CALL TO ARMS

Earlier this week, FAP Founder, James Wheaton sent the following call to arms letter to over 20 nonprofit news outlets and independent investigative journalists in the Bay area. Join us as we continue to “write, fight, reveal, inspire, investigate, speak, march, shout!”

Click here to download the letter.

FAP Files Public Records Act Case with U.C. Berkeley School of Law

On May 27, 2016, FAP, along with the Environmental Law Clinic at the U.C. Berkeley School of Law, filed a lawsuit against the California Department of Public Health (“CDPH”) for violation of the California Public Records Act (“CPRA”). The suit alleges that, despite repeated requests by plaintiff and petitioner Dr. Joel Moskowitz, CDPH has improperly refused to disclose a public record(s) discussing the health risks associated with cell phone use. Dr. Moskowitz is Director of the Center for Family and Community Health at the University of California, Berkeley, School of Public Health.

The telecommunications industry estimates that there are more than 300 million cell phone users in the United States. Given the ubiquity of cell phone use, any adverse health effects associated with it would represent a widespread public health threat. Since at least 2014, the Centers for Disease Control have been issuing guidance regarding the health effects of cell phones. Moreover, 220 scientists have joined in an international appeal to the United Nations and the World Health Organization to call for greater protection from non-ionizing electromagnetic field exposures from cell phones and to call for greater public disclosure of risks. The public has a compelling interest in evaluating how the Department is responding to a potential health risk to which millions of Californians are exposed.

The lawsuit requests a writ of mandate directing CDPH to release the record(s) requested. Additionally, it seeks a declaration that the requested document(s) is a public record not exempt from disclosure under the CPRA.

Read the Verified Petition for Writ of Mandate and Complaint for Declaratory Relief Under Government Code Sections 6258 and 6259 here.

FAP Files Amicus Brief in the California Supreme Court In Support of the Release of ALPR Data from the LAPD and LA Sheriff’s Dept.

On May 4, 2016, FAP filed an amicus curiae brief on behalf of the Northern California Chapter of the Society of Professional Journalists (Nor. Cal. SPJ) in support of the American Civil Liberties Union of Southern California and the Electronic Frontier Foundation’s petition to the Supreme Court requesting that it reverse the Court of Appeal and hold that Automated License Plate Readers (“ALPR”) data are not “[r]ecords of … investigations…” within the meaning of Government Code § 6254(f), and therefore, not exempt from disclosure under the California Public Records Act, § 6250 et seq.

Read the brief here.

FAP Successfully Intervenes in Reverse-CPRA Actions on Behalf of Environmental Organization

On February 4, 2016, the First Amendment Project, representing the Environmental Law Foundation (“ELF”), successfully intervened in two lawsuits brought by a handful of Monterey County corporate farming operations. The lawsuits seek a preliminary and permanent injunction preventing the Central Coast Regional Water Quality Control Board from releasing public records to ELF that report, among other things, the amount of nitrate used in fertilizer and irrigated water in the region. These documents are called Total Nitrogen Applied (TNA) forms and ELF requested them pursuant to the California Public Records Act, Government Code section 6250 et seq.

Fertilizer from irrigated agriculture is the primary source of nitrate pollution in drinking water wells in the Central Coast Region. It threatens hundreds of wells and thousands of people. In an effort to monitor and combat nitrate pollution, the Water Quality Control Board requires certain agricultural operations that have a high risk of nitrate loading to submit TNA forms.

The plaintiffs in Rava Ranches, Inc. v. Cal. Regional Water Bd., Case No. 16-cv-000255 and Triangle Farms, Inc. v. Cal. Regional Water Bd., Case No. 16-cv-000257,  claim that the information contained in their TNA forms contain trade secrets or are “crop reports” exempt from disclosure under the Public Records Act. The Water Quality Control Board disagrees, and has released hundreds of TNA forms to ELF in response to its request. In fact, the only TNA forms that have not been released to ELF are those submitted by the plaintiffs in above mentioned actions.

A hearing on plaintiffs’ motion for a preliminary injunction in both cases is set for March 4, 2016.

FAP Urges California Supreme Court to Hear ALPR Case

On June 15, 2015, the American Civil Liberties Union of Southern California (ACLU-SC) and the Electronic Frontier Foundation (EFF) filed a Petition for Review in the California Supreme Court. The Petition comes after the Court of Appeal affirmed a Los Angeles Superior Court’s ruling that one week of Automated License Plate Readers (ALPRs) data is exempt from disclosure under the California Public Records Act, Cal. Gov. Code § 6250, et seq.

ALPRs are cameras, often mounted on police cars or fixed objects like light poles, that automatically and indiscriminately capture an image of every license plate that comes into view. ALPRs also record the time, date, and location of every car.

ALPR data is often compared against a list of plates for wanted vehicles, and the accumulated data can be searched by police in future investigations to identify past movements of drivers. One ALPR camera is capable of logging thousands of plates per hour. Because of the frequency of the scans, and the detail recorded, ALPR data can be used to track where ordinary citizens have been and, thus, where they are likely to go.

In order to understand and educate the public on the risks to privacy posed by ALPRs in Los Angeles, ACLU-SC and EFF sought documents from the Los Angeles Police Department (LAPD) and the Los Angeles Sheriff’s Department (LASD) related to ALPR use, including one week’s worth of data, pursuant to the California Public Records Act, Government Code section 6250 et seq. After LAPD and LASD denied their request, ACLU-SC and EFF filed a Petition for Writ of Mandate in Los Angeles Superior Court. Their petition was denied and they sought relief in the Court of Appeal, with the help of FAP and others writing amicus briefs in support of releasing the data. The appellate court upheld the Superior Court, and now, the ACLU-SC and EFF have petitioned the California Supreme Court to review the following issues:

(1) Does data collected by police using Automated License Plate Readers (ALPRs), that automatically and indiscriminately scan and record the license plate numbers and time, date and location of every passing vehicle without suspicion of criminal activity, constitute “records of …. investigations” that are exempt from the Public Records Act, Government Code section 6254(f)?;and (2) Does Prop 59 – the 2004 amendment to the California Constitution requiring “[a] statute, court rule, or other authority … be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access” – require a more narrow interpretation of of the “records of …. investigations” exemption than was applied in the by the Court of Appeal and the Los Angeles Police Department and Los Angeles Sheriff’s Department in denying ACLU-SC and EFF’s public records request for ALPR data?

FAP, on behalf of the Society of Professional Journalists, Northern California Chapter, filed a letter in support of the petition and urged the Court to grant review of these important issues concerning transparency around the government’s mass surveillance and collection of data on all citizens, regardless of any suspicion of criminal wrongdoing. On July 29, 2015, the Supreme Court granted the petition.

FAP Files Lawsuit to Compel Release of Public Documents Showing Groundwater Pollution Data

On May 8, 2015, the First Amendment Amendment Project filed a lawsuit with the Environmental Law Foundation (ELF) and California Rural Legal Assistance, Inc. (CRLA) on behalf of ELF, a nonprofit organization, and Carmen Zamora, a resident of rural Monterey County. The lawsuit seeks to end the Central Coast Regional Water Quality Control Board’s policy of allowing certain growers to keep groundwater pollution data secret.

Nitrate pollution from irrigated farmland is the preeminent threat to drinking water in the region. Small farmworker communities who rely on groundwater for their drinking water bear the brunt of this pollution and are most vulnerable to its effects, which include birth defects, cancer, thyroid, spleen, and kidney disease, and potentially deadly “blue baby syndrome.” To protect them and the public, the Regional Water Quality Control Board mandates and oversees monitoring of groundwater wells for nitrate pollution, notification of affected water users,and compliance reporting from dischargers.

Documentation regarding well monitoring data, notification and compliance, are considered “public records” and released for certain growers upon request by the public. However, those same records are no longer considered public and, therefore released, for members belonging to a private coalition of growers. For growers who have paid to belong to this private coalition, their data is kept secret.

On May 8, 2015, FAP, ELF, and CRLA filed a Writ of Mandate and Complaint for Declaratory Relief in San Louis Obispo Superior Court against the Regional Water Quality Control Board, alleging violations of the Porter-Cologne Water Quality Control Act, Water Code § 13000 et seq. and the California Public Records Act, Government Code § 6250 et seq.

The Verified Writ of Mandate, filed May 8, 2015, is here.
A Press Release is here.

FAP Secures Victory for Environmental Non-Profit Organizations in SLAPP Suit

A San Diego County Superior Court Judge dismissed a lawsuit brought by real estate developers challenging a general plan update and zoning changes that, according to plaintiffs, significantly devalued their property investment. In a shotgun lawsuit, plaintiffs sued the County of San Diego, the Board of Supervisors, three environmental nonprofit organizations, and a few individuals with ties to both the nonprofit organizations and the County.

FAP represented the nonprofit organizations – The Protect Our Communities Foundation, Endangered Habitats League, and Endangered Habitats Conservancy, as well as the President of one of those organizations. The plaintiffs claimed that the nonprofit Defendants engaged in a “conspiracy” to litigate environmental actions and advocate for land use and energy alternatives, amounting to Intentional Interference with Prospective Business Advantage.

FAP filed a Special Motion to Strike (C.C.P. § 425.16) and successfully argued that plaintiffs’ claims arose out of legally protected activity, i.e., the right to engage in petitioning activity and to make statements in public forums in connection with an issue of public interest. The court also agreed with FAP that plaintiffs could not establish that they would prevail on the merits of their claims. As a result, FAPs clients were dismissed from the suit.

FAP Files Amicus Brief in Support of ACLU and EFF’s Appeal Seeking License Plate Reader Data from the LAPD and LA Sheriff’s Dept.

The American Civil Liberties Union of Southern California (ACLU-SC) and Electronic Frontier Foundation (EFF) each sent California Public Records Act requests to the Los Angeles Police Department and the Los Angeles County Sheriff’s Department for Automated License Plate Reader (ALPR) data. ALPRs are cameras, often mounted on police cars or fixed objects like light poles, that automatically and indiscriminately capture an image of every license plate that comes into view. ALPRs also record the time, date, and location of every car.

ALPR data is often compared against a list of plates for wanted vehicles, and the accumulated data can be searched by police in future investigations to identify past movements of drivers. One ALPR camera is capable of logging thousands of plates per hour. Each week in Los Angeles alone, the LAPD and Sheriff’s Department collect license plate and location information on vehicles nearly 3 million times. Together, these agencies average 66 hits for each of the approximately 7.6 million registered vehicles in LA. This data is maintained for years. Because of the frequency of the scans, and the detail recorded, ALPR data can be used to track where ordinary citizens have been and, thus, where they are likely to go.

In order to understand and educate the public on the risks to privacy posed by ALPRs in Los Angeles, ACLU-SC and EFF sought documents related to ALPR use, including one week’s worth of data. The LAPD and Sheriff’s Department denied the request for the ALPR data, claiming that such information was exempt from the Public Records Act because it was either an investigatory record or part of an investigatory file (Government Code section 6254(f)), privileged “official information” (Government Code section 6254(k)); and because the public interest in not disclosing the records “clearly outweighs the public interest served by disclosure.”

On May 6, 2013, ACLU-SC and EFF filed a Verified Petition for Writ of Mandate and Writ of Mandate Ordering Compliance with the California Public Records Act that was denied by the Superior Court.

ACLU-SC and EFF appealed that decision. FAP, on behalf of the Northern California Chapter of the Society of Professional Journalists (Nor Cal SPJ), filed an amicus brief in support of the release of the records. FAP argued that the mass, indiscriminate collection of license plate data, recording the location, movements, and behavior of ordinary citizens, implicates serious state and federal constitutional concerns. The extent of this secret surveillance is so far-reaching, and the potential for abuse so great, that the chilling effect is enormous on the rights to free speech, a free press, the right to association,and the attendant right to anonymity.

Reporters Committee for Freedom of the Press, Los Angeles Times, California Newspaper Publishers Association, Californians Aware, and the McClatchy Company also filed an amicus brief.

Read FAP’s amicus brief here.
More information on the case can be found on EFF’s website.

FAP and EFF File Amici Curiae Brief Urging Release of Body Camera Footage

The First Amendment Project, on behalf of the Northern California Chapter of the Society of Professional Journalists, and the Electronic Frontier Foundation, joined together to file an amici curiae brief to oppose a Motion for Protective Order brought by the San Francisco District Attorney’s Office, prohibiting the release of  dashboard camera footage from a patrol vehicle (“dash cam”) of an arrest on a public street in San Francisco, CA.

In People v. Williams, a routine case involving a DUI, the DA argued that the dash cam video (or any screen shot from it) should be banned from being “publicly exhibited, shown, displayed, published or used in any fashion” except in the Williams case itself, or “given, loaned, sold, or shown to any member or associate of the media, or otherwise published to any website, whether public or private, or any third party …” The DA further sought to put drastic new limits on the Public Defender’s access to the video, including barring the defense from showing it to witnesses outside of the courtroom, in connection with this case or others, duplicating it for internal use, or retaining it for post-conviction litigation. The DA’s justifications for the order relied on generic assertions that the video “might contain” confidential information. Most troubling, this was a “test case” for the DA’s office who intended to seek identical protective orders in every case with dash cam footage.

FAP and EFF filed an amici curiae brief in San Francisco Superior Court on behalf of the Defendant and in opposition to the protective order. FAP argued that the State had not made the particularized showing of harm necessary to obtain an order blocking the release of the footage, or put forth any compelling reasons for such an overbroad demand for secrecy in a video of a public official, performing public duties, in a public place. FAP also filed an amicus curiae brief in support of the defendant’s writ of mandate in the Appellate Division of the Superior Court.

Click here for FAP and EFF’s Memorandum of Points and Authorities in Opposition to the State of California’s Motion for Protective Order.
Click here for FAP’s Memorandum of Points and Authorities in Support of Petitioner William’s Petition for Writ of Mandate.

First Amendment Project leader David Greene to join Holme, Roberts and Owen media practice group

The First Amendment Project has announced that its Executive Director and Staff Counsel David Greene has accepted a position with the San Francisco office of law firm Holme, Roberts & Owen, effective August 1. Mr. Greene will be a Senior Counsel at the firm and work in the firm’s Media, Entertainment and Advertising practice group. “David is one of the finest First Amendment lawyers in the country,” said FAP Chairman Clinton Fein. “We’re thrilled for him and the new opportunity this gives him to continue to advance the causes that he has led throughout his career, for freedom of expression and information, and to work for the journalistic and artistic communities.” Mr. Greene has been with the organization as staff counsel and Executive Director since 1999.

The First Amendment Project is a non-profit organization that provides legal advice and representation for journalists, activists and artists. Its website calls it “the only nonprofit organization in the country dedicated to providing free legal representation exclusively on free speech and free press issues.”

Founded in 1991, it specializes in Freedom of Information, Public Records, open government, artistic and advocacy expression and defense of what are known as “SLAPP suits,” or lawsuits filed against people for speaking out on matters of public interest. FAP and Greene have received numerous local and national awards for their legal advocacy.

Greene will continue to play a major role with the FAP. He will remain as Executive Director on a volunteer basis while FAP undergoes a planning process for his successor. Greene will also continue his involvement in FAP’s caseload, as several clients are expected to ask the HRO firm to join as co-counsel in cases he has worked on at FAP. Discussions regarding for which clients and cases HRO will serve as co-counsel are ongoing. FAP Founder and Senior Counsel James Wheaton, assisted by Law Fellow Lowell Chow, will continue to oversee all of FAP’s cases, regardless of whether HRO joins as co-counsel.

“This continues to be a vital time for First Amendment rights,” said Fein,” and FAP’s work will go on.” Fein noted that although the organization will begin looking for a new Executive Director, “it will also take this occasion in its 20th anniversary year to step back, survey the landscape for what FAP has done well, new freedom of expression challenges emerging as a result of rapidly developing telecommunications technologies, where FAP could expand its services and how it can best continue to serve its constituent groups. We’ll take the next few months to invite all of FAP’s supporters and constituencies to think and give us feedback on how we can best position FAP for the next two decades.”