et. seq.) among
other things, establishes the OAL and sets forth specific statutes governing rulemaking,
or an agency's promulgation of regulations, which comprise the CCR. Section 11344,
requires OAL to make the CCR available online. Section 11344 provides:
(OAL) shall do allj)f the following:
(a) Provide for the official compilation, printing, and publication of adoption,
amendment, or repeal of regulations, which'shall be known as the [CCR]. On
and after July 1, 1998, [OAL] shall make available on the Internet, free of
charge, the full text of the [CCR], and may contract with another state agency
or a private entity in order to provide this service.
(b) Make available on its Internet Web site a list of, and a link to the full text of,
each regulation filed with the Secretary of State that is pending effectiveness
pursuant to Sectiori 11343.4. -
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(c) Provide forthe compilation, printing, and publication of weekly updates ofthe
California Code of Regulations....
(Gov. Code, § 11344.) OAL is also required to supply a complete set ofthe CCR and
its Supplement to any county clerk. {Id., at § 11344.2.) Additionally, the CCR "shall be
sold at prices which will reimburse the state for all costs incurred for printing,
publication, and distribution." (/c/., at § 11344.4.)
iii. The Petition is Denied as to OAL.
Petitioner argues that OAL violated the PRA by not providing the CCR to Petitioner in a
"structured, machine-readable" format. Underpinning^Petitioner's argument is its belief
that OAL possesses a "Master Database" through its contract with Thomson •
ReutersAA/est Publishing, and has the ability to access the Master Database and
provide Petitioner the CCR to Petitioner in a "structured, machine-readable" format.
OAL contends that Petitioner is demanding OAL provide the CCR in a format that it
does not possess, and that it is really trying to compel OAL to create an entirely newf
record, which the PRA does not require.
Petitioner has not shown that OAL violated the PRA. OAL neither possesses the
Master Database, nor do the PRA or pertinent statutes impose any duty upon OAL to
provide the CCR in the ""structured, machine-readable" format soijght by Petitioner.
•
^ •
•
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OAL Does Not Possess the Master Database.
Petitioner argues that OAL constructively possesses the Master Database. OAL
disagrees and claims that it does not possess the Master Database, or the data (the
updated, versions of regulations comprising the CCR) In it.
OAL has the better argument.
OAL declares that the Master Database exists in proprietary software of Thomson
ReutersA/Vest Publishing. (Declaration of Kevin Hull (Hull Decl.), 115; Declaration of
Andrew Martens (Martens Decl.); 1j6.) The language ofthe contract with Thomson
ReutersAA/est Publishing provides ifor a "useable electronic data base" in a "portable
and easily processed or converted format" upon completion or termination ofthe
contract. (Administrative Record"*, Exh. B [000009] and Exh. J [000052-53].) The above
•* Petitioner has furnished a collection of exhibits that it denotes as an "administrative record."
contractual term ensures that OAL can obtain all the data (the regulations comprising
the CCR) if needed to provide it to a Page new contractor.
- 6 - of 12 As the contract is not completed
or terminated, OAL has not invoked this contractual term. Thus, Thomson
ReutersAA/est Publishing has never given OAL the Master Database or the data in it.
(Hull.Decl.., TJ3; Martens Decl., 1|5.) The data has never been extracted and formatted In
the manner requeste,d by Petitioner.
Petitioner argues that OAL, in fact, constructively possesses the Master Database
because it has the right to control it. First, this is belied by the OAL's agreehientwith
Thomson ReutersA/Vest Publishing. Second, Petitioner's argument that it is entitled to
data from this Master Database (the CCR) in a particular format conflates OAL's right to
the data wittiin the Master Database with the Master Database itself, which is not a
"record," and which OAL does not possess.
I.
Thus, OAL does not possess the data in a structured-machine readable format
requested by Petitioner. OAL has not violated the PRA for this reason.
\ •.
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The PRA Imposes No Duty Upon OAL To Produce the CCR in the Format
Requested by Petitioner. /
Additionally, the PRA itself imposes no duty upon OAL to produce "electronic" records in
the "structured, machine-readable format" requested by Petitioner.
In determining whether OAL violated the PRA, the Court must harmonize two sets of
pertinent statutes: the PRA, and the APA. {City of Chula Vista v. Drager (2020) 49
Cal.App.5th 539, 560 ["If, after an examination ofthe statutes in context, they 'conflict
on a central element, we strive to harmonize them so as to give effect to each. The
Court is guided by the following principles of statutory construction.'"].)
"A court's overriding purpose in construing a statute is to ascertain legislative intent....
[Citation.] In interpreting a statute to determine legislative intent, a court looks first to the
words ofthe statute and gives them their usual and ordinary meaning. [Citation.]
Statutes must be given a fair and reasonable interpretation, with due regard to the
language used and the purpose sought to be accomplished.' {Sander v. Superior Court,
supra, 26 Cal.App.5th, at 653-654 [internal quotations and citations omitted].)
In PRA cases, the California Constitution requires that '[a] statute, court rule, or other
authority, including those in effect on the effective date of this subdivision, shall be
broadly construed if it furthers the people's right of access, and narrowly construed if it
limits the right of access.' {Sander v. Superior Court, supra, 26 Cal.App.5th, at 653-654.
[citing CaL Const., art I, § 3, subd. (b); City of San Jose v. Superior Court {2Q'[7) 2
Cal.5th 608, 617].)
Additionally, a specific statutory provision prevails over a general statute. (See F?ose v.
State (1942) 19 Cal.2d 713, 723-724.) If statutory provisions conflict, statutes that are
passed later in time control. {City of Chula Vista v. Drager, supra, 49 Cal.App.5th, at p.
560 [citing Collection Bureau of San Jose v. Rumsey (200) 24 Cal.4th 301].)
The text of Section 6253.9 imposes no duty upon OAL to make records available in a
particular format. It requires an agency to produce an "electronic" copy of records, and
P a g e - 7 - of 12
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contemplates that an agency mSy need to engage in "data compilation, extraction, or
programming" to produce a record. Thus, the Court cannot find that OAL violated
Section 6253.9 by failing to produce records in a "structured, machine-readable format."
The Court is mindful that the California Constitution requires that statutes, such as
Section 6253.9 be "broadly construed" if it furthers the people's right of access. But the
Court's inquiry does not stop here. It must also coi;isider more specific, later-enacted
statutes in the APA, and give those statutes a "fair and reasonalDle" interpretation.
As noted above, the Legislature has enacted more specific statutes, governing OAL's
duty to make the CCR available. Pertinent here, Section 11344, provides that OAL
must make the CCR publicly available on its website by posting a link to the full text of,
each regulation. (Gov. Code, § 11344.) Notably, it imposes no duty upon OAL to make
the CCR available in any electronic format requested by a member of the public. Thus,
the Court finds that this specific statute directed only to OAL prevails over the more
general PRA provisions governing all agencies.
Moreover, Section 11344, which was added in 1983, has been amended many times,
most recently in 2012. (Stats. 2012, c. 295 (S.B. 1099), §3.) In contrast, Section 6253.9
was added in 2000, and has not been updated. (Gov. Code, § 6253.9 [Added by Stats.
2000, c. 982, (A.B. 2799) § 2.) Thus, because Section 11344 is a later-artiended
statute, the. Court presumes that the Legislature was aware of the PRA and Section
6253.9, when amending it.
Accordingly, the OAL has complied with Section 11344 and has not violated the PRA by
failing to produce records in a "structured, machine-readable" format.
• Petitioner's Other Arguments Show no Violation of the PRA."
Petitioner claims that the website that OAL directed it to is not "publicly available"
because it is subject to technological and legal restrictions to prevent users from text-
searching, copying and pasting, or distributing portions ofthe CCR. (Opening Bnef, p.
6.) Nothing in the PRA requires that discloseable records be searchable or adaptable
for copying and pasting. Additionally, forthe same reasons articulated above, OAL has
not violated the PRA in this regard.
Petitioner also argues that OAL is trying to circumvenj its duties to disclose records by
outsourcing the publication of to a third party in violation of Section 6720. This statute,
enacted in 1995, provides in pertinent part that "no state or local agency shall sell,
exchange, furnish, or otherwise provide a public record subject to disclosure pursuant to
this chapter to a private entity in a manner that prevents a.state or local agency from
providing the record directly pursuant to this chapter." (Gov. Code, § 6270 [Added
byStats.1995, c. 1Q8 (A.B.141), §1.].)
' - " ~ .-v . • •^ r
However, the Court must presume that the Legislature, in enacting and amending
statutes regarding OAL's duty to publish the CCR, is aware of OAL's arrangement with
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Thomson ReutersA/Vest. Again, the Court notes that Section 11344, was amended
several times after the enactment of Section 6270, and was most recently amended in
2012. Thus, OAL has not violated the PRA on this ground. ^
b. Claims Against Respondent BSC.
Petitioner argues that BSC has violated the PRA by not disclosing an electronic copy of
Title .24. BSC responds that Section 6254, subdivision (k), exempts Title 24 from
disclosure, as it contains model codes drafted by Interveners NPFA and ICC, which are
protected by federal copyright law. BSC alternatively argues that Section 6255, the
"catch-all" exemption, exempts Title 24 from disclosure, as the public interest in .
nondisclosure clearly outweighs the public interest in disclosure. Interveners NFPA and
ICC, which are aligned with BSC, note the pendency of two federal actions in which the
similar copyright issues are addressed. Interveners argue that the records are exempt
from disclosure, but also argue that this proceeding should be stayed, pending
resolution of the federal cases. • • '
i. Legal Standard.
The PRA contains a lengthy l|st of statutory exemptions from disclosure. (Gov. Code, §
6254.) Pertinent here, an item is statutorily exempt from disclosure If they are
"exempted or prohibited pursuant to federal or state law." {Id., § 6254, subd. (k).) BSC
and Interveners claim that Title 24 is protected by federal copyright law, as it
incorporates by reference model codes drafted by Interveners and other SDOs, and
thus. Title 24 is statutorily exempt from disclosure.
"When an action is brought in a court of this state involving the same parties and the
same subject matter as an action already pending in a court of another jurisdiction, a
stay ofthe California proceedings is not a matter of right, but within the sound discretion
ofthe trial court." {Farmland Irrigation Co. v. Dopplmaier {^957) 48 Cal. 2d 208, 215.)
"It is black letter law that, when a federal action has been filed covering the same
subject matter as is involved in a California action, the California court has the discretion
but npt the obligation to stay the state court action." {Caiafa Prof Law Corp. v. State
Farm Fire & Cas. Co. {Caiafa) (1993) 15'Cal.App.4th 800, 804.) Caiafa enumerated
various factors that courts should apply when deciding whether to stay a matter pending
in a California court because of pending federal litigation, It provided that courts "should
consider the importance of discouraging multiple litigation designed solely to harass an
adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It
should also consider whether the rights of the parties can best be determined by the
court of the other jurisdiction because ofthe nature ofthe subject matter, the availability
of witnesses, or the stage to which the proceedings in the other court have already
advanced." (/d.) Courts should also consider whether the federal action is pending in
California. {Id.)
Page - 9 - of 12
Of additional importance is the Court's inherent authority to controKits docket Courts
routinely stay matters where circumstances warrant. (Frieberg v City of Mission Viejo
(1995) 33 Cal.App.4th 1484, 1489 ["Trial courts generally have the inherent power to
stay proceedings in the interests of justice and to promote judicial efficiency."].)
ii. The Petition is Stayed as to Claims against Respondent BSC.
Petitioner argues that BSC violated the PRA by not disclosing Title 24, because it
actually possesses it; the online version cited by OAL and BSC is not "publicly
available," as the uiser is subject to end-user restrictions; and no exemption from
disclosure applies, particularly Section 6254, subdivision (k).
Petitioner contends that although Title 24 contains model codes drafted by Interveners
that are incorporated by reference, the model codes in Title 24 have now become"the
law," and lost their copyright protection. Thus, Petitioner argues. Section 6254,
subdivision (k), does not apply.
BSC responds that Title 24 is exempt under section 6254, subdivision (k), or *
alternatively. Section 6255, and that it complied with the PRA by making records
available electronically.
Interveners argue that a stay is appropriate in light of pending federal litigation.^ The
Court agrees.
The issue of whether model codes that have been incorporated by reference into law is
currently being litigated in federal court. In American Society for Testing and Materials,
etalv. Public.Resource.Org {ASTM) (D.C. Cir. 2018) 896 F.3d 437, 441. Intervener
NFPA and two other-SDOs sued Petitioner for copyright and trademark infringement,,
after Petitioner purchased copies of incorporated standards, scanned them into digital
files, appended coversheets explaining Petitioner's mission and the source of the
standards, and posted the documents to a public website. {Id., at p. p. 444.) In some
cases. Petitioner modified Jiles so that the text of the standard could be more easily
enlarged, searched, and read with text-to-speech software. {Ibid.)
In that case. Petitioner made, and is making, the same arguments raised here: that
NFPA and the other SDOs lose the benefit of copyright protection for model standards
they authored once those model standards are incorporated by reference. 1n ASTME,
Petitioner and NFPA and the other plaintiffs filed competing motions for summary
judgment {Ibid.) The district court granted NFPA and the SDOs'motion, rejecting
Petitioner's arguments. The district court found that NFPA and the SDOs.held
copyrights in the model standards incorporated by reference, and that Petitioner
^ Petitioner faults Interveners for raising this issue in the briefs, rather than bringing a separate motion for
a stay under Code of Civil Procedure, section 1005. This point is well-taken. However, because
Petitioner has been afforded the opportunity to respond to Interveners' request for a stay, the Court will
consider it. ^
P a g e - 1 0 - o f 12
improperiy reproduced them, and that Petitioner failed to create a triable issue of fact
that its reproduction qualified as "fair use"—a defense to copyright infringement. {Ibid.)
PRO appealed that decision to the D.C. Circuit. The D.C Circuit vacated the district
court's decision. In doing S0|. it found that the district court should have considered
Petitioner's affirmative defense of fair use. {ASTM , supra, 896 F.3d 437, 440-441.)
Accordingly, the D.C. Circuit has remanded the matter to the district court to consider
Petitioner's affirmative defense to the motion for summjary judgment brought by NFPA
and the other SDOs. {Id, at p. 458.) In briefing related to that motion. Petitioner does;
not dispute.that it advances the same argument that it advances here: that codes that
governments have expressly incorporated into law, lose copyright protection and that
standards incorporated by reference are "government edicts" under Georgia v. Public
Resource.Org, Inc. (Georgia) (2020) 140 S. Ct 1498.
Additionally, Intervener ICC is involved in pending litigation in the Southern District of
New York, where the accused infringer (a company named UpCodes) has raised similar
defenses based on incorporation by reference, that Petitioner raises in ASTM and this
case. {International Code Council, Inc. v. UpCodes, Inc. (S.D.N.Y. May 27, 2020, No.
17-CV-6261.)
The Court exercises its discretion to stay the proceedings against BSC. At issue is
whether the model codes drafted by Interveners and incorporated into Title 24 are
protected by federal copyright law. The federal proceedings in ASTM are addressing
this very issue, and as to the same parties: Intervener NFPA and Petitioner.
Additionally, another federal cpurt is addressing these similar issues as to another
organization and Intervener ICC.
First the nature ofthe subject matter—^federal copyright law—is the exclusive province
of federal court. (Sears Roebuck & Co. v. Stieffel Co. (1964) 376 U.S, 255, 231, fn.7;
Topolos V. Caldewey (9th Cir. 1983) 698 F.2d 991, 993-994.) Petitioner cites to Santa
Clara, supra, 170 Cal.App.4th 1301, forthe proposition that "California law" addresses
when the work of California agencies may be subject to copyright protection. This
argument Is unavailing. Santa Clara addressed copyright issues that arose after an
agency claimed copyright protection in a work it authored. That is not the case here.
The issue is whether copyright law protects Interveners' works, which is currently under
consideration in federal courts.-^The Court also rejects Petitioner's argument that the
nature ofthe subject matter in this case differs, because the Court is concerned with the
applicability of the PRA. This is true, but, if federal copyright law applies and protects
model codes incorporated by reference into regulations, then this necessarily resolves
whether BSC has violated the PRA. Thus, staying the proceedings also promotes
judicial efficiency.
Second, a stay avoids the potential for "unseemly" conflicts with federal copyright issues
raised by Petitioner, such as whether the "government edicts" doctrine, as articulated by
the Supreme Court in Georgia, prevents Interveners from asserting a copyright interest
in the portions of Title 24 that incorporates their model codes by reference.
Page -11 - of 12
Third, the ASTM case is significantly advanced in the proceedings, weighing in favor of
a stay. As noted above, the ASTM is on remand from the Court of Appeal where the
district court will again consider the motions for summary judgment, including
application of the government edicts'doctrine.
These factors all support the Court's decision to stay the proceedings as to BSC.
Petitioner argues upon reply, .that BSC may not rely on any statutory exemption in
Section 6254, because .BSC has disclosed some copies of Title 24, and thus, waived its
right to assert this exemption under Section 6254.5. Petitioner opposed BSC's
nondisclosure based on Section 6254 on the merits, and did not at all raise this "waiver"
argument in its Opening Brief Thus, Interveners and BSC had no opportunity to ^
respond to it. Accordingly, the Court does not consider it.
3. Disposition.
The Petition is denied as to Respondent OAL. The Petition is stayed as to Respondent
BSC-in light ofthe ASr/W matter. /
Counsel for Respondent OAL shall prepare a formal order and a separate judgment
Incorporating this ruling as an exhibit to each, submit them to opposing counsel for
approval as to form, and thereafter submit them to the Court for signature and entry of
judgment in accordance with California Rules of Court, rule 3.1312.
Page -12 - of 12
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Attorney General of California
2 MICHELLE M. MITCHELL FILED/ENOORSE
Supervising Deputy Attomey General
3 KEITH L.WjjRSTER
Deputy Attorney Generai:
4. State'BarNo. 1.98918
LAURA AvRkNDLEs-LiTTiiE
5 Deputy Attorney Oeneraf By N;-Smith,'O
Smte Bar No: 232930"
6. 1300 r.Stre'et, Suite 125
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7 Sacramehtb,' CA 94244-2550'
Telephone: ("916) 210-6504
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.;9 Attorneys for Resporidenis^
Office dfAdministrgtiye Law arid •
Buildiirg Siariddrds Corhmisslqn:
11 SURERIOR^OURT OF THE STATE GF.GALIF0RN1A-
li COUNtY OFSAGRAMENTQ,
13 CIVIL DIVISION
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PyBLIC.RESOURCE.ORG, INC., 34-2021-80003612 ^
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Petitioner, LwiOiVQL'iai JUDGMENT
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1,9 CALIFORNI A OFFICE OF
ADMINiStRATiVE LAW, and the
20 CAiLlFORNIA BUILDING StANDAIlDS
COMMISSION,
2:1
Respondents.
22
23;
.Hayiiig fev4ewed th^^ paities; |T IS ORDERED, ADJUGED AND
.24
25 DECREED thatPetitipne^^ Inc's Verified Petition fprJWrit.pf Mandate
-26 regarding Respondent California Office of Administrative Law is denied and judgment is entered
27 in favor of Respoiident Califomia Office of Adrninsitrative'Law'for the reasdns sbt forth in the
28
[artj^HCBj.Judgment: (34-2021-80003612)
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
DATE/TIME: March 25, 2022 2:00 p.m. DEP. NO.: 27
JUDGE: HON. STEVEN M. GEVERCER CLERK: N.SMITH
Public.Resource.Org., Inc., Case No. 34-2021-80003612
Petitioner,
v.
California Office of Administrative Law, and
the California Building Standards
Commission,
Respondents.
Nature of Proceedings: Petition for Writ of Mandate
I. TENTATIVE RULING. '
The following shall constitute the Court's tentative ruling on the above matter, set for
hearing in Department 27, on Friday, March 25, 2022, at 2:00 p.m. The tentative ruling
shall-become the ruling ofthe Court, unless a party desiring to be heard sO advises the
Clerk of Department 27 no later than 4:00 p.m. on the Court day preceding the hearing,
and further advises the Clerk that such party has,notified the other side of its intention to
appear.
The Court strongly encourages parties to appear remotelv for the hearina on the
tentative ruling through the Court's Zoom Application. But any party wishing to appear in
person may do so, provided that party notifies the Cpurt by 4:00 the Court day before
the hearing.
The parties may join the ZoOm. session for hearing on the tentative ruling by audio
and/or video through the following link/telephone number:
https://saccourt.20om.us/my/dept27a | (888) 475-4499 ID: 553-829-7195
Petitioner, Public.Resource.Org, Inc. has filed a petition for writ of mandate (Petition)
against Respondents Office of Administrative Law (OAL) and the California Building
Standards Commission (BSC), directing Respondents to comply with the Public
Records Act.(Gov. Code, §§ 6250 seQ.) (PRA). As to Respondent OAL, the Petition
is denied. As to Respondent BSC, the Petition is stayed pending resolution of a final
judgment from the District of Columbia District Court in American Society for Testing
and Materials, etal v. Public.Resource.Org (D.C. Cir. 2018) 896 F.3d 437, 441,
Page -1 - of 12
1. Background.
On December 29, 2020, Petitioner^ sent a PRA request to OAL for Titles 1-5, 7-23, and
25-28.of the California Code of Regulations (collectively, CCR).^ (Petition, 1113, Exh. C.)
Petitioner requested that OAL provide the information "in all formats, in your
possession, including (but not limited to) structured, machine-readable digital formats,
such as XMF or PDF files," pursuant to Government Code section^ 6250, subdivision
(a)(1). (Petition, Exh. C.) Petitioner also informed OAL that it must produce a copy of an
electronic record in any format that has been used by it to create copies for its own use
or for provision to other agencies, pursuant to' Section 6250, subdivision (a)(2). {Ibid.)
OAL responded, stating that it could provide a paper copy ofthe CCR to Petitioner, and
offered to scan each page of the print version, to serve as an "electronic" copy.
(Petition, Exh. D.) OAL also directed Petitioner to a website that contained the most "up
to date" version ofthe CCR. (Ibid.) OAL also offered to provide a CD-ROM with past
versions of the CCR, but noted that the contents of the CD-ROM cannot be copied in
whole or transferred to another storage device. {Ibid.) Petitioner and OAL
corresponded further, and Petitioner contended that OAL's response was insufficient,
and that the website to which it directed Petitioner was not "publicly available."
(Petition, 111114-19.) ^
Also on December 29, 2020, Petitioner also made a nearly identical, separate PRA
request for Title 24 of the CCR (Title 24) to the Office of Public Affairs, which contains
the Department of General Sisrvices, and BSC. (Petition, Exh. F.) Again, Petitioner
requested an electronic copy of Title 24, and sought Title 24 ih all formats in BSC's
possession, including "structured, machine-readable formats." {Ibid.)
BSC-also responded that it could not produce the records. BSC stated that a hard copy
of Title 24 was available for inspection at BSC's office, and noted that hard copies of
Title 24 were available for public viewing and copying at state document depository
libraries or at city of county building or plannirig departments. (Petition, Exh. G.) BSC
stated that Title 24 may be viewed online on the BSC's website, but because BSC did
not have publishing rights, it could not provide copies to.the public. {Ibid.) BSC
explained that this is because Title 24 is based on and includes model codes produced
by standards developing organizations (SDOs), Intervenors National Fire Protection
Association (NFPA), International Codes Council (ICC), and the International
Association of Plumbing and Mechanical Officials. {Ibid.) BSC also responded that
^ Petitioner Is a non-profit organization with the mission of providing public access to government records
and legal matei-ials. (Petition, ^5.)
^ Respondent OAL oversees the publication and distribution of Titles 1-5, 7-23, and 25-28 of the CCR.
(Petition, ^6.) Respondent BSC adrninisters the adoption of, and codifies and publishes the California
Building Standards Code as Title 24 of the CCR. (Petition, ^7;)
' Unless otherwise specified, all statutory references shall be to the Government Code. - .
P a g e - 2 - o f 12 ,
individual parts or a full set of Title 24 may be purchased from these three publishing
entities. {Ibid.)
Petitioner then filed a petition for writ of mandate, alleging that OAL and BSC violated
the PRA. On August, 27, 20 2021, the Court granted NFPA's and ICC's motioi^ for leaye to
intervene in this proceeding.
2. Discussion.
a. Claims Against OAL.
Petitioner argues that OAL has violated the PRA by refusing to produce the records and
insufficiently responding to its request, namely by fail
Preview
1 ROBBONTA Attomey General of Califomia 2 MICHELLE M . MITCHELL FliiO/ENDORSED Supervising Deputy Attomey General 3 KEITH L . WURSTER Deputy Attomey General MAY 10 1022 4 State Bar No. 198918 LAURA A. RANDLES-LITTLE . 5 Deputy Attomey General State Bar No. 232930 6 1300 I Street, Suite 125 P.O. Box 944255 7 Sacramento, CA 94244-2550 Telephone: (916)210-6504 8 E-mail: Laura.RandlesLittle@doj .ca.gov Attorneys for Respondent 9 Office of Administrative Law 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 CIVIL DIVISION 13 14 15 PUBLIC.RESOURCE.ORG, INC., Case No. 34-2021-80003612 16 Petitioner, NOTICE OF ENTRY OF ORDER AND JUDGMENT 17 V. Date: May 10,2022 18 Dept:, 27 CALIFORNIA OFFICE OF Judge: Steven M. Gevercer 19 ADMINISTRATIVE LAW, and the Action Filed: March 17, 2021 CALIFORNIA BUILDING STANDARDS 20 COMMISSION, 21 Respondents. 22 23 24 Please take notice that on April 11, 2022, the Honorable Steven M. Gevercer in Department 25 27 of the Superior Court of the State of Califomia, County of Sacramento, entered an Order 26 denying Petitioner's Verified Petition for a Writ of Mandate as to Respondent Califomia Office 27 of Administrative Law. A true and correct copy of that Order is attached hereto as Exhibit 1. 28 1 . Notice of Entry of Order and Judgment (34-2021-80003612) 1 In addition, please take notice that on that same day, April 11,2022, the Honorable Steven 2 M. Gevercer in Department 27 of the Superior Court of the State of California, County of 3 Sacramento, entered judgment in the above-captioned matter in favor of Respondent Califomia 4 Office of Adniinistrative Law. A tme and correct copy of the Judgment is attached hereto as 5 Exhibit 2. 6 Dated: May 10, 2022 Respectfully submitted, 7' ROB BONTA Attomey General of Califomia 8 MICHELLE M . MITCHELL . - Supervising Deputy Attomey General 9 10 11 LAURA A. RANDLES-LITTLE 12 Deputy Attomey General ; Attomeys for Respondent 13 Office of Administrative Law 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Entry of Order and Judgment (34-2021-80003612) EXHIBIT 1 ! ROB BONTA , Attorney General:of California 2. MicriELLE M I : M ' ^ iSupen/isingvDepUty-Attorney'Ge .3 kEim:L..WURST^^ ' •Deputy Attoniey General 4" State Bar l^io;'^.! 989.18:' LAtlRA At^RXNDLESrLlfTl^ 5 . .Deputy, Attorney! General Stite Baf N6.-232930 6; - l:3tiO'1^Street, Suite 125.: P;0; Bbx 944255' 7 Skramentbj.eA 94244-2550 Telei^hionei. (91;6);2i0-65P4 8 Fax:.' ' ' I E-mail: LauravRaridiesLltt!e@doj^. 9 AtlqrheysfqrResponden^^^ d^ce/o/'Admiriistr^^ 10 Building Stqriddr:ds: Gommjssion li SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 1,3 CIVIL DIVISION 14 15 16. PUBLIG^iESbyfrcEip 34-2021-80003612:' 1,7 Retitipher, lED] OltoER v: 19 eALlFORNiA OFFICE. OF 20 ADiMINiSTRATIVE LAW, and the CALIFORNIA BUILDING STANDARDS 2i. COMMISSION^ ~ 22 Respondents. 23: 24 After consideration df the papers;submitted by the parties and'Inteiwentors, tHe Honpra 25 Steven M. Geyerce'r issued a tentatiy^ regard tp^tKe Verified;^ 26; Mandate filed"by Petitioner PuBliciResource.Grg, Inc. against,th^^ 27 Adiriiiilsti-atlVe'Law ahd:the,California Building Standards'C^^ The pai^ies did not 28 [ft upuuuilj Qrcler (34-2021 -80003612) \ request a heanhg aiid the tehtative.rulingbecam the ruling of, the'Court. For the reasons stated in 2 .the tentative ruling, attached here as Exhibit A and ihcprpbrated here by referericej Petitioner's •J- Verified Petition for Writ pf Mandate is denied as to Respondent California Office pf 4 . Adhiinistratiy As'to Respohdent Building Standards Cornmissi6n,,the Petitb '5'- Verified Petition for Wriji^pf.Mahdat^ p'ending;resdlutibniO^the^ jn' -6 Exhibit/V; 7 IT IS SO ORDERED. 8 ;Dated'ApfilJi,:2022; 9 ONORABLE STEVEN M. GEVERCER 10 GE OFTHE SUPERIOR ieOlK^ 11 12 13 14 15 16 17 18. 19; 20 •21. 22; 23 '24 25 26 27 28- i[Pr6posea];Order (34-2021 -80003612) EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO DATE/TIME: March 25, 2022 2:00 p.m. DEP. NO.: 27 JUDGE: HON. STEVEN M. GEVERCER CLERK: N.SMITH Public.Resource.Org., Inc., Case No. 34-2021 -80003612 Petitioner, /- . • V. California Office of Administrative Law, and the California Building Standards Commission, Respondents. Nature of Proceedings: Petition for Writ of Mandate I. TENTATIVE RULING. The following shall constitute the Court's tentative ruling on the above matter, set for hearing in Department 27, on Friday, March 25, 2022, at 2:00 p.m. The tentative ruling ' shall become the ruling ofthe Court, unless a party desiring to be heard so advises the Clerk of Departnnent 27 no later than 4:00 p.m. on the Court day preceding the hearing, and further advises the Clerk that such party has notified the other side of its intention to appear. The Court strongly encouraoes parties to appear remotelv for the hearing on the tentative ruling through the Court's Zoom Application. But any party wishing to appear in person may do so, provided that party notifies the Court by 4:00 the Court day before the hearing. ' The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link/telephone number: https.7/sacCOUrt.200m.US/my/dept27a | (888) 475-4499 ID; 553-829-7195 Petitioner, Public.Resource.Org, Inc. has filed a petition for writ of mandate (Petition) against Respondents Office of Administrative Law (OAL) and the California Building Standards Commission (BSC), directing Respondents to comply with the Public Records Act (Gov. Code, §§ 6250 etseq.) (PRA). As to Respondent OAL, the Petition / is denied. As to Respondent BSC, the Petition is stayed pending resolution of a final judgment from the District of Columbia District Court in American Society for Testing and Materials, et al v. Public.Resource.Org (D.C. Cir. 2018) 896 F.Sd 437; 441. Page -1 - of 12 1. Bacltground. On December 29, 2020, Petitioner^ sent a PRA request to OAL for Titles 1-5, 7-23, and 25-28 ofthe California Code of Regulations (collectively, CCR).^ (Petition, T|13, Exh. C.) Petitioner requested that OAL jsrovide the information "in all formats, in your possession, including (but not limited to) structured, machine-readable digital formats, such as XMF or PDF files," pursuant to Government Code section^ 6250, subdivision (a)(1). (Petition, Exh. C.) Petitioner also informed OAL that it must produce a copy of an electronic record in any format that has been used by it to create copies for its own use or for provision to other agencies, pursuant to Section 6250, subdivision (a)(2). (Ibid.) ' i ' OAL responded, stating that it could provide a paper copy of the CCR to Petitioner, and offered to scan each page of the print version, to serve as an "electronic" copy. (Petition, Exh. D.) OAL also directed Petitioner to a website that contained the most "up to date" version ofthe CCR. {Ibid.) OAL also offered to provide a CD-ROM with past versions ofthe CCR, but noted that the contents of the CD-ROM cannot be copied in whole or transferred to another storage device. {Ibid.) Petitioner and OAL corresponded further, and Petitioner contended that OAL's response was insufficient, and that the website to which it directed Petitioner was not "publicly available." (Petition, ini14-19.) Also on December 29, 2020, Petitioner also made a nearly identical, separate PRA request for .Title 24 of the CCR (Title 24) to the Office of Public Affairs, which contains the Department of General Services, and BSC. (Petition, Exh. F.) Again, Petitioner requested an electronic copy of Title 24, and sought Title 24 in all formats in BSC'S possession, including "structured, machine-readable formats." (Ibid.) BSC-also responded that it could not produce the records. BSC stated that a hard copy of Title 24 was available for irispection at BSC'S office, and noted that hard copies of Title 24 were available for public viewing and copying at state document depository libraries or at city of county building or planning departments. (Petition, Exh. G.) BSC stated that Title 24 may be viewed online on the BSC'S website, but because BSC did not have publishing rights, it could not provide copies to.the public. {Ibid.) BSC explained that this is because Title 24 is based on and includes model codes produced by standards developing organizations (SDOs), Interveners National Fire Protection Association (NFPA), International Codes Council (ICC), and the International Association of Plumbing and Mechanical Officials. {Ibid.) BSC also responded that ^ Petitioner is a non-profit organization with the mission of providing public access to government records and legal materials. (Petition, 115.) ^ Respondent OAL oversees the. publication and distribution of Titles 1-5, 7-23, and 25-28 ofthe CCR. (Petition, 116.) Respondent BSC administers the adoption of, and codifies and publishes the California Building Standards Code as Title 24 of the CCR. (Petition, ^7.) ^ Unless otherwise specified, all statutory references shall be to the Government Code. P a g e - 2 - o f 12 individual parts or a full set of Title 24 may be purchased from these three publishing entities. {Ibid.) Petitioner then filed a petition for writ of mandate, alleging that OAL and BSC violated the PRA. On August, 27, 2021, the Court granted NFPA's and ICC's motion for leave to intervene in this proceeding. 2. Discussion. a. Claims Against OAL. Petitioner argues that OAL has violated the PRA by refusing to produce the records and insufficiently responding to its request, namely by failing to provide an "electronic" copy ofthe CCR in a "structured, machine-readable" format. (Opening Brief, 9:4.) Responderit OAL responds that the Legislature, In enacting the pertinent provisions of the Administrative Procedure Act (APA), dictated how the CCR should be made publicly available, and that In any event it, has complied with the PRA in responding to Petitioner. ^ i. PRA Statutes. Under the PRA, a public agency must make public records promptly available to any person who submits a PRA request that "reasonably describes an identifiable record or recoi'ds." (Gov. Code, § 6253, subd. (b).) The PRA enables persons to seek "irijunctlve or declarative relief or writ of mandate" to enforce that person's right to Inspect or receive copies of public records. (Gov. Code, §§ 6258, 6259.) The PRA is constrijed broadly in favor of access. {Am. Civil Liberties Union Foundation V. Superior Court (2017) 3 Cal.5th 1032, 1040.) Exemptions from disclosure must be narrowly construed. {Id.) The agency withholding the records bears the burden of proving that an exception from disclosure applies. {California First. Amend. Coal. v. Superior Court {California Firsf) (1998) 67 Cal.App.4th 159, 167.) ~ The PRA imposes on agencies an affirmative obligation to make available to the public" any public records in their possession, unless the agency can demonstrate that a responsive record is otherwise exempt from disclosure. (Gov. Code, §§ 6253, 6254, 6255.) Public records may be exempted from disclosure if they fall within a particular specific statutory basis fbr exempting the records. (Gov. Code, § 6254). Additionally, public records may also be exempt from disclosure if the agency can show that "on the facts ofthe particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure ofthe record." (Gov. Code, § 6255, subd. (a).) If "the requester has alternative, less intrusive means of obtaining the information sought" the public interest in disclosure is minimal, although the "existence of an alternative means does not wholly undermine the public interest in disclosure." {County of Santa Clara v. Superior Court (Santa Clara) (2009) 170 Cal.App:4th 1301, Page - 3 - of 12 1325 [citing City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008,1020, 1025].) Section 6253.9 governs an agency's duty to produce electronic copies of records under the PRA. It provides: a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure...that is in an electronic format shall make that information available ;n an electronic format when requested by any person and, when applicable, shall comply with the following: (1) The agency shall make the information available in any electronic format in which it holds the information. (2) Each agency shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record In an electronic format. ' ' " (b) ...the requester shall bear the cost of producing a copy ofthe record, including the cost to construct a record, and the cost of programming and • computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the public agency would be requiredJo produce a copy of an electronic record and the record is one that is produced orTly at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction, or programming to produce the record. • (c) Nothing in this section shall be construed to require the public agency to reconstruct a record ia an electronic format if the agency no^longer has the record available in an electronic format. (d) If the request is for information in other than electronic format, and the information also is in electronic format, the agency may inform the requester that the information is available in electronic format. (e) Nothing in this section shall be construed to permit an agency to make information available only in an electronic format Page - 4 - of 12 (f) Nothing in this section shall be construed to require the public agency to release an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained. (g) Nothing in this section shall be construed to permit public access to records held by any agency to which access is othenwlse restricted by statute. (Gov. Code, § 6253.9.) Thus, a government agency is required by the PRA to produce non-exempt responsive computer records in the same manner as paper records, and can be required to compile, redact or omit information from an electronic record. (See Sander v. Superior Court (2018) 26 Cal.App.5th 651, 669.) Section 6253.9 contemplates that public agencies can be required to gather and segregate disclosable electronic data from nondisclosable exempt information and perform data compilation, extraction or computer programming if "necessary to produce a copy of the record." {Ibid, [citing Gov. Code, § 6253.9, subdivision (b)].) However, the PRA does not require an agency to create a new record: an agency "cannot be required to create a new record by changing the substantive content of an existing record or replacing existing data with new data." {Ibid, [citing Yeagerv. Drug Enforcement Admin. (D.C. Cir. 1982) 678 F.2d 315, 323 and noting that "Segregating and extracting data is a far cry froni requiring public agencies to undertake the extensive 'manipulation or restructuring of the substantive content ofa record.'"].) Additionally, agencies need not draft summary or explanatory material, perform calculations on data, or create inventories of data in response to a records request. (/Vaf/ona/ Lawyers Guild, San l^rancisco Bay Area Chapter v. City of Hayward (2020) 9 Cal.5th 488, 502; Haynie v. Superior Court (2001) 26 Cal.4th 1061,1075; see also Sander v. Superior Court', supra, 26 Cal.App.5th, at p. 669.) ii. Pertinent Law Governing the Public Availability of CCR. The Administrative Procedure Act (APA) (see Gov. Code §§ 11340, et. seq.) among other things, establishes the OAL and sets forth specific statutes governing rulemaking, or an agency's promulgation of regulations, which comprise the CCR. Section 11344, requires OAL to make the CCR available online. Section 11344 provides: (OAL) shall do allj)f the following: (a) Provide for the official compilation, printing, and publication of adoption, amendment, or repeal of regulations, which'shall be known as the [CCR]. On and after July 1, 1998, [OAL] shall make available on the Internet, free of charge, the full text of the [CCR], and may contract with another state agency or a private entity in order to provide this service. (b) Make available on its Internet Web site a list of, and a link to the full text of, each regulation filed with the Secretary of State that is pending effectiveness pursuant to Sectiori 11343.4. - - Page - 5 - of 12 (c) Provide forthe compilation, printing, and publication of weekly updates ofthe California Code of Regulations.... (Gov. Code, § 11344.) OAL is also required to supply a complete set ofthe CCR and its Supplement to any county clerk. {Id., at § 11344.2.) Additionally, the CCR "shall be sold at prices which will reimburse the state for all costs incurred for printing, publication, and distribution." (/c/., at § 11344.4.) iii. The Petition is Denied as to OAL. Petitioner argues that OAL violated the PRA by not providing the CCR to Petitioner in a "structured, machine-readable" format. Underpinning^Petitioner's argument is its belief that OAL possesses a "Master Database" through its contract with Thomson • ReutersAA/est Publishing, and has the ability to access the Master Database and provide Petitioner the CCR to Petitioner in a "structured, machine-readable" format. OAL contends that Petitioner is demanding OAL provide the CCR in a format that it does not possess, and that it is really trying to compel OAL to create an entirely newf record, which the PRA does not require. Petitioner has not shown that OAL violated the PRA. OAL neither possesses the Master Database, nor do the PRA or pertinent statutes impose any duty upon OAL to provide the CCR in the ""structured, machine-readable" format soijght by Petitioner. • ^ • • . • • ' . • . OAL Does Not Possess the Master Database. Petitioner argues that OAL constructively possesses the Master Database. OAL disagrees and claims that it does not possess the Master Database, or the data (the updated, versions of regulations comprising the CCR) In it. OAL has the better argument. OAL declares that the Master Database exists in proprietary software of Thomson ReutersA/Vest Publishing. (Declaration of Kevin Hull (Hull Decl.), 115; Declaration of Andrew Martens (Martens Decl.); 1j6.) The language ofthe contract with Thomson ReutersAA/est Publishing provides ifor a "useable electronic data base" in a "portable and easily processed or converted format" upon completion or termination ofthe contract. (Administrative Record"*, Exh. B [000009] and Exh. J [000052-53].) The above •* Petitioner has furnished a collection of exhibits that it denotes as an "administrative record." contractual term ensures that OAL can obtain all the data (the regulations comprising the CCR) if needed to provide it to a Page new contractor. - 6 - of 12 As the contract is not completed or terminated, OAL has not invoked this contractual term. Thus, Thomson ReutersAA/est Publishing has never given OAL the Master Database or the data in it. (Hull.Decl.., TJ3; Martens Decl., 1|5.) The data has never been extracted and formatted In the manner requeste,d by Petitioner. Petitioner argues that OAL, in fact, constructively possesses the Master Database because it has the right to control it. First, this is belied by the OAL's agreehientwith Thomson ReutersA/Vest Publishing. Second, Petitioner's argument that it is entitled to data from this Master Database (the CCR) in a particular format conflates OAL's right to the data wittiin the Master Database with the Master Database itself, which is not a "record," and which OAL does not possess. I. Thus, OAL does not possess the data in a structured-machine readable format requested by Petitioner. OAL has not violated the PRA for this reason. \ •. • • •. • The PRA Imposes No Duty Upon OAL To Produce the CCR in the Format Requested by Petitioner. / Additionally, the PRA itself imposes no duty upon OAL to produce "electronic" records in the "structured, machine-readable format" requested by Petitioner. In determining whether OAL violated the PRA, the Court must harmonize two sets of pertinent statutes: the PRA, and the APA. {City of Chula Vista v. Drager (2020) 49 Cal.App.5th 539, 560 ["If, after an examination ofthe statutes in context, they 'conflict on a central element, we strive to harmonize them so as to give effect to each. The Court is guided by the following principles of statutory construction.'"].) "A court's overriding purpose in construing a statute is to ascertain legislative intent.... [Citation.] In interpreting a statute to determine legislative intent, a court looks first to the words ofthe statute and gives them their usual and ordinary meaning. [Citation.] Statutes must be given a fair and reasonable interpretation, with due regard to the language used and the purpose sought to be accomplished.' {Sander v. Superior Court, supra, 26 Cal.App.5th, at 653-654 [internal quotations and citations omitted].) In PRA cases, the California Constitution requires that '[a] statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.' {Sander v. Superior Court, supra, 26 Cal.App.5th, at 653-654. [citing CaL Const., art I, § 3, subd. (b); City of San Jose v. Superior Court {2Q'[7) 2 Cal.5th 608, 617].) Additionally, a specific statutory provision prevails over a general statute. (See F?ose v. State (1942) 19 Cal.2d 713, 723-724.) If statutory provisions conflict, statutes that are passed later in time control. {City of Chula Vista v. Drager, supra, 49 Cal.App.5th, at p. 560 [citing Collection Bureau of San Jose v. Rumsey (200) 24 Cal.4th 301].) The text of Section 6253.9 imposes no duty upon OAL to make records available in a particular format. It requires an agency to produce an "electronic" copy of records, and P a g e - 7 - of 12 . •' • •••')• contemplates that an agency mSy need to engage in "data compilation, extraction, or programming" to produce a record. Thus, the Court cannot find that OAL violated Section 6253.9 by failing to produce records in a "structured, machine-readable format." The Court is mindful that the California Constitution requires that statutes, such as Section 6253.9 be "broadly construed" if it furthers the people's right of access. But the Court's inquiry does not stop here. It must also coi;isider more specific, later-enacted statutes in the APA, and give those statutes a "fair and reasonalDle" interpretation. As noted above, the Legislature has enacted more specific statutes, governing OAL's duty to make the CCR available. Pertinent here, Section 11344, provides that OAL must make the CCR publicly available on its website by posting a link to the full text of, each regulation. (Gov. Code, § 11344.) Notably, it imposes no duty upon OAL to make the CCR available in any electronic format requested by a member of the public. Thus, the Court finds that this specific statute directed only to OAL prevails over the more general PRA provisions governing all agencies. Moreover, Section 11344, which was added in 1983, has been amended many times, most recently in 2012. (Stats. 2012, c. 295 (S.B. 1099), §3.) In contrast, Section 6253.9 was added in 2000, and has not been updated. (Gov. Code, § 6253.9 [Added by Stats. 2000, c. 982, (A.B. 2799) § 2.) Thus, because Section 11344 is a later-artiended statute, the. Court presumes that the Legislature was aware of the PRA and Section 6253.9, when amending it. Accordingly, the OAL has complied with Section 11344 and has not violated the PRA by failing to produce records in a "structured, machine-readable" format. • Petitioner's Other Arguments Show no Violation of the PRA." Petitioner claims that the website that OAL directed it to is not "publicly available" because it is subject to technological and legal restrictions to prevent users from text- searching, copying and pasting, or distributing portions ofthe CCR. (Opening Bnef, p. 6.) Nothing in the PRA requires that discloseable records be searchable or adaptable for copying and pasting. Additionally, forthe same reasons articulated above, OAL has not violated the PRA in this regard. Petitioner also argues that OAL is trying to circumvenj its duties to disclose records by outsourcing the publication of to a third party in violation of Section 6720. This statute, enacted in 1995, provides in pertinent part that "no state or local agency shall sell, exchange, furnish, or otherwise provide a public record subject to disclosure pursuant to this chapter to a private entity in a manner that prevents a.state or local agency from providing the record directly pursuant to this chapter." (Gov. Code, § 6270 [Added byStats.1995, c. 1Q8 (A.B.141), §1.].) ' - " ~ .-v . • •^ r However, the Court must presume that the Legislature, in enacting and amending statutes regarding OAL's duty to publish the CCR, is aware of OAL's arrangement with ) . , • • .• P a g e - 8 - o f 12 Thomson ReutersA/Vest. Again, the Court notes that Section 11344, was amended several times after the enactment of Section 6270, and was most recently amended in 2012. Thus, OAL has not violated the PRA on this ground. ^ b. Claims Against Respondent BSC. Petitioner argues that BSC has violated the PRA by not disclosing an electronic copy of Title .24. BSC responds that Section 6254, subdivision (k), exempts Title 24 from disclosure, as it contains model codes drafted by Interveners NPFA and ICC, which are protected by federal copyright law. BSC alternatively argues that Section 6255, the "catch-all" exemption, exempts Title 24 from disclosure, as the public interest in . nondisclosure clearly outweighs the public interest in disclosure. Interveners NFPA and ICC, which are aligned with BSC, note the pendency of two federal actions in which the similar copyright issues are addressed. Interveners argue that the records are exempt from disclosure, but also argue that this proceeding should be stayed, pending resolution of the federal cases. • • ' i. Legal Standard. The PRA contains a lengthy l|st of statutory exemptions from disclosure. (Gov. Code, § 6254.) Pertinent here, an item is statutorily exempt from disclosure If they are "exempted or prohibited pursuant to federal or state law." {Id., § 6254, subd. (k).) BSC and Interveners claim that Title 24 is protected by federal copyright law, as it incorporates by reference model codes drafted by Interveners and other SDOs, and thus. Title 24 is statutorily exempt from disclosure. "When an action is brought in a court of this state involving the same parties and the same subject matter as an action already pending in a court of another jurisdiction, a stay ofthe California proceedings is not a matter of right, but within the sound discretion ofthe trial court." {Farmland Irrigation Co. v. Dopplmaier {^957) 48 Cal. 2d 208, 215.) "It is black letter law that, when a federal action has been filed covering the same subject matter as is involved in a California action, the California court has the discretion but npt the obligation to stay the state court action." {Caiafa Prof Law Corp. v. State Farm Fire & Cas. Co. {Caiafa) (1993) 15'Cal.App.4th 800, 804.) Caiafa enumerated various factors that courts should apply when deciding whether to stay a matter pending in a California court because of pending federal litigation, It provided that courts "should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because ofthe nature ofthe subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced." (/d.) Courts should also consider whether the federal action is pending in California. {Id.) Page - 9 - of 12 Of additional importance is the Court's inherent authority to controKits docket Courts routinely stay matters where circumstances warrant. (Frieberg v City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489 ["Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency."].) ii. The Petition is Stayed as to Claims against Respondent BSC. Petitioner argues that BSC violated the PRA by not disclosing Title 24, because it actually possesses it; the online version cited by OAL and BSC is not "publicly available," as the uiser is subject to end-user restrictions; and no exemption from disclosure applies, particularly Section 6254, subdivision (k). Petitioner contends that although Title 24 contains model codes drafted by Interveners that are incorporated by reference, the model codes in Title 24 have now become"the law," and lost their copyright protection. Thus, Petitioner argues. Section 6254, subdivision (k), does not apply. BSC responds that Title 24 is exempt under section 6254, subdivision (k), or * alternatively. Section 6255, and that it complied with the PRA by making records available electronically. Interveners argue that a stay is appropriate in light of pending federal litigation.^ The Court agrees. The issue of whether model codes that have been incorporated by reference into law is currently being litigated in federal court. In American Society for Testing and Materials, etalv. Public.Resource.Org {ASTM) (D.C. Cir. 2018) 896 F.3d 437, 441. Intervener NFPA and two other-SDOs sued Petitioner for copyright and trademark infringement,, after Petitioner purchased copies of incorporated standards, scanned them into digital files, appended coversheets explaining Petitioner's mission and the source of the standards, and posted the documents to a public website. {Id., at p. p. 444.) In some cases. Petitioner modified Jiles so that the text of the standard could be more easily enlarged, searched, and read with text-to-speech software. {Ibid.) In that case. Petitioner made, and is making, the same arguments raised here: that NFPA and the other SDOs lose the benefit of copyright protection for model standards they authored once those model standards are incorporated by reference. 1n ASTME, Petitioner and NFPA and the other plaintiffs filed competing motions for summary judgment {Ibid.) The district court granted NFPA and the SDOs'motion, rejecting Petitioner's arguments. The district court found that NFPA and the SDOs.held copyrights in the model standards incorporated by reference, and that Petitioner ^ Petitioner faults Interveners for raising this issue in the briefs, rather than bringing a separate motion for a stay under Code of Civil Procedure, section 1005. This point is well-taken. However, because Petitioner has been afforded the opportunity to respond to Interveners' request for a stay, the Court will consider it. ^ P a g e - 1 0 - o f 12 improperiy reproduced them, and that Petitioner failed to create a triable issue of fact that its reproduction qualified as "fair use"—a defense to copyright infringement. {Ibid.) PRO appealed that decision to the D.C. Circuit. The D.C Circuit vacated the district court's decision. In doing S0|. it found that the district court should have considered Petitioner's affirmative defense of fair use. {ASTM , supra, 896 F.3d 437, 440-441.) Accordingly, the D.C. Circuit has remanded the matter to the district court to consider Petitioner's affirmative defense to the motion for summjary judgment brought by NFPA and the other SDOs. {Id, at p. 458.) In briefing related to that motion. Petitioner does; not dispute.that it advances the same argument that it advances here: that codes that governments have expressly incorporated into law, lose copyright protection and that standards incorporated by reference are "government edicts" under Georgia v. Public Resource.Org, Inc. (Georgia) (2020) 140 S. Ct 1498. Additionally, Intervener ICC is involved in pending litigation in the Southern District of New York, where the accused infringer (a company named UpCodes) has raised similar defenses based on incorporation by reference, that Petitioner raises in ASTM and this case. {International Code Council, Inc. v. UpCodes, Inc. (S.D.N.Y. May 27, 2020, No. 17-CV-6261.) The Court exercises its discretion to stay the proceedings against BSC. At issue is whether the model codes drafted by Interveners and incorporated into Title 24 are protected by federal copyright law. The federal proceedings in ASTM are addressing this very issue, and as to the same parties: Intervener NFPA and Petitioner. Additionally, another federal cpurt is addressing these similar issues as to another organization and Intervener ICC. First the nature ofthe subject matter—^federal copyright law—is the exclusive province of federal court. (Sears Roebuck & Co. v. Stieffel Co. (1964) 376 U.S, 255, 231, fn.7; Topolos V. Caldewey (9th Cir. 1983) 698 F.2d 991, 993-994.) Petitioner cites to Santa Clara, supra, 170 Cal.App.4th 1301, forthe proposition that "California law" addresses when the work of California agencies may be subject to copyright protection. This argument Is unavailing. Santa Clara addressed copyright issues that arose after an agency claimed copyright protection in a work it authored. That is not the case here. The issue is whether copyright law protects Interveners' works, which is currently under consideration in federal courts.-^The Court also rejects Petitioner's argument that the nature ofthe subject matter in this case differs, because the Court is concerned with the applicability of the PRA. This is true, but, if federal copyright law applies and protects model codes incorporated by reference into regulations, then this necessarily resolves whether BSC has violated the PRA. Thus, staying the proceedings also promotes judicial efficiency. Second, a stay avoids the potential for "unseemly" conflicts with federal copyright issues raised by Petitioner, such as whether the "government edicts" doctrine, as articulated by the Supreme Court in Georgia, prevents Interveners from asserting a copyright interest in the portions of Title 24 that incorporates their model codes by reference. Page -11 - of 12 Third, the ASTM case is significantly advanced in the proceedings, weighing in favor of a stay. As noted above, the ASTM is on remand from the Court of Appeal where the district court will again consider the motions for summary judgment, including application of the government edicts'doctrine. These factors all support the Court's decision to stay the proceedings as to BSC. Petitioner argues upon reply, .that BSC may not rely on any statutory exemption in Section 6254, because .BSC has disclosed some copies of Title 24, and thus, waived its right to assert this exemption under Section 6254.5. Petitioner opposed BSC's nondisclosure based on Section 6254 on the merits, and did not at all raise this "waiver" argument in its Opening Brief Thus, Interveners and BSC had no opportunity to ^ respond to it. Accordingly, the Court does not consider it. 3. Disposition. The Petition is denied as to Respondent OAL. The Petition is stayed as to Respondent BSC-in light ofthe ASr/W matter. / Counsel for Respondent OAL shall prepare a formal order and a separate judgment Incorporating this ruling as an exhibit to each, submit them to opposing counsel for approval as to form, and thereafter submit them to the Court for signature and entry of judgment in accordance with California Rules of Court, rule 3.1312. Page -12 - of 12 if- 1. -.P. '.if ... "I.,,.-, .' ,-r , •, •' ';-"""f,^l 1-r- <• • " -^4 .. - . , • W •• 1^.1 '.' - VI- ••1 - ^V--'" '•:f:i.y^ - '' ' '.- '.'.^rjU'41fVM>U.u-'l.) ROB BoNTA Attorney General of California 2 MICHELLE M. MITCHELL FILED/ENOORSE Supervising Deputy Attomey General 3 KEITH L.WjjRSTER Deputy Attorney Generai: 4. State'BarNo. 1.98918 LAURA AvRkNDLEs-LiTTiiE 5 Deputy Attorney Oeneraf By N;-Smith,'O Smte Bar No: 232930" 6. 1300 r.Stre'et, Suite 125 R.0.30X 944255: 7 Sacramehtb,' CA 94244-2550' Telephone: ("916) 210-6504 8 Fax; Ermail: Laura:,RandlesLittIe(^d^ .;9 Attorneys for Resporidenis^ Office dfAdministrgtiye Law arid • Buildiirg Siariddrds Corhmisslqn: 11 SURERIOR^OURT OF THE STATE GF.GALIF0RN1A- li COUNtY OFSAGRAMENTQ, 13 CIVIL DIVISION 14 15 PyBLIC.RESOURCE.ORG, INC., 34-2021-80003612 ^ 16 Petitioner, LwiOiVQL'iai JUDGMENT jl 18 1,9 CALIFORNI A OFFICE OF ADMINiStRATiVE LAW, and the 20 CAiLlFORNIA BUILDING StANDAIlDS COMMISSION, 2:1 Respondents. 22 23; .Hayiiig fev4ewed th^^ paities; |T IS ORDERED, ADJUGED AND .24 25 DECREED thatPetitipne^^ Inc's Verified Petition fprJWrit.pf Mandate -26 regarding Respondent California Office of Administrative Law is denied and judgment is entered 27 in favor of Respoiident Califomia Office of Adrninsitrative'Law'for the reasdns sbt forth in the 28 [artj^HCBj.Judgment: (34-2021-80003612) the'Cpuit'siTehfe^^ 6ated;At)nl:JL, 2022; 3 4: ONORABLE:S.TEVEN My.GEVERCER GE OF THE SUPERliDR GOURt ' 5 6 r 7 8 9' 10 iij \^ 15- 1:7 |9- :20^ 22r ;23-. :24' •25'' 2.6: 27 :28^ 2; ' [Proposeai;Judgmeht (34-.202,lr8q003612) SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO DATE/TIME: March 25, 2022 2:00 p.m. DEP. NO.: 27 JUDGE: HON. STEVEN M. GEVERCER CLERK: N.SMITH Public.Resource.Org., Inc., Case No. 34-2021-80003612 Petitioner, v. California Office of Administrative Law, and the California Building Standards Commission, Respondents. Nature of Proceedings: Petition for Writ of Mandate I. TENTATIVE RULING. ' The following shall constitute the Court's tentative ruling on the above matter, set for hearing in Department 27, on Friday, March 25, 2022, at 2:00 p.m. The tentative ruling shall-become the ruling ofthe Court, unless a party desiring to be heard sO advises the Clerk of Department 27 no later than 4:00 p.m. on the Court day preceding the hearing, and further advises the Clerk that such party has,notified the other side of its intention to appear. The Court strongly encourages parties to appear remotelv for the hearina on the tentative ruling through the Court's Zoom Application. But any party wishing to appear in person may do so, provided that party notifies the Cpurt by 4:00 the Court day before the hearing. The parties may join the ZoOm. session for hearing on the tentative ruling by audio and/or video through the following link/telephone number: https://saccourt.20om.us/my/dept27a | (888) 475-4499 ID: 553-829-7195 Petitioner, Public.Resource.Org, Inc. has filed a petition for writ of mandate (Petition) against Respondents Office of Administrative Law (OAL) and the California Building Standards Commission (BSC), directing Respondents to comply with the Public Records Act.(Gov. Code, §§ 6250 seQ.) (PRA). As to Respondent OAL, the Petition is denied. As to Respondent BSC, the Petition is stayed pending resolution of a final judgment from the District of Columbia District Court in American Society for Testing and Materials, etal v. Public.Resource.Org (D.C. Cir. 2018) 896 F.3d 437, 441, Page -1 - of 12 1. Background. On December 29, 2020, Petitioner^ sent a PRA request to OAL for Titles 1-5, 7-23, and 25-28.of the California Code of Regulations (collectively, CCR).^ (Petition, 1113, Exh. C.) Petitioner requested that OAL provide the information "in all formats, in your possession, including (but not limited to) structured, machine-readable digital formats, such as XMF or PDF files," pursuant to Government Code section^ 6250, subdivision (a)(1). (Petition, Exh. C.) Petitioner also informed OAL that it must produce a copy of an electronic record in any format that has been used by it to create copies for its own use or for provision to other agencies, pursuant to' Section 6250, subdivision (a)(2). {Ibid.) OAL responded, stating that it could provide a paper copy ofthe CCR to Petitioner, and offered to scan each page of the print version, to serve as an "electronic" copy. (Petition, Exh. D.) OAL also directed Petitioner to a website that contained the most "up to date" version ofthe CCR. (Ibid.) OAL also offered to provide a CD-ROM with past versions of the CCR, but noted that the contents of the CD-ROM cannot be copied in whole or transferred to another storage device. {Ibid.) Petitioner and OAL corresponded further, and Petitioner contended that OAL's response was insufficient, and that the website to which it directed Petitioner was not "publicly available." (Petition, 111114-19.) ^ Also on December 29, 2020, Petitioner also made a nearly identical, separate PRA request for Title 24 of the CCR (Title 24) to the Office of Public Affairs, which contains the Department of General Sisrvices, and BSC. (Petition, Exh. F.) Again, Petitioner requested an electronic copy of Title 24, and sought Title 24 ih all formats in BSC's possession, including "structured, machine-readable formats." {Ibid.) BSC-also responded that it could not produce the records. BSC stated that a hard copy of Title 24 was available for inspection at BSC's office, and noted that hard copies of Title 24 were available for public viewing and copying at state document depository libraries or at city of county building or plannirig departments. (Petition, Exh. G.) BSC stated that Title 24 may be viewed online on the BSC's website, but because BSC did not have publishing rights, it could not provide copies to.the public. {Ibid.) BSC explained that this is because Title 24 is based on and includes model codes produced by standards developing organizations (SDOs), Intervenors National Fire Protection Association (NFPA), International Codes Council (ICC), and the International Association of Plumbing and Mechanical Officials. {Ibid.) BSC also responded that ^ Petitioner Is a non-profit organization with the mission of providing public access to government records and legal matei-ials. (Petition, ^5.) ^ Respondent OAL oversees the publication and distribution of Titles 1-5, 7-23, and 25-28 of the CCR. (Petition, ^6.) Respondent BSC adrninisters the adoption of, and codifies and publishes the California Building Standards Code as Title 24 of the CCR. (Petition, ^7;) ' Unless otherwise specified, all statutory references shall be to the Government Code. - . P a g e - 2 - o f 12 , individual parts or a full set of Title 24 may be purchased from these three publishing entities. {Ibid.) Petitioner then filed a petition for writ of mandate, alleging that OAL and BSC violated the PRA. On August, 27, 20 2021, the Court granted NFPA's and ICC's motioi^ for leaye to intervene in this proceeding. 2. Discussion. a. Claims Against OAL. Petitioner argues that OAL has violated the PRA by refusing to produce the records and insufficiently responding to its request, namely by fail