L.A. TIMES v. POST – AGREEMENT REACHED REGARDING PROCEDURE
February 11, 2008
As a result of the outstanding efforts of William Pettingill, Senior Deputy County Counsel for San Diego, and Kelli Sager, legal counsel for the L. A. Times, an agreement has been reached which eliminates the need for 500 – 600 law enforcement agencies to file motions with the Sacramento Superior Court, to intervene in the captioned case.
As you already know from prior Client Alerts issued by Jones & Mayer [see 2/4/08, Vol. 23, No. 3 and 2/5/08, Vol. 23, No. 4] the original memo from the POST Executive Director stated that those agencies which wanted to withhold names from being disclosed, pursuant to the court order inL.A. Times v. POST, just needed to notify POST and the names would be redacted. Subsequently, we were informed by the Deputy Attorney General handling the case that it would be necessary for each law enforcement agency to file a motion to intervene and appear in court to accomplish that task.
Subsequently, Bill Pettingill spoke with the attorney for the Times and was able to work out an agreement which is set forth below. Many e-mails were exchanged between county attorneys, city attorneys and others in an effort to arrive at this solution. It now appears that it has been accomplished. As you will note, Ms. Sager states that this information can be shared with all relevant persons. The following is from an e-mail sent by Ms. Sager to Mr. Pettingill:
What I have said, and you can represent to whatever entities are now interested, is that we agree that POST does not need to provide names by February 15, and that we will have a meeting or conference call next week to work out the process by which that will happen and any redactions will be handled. (I do not think that anyone should be communicating with the court’s clerk on an ex parte basis about any of this, so if you need to communicate with Judge Connelly’s clerk, perhaps we should schedule a call with her.)
The declarations you suggested would be helpful to have for the process, and I think we are in agreement that those will be provided by February 15.
Finally, to be clear on the timeliness issue, we do not intend to suggest that a one or two-week delay in filing motions to intervene, as a result of our current discussions, is a basis for the court to deny such motions. We do strongly believe, however, that such motions are inappropriate under the CPRA, and also that any motions to intervene would be untimely, given the many years – not weeks – that have passed since this lawsuit was initiated, and the many months since the California Supreme Court ruled in our favor.
Hopefully, this makes clear that no one needs to file a motion to intervene next week.
Bill Pettingill has provided his subjective summary of the above as follows:
(1) Most important for agencies/cities/counties, motions to intervene need not be filed this week, or even next. We will be discussing with LA Times how to handle disputes.
(2) The court order does not require any list of names to be provided on Feb 15, 2008, but to show good faith progress, agencies must make every conceivable effort to get to POST their packet consisting of (a) a redacted list, where the redactions are coded to correlate to (b) two copies of a declaration that lists the numbers and then provides the reason (brief) for the redaction.
(3) That duplicate declaration, that just shows numbers with explanations, will be provided to the TIMES by POST on or about Feb 15.
(4) POST will be working with LA Times (we are going to meet on Wednesday) to work on the details of the formatting of the final redacted list to be given to LA Times by POST and also discuss how to resolve disputes over redactions.
Bill Pettingill has spoken again with LA Times’ Ms. Sager this afternoon and reconfirmed the above and advised the court. In addition to motions to intervene not being necessary, nor are ex parte applications.
HOW THIS AFFECTS YOUR AGENCY
As a result of this agreement, it is not necessary for individual agencies to file the motions to intervene and, in fact, agencies are urged to not do so at this time. The lists of names of officers hired and/or terminated from department between 1995 and 2007 have been sent to all law enforcement agencies in California . Those lists need to be approved for release, as is, or names should be redacted as set forth above. The process is relatively simple and straightforward but, as always, it is necessary that each agency receive advice and guidance from its respective legal counsel.
As always, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446-1400 or email me at mjm@jones-mayer.com.