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JAMES M. CHADWICK (Bar No. 157114) 2 NICOLE P. DOGWILL (Bar No. 211653) GRAY CARY WARE & FREIDENRICH LLP 3 1755 Embarcadero Road Palo Alto, CA 94303-3340 4 Tel: 650-833-2000 Fax: 650-320-7401 5 Attorneys for Petitioner 6 Stephen James 7 8 9 10 11 12 13 14 15 16 Respondents. 17 18 19 20 21 1. Petitioner, STEPHEN JAMES (Petitioner), declares as follows: INTRODUCTION In 1997, KCBS-TV in Los Angeles, California aired an investigative report v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, and STEVEN GOURLEY, Director of the California Department of Motor Vehicles, STEPHEN JAMES, Petitioner, CASE NO. VERIFIED PETITION FOR WRIT OF MANDATE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT [Civ. Proc. Code 1085 and Government Code 6258] SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

22 entitled License for Sale which exposed internal corruption within the DMV. According to the 23 report, scores of DMV employees were selling fraudulent drivers licenses to unqualified drivers 24 for their own personal gain at DMV offices throughout the State of California. The scheme was 25 so pervasive that during the two years prior to the investigative report, 144 DMV employees were 26 fired or otherwise disciplined for illegal activity, primarily drivers license fraud. A true and 27 correct copy of a transcript of this report is attached hereto as Exhibit 1. 28
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As a result of this investigative report, the State of California ordered a crackdown 1

VERIFIED PETITION FOR WRIT OF MANDATE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT

1 on the internal corruption that existed within the DMV. Until this investigation, only a handful of 2 investigators had monitored employee fraud. After this revealing investigative report, the DMV 3 assembled a team of approximately 200 investigators and launched Operation Clean Sweep to 4 root out internal corruption, stating this would be its top priority. California State Senator Steve 5 Peace (D-El Cajon), stated that the internal corruption was by far the biggest scandal and case of 6 severe corruption he had seen in his sixteen years with the California Legislature. A true and 7 correct copy of a news article reflecting this investigation is attached hereto as Exhibit 2. 8 3. The California State Auditor has reported that other state agencies have struggled

9 with fraudulent claims for overtime compensation by their employees. A true and correct copy of 10 pertinent excerpts of the California State Auditor reports are attached hereto as Exhibit 3. 11 California is not alone its struggle to prevent internal corruption in government agencies. 12 Throughout the nation, there have been reports regarding the increased abuse of public funds by 13 public employees in claiming unwarranted overtime compensation. These abuses involve a 14 number of different scenarios, including schemes to boost arrests or investigations in order to 15 justify overtime compensation for investigators. For example, in Miami, Florida, there was a 16 recent investigation of improper DWI arrests, which allowed police officers to earn overtime 17 compensation for their appearances in court during the DWI hearings. A true and correct copy of 18 the first article in the series reflecting this investigation is attached hereto as Exhibit 4. 19 4. Based on the DMVs internal corruption, the dramatic increase in peace officers

20 employed by the DMV to investigate this corruption, and the fraudulent claims made by other 21 public employees for overtime compensation, Petitioner began an investigation as to the amount 22 of overtime compensation paid by the Special Investigation Division of the DMV to individual 23 peace officer employees pursuant to Operation Clean Sweep and other internal investigations. 24 A true and correct copy of pertinent excerpts of the California State Auditor reports are attached 25 hereto as Exhibit 5. Initially, as set forth in more detail in Paragraph 10 below, Petitioner 26 requested records reflecting the amount of overtime compensation paid to all peace officers 27 employed by the DMV as investigators for the years 1999, 2000, and 2001. However, when the 28 DMV notified Respondent of the high photocopying costs associated with his request, and since 2
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1 Petitioner is an independent freelance journalist with limited means, he agreed to limit his request 2 to the Special Investigations Branch. Therefore, throughout the Summer of 2002, Petitioner made 3 repeated requests for the following records: 4 5 6 7 8 5. Despite the fact that these Records are clearly within the ambit of the Act, I am requesting the amount of overtime compensation paid to all peace officer employees of the Department of Motor Vehicles Special Investigations Branch in the years 1999, 2000 and 2001 only, not all investigators within the entire Special Investigations Division. I am requesting the name of each peace officer and the amount of overtime paid to each.

9 Petitioners repeated requests for public release of the Records have been rejected. Instead, on 10 August 7, 2002, Respondents produced a single page to Petitioner, that listed, in the aggregate, 11 the amount of overtime compensation paid to the investigators for 2000, 2001, and 2002. The 12 production failed to address overtime paid for 1999, and did not address the amount of overtime 13 compensation paid to individual investigators in the Special Investigations Branch. Respondents 14 justified their refusal by claiming they were part of investigative and personnel files pursuant to 15 Government Code 6254(c) and (f). Further, Respondents claimed that the public interest in 16 nondisclosure clearly outweighed the public interest in disclosure of these Records pursuant to 17 Government Code 6255. 18 6. Petitioners investigation, in requesting the overtime compensation paid by the

19 DMV to its investigators, would shed light on how public funds are expended. This information, 20 in light of the widely reported internal corruption within the DMV, the dramatic increase in 21 peace officers employed by the DMV to investigate this corruption, the fraudulent claims made 22 by other state agency employees for overtime compensation and the current budget crisis facing 23 the State of California, is of the utmost importance to the public and warrants disclosure of the 24 requested Records. 25 26 7. PARTIES Petitioner Stephen James is a freelance journalist for the Sacramento News &

27 Review weekly newspaper. Mr. James resides in Sacramento. 28

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Respondent California Department of Motor Vehicles is an executive agency of 3

VERIFIED PETITION FOR WRIT OF MANDATE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT

1 the State of California. DMV is and at all times mentioned here responsible for the 2 compensation of peace officer employees of its Special Investigations Division, including the 3 Special Investigations Branch. DMV is a state agency as that term is defined in Government 4 Code Section 6252(a). 5 9. Respondent Steven Gorley is the Director of the California Department of Motor

6 Vehicles. In his role as Director of the DMV, Mr. Gorley is responsible for the conduct and 7 operations of the DMV, including the Special Investigations Division and Special Investigations 8 Branch. Mr. Gorley is responsible for withholding the public records sought by this Petition. 9 10 10. FACTUAL HISTORY On May 21, 2002, Petitioner requested records reflecting the amount of overtime

11 compensation paid to all peace officer employees of the DMV Special Investigations Branch for 12 the years 1999, 2000, and 2001. Specifically, Petitioner requested that the identity of peace 13 officer employees be disclosed as well as the amount of overtime compensation paid to each 14 individual peace officer. A true and correct copy of the May 21, 2002 request letter is attached 15 hereto as Exhibit 6. Shortly thereafter, Respondents, through their representative Mr. Bill 16 Branch, left a voicemail message for Petitioner asking him about the substance of his story and 17 offering future assistance. Petitioner responded to Respondents voicemail via email, stating that 18 while he appreciated Respondents assistance, he could not elaborate on the specifics of the story 19 beyond the fact that it would be based on Respondents internal investigations. A true and 20 correct copy of Petitioners email to Mr. Branch is attached hereto as Exhibit 7. 21 11. On May 31, 2002, Respondents requested that Petitioner clarify whether he was

22 seeking information for all DMV investigators within the Investigations Division or only those 23 within the Special Investigations Branch. Respondents stated it would respond to Petitioners 24 request, estimating the photocopying costs would be $100.00 for the Special Investigation Branch 25 records and approximately $300.00-$400.00 for the Investigations Division records. Further, 26 Respondents denied Petitioners request to disclose the names of the peace officer employees 27 citing such information exempt as personnel records and implicating the right to privacy pursuant 28 to Penal Code Section 832.8, Evidence Code Section 1043, Government Code Section 6254(c) 4
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1 and (k), and Article I, Section 1 of the California Constitution. A true and correct copy of the 2 May 31, 2002 letter is attached hereto as Exhibit 8. 3 12. On June 17, 2002, in light of the high fees requested by the DMV to copy the

4 Special Investigation Divisions records, Petitioner modified his request and asked for disclosure 5 of records reflecting the overtime compensation paid to peace officers employed by the DMVs 6 Special Investigations Branch for the years 1999, 2000, and 2001. Petitioner reiterated his 7 request that Respondents disclose the names and the overtime compensation paid to each of the 8 peace officer employees. Further, Petitioner objected to Respondents exemption claims, stating 9 that he was not seeking records related to citizen complaints against DMV officers or reports 10 regarding internal investigations and that the names of peace officer employees were not exempt 11 on the basis of privacy. In this correspondence, Petitioner told the DMV that the records were 12 requested for potential use in an article on overtime compensation paid to public employees. 13 Petitioner further modified his request to seek only inspection of the records instead of having 14 copies sent to him. A true and correct copy of the June 17, 2002 letter is attached hereto as 15 Exhibit 9. 16 13. On June 27, 2002, Respondents replied to Petitioners request, again denying

17 Petitioners request to disclose the names of peace officer employees and their overtime 18 compensation. Rather, Respondents agreed to provide only the total aggregate amount of 19 overtime paid to all Special Investigations Branch peace officer employees for 1999, 2000 and 20 2001. Respondents again relied upon Government Code Sections 6254(c), (f) and 6255 as the 21 basis for their exemption. Respondents stated that names of individual peace officer employees 22 were exempt and that overtime pay information was intimate and personal in nature and the 23 privacy interests of the individual peace officer employees in releasing the amount of their 24 overtime compensation was not outweighed by the public interest in disclosure. Further, 25 Respondents claimed releasing the names of peace officer employees would harm current and
1 26 future internal investigations of employee misconduct. A true and correct copy of the June 27,

27 28 (footnote continued on next page) 5

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1 2002 request letter is attached hereto as Exhibit 10. 2 14. Respondents claim that disclosure of the names of peace officer employees would

3 endanger investigations is inconsistent with the DMVs standard practice. The peace officers 4 employed by the DMV Special Investigations Branch are routinely identified and quoted in their 5 official capacity by the print and television media, as well as in press releases issued by the DMV. 6 True and correct copies of a press release and articles identifying such employees are attached 7 hereto as Exhibits 2 and 11. 8 15. On July 19, 2002, during a telephone conversation with Respondents, Petitioner,

9 reserving his rights to seek judicial review of Respondents denial of his original request, agreed 10 to the disclosure of the amount of overtime compensation paid to individual peace officer 11 employees with the names of each employee redacted. This conversation was memorialized in 12 Petitioners July 25, 2002 letter to Respondents. Further, Petitioner, refuting Respondents 13 privacy and confidentiality concerns, identified nearly forty (40) investigators of the Special 14 Investigation Division and Special Investigation Branch that had been identified in print media 15 and television reports. Petitioner requested that the Respondents reconsider their denial of his 16 prior request. A true and correct copy of the July 25, 2002 request letter is attached hereto as 17 Exhibit 12. 18 16. On August 1, 2002, Petitioner wrote Respondent Steven Gourley, the Director of

19 the DMV, reiterating his previous requests to the DMV. A true and correct copy of the August 1, 20 2002 letter is attached hereto as Exhibit 13. On August 2, 2002, Respondents replied to

21 Petitioners letter, stating that Respondents had not denied Petitioners request even though 22 they had refused to disclose the names of the peace officer employees and the overtime 23 compensation paid to each employee, the very heart of Petitioners requests. A true and correct 24 copy of the August 2, 2002 letter is attached hereto as Exhibit 14. 25 26 (footnote continued from previous page) 27 28 6
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17.

Although the Respondents claimed to have received the requested documents on

2 August 2, 2002 from the DMVs human resources department, Respondents, on August 9, 2002, 3 disclosed only a single page to Petitioner, which consisted of a memorandum dated August 7, 4 2002, that listed the aggregate overtime costs for the Special Investigations Branch for fiscal 5 years 2000, 2001, and 2002. A true and correct copy of the disclosed Record is attached hereto as 6 Exhibit 15. The disclosed Record did not identify the names of the individual peace officer 7 employees, did not address fiscal year 1999 nor did it disclose the overtime compensation for 8 each individual peace officer employee. This was contrary to Respondents earlier position (as 9 memorialized by Exhibit 8 and Exhibit 12) that it would release the requested information with 10 each peace officer employees name redacted. 11 18. On August 12, 2002, Petitioner responded to Respondents August 2, 2002 letter,

12 memorializing Respondents non-compliance with his request pursuant to the California Public 13 Records Act and clarifying Respondents mischaracterization of his prior communications. A true 14 and correct copy of the disclosed Record is attached hereto as Exhibit 16. Respondents

15 informed Petitioner that this was the only record it would disclose in response to his request. 16 17 19. VIOLATION OF THE CALIFORNIA PUBLIC RECORDS ACT Respondents DMV and Gourley are officers, departments, divisions, bureaus,

18 boards, commissions or other state bodies or agencies. Respondents have a clear and mandatory 19 duty to comply with all provisions of the California Public Records Act (Govt Code 6250 et 20 seq., hereafter the Act). 21 20. Respondents have prepared and each of the Respondents currently own, use, or

22 retain copies of the Records. The Records are writings containing information relating to the 23 business of the people of the State of California, namely the amount of compensation paid to 24 public employees by a state agency. Therefore, the Records are public records for purposes of the 25 Act. 26 21. Under the Act, public records are required to be open to inspection at all times

27 during the office hours of every state agency, and every person has a right to inspect any public 28 record except as otherwise provided in the Act. Respondents have deliberately and intentionally 7
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1 refused to provide copies of the Records, despite the fact that the Records are public records and 2 are not exempt from disclosure under the Act. Respondents refusal to provide access to the 3 Records has deprived the public of information on a matter of vital public interest, i.e. the 4 expenditure of public funds to pay overtime compensation to public employees. Moreover, 5 Respondents refusal is apparently deliberately calculated to deprive the public of the ability to 6 obtain this information during an extremely critical time, i.e., when the State of California is 7 experiencing a severe budget crisis. 8 22. Petitioner is informed and believes that unless commanded by this Court to do

9 otherwise, Respondents will continue to refuse to provide public access to the Records, in 10 violation of the Act. Respondents refusal to provide access to the Records is a willful and 11 deliberate violation of the Act. 12 23. Petitioner is beneficially interested in the outcome of these proceedings, as a

13 citizen of the State of California with an interest in ensuring public access to the Records. In 14 addition, Petitioner is a citizen interested in having the laws executed and the duty to disclose 15 public records enforced. Petitioner has a clear, present, and substantial right to the relief sought 16 herein. 17 24. Petitioner has no plain, speedy, and adequate remedy other than by the relief

18 sought herein, which relief is specifically authorized by the Act. No administrative or appellate 19 remedies exist. 20 21 WHEREFORE, Petitioner requests that: (1) The Court set a hearing on this petition at the earliest possible date, as required by

22 Government Code Section 6258; 23 (2) After a hearing on this petition, this Court issue a writ of mandate directing

24 Respondents to provide, without delay, copies of the Records to Petitioner, and to any and all 25 other members of the public upon request; 26 (3) Petitioner be awarded his attorneys fees and costs incurred in this proceeding, as

27 required by the Public Records Act; and, 28 / / / 8

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1 2

(4)

the Court provide such other and additional relief as it deems just and proper.

3 Dated: November _____, 2002 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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GRAY CARY WARE & FREIDENRICH LLP

By JAMES M. CHADWICK NICOLE P. DOGWILL Attorneys for Petitioner Stephen James

VERIFIED PETITION FOR WRIT OF MANDATE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT

VERIFICATION

2 I, STEPHEN JAMES, declare as follows: 3 4 I am a freelance journalist for the Sacramento News & Review weekly newspaper. I have read the foregoing VERIFIED PETITION FOR WRIT OF MANDATE

5 PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT and know the contents thereof, 6 and I certify that the same are true of my own personal knowledge, except as to the matters which 7 are stated therein upon information and belief, and as to those matters I believe them to be true. 8 I declare under penalty of perjury under the laws of the State of California that the

9 foregoing is true and correct. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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Executed this _____ day of November, 2002, at Sacramento, California. ________________________________________ STEPHEN JAMES

VERIFIED PETITION FOR WRIT OF MANDATE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT