Filed 1/22/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

CYNTHIA ANDERSON-BARKER,

Petitioner,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

 Respondent;

CITY OF LOS ANGELES,

Real Party in Interest.

 B285391

 (Los Angeles County

 Super. Ct. No. BS156058)

ORIGINAL PROCEEDINGS in mandate. Amy D. Hogue, 

Judge. Petition for writ of mandate denied.

Donald Cook for Petitioner.

No appearance for Respondent.

Michael Feuer, City Attorney, Blithe S. Bock, Assistant 

City Attorney, Wendy Shapero, Deputy City Attorneys, for Real 

Party in Interest.

_________________________
2

Petitioner Cynthia Anderson-Barker filed a petition under 

the California Public Records Act (Gov. Code, §§ 6250, et seq., 

(CPRA)) to compel the City of Los Angeles to disclose 

electronically-stored data relating to vehicles that private towing 

companies had impounded at the direction of the Los Angeles 

Police Department. The City argued the CPRA was inapplicable 

because it did not possess or control the requested data. The trial 

court agreed, and denied the petition. 

Anderson-Barker filed a petition for writ of mandate 

seeking an order directing the trial court to vacate its order, and 

enter a new order directing the City to produce the data. We 

issued an order to show cause, and now deny the petition. 

FACTUAL BACKGROUND

A. Background Facts 

The Los Angeles Police Department (LAPD) uses privatelyowned companies to tow and store impounded vehicles.1 These 

tow companies are referred to as “Official Police Garages” 

(OPGs), and perform their services pursuant to written contracts 

with the City of Los Angeles. Although the City contracts 

separately with each OPG, the terms of the contracts are 

materially identical, except with respect to the covered service 

area. 

When a LAPD officer needs to impound a vehicle, he or she 

contacts an OPG to tow and store the vehicle. The LAPD officer 

is required to prepare a “CHP 180 form” that documents the 

 

1 These undisputed “Background Facts” are based in part on 

the factual summary set forth in City of Los Angeles v. Superior 

Court (2017) 9 Cal.App.5th 272 (City of Los Angeles), a prior writ 

proceeding in this case that addressed an order compelling the 

City to respond to Anderson-Barker’s discovery requests. 
3

vehicle seizure. The officer and the OPG each retain a portion of 

the CHP 180 form. The OPG then enters information regarding 

the impoundment into a database known as the “Vehicle 

Information Impound Center” (VIIC). The VIIC resides on a 

server that is owned and maintained by the “Official Police 

Garage Association of Los Angles” (OPGLA), a private 

organization comprised of OPGs. OPGLA provides public access 

to certain information on the VIIC through a web-based portal. 

The impounding OPG also scans a portion of each CHP 180 form 

into “Laserfiche,” a database that is owned and maintained by an 

independent document storage company OPGLA contracts with 

to store OPG-related documents. 

Sections 9.3 and 9.4 of the OPG contracts require each OPG 

to “provide timely information to the VIIC,” and to “participate in 

the [Laserfiche] System maintained by the OPGLA.” However, 

the contracts do not specify what information the OPG should put 

into the VIIC or what documents it should scan into Laserfiche.

Section 14.3 of the OPG contracts sets forth various 

requirements about the retention and inspection of “records 

generated or kept by the OPG” regarding its City towing services. 

The section provides that all such records are “subject to periodic 

inspection by [the City],” and that “all data and records . . . 

related to the towing or storage services provided under [the] 

Agreement” must be “made available without notice, [24 hours-aday].” Section 14.3 also prohibits OPGs from “interfer[ing] with, 

prevent[ing] or refus[ing] to permit concerned law enforcement 

personnel . . . to make an examination, inspection or copy of any 

record kept by the OPG.” 

Each OPG contract is subject to the “Standard Provisions 

for City Contracts” (“SPCC”), a series of standardized provisions 
4

that are generally incorporated into any contract the City enters 

into with a third party. SPCC section 23, entitled “Ownership 

and License,” provides in relevant part: “Unless otherwise 

provided for herein, all Work Product originated and prepared by 

CONTRACTOR . . . under this Contract shall be and remain the 

exclusive property of the City for its use in any manner it deems 

appropriate.” SPCC section 23 defines the term “Work Product” 

to include (among other things) “all works, tangible or not, 

created under this Contract including, without limitation, 

documents, material, data reports, . . . computer programs, and 

databases . . . and all forms of intellectual property.” 

B. Prior Litigation Seeking Disclosure of VIIC and 

Laserfiche Data

On March 10, 2014, Colleen Flynn submitted a written 

request to the LAPD seeking all data “recorded in [the VIIC] 

database,” and “[a]ll documents as scanned into Laserfiche 

regarding vehicle seizures. . . .” Although Flynn’s request 

acknowledged the VIIC data and Laserfiche scans were “stored in 

systems maintained by [OPGLA],” she asserted that the 

materials qualified as “public records” because the City’s 

contracts with the OPGs provided it the right to “access and 

possess” the materials. 

The LAPD declined Flynn’s request, explaining that the 

materials she had requested did not qualify as “public records” 

because it did not own or maintain the computer systems that 

stored the VIIC and Laserfiche databases. Although the LAPD 

admitted it had authority to “access” those materials, it asserted 

that such access did not qualify as “ownership” of those 

materials, or otherwise transform the materials into public 

records. The LAPD further asserted that even if the requested 
5

information qualified as a public record, it was subject to 

numerous exemptions set forth in the CPRA.

On March 27, 2014, Flynn filed a petition for writ of 

mandate pursuant to Government Code section 62582 seeking to 

compel the City of Los Angeles to disclose the VIIC and 

Laserfiche data. (See Flynn v. Superior Court, Superior Court 

Case No. BS147850 (Flynn).) In her supporting legal 

memorandum, Flynn argued that the language in SPCC section 

23 established that the City owned all the data and documents 

each OPG had generated pursuant to its written agreement, 

which included all VIIC and Laserfiche data. The City, however, 

argued that section 14.3 of the OPG contract clarified that the 

OPG was to “retain . . . the VIIC and Laserfiche records,” and set 

forth the conditions under which the OPG was required to 

provide those records to the City. In the City’s view, section 

14.3’s retention and access requirements demonstrated that it did 

not actually own the materials.

The trial court agreed with the City, explaining that SPCC 

section 23 included language clarifying that the provision applied 

“‘unless otherwise provided for’ in the OPG contract.” The court 

concluded that “[section] 14.3 [of the OPG contract] meets the 

‘otherwise provided for’ requirement, thereby negating [the 

ownership provision set forth in the [SPCC] attachment 

provision].” The court also noted that the OPG contracts 

described the circumstances under which the City could access 

the VIIC and Laserfiche data, which would have been 

unnecessary if the City owned those materials. 

 

2 Unless otherwise noted, all further statutory citations are 

to the Government Code.
6

Flynn filed a petition for writ of mandate seeking 

immediate review of the trial court’s order. (See § 6259, subd. 

(c).) On February 20, 2015, Division One of this District denied 

the petition. Flynn then filed a petition for review in the 

California Supreme Court, which the Court denied.

After the Flynn matter concluded, the City amended its 

OPC contracts to include the following language: 

“Notwithstanding the Standard Provisions for City Contracts, the 

OPG VIIC and the data contained therein is owned by the OPG of 

Los Angeles.” The City added identical language regarding any 

data and documents stored in Laserfiche. 

C. Summary of Anderson-Barker’s CPRA Action 

1. Anderson-Barker’s CPRA petition and the City’s prior 

petition for writ of mandate 

On June 4, 2015, petitioner in the current action, Cynthia 

Anderson-Barker, submitted a request to the LAPD seeking 

disclosure of a subcategory of the data Flynn had previously 

sought. Specifically, Anderson-Barker requested the LAPD to 

disclose: (1) “All data recorded in [the VIIC] database, for any 

vehicle seized at LAPD direction at any time from June 1, 2010 to 

the present, for which a CHP 180 form was prepared”; and (2) 

“All CHP 180 forms for any vehicle seized at LAPD direction at 

any time from June 1, 2010 to the present, for which a CHP 180 

was prepared. This includes, but is not limited to documents that 

are indexed in Laserfiche. . . .” 

In response, the LAPD informed Anderson-Barker it would 

“respond to [the] portion of [her] request” that sought copies of 

CHP 180 forms located in the LAPD’s investigative files. The 

LAPD declined, however, to provide any VIIC or Laserfiche data, 

explaining that OPGLA and the OPGs owned and maintained 
7

those materials. The LAPD further explained that “the issue of 

whether the information in the VIIC database and the documents 

in the Laserfiche system constituted ‘public records’ under the 

CPRA [had been] vigorously litigated in [the Flynn action].” The 

LAPD noted that after receiving extensive evidence and briefing, 

the trial court in Flynn had ruled that the requested materials 

were not subject to the CPRA’s disclosure requirements, and that 

the California Court of Appeal had denied a petition for writ of 

mandate seeking reversal of that decision.

On June 18, 2015, Anderson-Barker, represented by the 

same attorney who had represented Deborah Flynn (Donald 

Cook),3 filed a petition for writ of mandate pursuant to section 

6258 seeking to compel the City to disclose the VIIC and 

Laserfiche data. The petition asserted that the City’s “claim that 

it does not ‘own’ the requested public records is false, and [the 

City] knows its claim is false.” According to the petition, the 

written contracts between the City and the OPGs made clear that 

the data belonged to the City, rather than the OPGs or OPGLA. 

After the City filed its answer to the petition, AndersonBarker propounded discovery on the City seeking information 

related to its claim that it did not own the VIIC and Laserfiche 

data. The City objected to each request on the basis that the 

Civil Discovery Act did not apply to CPRA proceedings. 

Anderson-Barker filed a motion to compel responses to her 

 

3 As discussed in more detail below, petitioner AndersonBarker, Cook and Flynn are all attorneys who share the same 

business address. Cook has litigated a series of actions against 

“California law enforcement agencies over their respective 

impoundment practices. . . .” (County of Los Angeles v. Superior 

Court (2015) 242 Cal.App.4th 475, 479.)
8

discovery arguing that the Civil Discovery Act did apply, and that 

the City had waived any further objections to the requests. The 

trial court agreed, and ordered the City to respond to the 

discovery without further objection. The City filed a petition for 

writ of mandate in this court seeking an order directing the trial 

court to vacate its order, and enter a new order denying the 

petitioner’s motion to compel. We granted the petition in part. 

Although we agreed that the Civil Discovery Act applied to CPRA 

proceedings, we vacated the portion of the trial court’s ruling 

concluding that the City had waived all further objections. (See 

City of Los Angeles, supra, 9 Cal.App.5th 272.) 

2. The parties’ briefings regarding Anderson-Barker’s 

CPRA petition

Following our ruling, Anderson-Barker proceeded with 

discovery and then filed a memorandum in support of her CPRA 

petition. The memorandum argued that the VIIC and Laserfiche 

data were subject to disclosure under the CPRA because the OPG 

contracts provided the City “unfettered access” to that data.4 

Anderson-Barker also noted that in a separate CPRA action she 

had initiated against the California Department of 

Transportation (DOT) (Superior Court Case No. BS159845),5 the 

trial court had found that the City did have possession of the 

 

4 Anderson-Barker’s memorandum also sought production of 

all CHP 180 forms the LAPD had stored in a document retention 

system known as “Documentum.” The trial court found this 

request was overly burdensome. Anderson-Barker’s petition for 

writ of mandate does not challenge that portion of the trial 

court’s ruling. 

5 Anderson-Barker filed Case No. BS159845 against the DOT 

while the City’s petition for writ of mandate challenging the trial 

court’s discovery order was pending before this court.
9

VIIC database, and ordered the data disclosed. Anderson-Barker 

asserted that there was no basis for the trial court to depart from 

that ruling in this case. 

The City, however, argued that the VIIC and Laserfiche 

data were not subject to disclosure because the City did not have 

actual or constructive possession of the data. The City contended 

that to establish possession, Anderson-Barker had to show it had 

a right to control the data in question; the mere fact that it had a 

right to access the data was insufficient. The City also argued 

that Anderson-Barker was collaterally-estopped from pursuing 

her CPRA petition based on the prior ruling in the Flynn

proceeding. The City asserted that Anderson-Barker was in 

privity with Flynn because they shared the same office space, 

used the same attorney (Donald Cook) and had both worked with 

Cook on similar CPRA actions.

The City also argued the court should not follow the ruling 

it had made regarding the VIIC data in Case No. BS159845. 

According to the City, the attorney who defended the DOT in that 

case had failed to bring the Flynn action to the court’s attention, 

and had not submitted any “evidence on the underlying 

substantive issues regarding the disclosability of the [VIIC] 

data.” The City also noted that it had been unable to comply with 

the disclosure order issued in that case because OPGLA refused 

to provide the VIIC data. Anderson-Barker, in turn, had never 

sought to enforce the order.

In support of its opposition, the City provided a declaration 

from LAPD Detective Benjamin Jones, who served as the LAPD’s 

“OPG Coordinator.” Jones’s declaration explained that section 

14.3 of the OPG contract showed that the OPGs’ only 

requirements regarding their towing records was to “retain[] the 
10

records and mak[e] them available for inspection and audit upon 

request.”6 Jones further explained that while sections 9.3 and 

9.4 of the OPG contract required each OPG to utilize the VIIC 

and Laserfiche databases, the contract did not require the OPG 

to “input any specific information into VIIC,” or to “store any 

specific documents in the Laserfiche system.” As a result, “each 

OPG [is left to] decide[] what information regarding its vehicle 

towing and storage services it inputs into VIIC,” and “which 

documents it stores in the Laserfiche system.”

Jones declaration further explained that although the 

LAPD had “internet access to the VIIC database and . . . 

Laserfiche system,” these databases were not stored on City 

servers, and City personnel had no “authority to modify (add to or 

delete from) any of the information in VIIC or any electronic 

records in Laserfiche. Nor do any City personnel have any 

control over the contents of either of those databases.” Finally, 

Jones noted that the City had never actually accessed “most of 

the electronic data in VIIC and . . . Laserfiche.” According to 

Jones, the City had used “a very limited portion of the VIIC” to 

ensure compliance with the OPG contracts, and had no reason to 

access the “Laserfiche database” because the LAPD retained its 

own copies of the CHP 180 forms. 

 

6 Jones also asserted that the City had always interpreted 

section 14.3 as assigning ownership of all “the records generated 

and maintained by the OPGs, including the information in VIIC 

and the documents stored in Laserfiche, . . . to the tow company.” 

Jones further asserted that the language the City had added to 

the OPG contracts in 2014, which expressly assigned ownership 

of this data to the OPGs, was only intended to “confirm the 

parties’ historical understanding of the OPG contract.” 
11

The City also provided a declaration from Gary Minzer, the 

president of OPGLA and the owner of an OPG. Minzer explained 

that, as required under section 14.3 of the OPG contracts, each 

OPG kept and maintained its own records regarding towing 

services, and made them available to the City for “audit purposes 

upon requests.”7 Minzer further asserted that the VIIC was 

“privately owned and operated by OPGLA,” and “stored on 

computer systems which are maintained by the OPGLA.” Minzer 

described “Laserfiche” as a “data storage company” that OPGs 

use “pursuant to a license . . . to scan and store electronic records 

pertaining to a vehicle impound. The electronic records reside in 

Laserfiche’s private data storage center.” As in Jones’s 

declaration, Minzer asserted that each OPG was responsible for 

deciding what information to put into the VIIC and Laserfiche 

databases, and that the City had no authority or ability to alter 

any of the data or records stored on those systems.

3. The trial court’s ruling

The trial court denied Anderson-Barker’s petition, 

concluding that the City did not have a duty to disclose the 

requested data because the evidence showed it did not “possess or 

control the VIIC or Laserfiche records.” In support of its ruling, 

the court cited statements in the Jones and Mizner declarations 

asserting that while the City had “internet access” to the data at 

issue, “it has no physical possession of the data and does not and 

cannot exercise control, i.e., . . . it does not input the data, cannot 

 

7 Like Jones, Minzer also asserted that OPGLA and the 

OPGs had always understood and interpreted section 14.3 of the 

contract to assign ownership of all such records to the OPGs, and 

not to the City. 
12

add or delete data, cannot manipulate the data etc. [Based on 

this evidence,] [t]he Court is not persuaded the City in fact has 

possession or control of the . . . data.”8

The court acknowledged it had reached a different 

conclusion regarding the City’s possession of the VIIC data in 

Case No. BS159845. Although the court did not explain why it 

had changed its ruling in the present case, it did note that 

neither side had “appealed” its prior ruling, and that “no records 

ha[d] been produced [pursuant to that] judgment.”9

Anderson-Barker filed a petition for writ of mandate 

requesting that we direct the trial court to vacate its order, and 

enter a new order compelling the City to produce the VIIC and 

Laserfiche data. In November 2017, we issued an order to show 

cause. 

DISCUSSION

A. Standard of Review 

 

8 The Court also found the City’s evidence established it did 

not own the data in question. As explained below, AndersonBarker’s writ petition does not challenge that finding. 

 

9 As an alternative basis for its ruling, the trial court agreed 

with the City’s contention that Anderson-Barker was collaterally 

estopped from seeking disclosure of the VIIC and Laserfiche data 

based on the order issued in the Flynn action. The court found 

that the ruling in Flynn qualified as a final decision on the 

merits, and that Anderson-Barker was in privity with Colleen 

Flynn. As explained in more detail below, we affirm the trial 

court’s finding that the City did not have a duty to disclose the 

VIIC and Laserfiche data because the evidence established it did 

not possess that data. Accordingly, we need not address the issue 

of collateral estoppel. 
13

“An order of the trial court under the [CPRA] is reviewable 

immediately by petition to the appellate court for issuance of an 

extraordinary writ.” (Consolidated Irrigation v. Superior Court 

(2012) 205 Cal.App.4th 697, 708 (Consolidated Irrigation) [citing 

§ 6259, subd. (c)]; see also Filarsky v. Superior Court (2002) 28 

Cal.4th 419, 426 (Filarsky).) “[W]e . . . conduct an independent 

review of the trial court’s ruling; factual findings made by the 

trial court will be upheld if based on substantial evidence.” 

(Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336 

(Times Mirror); see also Caldecott v. Superior Court (2015) 243 

Cal.App.4th 212, 218 [“We conduct an independent review of an 

order denying a request for documents under the CPRA. 

[Citation.] The trial court’s findings of fact, if any, are reviewed 

using the substantial evidence test”]; Consolidated Irrigation, 

supra, 205 Cal.App.4th at p. 708 [“‘We review de novo the trial 

court’s ruling, but defer to its determination of any express or 

implied factual findings’”].) 

B. Summary of the CPRA 

“The CPRA was modeled on the federal Freedom of 

Information Act (FOIA) (5 U.S.C. § 552 et seq.) and was enacted 

for the purpose of increasing freedom of information by giving 

members of the public access to information in the possession of 

public agencies. [Citation.]” (Filarsky, supra, 28 Cal.4th at pp. 

425-426.) The CPRA requires that, upon request, state and local 

agencies make available for inspection and copying any public 

record “[e]xcept with respect to public records exempt from 

disclosure. . . .”10 (§ 6253, subd. (b); see also § 6253, subd. (c).) 

 

10 Sections 6254-6254.33 and 6255 set forth numerous 

categories of public records that are exempt from disclosure 
14

Section 6252 subdivision (e) defines “public record” to mean “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.”11

Section 6253, subdivision (c) provides that “upon receiving 

a request for a copy of public records, [each agency] shall, within 

10 days determine whether the request seeks public records in 

the possession of the agency that are subject to disclosure. If the 

agency determines that the requested records are not subject to 

disclosure, . . . the agency promptly must notify the person 

making the request and provide the reasons for its 

determination.” (Filarsky, supra, 28 Cal.4th at p. 426.) To 

establish an agency has a duty to disclose under section 6253, 

subdivision (c), the petitioner must show that: (1) the record 

“qualif[ies] as [a] ‘public record[]’” within the meaning of section 

6252, subdivision (e); and (2) the record is “in the possession of 

the agency.” (Consolidated Irrigation, supra, 205 Cal.App.4th at 

p. 708; see also Board of Pilot Commissioners v. Superior Court

(2013) 218 Cal.App.4th 577, 597-598 (Board of Pilot 

Commissioners) [“to prevail [on a CPRA petition, the petitioner] 

 

under the CPRA. (See Times Mirror, supra, 53 Cal.3d at 

p. 1338.) 

11 The term “writing” is defined to include, among other 

things, “handwriting, typewriting, printing, . . . transmitting by 

electronic mail or facsimile, and every other means of recording 

upon any tangible thing any form of communication or 

representation, including letters, words, pictures, sounds, or 

symbols, or combinations thereof, and any record thereby created, 

regardless of the manner in which the record has been stored.” 

(§ 6252, subd. (g).) 
15

must establish that the files (1) qualify as public records and (2) 

were in the possession of the [agency]”].) In the context of the 

CPRA, the term “possession” has been defined to “mean[s] both 

actual and constructive possession.” (Board of Pilot 

Commissioners, supra, 218 Cal.App.4th at p. 598; see also City of 

San Jose, supra, 2 Cal.5th at p. 623.) “‘[A]n agency has 

constructive possession of records if it has the right to control the 

records, either directly or through another person.’ [Citation.]” 

(City of San Jose v. Superior Court (2017) 2 Cal.5th 609, 623 (City 

of San Jose.) 

Whether a record falls within the statutory definition of a 

“public record” involves a “distinct inquiry” from whether the 

agency is in possession of that record. (Regents of University of 

California v. Superior Court (2013) 222 Cal.App.4th 383, 395-401 

[“whether the information falls within the meaning of ‘public 

records’ is not determined by whether [the agency] has or might 

have . . . possession of them”; trial court erred by “incorpor[ating] 

. . . possession into the definition of public records,” thus 

“conflat[ing] two distinct inquiries”]; see also City of San Jose, 

supra, 2 Cal.5th at p. 624 [whether “[a]n agency [has] 

. . . possession of records” is a “separate. . . . question” from 

whether a document “constitute[s] a public record [under section 

6252, subdivision (e)]”].) The duty to disclose applies only when 

the petitioner has satisfied both elements. (Consolidated 

Irrigation, supra, 205 Cal.App.4th at p. 708 [rejecting petitioner’s 

“contention . . . that it need only demonstrate that the files . . . 

were ‘public records’”; “the duty set forth in Government Code 

section 6253, subdivision (c) pertains [only] to ‘disclosable public 

records in the possession of the agency’”].) 
16

C. The City’s Right to Access the VIIC and Laserfiche 

Data Is Insufficient to Establish Constructive 

Possession

In this case, the trial court did not address whether the 

VIIC and Laserfiche data qualify as a form of “public record” 

within the meaning of section 6252, subdivision (e). Instead, the 

court’s ruling focused on the issue of possession, concluding that 

the City does not “possess or control the VIIC or Laserfiche 

records,” and thus has no duty to disclose those records under 

section 6253, subdivision (c). Anderson-Barker disagrees, 

contending that the City has possession of the VIIC and 

Laserfiche data because the OPG contracts provide it “unfettered 

access” to the data. According to Anderson-Barker, this right of 

access is, in itself, sufficient to establish “constructive 

possession.”

12 The City acknowledges it has a contractual right 

to access the data in question, but asserts that merely having 

access to a record is insufficient to establish constructive 

possession. 

1. The right to access records is insufficient to establish 

constructive possession

 

12 In prior CPRA proceedings (and in the original petition to 

compel production that was filed in this case), Anderson-Barker 

and her attorney have argued that the City has constructive 

possession over the VIIC and Laserfiche data because the OPG 

contracts assign ownership of that data to the City. (See 

generally City of San Jose, supra, 2 Cal.5th at p. 623 [a 

contractual right of ownership over a record is sufficient to 

establish constructive possession].) In her current petition for 

writ of mandate, however, Anderson-Barker has not raised that 

argument.
17

Anderson-Barker has cited no legal authority supporting 

the proposition that an agency’s right to access the records of a 

private entity constitutes a form of constructive possession. For 

purposes of the CPRA, the term “constructive possession” means 

“the right to control the records.” (City of San Jose, supra, 2 

Cal.5th at p. 623.) The term “control” is generally defined as “the 

power or authority to manage, direct, or oversee.” (Black’s Law 

Dict. (9th ed. 2009), p. 378.) As the trial court noted in its order, 

the City presented evidence showing that it does not direct what 

information the OPGs place on the VIIC and Laserfiche 

databases, and has no authority to modify the data in any way. 

The mere fact that it can “access” the data does not equate to a 

form of possession or control. To conclude otherwise would 

effectively transform any privately-held information that a state 

or local agency has contracted to access into a disclosable public 

record. Nothing in the text or history of the CPRA suggests it 

was intended to apply so broadly. 

Our conclusion finds support in Forsham v. Harris (1980) 

445 U.S. 169 (Forsham), which rejected a similar argument in the 

context of the FOIA.13 The plaintiff in Forsham sought 

 

13 “It is well-established that because the CPRA ‘was modeled 

on [the FOIA],’ the ‘judicial construction of the FOIA . . . “serve[s] 

to illuminate the interpretation of its California counterpart.” 

[Citation.]’ [Citation.]” (City of Los Angeles, supra, 9 Cal.App.5th 

at p. 290 [citing and quoting Times Mirror, supra, 53 Cal.3d at 

p. 1338]; see also County of Los Angeles v. Superior Court 

(Axelrad) (2000) 82 Cal.App.4th 819, 825 [“the two enactments 

have similar policy objectives and should receive a parallel 

construction”].) As with the CPRA, to prevail on a FOIA claim, 

the plaintiff must show (among other things) that the requested 

record was “in control” of the federal agency “at the time the 
18

disclosure of data that a private research organization had relied 

on in a study funded by a federal grant. Although the research 

organization retained possession of the data, federal regulations 

authorized the agency that had provided the grant “to access the 

data,” and to “obtain permanent custody of the [data] upon 

request.” (Id. at p. 173.) Although the plaintiff acknowledged the 

agency had never actually exercised its right to access or take 

possession of the data, it contended that FOIA extended to “all 

documents created by a private grantee to which the Government 

has access.” (Id. at p. 183.) 

The Supreme Court rejected that interpretation, explaining 

that FOIA only applies to records an agency has “in fact [created] 

or obtain[ed], and not to records which merely could have been

obtained.” (Forsham, supra, 445 U.S. at p. 186 [emphasis in 

original].) The Court further explained that to be disclosable 

under FOIA, the agency must have a “possessory” interest in the 

record at issue, and that “potential access to the grantee’s 

information” was insufficient. (Id. at p. 185.) Although the Court 

acknowledged FOIA might apply once an agency had exercised its 

rights to obtain information from a grantee, disclosure was not 

required “unless and until that right is exercised.” (Id. at p. 181.) 

We believe a similar analysis applies under the CPRA. As 

Forsham suggests, the City might have a duty under the CPRA 

to disclose any data it has actually extracted from the VIIC or 

Laserfiche databases, and then used for a governmental purpose. 

Anderson-Barker’s CPRA request, however, is not limited in such 

a manner. Instead, she seeks disclosure of all information the 

OPGs have entered into the VIIC and Laserfiche databases 

 

FOIA request is made.” (U.S. Dept. of Justice v. Tax Analysts

(1989) 492 U.S. 136, 145.)
19

regarding City-related impoundments based solely on the fact 

that the City has the authority to access that information. We 

agree with Forsham’s analysis, and conclude that, as with the 

FOIA, mere access to privately-held information is not sufficient 

to establish possession or control of that information. 

2. City of San Jose does not address whether access to 

records constitutes a form of constructive possession 

Anderson-Barker, however, argues that the Supreme 

Court’s recent decision in City of San Jose, supra, 2 Cal.5th at 

p. 623, demonstrates that a state agency’s “right to access and 

take possession of [a record or data] makes the data public 

records” regardless of whether the agency “technically ‘own[s]’ 

the records.” The question decided in City of San Jose, however, 

was whether a government employee’s communication regarding 

official business that had been sent from his personal e-mail 

account fell within the definition of a “public record” under 

section 6252, subdivision (e). The agency argued that “a 

document concerning official business is only a public record 

[within the meaning of section 6252, subdivision (e)] if it is 

located on a government agency’s computer servers or in its 

offices.” (Id. at p. 624.) The Court disagreed, holding that a 

government employee communication that “otherwise meet[s] 

[the] CPRA’s definition of ‘public records’ do[es] not lose this 

status because [it is] located in an employee’s personal account. 

A writing retained by a public employee conducting agency 

business has been ‘retained by’ the agency within the meaning of 

section 6252, subdivision (e), even if the writing is retained in the 

employee’s personal account.” (Id. at p. 623.) Nothing in the 

Court’s analysis or holding supports the view that an agency’s 

contractual right to access a private entity’s records qualifies as a 
20

form of “possession” of those records within the meaning of 

section 6253, subdivision (c). Indeed, City of San Jose does not 

even address the issue of possession. 

DISPOSITION

The petition for writ of mandate is denied. The respondent 

shall recover its costs on appeal.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.