Opinion
B229824
12-01-2011
CLAY ROLLOW, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF JUSTICE et al., Defendants and Respondents.
Law Office of Anthony Roach and Anthony A. Roach for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Zackery P. Morazzini and Mark R. Beckington, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC436726)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald M.Sohigian, Judge. Affirmed.
Law Office of Anthony Roach and Anthony A. Roach for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Zackery P. Morazzini and Mark R. Beckington, Deputy Attorneys General, for Defendants and Respondents.
Clay Rollow, in propria persona, filed this action against the California Department of Justice (Department), the governor, and two state employees to compel the Department, under the Information Practices Act of 1977 (Civ. Code, § 1798 et seq.), to disclose any information naming him as a restrained party that is accessible in the Department's Domestic Violence Restraining Order System. The trial court sustained the Department's demurrer to the second amended complaint without leave to amend. On appeal, Rollow is now represented by counsel, and he seeks leave to amend to plead a cause of action to obtain the information under the California Public Records Act (the Act) (Gov. Code, § 6250 et seq.). The information in the Domestic Violence Restraining Order System is for use by law enforcement personnel, and the data in that system is exempt from disclosure. Therefore, we affirm the dismissal of this action because the proposed amendment to cure the pleading defects in the second amended complaint is not supported by the substantive law.
STANDARD AND SCOPE OF APPELATE REVIEW
As noted, on appeal Rollow has changed his theory of recovery. Rollow's appeal contends the trial court abused its discretion in not granting him leave to file a third amended complaint.
Unlike most other appellants, an appellant challenging a demurrer is allowed to propose new facts and theories on appeal to demonstrate that the trial court should have granted leave to amend. (Code Civ. Proc., §472c, subd. (a).) "The burden is on plaintiffs to show that amendment can save the complaint." (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1151.) Rollow has set out his new theory of recovery in his opening brief, that is, he is entitled to the information he seeks under the Act. Under these circumstances, our analysis focuses on his new theory, and we need not discuss the procedural arguments resolved by the trial court in the demurrer to the second amended complaint. As shall be shown, we conclude that Rollow cannot state a cause of action under this new theory.
ALLEGATIONS IN THE SECOND AMENDED COMPLAINT
Because this action was concluded by a sustained demurrer, we treat the facts alleged in the second amended complaint as true for purposes of this review. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
In 2008, Rollow sought the disclosure of records that allegedly named him as the restrained party and were maintained in the Domestic Violence Restraining Order System. This system is an electronic database of domestic violence restraining orders and protective orders adjudicated in the superior court. The Department denied Rollow's request because the " 'information that you are seeking from the DOJ is confidential law enforcement records and is accessed exclusively via the California Law [E]nforcement Telecommunications System (CLETS).' "
Rollow specifically wanted access to the information to determine if the Domestic Violence Restraining Order System contained inaccurate and outdated information regarding two orders naming him as the restrained person.
1. The Torrance Transit Order
In 1998, Torrance Transit notified Rollow that he was "prohibited from riding on any Torrance Transit bus" driven by four designated employees. (Capitalization omitted.) Rollow alleges this order was incorrectly entered into the statewide Domestic Violence Restraining Order System. On two occasions during a warrants check, officers mentioned the Torrance Transit order. During one stop, Rollow overheard the dispatcher state that " '[h]e has a restraining order against him with four protected parties.' " During the other stop, officers told him about "the outstanding protective order" that "came back with the same [four] names[.]" Rollow attempted to obtain a copy of the order from two different branches of the superior court and was told there was no restraining order issued against him. Rollow went to the Torrance Police Department, and an employee informed him that he was named as a restrained party and was "to stay away" from four city employees. Just minutes later, a sergeant told him: " '[Y]ou don't have a restraining order against you at this time, but I suggest that you behave yourself when you're on our buses, or you will have one.' "
2. The Restraining Order in Case No. YS008162
In 2000, Rollow was a restrained party in what he alleges is a "legitimate restraining order [in Case No.] YS008162[.]" He seeks to inspect the Domestic Violence Restraining Order System to determine if this information remains accessible.
The Department has requested judicial notice of the superior court case referenced in its brief. The brief is not a record of the court proceedings, which is properly subject to judicial notice. (Evid. Code, § 452, subd. (d).) Thus, we decline to take judicial notice.
DISCUSSION
Rollow contends he can state a viable cause of action under the Act because he is entitled to information entered into the Domestic Violence Restraining Order System. He maintains the information contained in that system is a public record (Gov. Code, § 6252, subd. (e)), and no exemption applies to bar disclosure. (Gov. Code, §§ 6254, 6255, 6275-6276.48). Our resolution of this issue involves two statutory schemes, as well as certain provisions of our state Constitution.
1. Right to Disclosure of a Public Agency's Records
Under the Act, Government Code section 6253 requires that public records be produced upon request unless the records sought are made "exempt from disclosure by express provisions of law[.]" (Gov. Code, § 6253, subd. (b).) The California Supreme Court has explained the context and purpose of the Act as follows: "Openness in government is essential to the functioning of a democracy. 'Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.' [Citation.] In adopting the Act, the Legislature declared that 'access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.' " (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328-329.) By voter initiative, openness and accountability in government is now recognized in our state Constitution: "The people have the right of access to information concerning the conduct of the people's business, and, therefore . . . the writings of public officials and agencies shall be open to public scrutiny." (Cal. Const., art. I, § 3, subd. (b)(1).)
The Department is a public agency covered under the Act. (Gov. Code, § 6253.4.) The Department maintains a statewide Domestic Violence Restraining Order System, which contains specific information obtained from protective orders and restraining orders issued by the superior court. (Fam. Code, § 6380, subds. (b), (e).) With the approval of the Department, each county must develop a procedure for the electronic transmission of this data to the Department through CLETS. (Id., subd. (a).) CLETS is exclusively used by law enforcement personnel for official business of the state, and the official business of any city, county, or other public agency. (Gov. Code, §§ 15151, 15153, 15163; People v. Martinez (2000) 22 Cal.4th 106, 113, 126-127.)
To maintain the integrity of both the Domestic Violence Restraining Order System and CLETS, the specific data must be electronically transmitted to the Department by law enforcement personnel, court personnel, or another capable agency (Fam. Code, § 6380, subd. (a)), immediately upon issuance of the order (id., subd. (b)). In addition, "the transmitting agency for the county" must notify the Department immediately, by electronic transmission, of any modification, extension, or termination of a protective order. (Id., subd. (f).) The Department "shall make available to court clerks and law enforcement personnel, through computer access, all information regarding the protective and restraining orders and injunctions . . . whether or not served upon the respondent." (Id., subd. (e).)
The right to disclosure of the Department's records, however, is limited. The Legislature has created a number of statutory exemptions that limit the people's right to access. (See, e.g., Gov. Code, §§ 6275-6276.48.) As shall be discussed, the Legislature has created an express exemption for information contained in the Domestic Violence Restraining Order System.
2. The Domestic Violence Restraining Order System is Exempt From Disclosure
The parties do not focus on whether the information entered in the Domestic Violence Restraining Order System is a record within the broad definition in the Act. (Gov. Code, §§ 6252, subd. (e), 6253, subd. (a).) Thus, we assume without deciding the issue that the information must be disclosed unless one of the statutory exemptions in the Act applies. Statutory exemptions that limit the people's right to access are narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(2); City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1425.) The burden of proving that a specific statutory exemption applies is on the Department. (Gov. Code, § 6255, subd. (a); International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th at p. 329.)
Government Code section 6254, subdivision (k) bars disclosure of records, "the disclosure of which is exempted or prohibited pursuant to federal or state law[.]" This provision may protect records that would not be covered by one or more of the specific exemptions cited in the Government Code, which as noted by the Legislature is not inclusive. (Gov. Code, § 6275; City of Hemet v. Superior Court, supra, 37 Cal.App.4th at p. 1421.) Family Code section 6380 presents such a specific exemption, and Rollow's contention to the contrary ignores the statutory language.
The Department also asserts that the "catch-all" exemption in Government Code section 6255 bars disclosure. The general "public interest" exemption created in Government Code section 6255 is inapplicable if the Legislature has created a specific exemption. We need not discuss the public interest exemption because we conclude the specific exemption in Government Code section 6254, subdivision (k) applies. (See City of Hemet v. Superior Court, supra, 37 Cal.App.4th at pp. 1421-1422.)
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Since our task is to determine the Legislature's intent in establishing the Domestic Violence Restraining Order System, we look first to the Legislature's choice of language in Family Code section 6380. "The statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs. On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy. [Citations.]" (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.)
Family Code section 6380 limits access to the Domestic Violence Restraining Order System to law enforcement personnel, approved court personnel, or an appropriate agency capable of maintaining the integrity of that system and CLETS. (Fam. Code, § 6380, subd. (a).) The data is transmitted "through" CLETS, which is used by law enforcement personnel for official business. (Ibid.)In addition, certain protective orders must be transmitted within one business day to law enforcement officials and "enter[ed] . . . into CLETS," or entered "into CLETS directly." (Id., subd. (a)(1), (2).) The data entered into CLETS includes the contents of the court order, the issuing court, proof of service, and any subsequent modification, extension, or termination of a protective order. (Id., subds. (b)-(d).) In certain circumstances, the clerk of the court submits proof of service of a protective order directly into the system. (Id., subd. (d)(2).) These statutory provisions taken as a whole plainly and unambiguously indicate that the legislative intent of the Domestic Violence Restraining Order System is to timely enter relevant information from protective orders into CLETS to create a statewide registry for use by law enforcement personnel.
Indeed, access to the Domestic Violence Restraining Order System is specifically limited by statute. The Department must "make available to court clerks and law enforcement personnel, through computer access," all data required under the statute. (Fam. Code, § 6380, subd. (e).) The phrase "shall make available" means more than maintaining the integrity of the system, as Rollow contends, and indicates legislative choice on accessibility. "[M]ake available" used in this context means "accessible." (Webster's 3d New Internat Dict. (1971) p. 150.) This choice of words is a strong indication of legislative intent to create a system accessible to those who are charged with ensuring information is accurate and available for use by law enforcement personnel enforcing protective orders.
No contrary legislative intent appears in the language of the statute creating the Domestic Violence Restraining Order System. There is an obvious reason for the Legislature's decision to limit access to the system; its purpose is to create a statewide registry for use by law enforcement. Court clerks are essential to ensure the information is transmitted timely and accurately to the system. Once entered into the system, law enforcement personnel statewide use CLETS to verify the protective order, determine the terms, and the current status. (See, e.g., Fam. Code, §§ 6380, subd. (h), 6382; Gov. Code, § 15151.) Law enforcement personnel cannot enforce the order unless the officer has received a copy, or the officer enforcing the protective order has been shown the order, or the officer has obtained the information through CLETS. (Fam. Code, § 6381, subd. (b).)
Rollow contends that just because CLETS is for the exclusive use of law enforcement does not mean the data accessed through CLETS is exempt from public disclosure. To buttress this argument, Rollow compares the Domestic Violence Restraining Order System to the state court computer systems, which limits data entry to court clerks, but the information in that system is accessible to the public. This analogy ignores the legislative intent and purpose in creating the Domestic Violence Restraining Order System. It is not simply a database; it is also a law enforcement tool for the exclusive use of those charged with enforcing protective orders. (See Gov. Code, § 15151, 15153.)
The Legislature knows how to provide for the disclosure of data accessible through CLETS. CLETS also contains criminal history information, which is subject to disclosure. (People v. Martinez, supra, 22 Cal.4th at pp. 120-121; see Pen. Code, §§ 11120, 11121.) No similar provision appears in the statute establishing the Domestic Violence Restraining Order System. (See Fam. Code, § 6380, subds. (b), (f).)
Based upon the plain language of the statute and the legislative intent, the Domestic Violence Restraining Order System, accessed through CLETS, is exempt from disclosure under the Act. Thus, Rollow cannot amend his complaint to state a cause of action, and we affirm the dismissal of this action.
DISPOSITION
The judgment of dismissal following the trial court's order sustaining the demurrer without leave to amend is affirmed. Neither party is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.