The opinion
Filed 5/27/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE COMMUNITY ACTION AGENCY OF C093020
BUTTE COUNTY,
(Super. Ct. No. 19CV02159)
Petitioner,
v.
THE SUPERIOR COURT OF BUTTE COUNTY,
Respondent;
LYNNE BUSSEY et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING in mandate. Stay issued. Petition granted. Tamara
L. Mosbarger, Judge.
Diepenbrock Elkin Dauer McCandless and Jennifer L. Dauer for Petitioner.
Caufield & James and Santino M. Tropea for California Community Action
Partnership Association as amicus curiae on behalf of Petitioner.
1
Alcorn Law Corporation, Mark Alcorn and Molly Alcorn for California
Community Economic Development Association, California Association of Food Banks,
and the California Association of Nonprofits as amici curiae on behalf of Petitioner.
No appearance for Respondent.
Paul Nicholas Boylan for Real Party in Interest Lynn Bussey.
Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown and Kevin L. Quade, Deputy Attorneys General, for Real Party in
Interest Department of Community Service and Development.
In this writ proceeding, we consider whether petitioner, The Community Action
Agency of Butte County (CAA), must produce its business records pursuant to the
California Public Records Act (CPRA), the Freedom of Information Act (FOIA), and/or a
regulation promulgated by real party in interest, California’s Department of Community
Services and Development (the Department).
After concluding CAA was subject to both FOIA and CPRA as an “other local
public agency” within the meaning of Government Code section 6252, subdivision (a)1
(which defines a “local agency” for CPRA purposes) respondent superior court ordered
CAA to produce records that real party in interest Lynne Bussey requested from CAA.
CAA filed a petition for writ of mandate in this court, seeking review of the superior
court’s order.
After considering the arguments presented (including those of amici curiae The
California Community Action Partnership Association and The California Community
Economic Development Association, et al.), the text and history of CPRA, and other
applicable authorities, we conclude: (a) a nonprofit entity like CAA may be an “other
local public agency” only in exceptional circumstances not present here; (b) under a four-
1 Further undesignated statutory references are to the Government Code.
2
factor test we adopt based on persuasive out-of-state authority, there is not substantial
evidence for the trial court’s ruling that CAA is an “other local public agency”; (c) FOIA
does not apply to CAA; and (d) the Department’s regulation does not require CAA to
provide public access to its records generally.2
Accordingly, we vacate the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2019, Bussey requested from CAA “access to and copies of” 14
categories of records, including “check registers from 2012-2017,” “credit card
statements, 2012-2017,” and “[r]ecords documenting CAA reimbursements to” its chief
executive officer “for travel expenses . . . from 2012-2017.” CAA declined Bussey’s
2 Bussey contends CAA’s writ petition in this court failed to comply with the
California Rules of Court requiring (i) submission of reporter’s transcripts of oral
proceedings or (ii) a declaration explaining why transcripts are unavailable and fairly
summarizing the proceedings, and therefore should be “summarily denied.” (Cal. Rules
of Court, rule 8.486(b)(1)(D), (b)(3).) Bussey contends CAA’s counsel’s declaration is
“[in]sufficient to excuse the failure to submit transcripts,” and is “self-serving” and
“incomplete.”
Assuming for the sake of argument that CAA’s counsel’s declaration fails to
comply with the rules as Bussey contends, we have discretion to decide whether to deny
the petition because of this failure. (Cal. Rules of Court, rule 8.486(b)(4).) We exercise
our discretion to allow the petition because, as will be shown, our decision rests on the
merits of the superior court’s order that CAA produce its business records, something that
was plainly demonstrated by the superior court’s written ruling contained in the record.
Thus, we have before us a record that is sufficient for our review. (Sherwood v. Superior
Court (1979) 24 Cal.3d 183, 186 [A party “seeking review of a ruling of the trial court by
means of a petition for extraordinary writ must provide the appellate court with a record
sufficient to permit such review”].)
Bussey’s contention that “[t]here is no statement of decision in this case,” is
unpersuasive. The superior court’s three-page “Ruling after court trial,” filed on
November 9, 2020, squarely presents the superior court’s reasoning on the disputed
issues presented to us. (See In re Marriage of Rising (1999) 76 Cal.App.4th 472, 476,
fn. 7 [“we find that the trial court clearly intended that this written decision be a
statement of decision . . . even though [the appealing party] did not request one”].)
3
request, stating the records sought were “not required to be maintained” under California
law, and CAA was “not subject to” CPRA or FOIA.
In July 2019, Bussey filed a petition for writ of mandate in the superior court to
compel CAA to give her access to the records. Bussey argued that CAA was a
“Community Action Agency,” “an explicit designation by local or state government”
arising out of efforts by the federal government “to combat poverty in geographically
designated areas.” Bussey asserted that she was entitled to copies of CAA’s records on
two grounds: (1) CPRA, and (2) “Regulation § 100765” promulgated by the Department
(Cal. Code Regs., tit. 22, § 100765 (Regulation 100765)).
According to Bussey, public access to CAA records is compelled by section 6252,
which extends the reach of CPRA to local agencies. “Local Agency” is defined thusly:
“ ‘Local agency’ includes a county; city, whether general law or chartered; city and
county; school district; municipal corporation; district; political subdivision; or any
board, commission or agency thereof; other local public agency; or entities that are
legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section
54952.” (§ 6252, subd. (a).)
Bussey asserted CAA was a “local agency” subject to CPRA, because CAA was
“another local public agency” as contemplated by section 6252, subdivision (a).
Furthermore, Bussey asserted that CAA was “a grantee” within the meaning of
Regulation 100765, a regulation promulgated the Department, which Bussey quoted as
providing: “Any person who wishes to inspect or copy records regularly maintained by a
grantee may do so after making a request. Information and records will be made
available to the requestor in accordance with the Freedom of Information Act . . . .”
In a later pleading, Bussey described herself as an “involved member of the Butte
County community” who had “work[ed] directly with” CAA “to bolster . . . funded
services provided as part of the war on poverty.” Bussey explained that she “became
concerned with [CAA’s] operations” after (a) she “heard complaints from [CAA’s]
4
employees about perceived accounting and spending irregularities,” and (b) CAA
“rejected a $150,000 private donation needed to bridge the gap between federal block
grant funds and [CAA’s] budgetary requirement . . . because the donation requested an
accounting of how the donated funds would be spent.”
Bussey also quoted what she claimed was language on CAA’s website—that
“ ‘[i]n January 1967, the Board of Supervisors of the County of Butte created the
Economic Opportunity Commission of Butte County, Inc. (EOC; now known as
Community Action Agency of Butte County, Inc.) in order to qualify for federal
funds’ ”—and asserted that CAA was “created, organized and regulated by federal and
state law,” and was “a recipient of federal Community Block Grant funds as distributed
by the State of California.” She attached several exhibits indicating CAA was a recent
recipient of “federal Community Block Grant funds” via the State of California and the
City of Chico.
CAA admitted that it was “a Community Action Agency . . . that . . . work[ed] to
address poverty,” but maintained that it was “a private entity, not subject to” CPRA. As
for Regulation 100765, CAA argued the provision applied “only to records related to the
administration of” Community Block Grants that were “required to be maintained by the
grantee under that regulatory scheme,” and Bussey’s requests concerned records not
covered under the scheme. CAA further argued that any interpretation of Regulation
100765 “impos[ing] broader public records access requirements than” federal law was an
“[in]correct interpretation,” because federal regulations prohibit a state from imposing
public “records access requirements on non-Federal entities, such as CAA.”
“[I]n an effort to promote transparency,” CAA submitted “its 2015, 2016, and
2017 financial statements audited by a qualified independent auditor.” Those documents
showed that in 2016 and 2017 CAA had annual total expenses of around $5.6 million and
received “federal awards” funding totaling around $3.5 million (most of it “passed
through” the Department).
5
In November 2020, after oral argument, the superior court issued a written ruling,
ordering CAA to produce most of the records requested by Bussey in April 2019,
including CAA’s check registers, credit card statements, and travel reimbursements to
CAA’s chief executive officer. That ruling was based on the superior court’s conclusion
that CAA was a “public entity subject to both” FOIA and CPRA, “not as a matter of law,
but based upon the factual situation presented.” CAA was “an ‘other local public
agency’ as included in the definition of ‘local agency.’ Gov’t Code §6252(a). This
determination [was] based upon the fact that [CAA] receive[d] federal grant funding and
has been delegated authority to carry out public functions in Butte County.”
The superior court “decline[d] to order that the State of California be joined in
th[e] action as requested by” CAA, “as that matter [was] not properly before the [c]ourt.”
Within 20 days of the superior court’s order, CAA filed a petition for writ of
mandate in this court, the statutory method for seeking review of a CPRA order of the
superior court. (§ 6259, subd. (c).) In the caption of the petition, CAA named Bussey
and the Department as real parties in interest.
We stayed the superior court’s order and issued an order to show cause why the
relief requested in the petition should not be granted.
DISCUSSION
I
CPRA
A. Legal Context
1. Community Action Agencies
“A community action agency shall be a public or private nonprofit agency that
fulfills all of the following requirements: [¶] (1) Has been designated by the director [of
the Department] to operate a community action program. [¶] (2) Has a tripartite board
6
structure meeting the requirements of Section 12751.[3] [¶] (3) Has the power, authority,
and capability to plan, conduct, administer, and evaluate a community action program,
including the power to enter into contracts with other public and private nonprofit
agencies and organizations to assist in fulfilling the purposes of this chapter.” (§ 12750,
subd. (a).)
“A community action program is a locally planned and operated program
comprising a range of services and activities having a measurable and potentially major
impact on causes of poverty in the community or those areas of the community where
poverty is a particularly acute problem.” (§ 12750, subd. (b).)
“CAAs provide services for underprivileged persons at the local level.”
(Conecuh-Monroe Community Action Agency v. Bowen (D.C. Cir. 1988) 852 F.2d 581,
584.) In 1981, “Congress established the Community Services Block Grant Program,
which provides lump sums to state governments. One reason for adopting the block grant
approach was to allow states to choose local providers of social services that the states
themselves believe are best able to do the job.” (Ibid.)
2. CPRA
“Enacted in 1968, CPRA declares that ‘access to information concerning the
conduct of the people’s business is a fundamental and necessary right of every person in
3 “Each community action agency shall have a board of directors conforming to the
following requirements: [¶] (a) One-third of the members of the board are elected public
officials, currently holding office, or their representatives, except that if the number of
elected officials reasonably available and willing to serve is less than one-third of the
membership of the board, membership on the board of appointive public officials may be
counted in meeting this requirement. [¶] (b) At least one-third of the members are
persons chosen in accordance with democratic selection procedures outlined in
regulations promulgated by the department to assure that the members represent the poor
and reside in the area served. [¶] (c) The remainder of the members are officials or
members of business, industry, labor, religious, human services, education, or other
major groups and interests in the community.” (§ 12751.)
7
this state.’ (§ 6250.) In 2004, voters made this principle part of our Constitution. A
provision added by Proposition 59 states: ‘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).) Public access laws serve a crucial function. ‘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.]” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 615
(City of San Jose).)
“CPRA establishes a basic rule requiring disclosure of public records upon
request. (§ 6253.) In general, it creates ‘a presumptive right of access to any record
created or maintained by a public agency that relates in any way to the business of the
public agency.’ [Citation.]” (City of San Jose, supra, 2 Cal.5th at p. 616, fn. & italics
omitted.)
3. Statutory interpretation
“ ‘When we interpret a statute, “[o]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and public policy.”
[Citation.] “Furthermore, we consider portions of a statute in the context of the entire
8
statute and the statutory scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the legislative purpose.” ’ [Citation.]
“In CPRA cases, this standard approach to statutory interpretation is augmented by
a constitutional imperative. [Citation.] Proposition 59 amended the Constitution to
provide, ‘A statute, court rule, or other authority, including those in effect on the effective
date of this subdivision, shall be broadly construed if it furthers the people’s right of
access, and narrowly construed if it limits the right of access.’ (Cal. Const., art. I, § 3,
subd. (b)(2), italics added.)” (City of San Jose, supra, 2 Cal.5th at pp. 616-617.)
4. “Other local public agency”
A “local agency” is a “ ‘public agency’ ” for CPRA purposes. (§ 6252, subd. (d).)
Under CPRA, “ ‘Local agency’ includes a county; city, whether general law or
chartered; city and county; school district; municipal corporation; district; political
subdivision; or any board, commission or agency thereof; other local public agency; or
entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of
Section 54952.” (§ 6252, subd. (a), italics added.)
“Broadly construed, the term ‘local agency’ logically includes not just the discrete
governmental entities listed in section 6252, subdivision (a) but also the individual
officials and staff members who conduct the agencies’ affairs.” (City of San Jose, supra,
2 Cal.5th at p. 620.)
The definition of an “other local public agency” for CPRA purposes is a question
of first impression.4
4 Courts have considered the phrase “other local public agency” for purposes of
California’s open meetings law, the Ralph M. Brown Act (§ 54950 et seq.) (Brown Act).
(See, e.g., McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime
Task Force (2005) 134 Cal.App.4th 354, 356-363 [holding that an intergovernmental
crime-fighting task force was a “local agency” and its board of directors and executive
council were “legislative bodies” as defined by the Brown Act]; Torres v. Board of
Commissioners (1979) 89 Cal.App.3d 545, 550-551 [deciding a county housing authority
9
CAA argues the superior court’s ruling is not supported by substantial evidence,
because the finding that CAA “ha[d] been delegated authority to carry out public
functions” is “unsupported by the evidence.” CAA also contends the ruling was
“contrary to law,” because CPRA does not “encompass[ ] private entities,” even
“implicitly.”
Bussey contends that under Brown Act case law, CAA is an “other local agency,”
because—despite its “characteriz[ation] [of] itself as a ‘private corporation’ ”—CAA
receives federal funds and “is a government instrumentality created and regulated by state
statutes.”
In its “Response to Petition for Writ of Mandate,” the Department contends the
superior court’s ruling was “in error to the extent” that it applied CPRA “to private
organizations, including community action agencies, merely because such organizations
accept federal grant money . . . for work that overlaps with typical public functions.”5
was a “local agency” within the meaning of the Brown Act, rather than a “state agency”
within the meaning of the State Agency Open Meeting Act (§ 11120 et seq.)].)
But while the Brown Act and CPRA “serve[ ] the same democratic purposes,”
(International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v.
Superior Court (2007) 42 Cal.4th 319, 333, fn. 6), they are distinct statutory schemes
with important differences in their texts and legislative histories (as we will explain
below). “ ‘[E]stablishing terminological uniformity’ ” between the Brown Act and
CPRA, “ ‘is less important than discerning “ ‘the intent of the Legislature so as to
effectuate the purpose’ ” of each individual statute.’ ” (Covenant Care, Inc. v. Superior
Court (2004) 32 Cal. 4th 771, 782-783; see Britts v. Superior Court (2006)
145 Cal.App.4th 1112, 1127 [“absolute symmetry in the construction of” the same term
appearing in different statutory schemes “is not required” where different legislative
policies reveal distinct legislative intents behind the statutory schemes].)
5 Bussey argues that—in part because the “Department was not a party to the
underlying lawsuit” and “made no attempt to intervene”—“the only possible status” of
the Department “in this appeal is as amicus curiae,” not a real party in interest.
We disagree. This is not an appeal, but an original proceeding. Bussey provides
no authority for the proposition that, because the Department was not a party in the
10
Amicus curiae California Community Action Partnership Association argues the
superior court’s ruling was error in part because it “effectively reverses . . . § 12750(a),
which allows for a community action agency such as CAA[ ] to establish itself as ‘a
public or private nonprofit agency.’ ” The amici curiae brief of the California
Community Economic Development Association, California Association of Food Banks,
and the California Association of Nonprofits argues the superior court erred in ruling
CAA had been delegated authority to carry out public functions, in part because CAA
“did not perform activities that are traditionally exclusive to the State.”
B. Analysis
1. Standard of Review
We conduct an independent review of respondent superior court’s ruling,
upholding factual findings if based on substantial evidence. To the extent material facts
are not disputed, and the issue involves the application of CPRA to those facts, we review
de novo. (Associated Chino Teachers v. Chino Valley Unified School Dist. (2018)
30 Cal.App.5th 530, 536; CBS Broadcasting Inc. v. Superior Court (2001)
91 Cal.App.4th 892, 906.)
2. Legislative history
Because the phrase “other local public agency” permits more than one reasonable
interpretation, we will consider the legislative history of the definition of “local agency”
in section 6252.
CPRA, as originally enacted, contained the phrase “other local public agency” in
its definition of “ ‘[l]ocal agency.’ ” (See Stats. 1968, ch. 1473, § 39, p. 2946.) The
superior court, it was somehow improper for CAA to name the Department a real party in
interest in the instant original proceeding. (See Tracy Press, Inc. v. Superior Court
(2008) 164 Cal.App.4th 1290, 1296-1297 [“The filing of a petition for writ of mandate in
this court, even though it follows denial of the petition in the superior court, is an original
proceeding, not an appeal,” and because “the petition in a mandamus proceeding serves
as the complaint, it must name all of the parties”].)
11
available legislative history sheds little light on what the Legislature meant when
employing the phrase. But it is worth noting that the law’s sponsor, in a letter urging the
Governor to sign the legislation, explained that “the basic philosophy of the bill is that the
burden is upon the governmental agency to show that a given record should not be made
public. This then allows a citizen to see a public record or demand that the governmental
entity involved show that it should not be public.”6 (Assembly member William T.
Bagley, letter to Governor Ronald Reagan regarding Assem. Bill No. 1381 (1968 Reg.
Sess.) Aug. 15, 1968, Governor’s chaptered bill files, ch. 1473, italics added.)
Language in CPRA’s definition of “local agency” changed for the first time in
1991, to read: “ ‘Local agency’ includes . .. other local public agency; or nonprofit
organizations of local government agencies and officials which are supported solely by
public finds.”7 (Stats. 1991, ch. 181 (Assem. Bill No. 788), § 1, p. 1404, italics added;
see Historical and Statutory Notes, 32A pt. 3, West’s Ann. Gov. Code (2016 ed.) foll.
§ 6252, pp. 309-310.)
CPRA’s definition of “local agency” changed a second time in 1998, to read:
“ ‘Local agency’ includes . . . other local public agency; or nonprofit entities that are
legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section
6 “While there are often limits to what an interpreter may reasonably infer from an
individual legislator’s letter [citation], we have considered letters expressing the views of
a bill’s sponsor where those views are fully consonant with the statutory language and the
history of the legislation.” (Larkin v. Workers’ Comp. Appeals Bd. (2015) 62 Cal.4th
152, 164, fn. 10, italics added.)
7 The bill’s sponsor apparently introduced the legislation “due to difficulties he had
in obtaining information from the County Supervisors Association of California” and out
of a desire to “uncover abuses of taxpayer funds.” (Governor’s Office of Planning &
Research, Enrolled Bill Rep. on Assem. Bill No. 788 (1991-1992 Reg Sess.) July 19,
1991, p. 2.)
12
54952.”8 (Stats. 1998, ch. 620 (Sen. Bill No. 143), § 2, p. 4118, italics added; see
Historical and Statutory Notes, 32A pt. 3, West’s Ann. Gov. Code (2016 ed.) foll. § 6252,
p. 310.)
The aim of the 1998 amendment to section 6252’s definition of “local agency”
was to “include in the [CPRA] private corporations and other entities created by a
government agencies [sic] that carry out delegated public authority or that receive public
funds, such as economic development corporations.” (Sen. Com. on Judiciary, Analysis
of Sen. Bill No. 143 (1997-1998 Reg. Sess.) as amended Jan. 5, 1998, p. 4.)
Earlier versions of the bill sought to replace the language added in 1991 with:
“nonprofit organizations or entities that are legislative bodies of a local agency pursuant
to subdivisions (c) and (d) of Section 54952.” (Sen. Amend. to Sen. Bill No. 143 (1997-
1998 Reg. Sess.) Jan. 5, 1998, § 2; Assem. Amend. to Sen. Bill No. 143 (1997-1998 Reg.
Sess.) Jun. 17, 1998, § 2.) But days after a committee bill analysis expressed “[d]rafting
[c]oncerns” with that proposed text—because its language “might be construed to require
non-profits to be subject to the [CPRA]”—and suggested amending the text “to clarify
8 As relevant here, section 54952 provides: “As used in this chapter, ‘legislative
body’ means: [¶] (a) The governing body of a local agency or any other local body
created by state or federal statute. [¶] (b) A commission, committee, board, or other
body of a local agency, whether permanent or temporary, decisionmaking or advisory,
created by charter, ordinance, resolution, or formal action of a legislative body. . . . [¶]
(c)(1) A board, commission, committee, or other multimember body that governs a
private corporation, limited liability company, or other entity that either: [¶] (A) Is
created by the elected legislative body in order to exercise authority that may lawfully be
delegated by the elected governing body to a private corporation, limited liability
company, or other entity. [¶] (B) Receives funds from a local agency and the
membership of whose governing body includes a member of the legislative body of the
local agency appointed to that governing body as a full voting member by the legislative
body of the local agency. [¶] . . . [¶] (d) The lessee of any hospital . . . where the lessee
exercises any material authority of a legislative body of a local agency delegated to it by
that legislative body whether the lessee is organized and operated by the local agency or
by a delegated authority.”
13
that the bill applies to nonprofit organizations that are legislative bodies of a local
agency, as specified,” the earlier language was removed, and the final language was
added. (Assem. Com. on Gov. Organization, Analysis of Sen. Bill No. 143 (1997-1998
Reg. Sess.) as amended Jun. 17, 1998, pp. 2-3, italics added; Sen. Amend. to Sen. Bill
No. 143 (1997-1998 Reg. Sess.) Jun. 24, 1998, § 2.) So instead of “nonprofit
organizations or entities that are legislative bodies of a local agency . . .” the final version
of the bill said “nonprofit entities that are legislative bodies of a local agency . . . .”
The legislative history of the 1998 changes to section 6252 reflects a concern that
the definition of “local agency” in CPRA not be interpreted to sweep so broadly that it
include local nonprofit organizations generally, but rather only those nonprofits that were
legislative bodies of a local agency within the meaning of section 54952.
Language in the definition of “local agency” was altered a third time in 2002, to
read: “ ‘Local agency’ includes . . . other local public agency; or entities that are
legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section
54952.” (Stats. 2002, ch. 1073 (Assem. Bill No. 2937), § 1, italics added.) It appears the
Legislature wanted to ensure that for-profit entities (that were legislative bodies of local
agencies) would not be able avoid CPRA, simply because they were not “nonprofit
entities.” An analysis of the bill explained that “[o]ne superior court judge ha[d]
interpreted” CPRA as inapplicable to “for-profit entities that [we]re legislative bodies
created by a local agency, even when subject to the Brown . . . Act.” Assembly Bill
No. 2937 was “intended to correct th[at] apparent mistake.” (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 2937 (2001-2002 Reg. Sess.) as amended Apr. 16, 2002, p. 2.)
Our review of the legislative history of the changing definition of “local agency”
in section 6252 reflects the Legislature’s (evolving) aim to include a very limited universe
of local nongovernmental entities within CPRA’s scheme.
When the Legislature passed CPRA in 1968 it was concerned with public access
to the records of governmental entities. When the Legislature wanted to subject certain
14
local nongovernmental entities to CPRA, it did so expressly in 1991 with Assembly Bill
No. 788, limiting the expansion of the definition of “local agency” to “nonprofit
organizations of local government agencies and officials” that were “supported solely by
public finds.” When the Legislature wanted to alter the universe of local nonprofit
entities subject to CPRA (to nonprofits that were legislative bodies of a local agency), it
did so in 1998 with Senate Bill No. 143, careful to avoid language that might have been
interpreted to include local nonprofit organizations generally. And when, in 2002, the
Legislature removed the word “nonprofit” from section 6252, it did so to ensure that all
entities that were legislative bodies of local agencies (nonprofit and for-profit) would be
subject to CPRA; not to expand the universe of local nonprofit entities subject to CPRA.
Accordingly, in light of this legislative history, we conclude the Legislature
intended the “other local public agency” definition of “local agency” in section 6252 to
include governmental entities, not nongovernmental entities like nonprofits.
3. Other statutory construction considerations
In City of San Jose, our Supreme Court explained that Proposition 59, approved by
the voters at the November 2, 2004 General Election, mandates that a statute 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)(2), italics added.)” (City of San Jose,
supra, 2 Cal.5th at p. 617.)
Also in that opinion, our Supreme Court observed that CPRA’s definition of local
agency “is worded more broadly than the state agency definition,” as “[s]ection 6252,
subdivision (a) states that the term local agency ‘includes’ a county, city, or one of
several other listed entities,” whereas the state agency definition “is couched in more
restrictive language: ‘ “State agency” means every state office, officer . . . ,’ and other
listed entities. (§ 6252, subd. (f), italics added.)” (City of San Jose, supra, 2 Cal.5th at
p. 622, fn. 6.) “In statutory drafting,” the court explained, “the term ‘includes’ is
ordinarily one ‘of enlargement rather than limitation.’ [Citation.] ‘The “statutory
15
definition of a thing as ‘including’ certain things does not necessarily place thereon a
meaning limited to the inclusions.” ’ [Citation.]” (Ibid.)
In light of (i) “includes” in CPRA’s definition of a local agency,9 and (ii)
Proposition 59’s mandate that we broadly construe a statute if it furthers the people’s
right of access,10 we conclude a nonprofit entity may be an “other local public agency”
within the meaning of section 6252, subdivision (a), but only in exceptional
circumstances, such as when, as a practical matter, the nonprofit operates as a local
public entity. Faced with a similar issue, the Supreme Court of Washington rejected the
contention that Washington’s statutory public records law could “never reach the
records” of a private nonprofit entity and articulated a four-factor test for determining
whether a private entity should be treated as the functional equivalent of a governmental
agency. (Fortgang v. Woodland Park Zoo (2017) 187 Wn.2d 509, 512 [387 P.3d 690]
(Fortgang).)
The factors are: “(1) whether the entity performs a government function, (2) the
extent to which the government funds the entity’s activities, (3) the extent of government
9 The Brown Act’s definition of “local agency,” in contrast to CPRA’s definition,
uses the term “means,” not “includes.” (See § 54951.)
10 Although Proposition 59, by its own terms did not “modif[y] the right of privacy
guaranteed by Section 1 or affect[ ] the construction of any statute, court rule, or other
authority to the extent that it protects that right to privacy,” (Cal. Const., art. I, § 3, subd.
(b)(3)), corporations have no California right to privacy that is protected by the California
Constitution or statutory law. The nature and scope of a corporate entity’s right to
privacy is a question for the courts that “ ‘depend[s] on the circumstances’ ” of a given
legal dispute. (See Ameri-Medical Corp. v. Workers’ Comp. Appeals Bd. (1996)
42 Cal.App.4th 1260, 1287-1288; accord SCC Acquisitions, Inc. v. Superior Court (2015)
243 Cal.App.4th 741, 755-756.)
16
involvement in the entity’s activities, and (4) whether the entity was created by the
government.” (Fortang, supra, 387 P.3d at p. 695.)
The court ruled that the test developed in Washington appellate courts that
“derives from case law interpreting” FOIA, “further[ed]” the purposes of Washington’s
Public Record Act, “by preventing governments from evading public oversight through
creative contracting,” and was “consistent with . . . the approach taken by numerous other
jurisdictions interpreting similar transparency laws.” (Fortang, supra, 387 P.3d at
p. 693.)
The government function factor is about “ ‘core’ government functions, [citation],
or functions that could not be delegated to the private sector.” (Fortgang, supra,
387 P.3d at p. 698.) The government funding factor primarily asks whether the majority
of a private entity’s funding is “attributable to public sources.” (Id. at p. 701.) The third
factor is about “day-to-day control” of a private entity, rather than “mere regulation” of
the entity, by a government agency. (Id. at pp. 701-702.) The last factor is an inquiry
into the private entity’s “origin”: Did a government agency incorporate the entity or
create the entity “pursuant to ‘special legislation?’ ”11 (Fortgang, supra, 387 P.3d at
p. 702.)
The test articulated by respondent superior court is a two-factor test that would
sweep into CPRA many more local nonprofit entities than the Legislature and the voters,
via Proposition 59, likely intended, viz.: (1) does the nonprofit receive any government
11 (Cf. O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1075 [concluding a
statute could not “be characterized as special legislation. (See Cal. Const., art. IV, § 16
[authorizing the enactment of statutes applicable to particular cities or counties]; White v.
State of California (2001) 88 Cal.App.4th 298, 305 [Legislature must have rational basis
for singling out a city or county to be ‘ “affected by [a special] statute” ’]; Baldwin [v.
County of Tehama (1994) 31 Cal.App.4th 166, 166], 177 [uncodified enactments granting
limited powers over groundwaters to ‘specifically identified special districts’ described as
‘ “special acts” ’])”].)
17
funds? and (2) does the nonprofit perform “public functions?” The test we propose here
offers a mode of analysis for determining whether a private nonprofit, like CAA, is an
“other local public agency” within the meaning of section 6252, subdivision (a) that is
nuanced and sensitive to the intricacies that may be present in the relationships between
local governments and local nonprofits. This test is preferable to respondent superior
court’s, and we adopt and apply it here.
a) Does CAA perform a core government function12
Poverty alleviation in California is not a core government function that cannot be
delegated to the private sector. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 991
[“[Welfare and Institutions Code] section 17000 imposes upon counties a mandatory duty
to ‘relieve and support all incompetent, poor, indigent persons, and those incapacitated by
age, disease, or accident,’ when those persons are not relieved and supported by some
other means,” (italics added)]; Welf. & Inst. Code, § 17000 [“Every county and every
city and county shall relieve and support all . . . poor, indigent persons . . . when such
persons are not supported and relieved by their relatives or friends, by their own means,
or by state hospitals or other state or private institutions” (italics added)].)
b) The extent to which the government funds CAA activities
Documents CAA submitted in the superior court indicated that, at least in 2016
and 2017, the majority of CAA’s funding was attributable to public sources, as CAA had
annual total expenses of around $5.6 million, and received annual public funding totaling
at least $3.5 million.
12 This inquiry into “core” government functions, is consistent with the notion
advanced by amici curiae California Community Economic Development Association, et
al., that only those activities of a nonprofit “that are traditionally exclusive to the State,”
be considered when answering the question whether a nonprofit might be an “other local
public agency.”
18
c) The extent of government involvement in CAA day-to-day activities
Nothing in the record indicates the extent of governmental involvement (if any) in
CAA’s day-to-day activities. Accordingly, there is not substantial evidence for a
determination on this factor.
d) Whether CAA was created by the government
The record is inconclusive regarding CAA’s origins. Because the nonprofit “was
incorporated solely by private individuals,” the court could not “attribute its ‘origin’ to
special legislation or other government action.” (Fortgang, supra, 387 P.3d at p. 702.)
Though Bussey purportedly quoted CAA’s Web site, that “[i]n January 1967, the
Board of Supervisors of the County of Butte created the Economic Opportunity
Commission of Butte County, Inc. (EOC; now known as Community Action Agency of
Butte County, Inc.) in order to qualify for federal funds,” the record contains no
indication that CAA responded to this characterization of its Web site.13
Accordingly, there is not substantial evidence for a determination on this factor.
The first factor weighs against a conclusion that CAA operates as a local public
entity, the second factor weighs in favor of such a conclusion, and there is not substantial
evidence for conclusive determinations as to the third and fourth factors. Because only
one of the four factors weighs in favor of a conclusion that CAA operates as a local
public entity, this is not an exceptional situation counseling in favor of a decision CAA is
an “other local public agency” within the meaning of section 6252, subdivision (a).
13 Bussey did not assert the nature CAA’s origins in her verified petition for writ of
mandate. And in any event, the Web site statement suggests only that the “Economic
Opportunity Commission of Butte County” was created by Butte County supervisors. It
does not sufficiently illuminate the distinct origins of CAA, per se.
19
4. Conclusion
There is not substantial evidence supporting respondent court’s ruling that CAA is
an “other local public agency” within the meaning of section 6252, subdivision (a). We
will order the superior court to vacate its order that CAA produce records requested by
Bussey on April 12, 2019. The court may schedule further proceedings to consider
Bussey’s petition in light of our decision in this original proceeding.
II
FOIA & Regulation 100765
A. Legal Context
“FOIA reflects ‘a general philosophy of full agency disclosure unless information
is exempted under clearly delineated statutory language.’ ” (Department of Defense v.
FRLA (1994) 510 U.S. 487, 494.) But “FOIA applies only to federal and not to state
agencies.” (Grand Central Partnership, Inc. v. Cuomo (2d Cir. 1999) 166 F.3d 473, 484
(Grand Central Partnership); accord Rahim v. District Attorney for the Suffolk District
(Mass. 2020) 486 Mass. 544, 549-550 [159 N.E.3d 690, 697] (Rahim).)
The Legislature “may delegate some quasi-legislative or rulemaking authority to
administrative agencies,” but a state agency “has only as much rulemaking power as is
invested in it by statute.” (Carmel Valley Fire Protection Dist. v. State of California
(2001) 25 Cal.4th 287, 299.) Thus, “ ‘no regulation adopted is valid or effective unless
consistent and not in conflict with the statute and reasonably necessary to effectuate the
purpose of the statute.’ (Gov. Code, § 11342.2.)” (Agnew v. State Bd. of Equalization
(1999) 21 Cal.4th 310, 321.)
“Whether judicial deference to an agency’s” legal interpretation “is appropriate
and, if so, its extent—the ‘weight’ it should be given—is . . . fundamentally situational.
A court assessing the value of an interpretation must consider a complex of factors
material to the substantive legal issue before it . . . .” (Yamaha Corp. of America v. State
Bd. of Equalization (1998) 19 Cal.4th 1, 12 (Yamaha), italics omitted.) Among the
20
factors courts should consider are whether the interpretation was “prepared for litigation”
(Wiseman Park, LLC v. Southern Glazer’s Wine & Spirits, LLC (2017) 16 Cal.App.5th
110, 118, fn. 9.) In any event, “ ‘[a] court is more likely to defer to an agency’s
interpretation of its own regulation than to its interpretation of a statute, since the agency
is likely to be intimately familiar with regulations it authored and sensitive to the
practical implications of one interpretation over another.’ ” (Yamaha, at p. 12.)
Section 12781, subdivision (d), authorizes the Department to “[p]romulgat[e] . . .
regulations . . . that are necessary and appropriate for the effective administration of th[e]
chapter” that contemplates community action agencies.
The Department’s Regulation 100765 provides: “Any person who wishes to
inspect or copy records regularly maintained by a grantee may do so after making a
request. Information and records will be made available to the requestor in accordance
with the Freedom of Information Act (5 U.S.C. 552), except for information and records
which are exempt from the requirements of disclosure pursuant to the Federal Privacy
Act of 1974, as amended.” (Italics added.)
45 Code of Federal Regulations part 75.364(a) provides, in relevant part:
“Records of non-Federal entities. The [U.S. Department of Health & Human Services]
awarding agency . . . and the pass-through entity, or any of their authorized
representatives, must have the right of access to any documents, papers, or other records
of the non-Federal entity which are pertinent to the Federal award, in order to make
audits, examinations, excerpts, and transcripts.” (Italics added.)
45 Code of Federal Regulations part 75.364(c) provides, in relevant part:
“Expiration of right of access. . . . HHS awarding agencies and pass-through entities
must not impose any other access requirements upon non-Federal entities.” (Italics
added.)
21
B. Analysis
As an initial matter, we note the superior court’s ruling that CAA “is a public
entity subject to . . . [FOIA]” does not reference Regulation 100765, though Bussey did
invoke it in her July 2019 petition. We also note the superior court premised its ruling
that CAA is “subject to” FOIA on “the factual situation” presented.
The superior court’s reasoning was mistaken, as FOIA applies only to federal
agencies, not state or local agencies. (Grand Central Partnership, supra, 166 F.3d at
p. 484; Rahim, supra, 159 N.E.3d at p. 697.) But we review the superior court’s ruling,
not its reasoning. (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions,
Inc. (2021) 59 Cal.App.5th 995, 1002.)
In addition to the incorrect contention that CAA is subject to FOIA, Bussey argues
the superior court’s order that CAA produce records Bussey requested on April 12, 2019,
was proper because “it is clear that, when the drafters of [Regulation] 100765 imposed
transparency obligation on ‘grantees’ they were referring to community action agencies
like [p]etitioner.”
CAA contends an interpretation of Regulation 100765 that requires public access
to the records Bussey seeks: (1) would “exceed[ ] the Department’s regulatory authority”
and (2) “conflict with” 45 Code of Federal Regulations part 75.364, as “only those
records that CAAs are required to maintain as a ‘grantee,’ . . . are subject to public
disclosure.”
The Department agrees with CAA that the federal regulation “logically bars a state
pass-through entity, like [the Department], from using its regulatory authority to
promulgate rules that afford public access under FOIA to documents held by a sub-
grantee where those documents are not ‘pertinent to’ ” a federal grant.
Because we believe the Department is “ ‘intimately familiar’ ” with its own
Regulation 100765 and “ ‘sensitive to the practical implications of one interpretation over
another,’ ” (Yamaha, supra, 19 Cal.4th at p. 12) we defer to the Department’s reasonable
22
interpretation, and conclude Regulation 100765 does not contemplate a general right of
public access to all records of “grantees” like CAA.14 (Cf. Ortega v. Johnson (2020)
57 Cal.App.5th 552, 564 [considering a state agency’s argument “that if appellants’
interpretation of the plain language of” the agency’s manual of policies and procedures
was “correct, [the agency’s] regulation [was] not legal”].)
Bussey’s contention that “the drafters of [Regulation] 100765 . . . were referring to
community action agencies like [p]etitioner” when they “imposed transparency
obligation on ‘grantees,’ ” misperceives the relevant inquiry. The question—vis-à-vis
Regulation 100765—is not “to whom was the Department referring?” but “to which
‘records regularly maintained by a grantee’ was the Department referring?” The
Department’s interpretation that it was referring only to records “pertinent to” a federal
grant is persuasive, especially in light of 45 Code of Federal Regulations part 75.364(a)’s
language contemplating “access” to documents “of the non-Federal entity which are
pertinent to the Federal award” and 45 Code of Federal Regulations part 75.364(c)’s
language prohibiting imposition of “any other access requirements upon non-Federal
entities.” (Italics added.)
To the extent the superior court ruled that Regulation 10075 requires CAA to
provide public access to all of its records generally, that ruling was error.
14 In light of this conclusion, we need not consider CAA’s contention that Bussey’s
interpretation of Regulation 100765, if correct, would be beyond the scope of the
Department’s regulatory authority, and therefore invalid.
23
DISPOSITION
CAA’s petition for writ of mandate is granted. Let a peremptory writ of mandate
issue directing the superior court to vacate its order of November 9, 2020, that CAA
produce records requested by Bussey on April 12, 2019. The order to show cause is
discharged and the stay issued by this court on December 8, 2020, is vacated upon
finality of this opinion.
The superior court may schedule further proceedings to consider the merits of
Bussey’s petition for writ of mandate in Butte County Superior Court case
No. 19CV02159 in light of, and consistent with, the reasoning in this opinion.
CAA shall recover its costs in this proceeding. (Cal. Rules of Court, rule 8.493.)
/s/
RAYE, P.J.
We concur:
/s/
DUARTE, J.
/s/
HOCH, J.
24