The opinion
Filed 8/1/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE BOARD OF PILOT
COMMISSIONERS FOR THE BAYS OF
SAN FRANCISCO, SAN PABLO AND
SUISUN et al.,
Petitioners, A136803
v.
(San Francisco City and County
THE SUPERIOR COURT OF THE CITY Super. Ct. No. CPF-12-512320)
AND COUNTY OF SAN FRANCISCO,
Respondent;
PACIFIC MERCHANT SHIPPING
ASSOCIATION,
Real Party in Interest.
SAN FRANCISCO BAR PILOTS et al.,
Petitioners,
v.
A136806
THE SUPERIOR COURT OF THE CITY
AND COUNTY OF SAN FRANCISCO, (San Francisco City and County
Respondent; Super. Ct. No. CPF-12-512320)
PACIFIC MERCHANT SHIPPING
ASSOCIATION,
Real Party in Interest.
The California Public Records Act (CPRA) (Govt. Code, § 6250 et seq.) provides
for the inspection of public records maintained by state and local agencies. The Pacific
Merchant Shipping Association (PMSA), real party in interest in this case, petitioned the
1
trial court for a writ of mandate compelling production under the CPRA of certain
records held by Captain Bruce Horton, the then designated port agent of the Board of
Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun (hereafter Port
Agent and Board respectively). The trial court granted the petition. Horton, who also
served as president of petitioner San Francisco Bar Pilots (Bar Pilots), seeks a writ of
mandate and/or prohibition in this court directing the trial court to set aside its order. The
Board separately challenges the trial court order. The Board, Horton,1 and Bar Pilots all
argue that the Port Agent is not a state officer subject to the CPRA, and that the records
sought are private, not public.
We stayed the trial court‘s order and requested briefing. After consideration of the
petitions, the opposition of PMSA, and the petitioners‘ replies, we ordered consolidation
of the petitions and issued an order to the trial court to show cause why the relief
requested should not be granted.2 We now grant that relief, finding that, while the Port
Agent is, for at least certain purposes, a public officer, PMSA has not established that the
requested records are subject to the CPRA.
I. BACKGROUND AND PROCEDURAL HISTORY
One of the first acts of the California Legislature in 1850 was to establish the
Board. (Harb. & Nav. Code, § 1101, subd. (g).) The Board licenses and regulates pilots3
1
By order of January 28, 2013, we accepted the parties‘ stipulation to substitute
Peter McIsaac, the new president of Bar Pilots and current Port Agent, in place of Horton.
Our references to the trial court record, however, necessarily refer to Horton in his then
active capacities.
2
On April 3, 2013, we granted the joint application of Los Angeles Times
Communications LLC, California Newspaper Publishers Association, and McClatchy
Newspapers, Inc. to submit briefing as amici curiae (collectively Amici Curiae) in
support of PMSA.
3
A ship‘s pilot is generally defined as a person duly qualified to conduct a ship
into and out of a port or in special waters and who, while in charge, has the whole
conduct of the ship‘s navigation. (Webster‘s 3d New Internat. Dict. (2002) p. 1716.)
2
on San Francisco Bay and its tributaries. (Harb. & Nav. Code, § 1100 et. seq.)4 The
Board presently consists of seven members, appointed by the Governor with the consent
of the Senate, with two members required to be licensed pilots, two members
representing the shipping industry, and three public members.5 (Harb. & Nav. Code,
§ 1150.)
Bar Pilots is a private unincorporated association of pilots licensed by the Board.
Piloting services are compulsory and monopolistic.6 Subject to limited exceptions, pilots
licensed by the Board have ―exclusive authority . . . to pilot vessels from the high seas to
Monterey Bay and the Bays of San Francisco, San Pablo, and Suisun and the ports
thereof, and from those bays and ports to the high seas,‖ as well as ―exclusive authority to
pilot vessels within and along the waters of those bays . . . .‖ (Harb. & Nav. Code,
§§ 1125, subd. (a), 1132–1133.) Fees for most, but not all, pilotage services are set by
statute. (See Harb. & Nav. Code, §§ 1190–1191.) Pilots are required to provide pilotage
to vessels requiring a pilot (such as large container, cargo, military, and passenger cruise
ships), and are subject to a fine and suspension or revocation of their license if they fail to
do so. (Harb. & Nav. Code, § 1138.)
4
―The Legislature finds and declares that it is the policy of the state to ensure the
safety of persons, vessels, and property using Monterey Bay and the Bays of San
Francisco, San Pablo, and Suisun, and the tributaries thereof, and to avoid damage to
those waters and surrounding ecosystems as a result of vessel collision or damage, by
providing competent, efficient, and regulated pilotage for vessels required by this
division to secure pilotage services.‖ (Harb. & Nav. Code, § 1100.)
―A program of pilot regulation and licensing is necessary in order to ascertain and
guarantee the qualifications, fitness, and reliability of qualified personnel who can
provide safe pilotage of vessels entering and using Monterey Bay and the Bays of San
Francisco, San Pablo, and Suisun.‖ (Harb. & Nav. Code, § 1101, subd. (e).)
5
In 2009, the Legislature placed the Board under the authority of the
Transportation Agency (formerly the Business, Transportation and Housing Agency).
The secretary of that agency serves as an ex officio member of the Board. (Harb. & Nav.
Code, § 1150, subd. (d).)
6
Pilotage is one of the oldest recognized monopolies. (See Steinhort v. Comr. of
Internal Revenue (5th Cir. 1964) 335 F.2d 496, 499.)
3
PMSA is a private maritime trade association composed of companies that own or
operate ocean-going vessels in California waters. Its members pay fees for private pilot
services rendered by members of the Bar Pilots. PMSA nominates the shipping industry
representatives to the Board. (Harb. & Nav. Code, § 1150, subd. (a)(2).)
The Port Agent is a licensed pilot appointed by a majority of all licensed pilots,
subject to confirmation by the Board. (Harb. & Nav. Code, § 1130; Cal. Code Regs.,
tit. 7, § 218, subd. (a).)7 The Port Agent‘s duties are ―to carry out the orders of the
Board, under applicable laws, and to otherwise administer the affairs of the pilots‖
(Regs., § 218, subd. (a)), including general responsibility for the ―supervision and
management of all matters related to the business and official duties of pilots‖ (Harb. &
Nav. Code, § 1130, subd. (b); Regs., § 218, subd. (b)) and the specific responsibility of
assigning pilots to vessels (Regs., § 218, subd. (d)(1)). The Port Agent does not serve as
a member or officer of the Board and receives no compensation from the Board (see
Regs., §§ 206, 207); he does, however, have certain reporting obligations to the Board,
including:
Immediate notification of the Board‘s executive director of a suspected violation,
navigational incident, misconduct, or other rules violation to which the Port Agent
is a witness or receives a report. (Harb. & Nav. Code, § 1130, subd. (c).)
Collection of data, preparation of accounts and making of payments to the Board
required of pilots by statute and regulation, including the name, class, high gross
tonnage and deep draft of each vessel subject to pilotage. (Regs., § 218,
subd. (d)(4).)
Reports of all accidents, groundings, collisions or similar navigational incidents
involving a vessel to which a pilot has been assigned, as well as suspected pilot
misconduct, including all pertinent details of the incident as set forth in the
regulation. (Regs., § 218, subd. (d)(6).)
7
All further references to Regulations are to title 7 of the California Code of
Regulations.
4
Reports of any matter that in the Port Agent‘s opinion affects the ability of a pilot
to carry out his or her lawful duties. (Regs., § 218, subd. (d)(8).)
Reports whenever any pilot is absent from duty because of illness lasting longer
than seven days, including the nature of the illness, the probable duration of
absence and the anticipated date of return to duty. (Regs., § 218, subd. (f).)
Beginning in July 2011, PMSA requested records regarding the Port Agent‘s
assignment of pilots to ships transiting the San Francisco Bay. PMSA made document
production requests to the Port Agent and to the Board in 2011 (Jul. 15, Aug. 30) and
2012 (Jan. 4, Mar. 26). At issue here are the latter two requests, which sought disclosure
of what PMSA identifies as ―Pilot Logs.‖
The January 4, 2012 request, from PMSA‘s counsel and directed to ―Capt. Bruce
Horton, Port Agent,‖ made a CPRA request for ―any and all documents written, utilized
or kept current by the Port Agent, including those in electronic format, related to the
following: [¶] The annual Pilot Log, which is a document created under the direction of
the Port Agent as a memorialization of all pilot assignments to vessels made pursuant to
the Port Agent‘s duties under [Regulations section] 218[, subdivision] (c)(1) [(current
subd. (d)(1))] and reflects the administration of pilot vacation schedules pursuant to the
Port Agent‘s duties under [Regulations section] 218[, subdivision] (c)(2) [(current
subd. (d)(2))].‖ PMSA alleged that ―[t]he annual Pilot Log is completed annually for
each pilot in the normal course of affairs to effectuate the Board‘s requirement that all
time be presented to the public pursuant to [Regulations section 237[, subdivision] (d)
and, under certain circumstances, [Regulations section] 237[, subdivision] (f)(1).‖
Specifically requested were Pilot Logs for the years 2002 through 2011 for each pilot
licensed during the years in question.
On February 22, 2012, Horton replied that ―[t]here is no document maintained by
the Port Agent named the ‗Pilot Log.‘ There is a data set that bears headings that are
similar to those set forth in your e-mail to [Board counsel] of January 30, 2012. This
data, however, is not used by the Port Agent in assigning pilots to vessels or in preparing
or administering the pilots‘ vacation schedule, nor are they supplied to [the Board] in
5
discharge of any obligation to the Board under the provisions of [Regulations]
section 237[.] [¶] The documents containing this data are documents that are maintained
by [Bar Pilots] in its capacity as a private organization and not in connection with any
duties imposed upon the Port Agent by statute or by the regulations of [the Board]. For
that reason, they are not disclosable under the [CPRA].‖
The March 26, 2012 request was directed to the Board, and again sought
production of the 2002–2011 Pilot Logs. Demand was made for ―all responsive
documents in the [Board‘s] possession, custody and control, including but not limited to
those which are in the possession of your Port Agent.‖ The request further defined a
Pilot Log as ―a multi-page document created at the direction of the Port Agent in the
normal course of his business under [Harbors and Navigation Code section] 1130 and to
keep track of a Pilot‘s time. This document is described in proceedings before the United
States Tax Court[8] as an annual ‗Pilot Log,‘ which is a document created for each year as
a memorialization of all pilot assignments to vessels made pursuant to the Port Agent‘s
duties as further described at [Regulations section] 218[, subdivision] (c)(1) [(current
subd. (d)(1))] and reflects the administration of pilot vacation schedules pursuant to the
Port Agent‘s duties under [Regulations section] 218[, subdivision] (c)(2) [(current
subd. (d)(2))]. The Pilot Log is completed annually for each pilot in the normal course of
affairs to effectuate the Board‘s requirement that all time be presented to the public
pursuant to [Regulations section] 237[, subdivision] (d) and, under certain circumstances,
[Regulations section] 237[, subdivision] (f)(1).‖ PMSA further asserted that a Pilot Log
―is created in part to comply with the [Board‘s] requests to provide the amount of
Minimum Rest Period (‗MRP‘) exemptions taken by each [Bar Pilots‘] pilot. An MRP
exemption occurs when there is less than twelve hours between the time a Pilot‘s turn
ends (work shift ends) (represented on the pilot log under the heading ‗BoB‘) and the
8
These tax proceedings, Miller v. C I.R. (2011) 102 T.C.M. (CCH) 250 (Miller),
are discussed post.
6
time the Pilot‘s next turn begins (work shift begins) (represented on the pilot log under
the heading ‗Ride‘).‖
On April 5, 2012, the Attorney General, as counsel for the Board, responded that
―The document you describe is not in the possession of [the Board]. If the ‗Pilot Log‘
exists, it is not a document prepared, owned, used or retained by [the Board]. The letter
to you dated February 22, 2012, from Capt. Bruce Horton, the Port Agent, which you
attached to your request, states that he does not maintain a document called the ‗Pilot
Log[.]‘ In any case, the Board‘s files do not contain such a document. [¶] You state in
your letter that the Board is required to produce documents that it does not possess
because such documents are maintained by Captain Horton, who serves as Port Agent
and also as President of [Bar Pilots], a private organization. To the extent that Captain
Horton possesses documents that are producible under the [CPRA], he is subject to a
direct request under the [CPRA].‖
On July 3, 2012, PMSA filed a ―Verified Petition for Writ of Mandate Directed to
the Board of Pilot Commissioners and its Port Agent Ordering Compliance with the
[CPRA].‖ PMSA sought a peremptory writ directing the Board and Horton, in his
capacity as Port Agent, to disclose the Pilot Logs. The trial court permitted Bar Pilots
and Horton, in his capacity as the president of Bar Pilots, to intervene in the action.
The answer to the trial court mandate petition again denied that the Port Agent or
Bar Pilots had or maintained a Pilot Log. On August 15, 2012, Horton submitted a
declaration under penalty of perjury averring that ―[t]he Bar Pilots do not maintain any
record or records entitled ‗Pilot Log‘ and have not done so at any time during my
membership. The Bar Pilots maintain a dataset that includes some of the types of
information PMSA apparently seeks through its requests for ‗Pilot Logs.‘ I do not use
this dataset in performing my duties as Port Agent. The dataset is not provided to the
Board or to members of the public.‖
On September 18, 2012, after hearing argument, the trial court granted the writ in
part, finding that ―The Port Agent is a public official; among other things, the position
was created by the Legislature.‖ The court observed that ―[t]he problem here is that the
7
person who acts as Port Agent has both a private and public incarnation . . . and is at least
confirmed by the Board which in turn operates under state law to (i) regulate the actions
of pilots and (ii) a wide variety of other things in the public interest. [Citations.] [¶] The
‗Pilot Logs‘ are documents used by the Port Agent in the execution of his public duties
including, but not limited to, assigning pilots to vessels and preparing and administering
pilot vacation time. These are necessary and convenient to the Port Agent‘s public duties
and are public documents. [Citation.]‖ The court ordered the Port Agent to, within
30 days, ―produce, if extant, the requested ‗Pilot Logs‘ from 2002 [through] 2011.‖9 The
court otherwise denied the petition.
On September 24, 2012, the executive director of the Board and its custodian of
records, Allen Garfinkle, filed a declaration with the court, averring that that the Board
did not have the requested Pilot Logs, that the Board does not prepare, own, use, or retain
such documents, and that the Board ―does not now, and never has, possessed the [Pilot
Logs].‖
On October 16, 2012, Horton submitted a declaration in response to the court‘s
order, averring in pertinent part that: ―3. A small amount of information from the records
of the Bar Pilots is submitted to [the Board] in compliance with the Port Agent‘s
reporting duties under the Board‘s regulations. As Port Agent, I maintain and control this
information. The vast majority of the information in the Bar Pilots‘ records, however, is
not submitted to the Board. I maintain and control this latter category of records solely in
my private capacity as President of the Bar Pilots. [¶] . . . [¶] 5. Some but not all of the
information that [PMSA] asserts is contained in the ‗Pilot Logs‘ is used by the Bar Pilots
in preparing the report that the Bar Pilots, not the Port Agent, is required to submit to the
Board under [Regulations] section 237[, subdivision ](d) . . . . I do not use this
information in performing my duties as Port Agent. Specifically, I do not use the
information to assign pilots to vessels, and I do not use it to prepare or administer pilot
9
On October 5, 2012, the trial court extended the time to seek appellate review of
its order until October 15, 2012.
8
vacation time. I am informed and believe that the information used by the Bar Pilots for
preparing the report under [Regulations] section 237[, subdivision ](d) could be retrieved
by submitting a query to the electronic database created and maintained by the Bar Pilots.
Prior to receiving PMSA‘s document demands, I was unaware of the existence of the
database. I do not use, and have never used, the database in my capacity as Port Agent. I
am unaware of any previous Port Agent ever using the database for any purpose. I have
never submitted a query to the database (or asked anyone to do so on my behalf) for any
purpose, either in my capacity as Port Agent or in my private capacity as President of the
Bar Pilots; to my knowledge, no previous Port Agent has ever done so.‖
The instant petitions for writ of mandate, seeking to vacate the order requiring
production, were filed on October 15, 2012, by Bar Pilots, the Board, and Horton in his
private and public capacities.10 On October 17, 2012, we issued a temporary stay of the
trial court‘s order and set a schedule for briefing. On December 27, 2012, we ordered the
petitions consolidated and issued an order to show cause why the requested relief should
not be granted.
II. DISCUSSION
A. The CPRA
The CPRA ―provides for the inspection of public records maintained by state and
local agencies.‖ (California State University, Fresno Assn., Inc. v. Superior Court (2001)
90 Cal.App.4th 810, 822 (CSU).) ―The Legislature enacted the CPRA in 1968 to give the
public access to information in possession of public agencies in furtherance of the notion
that government should be accountable for its actions and, in order to verify
accountability, individuals must have access to government files. [Citation.]‖11 (Gilbert
10
An order of the trial court under CPRA, which either directs disclosure of
records by a public official or supports the official‘s refusal to disclose records, is
immediately reviewable by petition to the appellate court for issuance of an extraordinary
writ. (Govt. Code, § 6259, subd. (c).) All further statutory references are to the
Government Code unless otherwise indicated.
11
―In 2004, California voters approved Proposition 59, which enshrined in the
state Constitution the public‘s right to access records of public agencies. (Cal. Const.,
9
v. City of San Jose (2003) 114 Cal.App.4th 606, 610.) ―Disclosure statutes such as the
[CPRA] and the federal Freedom of Information Act [(FOIA)] were passed to ensure
public access to vital information about the government‘s conduct of its business.‖ (CBS,
Inc. v. Block (1986) 42 Cal.3d 646, 656.) ―The CPRA embodies a strong policy in favor
of disclosing public records. [Citations.]‖ (Dixon v. Superior Court (2009)
170 Cal.App.4th 1271, 1275.)
―[T]he extent of the CPRA‘s coverage is a matter to be developed by courts on a
case-by-case basis. [Citations.]‖ (CSU, supra, 90 Cal.App.4th at p. 828.) ―This
decision-making process is an unavoidable consequence resulting from ‗the ―myriad
organizational arrangements‖ adopted ―for getting the business of the government
done.‖ ‘ [Citation.] Therefore, each arrangement must be examined in its own context.
[Citation.]‖ (Irwin Memorial, etc. v. American Nat. Red Cross (9th Cir. 1981) 640 F.2d
1051, 1054.)12
B. Standard of Review
Interpretation of the CPRA and its application to undisputed facts is question of
law subject to de novo review. Factual findings made by the trial court will be upheld if
based on substantial evidence. (Versaci v. Superior Court (2005) 127 Cal.App.4th 805,
812.)
C. Is the Port Agent a Public Officer?
― ‗State agency‘ means every state office, officer, department, division, bureau,
board, and commission or other state body or agency, except those agencies provided for
art. I, § 3, subd. (b) [requiring that ‗the writings of public officials and agencies shall be
open to public scrutiny‘].) . . . The amendment requires the [CPRA] to ‗be broadly
construed if it furthers the people‘s right of access, and narrowly construed if it limits the
right of access.‘ (Cal. Const., art. I, § 3, subd. (b), par. (2).) [However, s]uch was the
law prior to the amendment‘s enactment. [Citation.]‖ (BRV, Inc. v. Superior
Court (2006) 143 Cal.App.4th 742, 750.)
12
The CPRA ―was modeled on its federal predecessor, the [FOIA],‖ thus the
legislative history and judicial construction of the FOIA ―serve to illuminate the
interpretation of its California counterpart. [Citations.]‖ (Times Mirror Co. v. Superior
Court (1991) 53 Cal.3d 1325, 1338.)
10
in Article IV (except Section 20 thereof) or Article VI of the California Constitution.‖
(§ 6252, subd. (f), italics added.)13 ―In attempting to divine how broadly the term ‗state
agency‘ can be interpreted, we are limited by rules of statutory construction . . . . [¶]
‗ ―The court‘s role in construing a statute is to ‗ascertain the intent of the Legislature so
as to effectuate the purpose of the law.‘ [Citations.]‖ ‘ ‖ (CSU, supra, 90 Cal.App.4th at
pp. 828–829.)
The Board and Bar Pilots do not deny that the Board itself is a state agency, but
argue that the Port Agent does not meet any established criteria for being considered a
state officer. The Port Agent is not among the Board‘s designated officers (see Regs.,
§§ 206, 207) and is employed and compensated by Bar Pilots, not by the public. The Port
Agent is not among the civil executive officers enumerated in Government Code
section 1001,14 and is selected for the position by the Bar Pilots membership (apparently
coextensive with his term as president), and is only ―confirmed‖ by the Board, without
any provision for his removal. (Harb. & Nav. Code, § 1130; Regs., § 218, subd. (a).)
The Board suggests that the position of Port Agent is ―best viewed as a liaison between
the licensed pilots and the Board.‖
The trial court concluded that the Port Agent is a public official because, ―among
other things, the position was created by the Legislature.‖ But the difficulty, as the trial
court observed, is that the person acting as Port Agent ―has both a private and public
incarnation . . . .‖ Horton himself acknowledged, in his August 17, 2011 response to the
CPRA request, that having one person in the ―dual capacity‖ of both Port Agent and Bar
Pilots president made it ―sometimes difficult to distinguish between the ‗private‘ and
‗public‘ duties of the person who holds both positions.‖
13
Articles IV and VI of the California Constitution deal with the legislative and
judicial branches of government.
14
As the Board notes in its petition, the no longer existent positions of ―port
warden‖ and ―harbor commissioner‖ are among those listed in section 1001, but in
contrast to the port agent, those positions were gubernatorial appointments for terms
fixed by statute. (Former Pol. Code, §§ 368, 369, 2520.)
11
While the Port Agent, in his capacity as president of Bar Pilots, may have many
entirely private duties and serve as ―liaison‖ with the Board, he also has responsibilities
imposed by statute and by administrative regulation. The Port Agent is charged with
responsibility ―for the general supervision and management of all matters related to the
business and official duties of pilots.‖ (Harb. & Nav. Code, § 1130, subd. (b); Regs.,
§ 218, subd. (b), italics added.) The Port Agent‘s enumerated duties include assigning
pilots to vessels. (Regs., § 218, subd. (d)(1).)
No California appellate court has yet addressed the question we confront here.
However, at least one federal court has found the Port Agent to be acting as an officer or
agent of the Board when assigning pilots to vessels, and consequently entitled to Eleventh
Amendment governmental immunity from suit when performing this task. (Regal Stone
Ltd. v. Cota (N.D.Cal. Sept. 7, 2010, Civ. A. No. 08-5098-SC) 2010 WL 3504846 (Regal
Stone).) The Regal Stone litigation arose from the allision15 of the M/V Cosco Busan
with the San Francisco-Oakland Bay Bridge on November 7, 2007, spilling
approximately 53,000 gallons of bunker fuel into the San Francisco Bay. The plaintiffs
sued the pilot at the time of the accident, John Cota, McIsaac and his predecessor as Port
Agent, Russell Nyborg, and Bar Pilots. Nyborg, McIsaac and Bar Pilots were alleged to
have permitted Cota to continue to serve as a pilot when he was ―medically unfit,‖ and
further alleged that McIsaac negligently failed to close the bar to vessel traffic in the face
of unsafe weather conditions. Nyborg and McIsaac moved to dismiss the complaint, on
the ground that they were state officials immune from suit. Under the Eleventh
Amendment to the United States Constitution, ―a state official is immune from suit in
federal court for actions taken in an official capacity.‖ (California v. Deep Sea Research,
Inc. (1998) 523 U.S. 491, 502.) The motion to dismiss specifically alleged that ―Captains
McIsaac and [co-defendant] Nyborg, Port Agents of the [Board] are such officials.‖
(Italics added.) Accepting this argument, and noting, as did the trial court here, that the
15
The term ―allision,‖ as used in maritime accident cases, describes an accident
involving a moving vessel and a stationary object or vessel. (Hochstetler v. Board of
Pilot Comrs. (1992) 6 Cal.App.4th 1659, 1661, fn. 1.)
12
Port Agent ―sometimes acts on behalf of the Bar Pilots, and sometimes on behalf of the
Board,‖ the court found that the plaintiffs‘ allegations against Nyborg and McIsaac
―focus on conduct performed on behalf of the Board, not on behalf of the Bar Pilots.‖
The court found that McIsaac and Nyborg were acting as officers or agents of the Board
―as a matter of law‖ in supervision of Cota, and therefore immune from suit.
The Board and the Port Agent correctly note that a federal trial court decision has
no precedential value. (United Firefighters of Los Angeles County v. City of Los Angeles
(1989) 210 Cal.App.3d 1095, 1115.) PMSA cited the unpublished federal trial court
decision in Regal Stone below, and cites it here as persuasive authority. (See Pacific
Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6 [unpublished federal
cases are citable as persuasive, although not precedential, authority].) The Board and the
Port Agent also contend that ―entirely different legal standards‖ apply to the analysis of
Eleventh Amendment sovereign immunity and application of the CPRA, but neither the
Board nor the Port Agent attempt to articulate the purported analytical differences, and
neither cite any authority for the argument.
We find the court‘s reasoning in Regal Stone to be persuasive in many respects.
But we find it even more significant that it was the Port Agent (in that case McIsaac) who
argued for immunity from suit based on his status as a government official when
assigning or supervising pilots, insisting in his pleadings that ―it is the Port Agent‘s
official duty to assign pilots to vessels in accordance with the Board‘s guidelines,‖ and
specifically citing to Regulations section 218, former subdivision (c)(1) (current
subd. (d)(1)).16 The doctrine of judicial estoppel, sometimes referred to as the doctrine of
preclusion of inconsistent positions, ― ‗prevents a party from asserting a position in a
legal proceeding that is contrary to a position previously taken in the same or some
earlier proceeding.‘ ‖ (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181
(Jackson).)
16
As previously noted, Horton has also expressly acknowledged in this litigation
that at least some of the duties performed by the Port Agent are ―public.‖
13
― ‗ ―[Judicial estoppel] is invoked to prevent a party from changing its position
over the course of judicial proceedings when such positional changes have an adverse
impact on the judicial process. . . . ‗The policies underlying preclusion of inconsistent
positions are ―general consideration[s] of the orderly administration of justice and regard
for the dignity of judicial proceedings.‖ ‘. . . ‗It seems patently wrong to allow a person to
abuse the judicial process by first [advocating] one position, and later, if it becomes
beneficial, to assert the opposite.‘ [Citation.]‖ (Jackson, supra, 60 Cal.App.4th at
p. 181.) ― ‗ ―Judicial estoppel precludes a party from gaining an advantage by taking one
position, and then seeking a second advantage by taking an incompatible position.
[Citations.]‖ ‘ . . . The doctrine applies when: ‗(1) the same party has taken two
positions; (2) the positions were taken in judicial or quasi-judicial administrative
proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions are totally inconsistent;
and (5) the first position was not taken as a result of ignorance, fraud, or mistake.‘
[Citations.]‖ (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986–987.) All are true here.
At oral argument, both the Port Agent and the Board sought to distinguish the
factual context of Regal Stone, and contended that it would be inequitable to apply the
doctrine in this setting.17 (See MW Erectors, Inc. v. Niederhauser Ornamental & Metal
Works Co., Inc. (2005) 36 Cal.4th 412, 422–423 [―judicial estoppel is an equitable
doctrine, and its application, even where all necessary elements are present, is
discretionary‖ (italics omitted)]; M. Perez Co., Inc. v. Base Camp Condominiums Assn.
No. One (2003) 111 Cal.App.4th 456, 463 [judicial estoppel is an equitable doctrine to
protect against fraud on the courts].) But in Regal Stone, as in this matter, the Port
Agent‘s role in the assignment of pilots, and whether he acts in an official capacity when
doing so, was pivotal. And McIsaac took the unequivocal position before the U.S.
17
The Board is, however, correct in its assertion that the doctrine cannot be
applied to it, since it was not a party to the Regal Stone proceeding and has never adopted
the position taken in that litigation by the Port Agent. We discuss separately, post, the
Board‘s obligations under the CPRA.
14
District Court that he was a state official, acting with the course and scope of that
capacity, when assigning pilots. We fail to appreciate the inequity in refusing to allow
the Port Agent to take an inconsistent position here. The Port Agent fails to explain why
one should be permitted to assume the cloak of a state official when it provides
protection, but to then cast it off in the event it becomes burdensome. We find that the
Port Agent must be considered a state officer, at least when performing the official duties
provided by statute or Board regulation.18
D. Are the Pilot Logs Public Records?
For purposes of the CPRA, a public record is defined as ―any writing containing
information relating to the conduct of the public‘s business prepared, owned, used, or
retained by any state or local agency regardless of physical form or characteristics.‖
(§ 6252, subd. (e).) ―The definition is broad and ‗ ― ‗intended to cover every conceivable
kind of record that is involved in the governmental process[.]‘ ‖ ‘ [Citation.]‖
(Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006
(Coronado Police Officers Assn.).)
The January 4, 2012 CPRA request by PMSA‘s counsel to Horton first included a
specific demand for production of ―[t]he annual Pilot Log,‖ alleging that it was ―a
document created under the direction of the Port Agent as a memorialization of all pilot
assignments to vessels made pursuant to the Port Agent‘s duties under [Regulations
section] 218[, subdivision] (c)(1) [(current subd. (d)(1))] and reflects the administration
of pilot vacation schedules pursuant to the Port Agent‘s duties under [Regulations
section] 218[, subdivision] (c)(2) [(current subd. (d)(2))].‖ The March 26, 2012 CPRA
request to the Board mirrored this demand, and specifically referenced the United States
Tax Court proceeding (Miller, supra, 102 T.C.M. (CCH) 250) in support of the request.
18
PMSA appears to broadly suggest that the Port Agent should be considered a
state official even when he is ―administer[ing] the affairs of the pilots‖ or engaged in the
―general supervision and management of all matters related to the business . . . of pilots.‖
(Regs., § 218, subds. (a), (b).) We find no authority for such a sweeping assertion, but
have no need to decide here the precise demarcation between the Port Agent‘s public and
private roles.
15
PMSA contends that its records requests ―seeks to shed light on the inexplicably
murky process of assigning pilots to vessels‖ which PMSA alleges has been a ―focal
point of inquiry in litigation and policymaking at the federal and state level.‖19 PMSA
insists that the Pilot Logs are public records within the meaning of the CPRA ―reveal[ing]
pilot assignment and scheduling decisions made by the Port Agent when acting pursuant
to Board regulation‖ and that such decisions ―are critical to the provision of safe
pilotage.‖
But the fact that the Port Agent may act as a public officer in the performance of
certain of his duties does not mean that every record in his possession or control thereby
becomes a public document subject to the CPRA. As we have discussed, the Port Agent
has both private and public incarnations. Bar Pilots is an independent association, with
its own facilities and its own records of its operations, and the Port Agent concurrently
serves as president of that association. There is no contention that Bar Pilots is a public
agency, or that its internal private records are subject to the CPRA, even though Bar
Pilots makes required annual statistical reports to the Board, which are public record.
19
It was the M/V Cosco Busan incident and questions as to the pilot‘s fitness that
led to the Legislature placing the Board under the authority of the Transportation Agency.
(Harb. & Nav. Code, § 1150, subd. (d).) The controversy here seems to be focused on
the issue of requiring MRP‘s for pilots to avoid fatigue. A January 23, 2010 vessel
incident in Port Arthur, Texas resulted in an investigation by the National Transportation
Safety Board (NTSB) and recommendation that state licensing boards promulgate ―hours
of service‖ rules to prevent pilot fatigue. A legislative Joint Sunset Review Committee
(Govt. Code, § 9147.7, subd. (c)), on February 5, 2012, recommended that the Board
promulgate hours of service regulations for pilots in accordance with the NTSB report.
The Board, on July 26, 2012, adopted additional reporting requirements for MRP‘s for
pilots. Our Legislature recently amended the Harbors and Navigation Code to require the
Board to ―conduct a study of the effects of work and rest periods on psychological ability
and safety for pilots‖ and make ―recommendations on how to prevent pilot fatigue and
ensure the safe operation of vessels.‖ (Harb. & Nav. Code, § 1196.5, subd. (a).) Based
on the results of the study, the Board will be required to ―promulgate regulations for
pilots establishing requirements for adequate rest periods intended to prevent pilot
fatigue.‖ (Harb. & Nav. Code, § 1196.5, subd. (b).) There are no current regulations on
the subject. The Bar Pilots‘ work rules, calling for 12-hour MRP‘s, are only voluntary
guidelines.
16
(Regs., § 237, subd. (d).)20 Private nongovernmental records are not subject to the
CPRA.
―[T]he mere possession by a public [officer] of a document does not make the
document a public record. [Citation.]‖ (Coronado Police Officers Assn., supra,
106 Cal.App.4th at p. 1006.) ― ‗ ―Any record required by law to be kept by an officer, or
which he keeps as necessary or convenient to the discharge of his official duty, is a public
record.‖ [Citation.]‘ ‖ (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d
762, 774 (San Gabriel Tribune); see also CSU, supra, 90 Cal.App.4th at p. 824 [― ‗if a
record is kept by an officer because it is necessary or convenient to the discharge of his
official duty, it is a public record‘ ‖].) ―[T]he critical question is whether the information
contained therein relates to the conduct of the ‗public‘s business.‘ ‖ (Coronado Police
Officers Assn., at p. 1006.)
In Coronado Police Officers Assn., for example, a police officers‘ association
sought to inspect a database compiled by the San Diego Public Defender‘s Office which
included impeachment information gathered from client files, and ―supplemented with
information gathered from other public information sources, such as court files, civil
service proceedings, peace officer reports and newspaper articles.‖ (Coronado Police
Officers Assn., supra, 106 Cal.App.4th at p. 1004.) Although the database was prepared,
used and retained by a public agency, the Fourth District Court of Appeal held that that
20
To assist the Board in determining the number of pilot‘s licenses to be issued,
the Bar Pilots are required to provide a report that includes such information as: numbers
of vessel moves, bar crossings, bay and river moves; average draft and gross registered
tonnage of piloted vessels; numbers of pilots reported sick or injured and the number of
days each was unable to perform piloting duties; number of times a pilot resumed duties
with less than 12 hours off duty, the contributing circumstances, and actual hours off duty
between assignments; and number of days pilots were engaged in Board-mandated
training or administrative duties authorized by the Port Agent. (Regs., § 237, subd.
(d)(1)–(12).)
17
the database was not a public record because it was compiled for use in its core private
function, the representation of criminal defendants.21 (Id. at pp. 1006–1007.)
In ordering disclosure, the trial court here found that ―[t]he ‗Pilot Logs‘ are
documents used by the Port Agent in the execution of his public duties including, but not
limited to, assigning pilots to vessels and preparing and administering pilot vacation time.
These are necessary and convenient to the Port Agent‘s public duties and are public
documents.‖ Were this finding supported by substantial evidence, we would view it as
dispositive. But we can find no competent evidence in the record before the trial court
which would support such a finding.
1. The Evidentiary Record
The so-called Pilot Logs apparently first came to light in connection with a federal
income tax dispute litigated between the Internal Revenue Service and an individual
member of Bar Pilots (Miller, supra, 102 T.C.M. (CCH) 250). In that proceeding pilot
Tom Miller, through counsel, joined in a written stipulation (Miller Stipulation), reciting
that he was a ―partner‖ in Bar Pilots.22 The stipulation, dated October 18, 2010, included
two exhibits (referred to in this litigations as the Pilot Logs) identified as ―the [Bar Pilots]
piloting record‖ for Miller for 2005 and 2006, and further described the documents as
having been ―created by [Bar Pilots] in the normal course of business to keep track of a
Pilot‘s time pursuant to [Regulations section] 237[, subdivisions ](d), (f)(1)‖ and ―to
comply with [the Board‘s] requests to provide the amount of [MRP] exemptions taken by
21
The court further found the database, even if it could be considered a public
record, would be exempt from disclosure under the ―catch-all‖ exemption under
section 6255. (Coronado Police Officers Assn., supra, 106 Cal.App.4th at pp. 1012–
1013.) Under section 6255, subdivision (a), a public agency may withhold a public
record for policy reasons if it can demonstrate that ―on the facts of the particular case the
public interest served by not disclosing the record clearly outweighs the public interest
served by disclosure of the record.‖ As discussed post, we conclude that the issue need
not be addressed here.
22
A 2011 consolidated financial statement for Bar Pilots submitted in evidence by
PMSA at the trial court indicates that Bar Pilots is ―not legally considered a partnership,‖
but has filed partnership tax returns since 1979. Bar Pilots‘ financial statements filed
with the Board are public records. (Regs., § 236.)
18
each . . . Pilot.‖ The Miller Stipulation also provided detailed explanations for the data
columns presented in the Pilot Logs.
The Miller Stipulation and the attached Pilot Logs for Miller were included as
exhibits to PMSA‘s petition for writ of mandate in the trial court. The Attorney General
made written objection to all PMSA exhibits as lacking foundation and authentication,
and as hearsay. The Attorney General specifically objected to the ―unauthenticated
records from a tax court matter‖ as ―irrelevant to any issue presented in this case.‖ The
trial court did not conduct an evidentiary hearing, nor did it expressly rule on any of the
evidentiary objections by either side. At oral argument before the trial court, the
Attorney General again objected to the court‘s consideration of the Miller documents,
and argued that the only competent evidence before the court concerning the Pilot Logs
was the Port Agent‘s declaration that he used no such records in the performance of his
duties.
In responding to the January 4, 2012 CPRA request, Horton denied that there was
any document maintained by the Port Agent named the Pilot Log, but said that ―[t]here is
a data set that bears headings that are similar to those set forth in your e-mail to [Board
counsel] of January 30, 2012.‖ Horton said that the data, however, was not used by the
Port Agent in assigning pilots to vessels or in preparing or administering the pilots‘
vacation schedule and was not supplied to the Board. He insisted that ―[t]he documents
containing this data are documents that are maintained by [Bar Pilots] in its capacity as a
private organization and not in connection with any duties imposed upon the Port Agent
by statute or by the regulations of [the Board].‖ Similarly, in responding to the May 26,
2012 request, the Board replied that it had no Pilot Log in its possession, and the ―is not a
document prepared, owned, used or retained by [the Board].‖
In response to the trial court‘s disclosure order, on October 12, 2012, Horton
submitted another declaration under penalty of perjury reiterating his earlier declaration
that, while ― ‗the Bar Pilots maintain a dataset that includes some of the types of
information PMSA apparently seeks through its requests for ―Pilot Logs.‖ I do not use
this dataset in performing my duties as Port Agent. The dataset is not provided to the
19
Board or to members of the public.‘ . . . [¶] . . . Some but not all of the information that
[PMSA] asserts is contained in the ‗Pilot Logs‘ is used by the Bar Pilots in preparing the
report that the Bar Pilots, not the Port Agent, is required to submit to the Board under
[Regulations] section 237[, subdivision ](d). I do not use this information in performing
my duties as Port Agent. Specifically, I do not use the information to assign pilots to
vessels, and I do not use it to prepare or administer pilot vacation time. . . . Prior to
receiving PMSA‘s document demands, I was unaware of the existence of the database. I
do not use, and have never used, the database in my capacity as Port Agent. I am
unaware of any previous Port Agent ever using the database for any purpose. I have
never submitted a query to the database (or asked anyone to do so on my behalf) for any
purpose, either in my capacity as Port Agent or in my private capacity as President of the
Bar Pilots; to my knowledge, no previous Port Agent has ever done so.‖
2. Discussion
The issue is not whether a database containing some or all of the information
requested by PMSA exists. The Port Agent admits that it does, and that it is owned and
used by Bar Pilots. Nor is the issue an undeniable public interest in safe navigation of
vessels in our waterways and avoidance of serious environmental, political, and business
consequences that may result from pilot errors.23 Rather, the question is whether any
23
PMSA asks us to take judicial notice of four items, including a Board incident
review committee report of a near grounding incident near the Richmond wharf on
February 18, 2012; news articles concerning a January 7, 2013 allision between an empty
oil tanker and a pier of the Bay Bridge; and a copy of the 2012 annual report provided to
the Board by Bar Pilots under Regulation section 237, subdivision (d), including the
number of exceptions to MRP‘s. PMSA contends that the documents (which were not
provided to the trial court) demonstrate that the pilot assignment data is utilized by both
the Board and the Port Agent, and that they ―demonstrate the profound public interest in
the information PMSA seeks.‖ We deny the request because we do not find them
relevant. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482
(Arce) [court may decline to take judicial notice of matters that are not relevant to
dispositive issues on appeal].) The Bar Pilots annual report is itself a public record
(Regs., § 237, subd. (d)), but that does not thereby make public the records from which
the report is produced. (Forsham v. Harris (1980) 445 U.S. 169–171.) The documents
do not address data used by the Port Agent in assigning pilots, and the public interest is a
20
evidence exists that the information is possessed and used by the Port Agent in the
performance of his official duties, and consequently a public record. We find that there is
not.
PMSA relied in the trial court, and relies here, on the Miller Stipulation and
attached Pilot Logs as evidence ―of the existence, source and nature of the documents
sought under the CPRA and the extent of the Port Agent‘s role and duties as a public
official.‖ But how? PMSA contends that the trial court properly took judicial notice of
the Miller documents because they are records of a court of the United States and not
subject to reasonable dispute. Despite PMSA‘s assertion to the contrary, the Miller
Stipulation and the Pilot Logs are unquestionably hearsay, their content was disputed and
both the Board and Bar Pilots repeatedly objected to their consideration. PMSA insists
that the Miller Stipulation and Pilot Logs are not hearsay because they were ―not offered
for the truth of the matter of the content therein, but to show that, for purposes of CPRA
disclosure only, the Pilot Logs exist and reflect the daily activities of the Port Agent to
execute his public duties to assign pilots to vessels and to collect data.‖ Even if the Pilot
Logs from the Miller case could be considered to establish the existence of an
information database, statements contained in the Miller Stipulation are the only
authentication or explanation for any of the information contained within the Pilot Logs,
and the only basis for the claim that the Pilot Logs ―reflect the daily activities of the Port
Agent to execute his public duties to assign pilots to vessels and to collect data.‖ While
judicial notice may be taken of court records (Evid. Code, § 452, subdivision (d)), the
truth of matters asserted in such documents is not subject to judicial notice. (Arce, supra,
181 Cal.App.4th at p. 482.)24
material factor in determining if an exemption to release of public documents otherwise
subject to disclosure would apply. (§ 6255.)
24
See also Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564–1565, quoting
1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 47.2: ― ‗What is meant by taking
judicial notice of court records? There exists a mistaken notion that this means taking
judicial notice of the existence of facts asserted in every document of a court file,
21
In response to evidentiary objections in the trial court, PMSA asserted that the
Miller Stipulation ―directly admit[s] that the Port Agent‘s recordation of the assignment
of pilots is undertaken in the regular course of business in order to fully and accurately
comply with a reporting requirement of the state of California‖ and that ―these statements
are directly relevant as admissions against interest, since Miller was and is a member of
[Bar Pilots].‖ But there was no evidence presented that Miller is, or ever has been an
officer of Bar Pilots, that he had personal knowledge of any of the business records of
Bar Pilots, or that he was authorized in any way to speak on its behalf. And the
Stipulation is not even a sworn declaration by Miller. It is the product of yet another
layer of hearsay—an unverified document submitted and signed by Miller‘s counsel, who
does not purport to have personal knowledge of any of the content.
In contrast, the Port Agent avers that he does not, and has not, prepared or used the
Pilot Logs in assigning pilots, and both the Port Agent and the Board confirm that the
database is not provided to the Board. In sum, there is no evidence, let alone substantial
evidence, to support a finding that the Pilot Logs are ―used by the Port Agent in the
execution of his public duties including, but not limited to, assigning pilots to vessels and
preparing and administering pilot vacation time‖ or that they are ―necessary and
convenient to the Port Agent‘s public duties.‖ In the absence of such evidence, the
database of the Pilot Logs cannot be considered public records under the CPRA.
E. Constructive Possession of the Pilot Logs by the Board
Both PMSA and Amici Curiae argue that records relating to execution of the Port
Agent‘s public duties are also public records because they are in the constructive
possession of the Port Agent and the Board. The CPRA pertains to ―disclosable public
records in the possession of the agency . . . .‖ (§ 6253, subd. (c), italics added.) Relying
upon the Board‘s general administrative control of the Port Agent and its authority over
all licensed pilots and pilot reporting requirements (Regs., §§ 218, 219), PMSA insists
including pleadings and affidavits. However, a court cannot take judicial notice of
hearsay allegations as being true, just because they are part of a court record or file.‘ ‖
22
that both the Board and Port Agent have the right to control the Pilot Log database
maintained by Bar Pilots, and are therefore in ―possession‖ of those records.
As to the Port Agent, the argument reaches too far. Under PMSA‘s theory, any
and all records held or maintained by a private organization would become public record
simply because one of its officers concurrently held a position performing public
functions. Whether the record is in the actual or constructive possession of a public
official, the requirement is still that the record be required by law to be kept by that
official, or that it be ― ‗ ―necessary or convenient to the discharge of his official duty.‖ ‘ ‖
(San Gabriel Tribune, supra, 143 Cal.App.3d at p. 774; CSU, supra, 90 Cal.App.4th at
p. 824.)
As to the Board, to prevail, PMSA must establish that the files (1) qualify as
public records and (2) were in the possession of the Board. (Consolidated Irrigation
Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 709 (Consolidated Irrigation).)
―Possession‖ in this context has been interpreted to mean both actual and constructive
possession. ―[A]n agency has constructive possession of records if it has the right to
control the records, either directly or through another person. [Citation.]‖ (Id. at p. 710.)
PMSA relies primarily on Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379
(Bernardi) in support of its argument. Neither Consolidated Irrigation nor Bernardi is
factually analogous.
In Consolidated Irrigation, the petitioner challenged the approval of an
environmental impact report (EIR) by the City of Selma (City) and sought a writ of
mandate to compel production under the CPRA of, inter alia, records of subconsultants
hired by a primary consultant to prepare reports, studies, or certain sections of the EIR.
(Consolidated Irrigation, supra, 205 Cal.App.4th at pp. 702, 709–710.) The trial court
denied the petition. The petitioner contended that the City had the right to control the
subconsultants‘ files based on a provision in the contract between City and the primary
consultant that expressly gave the City ownership of all documents and data prepared by
the contractor. The petitioner was given access to the contractor‘s files, and constructive
possession of the documents in the contractor‘s file was not at issue. The court
23
concluded that the contract provision did not give the City ownership rights in the
materials in the subconsultant‘s files and affirmed denial of the petition. (Id. at pp. 709–
711.) Nothing in the Harbors and Navigation Code, or in the Board‘s regulations gives
the Board any rights of ownership of Bar Pilots‘ records, and Bar Pilots is not a
contractual agent of the Board. As PMSA acknowledges, there is no reference to Bar
Pilots in the Harbors and Navigation Code. Bernardi dealt only with the reasonableness
of an award of attorney fees to a successful CPRA petitioner. The trial court‘s order
requiring production of the environmental consultant‘s file was not appealed. (Bernardi,
supra, 167 Cal.App.4th at pp. 1383, 1392.) ―An appellate decision is not authority for
everything said in the court‘s opinion but only ‗for the points actually involved and
actually decided.‘ [Citations.]‖ (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
Amici Curiae contend that the Board has the right to obtain the Pilot Log records,
and therefore ―owns‖ those records. They cite San Gabriel Tribune for the proposition
that if an agency delegates a duty to a third party, but retains the power and duty to
monitor performance of the delegated duty, the third party records relating to the
performance of that duty are public. San Gabriel Tribune also involved a contractual
agreement, in that instance between a municipality and trash collection service. The trash
collection company had a contractual obligation to submit annual financial statements to
the city, and the records in dispute consisted of financial data that the company submitted
to the city to justify a rate increase the city authorized. (San Gabriel Tribune, supra,
143 Cal.App.3d at pp. 767–769.) The court held that those statements were public
records subject to disclosure because the contractor had ―injected the data into the
decision-making process of government‖ (id. at p. 778) and ―the City [had] relied on [the
statements] in granting the rate increase‖ (id. at p. 775). Here the Board has ―delegated‖
nothing, by contract or otherwise.
PMSA suggests that Board is ―outsourc[ing] the ‗performance of administrative
functions‘ ‖ and that Bar Pilots ―is, in many respects, a functional subordinate of the
public agency and subject to the execution of its public duties.‖ Bar pilotage is a
recognized but regulated monopoly, and the Board has statutory licensing and oversight
24
authority. But the individually licensed members of Bar Pilots render piloting services
directly to their maritime clients, not on behalf of the Board. The pilot work rules are
generally established by Bar Pilots, and not by the Board. And the Legislature has never
given the Board the authority to make pilot assignments or to direct them. The Port
Agent has always been allocated that responsibility, and we have already held that he
serves as a state officer in doing so.
Nor does the record support Amici Curiae‘s argument that Board is attempting to
―defeat disclosure by ceding possession and control of [the records] to a third party.‖ So
far as the evidence discloses, the database at issue has always been solely prepared and
maintained by Bar Pilots and never provided to the Board, although apparently used in
part in preparation of the summary statistical reports from Bar Pilots to the Board
required under Regulations section 237, subdivision (d). But the fact that Bar Pilots may
use the Pilot Log database to prepare its public summary does not mean that all data used
to prepare the report is thereby public. (See Forsham v. Harris, supra, 445 U.S. at
pp. 171–179 [written data generated, owned and possessed by a privately controlled
organization funded solely by federal grants are not records of the federal agency
providing the grants if they are not provided to the agency, even if there is a federal right
of access to the data].)
F. Conclusion
The evidentiary record before us does not support a finding that the Pilot Log data
is, or ever has been, used by the Port Agent in the performance of his official duty in
assignment of bar pilots, and consequently a public record. If the data itself is not public
record, the fact that the Board could theoretically request it from Bar Pilots does not
make it so.
We do not dismiss the public‘s interest, articulated by PMSA and Amici Curiae, in
safe pilotage of large vessels in the environmentally sensitive confines of the San
Francisco Bay. We do not doubt that historic records reflecting individual exemptions
from what are now only recommended MRP‘s in piloting assignments may ―shed light on
25
the . . . process of assigning pilots to vessels‖ as PMSA contends. But records otherwise
private do not become public simply by virtue of public interest in their content.
As a consequence of well-publicized maritime accidents, the NTSB has
recommended that state licensing boards promulgate ―hours of service‖ rules to prevent
pilot fatigue. A legislative committee recently recommended that the Board conduct a
manpower utilization study based on actual pilot logs. Our Legislature has now acted on
both recommendations, requiring the Board to study the effects of work and rest periods
on psychological ability and safety for pilots, and to promulgate pilot regulations
establishing requirements for adequate rest periods. (Harb. & Nav. Code, § 1196.5.)
Presumably the information that PMSA seeks will come to light in that process.
III. DISPOSITION
The petition filed in this court, are granted. Let a peremptory writ of mandate
issue directing the superior court to set aside and vacate its September 18, 2012 order
granting PMSA‘s petition for writ of mandate and to enter a new and different order
denying that petition. The previously issued stay shall dissolve upon issuance of the
remittitur. (Cal. Rules of Court, rules 8.490(c), 8.272.) Petitioners shall recover their
costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
_________________________
Bruiniers, J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
26
Superior Court of the City and County of San Francisco, No. CPF-12-512320, Curtis
E.A. Karnow, Judge.
Kamala D. Harris, Attorney General, John Saurenman, Assistant Attorney General,
Christiana Tiedemann, Deputy Attorney General, for Petitioners in No. A136803.
Phillips, Erlewine & Given, R. Scott Erlewine and Cari A. Cohorn for Petitioners in
No. A136806.
No appearance for Respondent.
Flynn, Delich & Wise, Conte C. Cicala; Davis Wright Tremaine, Thomas R. Burke; and
Michael C. Jacob for Real Party in Interest.
Ram, Olson, Cereghino & Kopczynski, Karl Olson as Amici Curiae on behalf of Real
Party in Interest.
27