Kathleen CONNELL, as Controller, etc., et al., Petitioners, v. The SUPERIOR COURT of Sacramento County, Respondent; ARGENT RESEARCH & RECOVERY, LTD., Real Party In Interest.
After we issued our original decision in this matter, defendant State Controller (“Controller”) petitioned the Supreme Court for review. In addition to the customary claim this court had improperly denied relief, the Controller alternatively prayed for a writ of error coram vobis directing the trial court to consider new facts the Controller had just discovered. Accompanying her petition was her request for judicial notice of these facts. The Supreme Court granted review and transferred the matter to this court “with directions to vacate [the] judgment and to consider whether to treat the petition for review and requests for judicial notice as a petition for [a] writ of error coram vobis.” In compliance with these directions, we have vacated our prior decision and considered the merits of the Controller's filings collectively as a petition for a writ of error coram vobis. We shall deny the petition and reiterate our prior opinion with appropriate modifications.
Plaintiff Argent Research & Recovery, Ltd. (Argent), filed several requests with the Controller for information regarding warrants the Controller had issued to state vendors which remained unpaid. The Controller repeatedly denied Argent's requests. Argent filed a petition for writ of mandate in the trial court to compel the disclosure of these public records. (Gov.Code, § 6258 [undesignated section references will be to this code].) The trial court granted the petition as modified.
The Controller then petitioned this court for an extraordinary writ directing the trial court to set aside its order, and requested a stay. (§ 6259, subd. (c).) We issued an alternative writ and a stay of proceedings pending our plenary review of the matter. We now discharge the writ and dissolve the stay.
Argent is a Massachusetts corporation. It researches public records to find if public entities owe outstanding funds to vendors (other than individuals) for goods and services. It then contacts the payee vendors and offers to act as an agent for the recovery of the funds. Argent's requests for information regarding outstanding funds have been voluntarily honored by 25 states and 4 federal agencies; in West Virginia, Argent enforced its right to the information through litigation affirmed by the West Virginia Supreme Court (Keegan v. Bailey (1994) 191 W.Va. 145, 443 S.E.2d 826.)
Pursuant to the California Public Records Act (“the Act”), section 6250 et seq., Argent made three requests of the Controller for information related to outstanding vendor warrants. (§§ 6251, 6256.) As stated in its third and final request in November 1994, Argent wanted the date, amount, payee, number, and encumbered fund for all vendor warrants issued within four years of the date of the request which were still outstanding.1 Like Saint Peter, the Controller denied the requests three times, asserting the information was not subject to disclosure under the Act. Argent consequently commenced this litigation in December 1994.2
The Controller initially demurred, asserting Argent could not maintain the action because it was not a “person” within the meaning of the Act (§§ 6250; 6252, subd. (c); 6253; 6257; 6258) and because it was not certified to do business in California. After Argent belatedly obtained its certificate to do business, the trial court rejected the Controller's statutory interpretation and overruled the demurrer: “[T]his corporation has done what it had to do in order to maintain [an] action in ․ California. Once it's done that, then it's a person in the eyes of the law.” The court indicated it was inclined to grant the writ without a hearing, but agreed to allow the Controller to answer after counsel represented there was a concern with fraud sufficient to mandate nondisclosure.
The Controller based her opposition to the petition on the catchall provision of section 6255. This statute provides, “The agency shall justify withholding any record by demonstrating ․ that on the facts of the particular case the public interest served by [nondisclosure] ․ clearly outweighs the public interest served by disclosure of the record.” (Emphasis supplied.)
She thus argued the public had an interest in nondisclosure because providing the records would increase the threat of counterfeit warrants and the presentation of false claims. She also analogized to the specific exemption for the investigatory and security files of law enforcement agencies. (§ 6254, subd. (f).) 3 She further relied on the principle that the expense and inconvenience to a public agency in segregating exempt information from nonexempt information was part of the public interest in nondisclosure (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 452–453, 186 Cal.Rptr. 235, 651 P.2d 822 [“ACLU ”] ), arguing the burden of producing a list of vendor warrants was excessive. On the other side of the scale, the Controller denied there was any public interest in disclosure, disparaging Argent's identification of a public interest in government accountability regarding the public fisc. She claimed these records would not illuminate the manner in which her office operated, and disclosure would do no more than echo her own efforts to identify outstanding warrants and issue duplicate payments to the payees.
In support of her arguments, the Controller submitted two declarations. The first was from John Henry, who is the Controller's chief investigator. The Controller established his office in the 1980s in response to complaints by banks, check-cashers, and businesses about forged or counterfeit warrants; many businesses had begun to refuse to cash warrants, which worked a hardship on individual payees who did not maintain checking accounts. He cited individual examples of past instances involving forgery or counterfeiting. In his opinion, if the Controller were forced to provide all the information requested by Argent to any member of the public, a counterfeiter would be able to produce a warrant which the Controller's verification procedures could not detect unless the real payee eventually came forward. Moreover, even if the warrant were not counterfeited, to provide the public with the full extent of information requested by Argent would allow dishonest individuals to present false claims for duplicates of “lost” or “misplaced” warrants. Since forged and counterfeited warrants are charged back when detected to the institution honoring them, an increased problem with fraud could disrupt the Controller's relations with major banks.
The other declaration was by John Larrea, an assistant deputy controller. On the average, the Controller issues 125,000 warrants daily. They appear in a microfiche register in numerical order on the date issued, and the Controller updates the register daily. The Controller also updates daily an “outstanding warrant file” on microfiche. A warrant is considered “outstanding” immediately upon issuance until paid by the State Treasurer or until canceled after four years. As an example, on March 28, 1995, there were 2.1 million warrants in this file. Access to the outstanding warrants file is limited to the employees who update it and their management team. The Controller regularly denies requests such as Argent's. Larrea claimed the five fields of data requested by Argent are not contained in any one file, and the process of omitting individual payees would require a manual search of the microfiche. To assemble these data and delete individual payees would require greater personnel resources than the Controller has available. Larrea also described the Controller's own program to identify outstanding warrants. As initiated in 1990, the program located warrants more than 3 years old in amounts over $3000 in order to issue duplicate warrants to the payees. Larrea anticipated this program would include warrants outstanding more than 2 years in amounts over $2000 by 1995, and the Controller ultimately hopes to be able to identify warrants in amounts over $1000. On the issue of security, Larrea noted the Controller electronically verifies warrants and thus a person requesting all the data sought by Argent could present a counterfeit warrant which could not be identified as such unless the real payee came forward. Also, at present “there is little concern that the payee [of a lost warrant] is not being truthful,” but if the public generally could request all the data sought by Argent, false claims could increase.
Argent filed a counterdeclaration by Wayland Witten, who until retirement in 1987 was John Henry's predecessor. He pointed out the concern expressed in defendant Controller's declarations regarding forgeries is generally inapposite to Argent's request, because forgeries result from stolen warrants. Moreover, false claims for lost warrants would not be a problem so long as the Controller demanded appropriate verification of the payee's identification. Thus, he averred that the only true security concern is counterfeited warrants. He was “puzzled” by Larrea's claim that Argent's request would require the compilation of data from several files, because during his tenure, the outstanding-warrant file contained all the requested data. Witten noted that if one accepted the security arguments made by the Controller, then her own locator program could be a breach because unscrupulous employees with sufficient information to search for outstanding warrants could pass these data to outsiders equally capable of counterfeiting. He therefore assumed (since the locator program began after his retirement) that the only way in which the Controller could insure against internal fraud would be to provide the employees in charge of the program with sufficient data to locate the warrants but not duplicate them. As a result, Witten did not believe it would be any more burdensome or a greater security risk to make available a similar degree of information to Argent and the general public. Alternatively, an editor program could delete one or more of the requested fields of data, so that the codes which appear on a warrant itself could still be used to authenticate the warrant electronically.4 This editor program could also automatically delete warrants from the file which were payable to individuals (forestalling the Controller's claim this would require manual manipulation of data). Witten further noted the Controller's unclaimed-property division currently provides data similar to that requested by Argent at $600 per microfiche, with sufficient data deleted as a protection against false claims.
In a supplementary declaration, Larrea stated the security of the locator program had been certified by the Controller's Internal Audits division. Moreover, employees who researched outstanding warrants were not authorized to issue duplicate warrants.
At the hearing on the petition, the trial court reiterated its belief (originally stated at the hearing on the Controller's demurrer) that it could not imagine “a much more public thing than these warrants.” 5 It did not accept the Controller's argument that nondisclosure would prevent fraud. “I mean, anyone, a counterfeiter of a state warrant doesn't have to have additional data to counterfeit. He can just go counterfeit one today. Makes up a number, ․ [names] Chevron Oil Company, and goes down to the Bank of America and convinces the bank that he is a due representative of the Chevron Oil Company.” In the court's view, if the Controller provided only the payee, date, and amount of outstanding warrants, “some counterfeiter is going to have to hit an eight[-]digit [warrant] number. That's a heck of a shot.” It also rejected the claim that disclosure would result in an undue burden, but gave the Controller the opportunity to return with additional evidence: “This is too easily—you have a system, and you have a system in the locator system about which you find out most of this information. [¶] And if [Argent] prepares a suitable computer program at [its] expense to find the data that I've delineated here that I'm sure [it's] entitled to, date, amount and ․ name of payee, I don't think undue burden's going to work. [¶] But there may be something that I'm not aware of, the intricacies of the system, and I'm going to certainly give you an opportunity to explore that․”
Following the hearing, Argent submitted a proposed form of order to the Controller. The Controller filed objections and an alternative form of order with the trial court. The objections included a dispute regarding the time period proposed in the order for which she was to identify outstanding warrants, and the failure of the proposed order to specify that it was Argent's responsibility to develop a computer program “necessary to enable the Controller's staff to retrieve the information․” The Controller did not submit any additional evidence of undue burden. Although Argent contested the objections by the Controller (including its responsibility for the editor program), the trial court signed the Controller's proposed order on May 31.
As drafted by the Controller, the order provided “The information to be produced is ․ the date ․ the amount ․ [and] the name of the payee of each outstanding warrant.” Argent was “to provide to the ․ Controller a computer program which will enable [the Controller] to retrieve the information ordered disclosed herein.” The disclosure included “all outstanding warrants beginning with the date six months prior to the date the computer program ․ is functional and going back in time to the date the outstanding warrants become void.”
In her answer, the Controller admitted Argent was a person as defined by the Act, but was not within the Act's “purview ” because it is a Massachusetts corporation. She asserted this as an affirmative defense.
In this court, the Controller thus asserts this transfigured basis for her demurrer as a threshold consideration. She bases this argument on the last three words of the codified declaration of policy appearing at the outset of the Act, which provides, “In enacting this chapter, the Legislature ․ finds and declares that access to information concerning the conduct of the people's business is a fundamental ․ right of every person in this state.” (§ 6250 [emphasis supplied].) She also cites two decisions which describe the public's access to government records as “a fundamental right of citizenship.” (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 475, 23 Cal.Rptr.2d 412 [emphasis supplied]; accord CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651, fn. 5, 230 Cal.Rptr. 362, 725 P.2d 470.) Asserting Argent is a citizen of Massachusetts because it is incorporated there,6 the Controller claims the Legislature could not have intended for California public agencies to be accountable to citizens of another state.7
First of all, neither of the cases cited by the Controller is apposite. Cases are not propositions for matters not expressly considered. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 428, 43 Cal.Rptr.2d 595.) Neither of the cited cases adjudicated the right of non-Californians to enforce the Act. Therefore, the choice of terminology in the two decisions is immaterial.
Moreover, the legislative intent evinced by the Act is directly contrary to that inferred by the Controller. Section 6250 originally concluded with the phrase “every citizen of this state.” (See Stats.1968, ch. 1473, § 39, p. 2946.) In 1970, the Legislature amended section 6250 to its present form: “every person in this state.” We presume the Legislature is aware of the distinction between “citizen” (defined in section 241 as all persons either born in California and residing within it, or citizens of the United States residing in California) and the more inclusive “person” (defined in section 17 as “any person or ․ corporation ․”). Nor did the Legislature limit the Act's definition of “person” to domestic corporations. (§ 6252, subd. (c) [“ ‘Person’ includes any ․ corporation ․”].) As the Corporations Code demonstrates, the Legislature is capable of expressing the distinction in usage between domestic and foreign corporations. (Corp.Code, §§ 167, 171.)
This lack of limitation on those who may enforce the Act is by no means an inadvertent effect of ill-considered language employed by the Legislature. “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.” (CBS, Inc., supra, 42 Cal.3d at p. 651, 230 Cal.Rptr. 362, 725 P.2d 470.) It thus furthers the purpose of the Act to have the records of our public agencies and officials available except where exempt. Thus, when section 6253 declares every person has a right to inspect any public record, when section 6257 commands state and local agencies to make records promptly available to any person on request, and when section 6258 expressly states any person may institute proceedings to enforce the right of inspection, they mean what they say. We therefore reject the Controller's argument to the contrary.
We thus come to whether, under section 6255, the Controller satisfied her burden of demonstrating a public interest in nondisclosure that clearly outweighs the public interest in disclosure on the facts of this case. (Times Mirror Co., supra, 53 Cal.3d at p. 1339, 283 Cal.Rptr. 893, 813 P.2d 240; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 780, 192 Cal.Rptr. 415.) This is a matter on which we exercise de novo review, according the usual deference to any express or implied factual findings of the trial court supported by substantial evidence. (Times Mirror Co., supra, 53 Cal.3d at p. 1336, 283 Cal.Rptr. 893, 813 P.2d 240.)
The Controller posits three aspects of the public interest in nondisclosure. We consider them in turn.
1. In her original petition in this court, the Controller asserted the public interest in nondisclosure may be based on purely speculative security concerns. However, her authority does not support so broad a proposition. Indeed, a court may consider potential threats; for example, the Supreme Court acknowledged a public interest in nondisclosure of then-Governor Deukmejian's appointment schedules and calendars because of “the potential threat to the Governor's physical security.” (Times Mirror Co., supra, 53 Cal.3d at p. 1346, 283 Cal.Rptr. 893, 813 P.2d 240.) However, this was not mere speculation by the court. It was based on what the court termed the “reasonable” assertion in a declaration of the Governor's security director identifying a specific threat that the requested information would disclose “ ‘with relative precision when and where the Governor may be found, those persons who will be with him, and when he will be alone.’ ” (Id. at pp. 1331, 1346, 283 Cal.Rptr. 893, 813 P.2d 240.) The Controller's declarations, on the other hand, never make any particularized connection between the limited fields of data subject to disclosure under Argent's redacted request and the way in which this could increase the risk of counterfeiting. The Controller also cites discussion in ACLU, supra, 32 Cal.3d at page 451, 186 Cal.Rptr. 235, 651 P.2d 822, of hypothetical malefactors misusing information obtained under the Act. However, the court was merely noting (in the course of statutory interpretation of a specific exemption) that information subject to disclosure was available to anyone who requests it. (Accord Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 668, 135 Cal.Rptr. 575.) This was not part of any weighing process under section 6255 which is, by legislative directive, to be based on the facts of a particular case. Moreover, existing authority explicitly rejects the Controller's argument. “A mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to these records.” (CBS, Inc., supra, 42 Cal.3d at p. 652, 230 Cal.Rptr. 362, 725 P.2d 470; accord New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1585, 268 Cal.Rptr. 21.) We thus confine ourselves to security concerns supported by the record.
The Controller continues in this court to urge that disclosure will create the potential for presentation of false claims, based on the Henry and Larrea declarations. However, the Witten declaration maintained that false claims can be prevented by requiring appropriate verification of the payee's identity. The Controller did not challenge this opinion on its merits (beyond highlighting the fact Witten was no longer a member of her office). It was for the trial court to resolve this factual conflict in the declarations; in reviewing the trial court's decision, we must resolve factual disputes in favor of the judgment and as a result must credit the Witten declaration. (Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 699, 321 P.2d 749; Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 533, 257 Cal.Rptr. 278.) Thus, the Controller failed to establish a potential for increased false claims.
As earlier noted, the Witten declaration maintained that the Controller's anecdotal evidence regarding forged warrants was inapposite because forged warrants can arise only in connection with stolen authorized warrants. The Controller has apparently conceded the point in this court. In any event, the Witten declaration is again a basis for concluding the Controller failed to establish any facts supporting this concern.
This leaves the concern with counterfeiting, a potential threat which Argent does not dispute. However, as noted above, the trial court stated at the hearing that nothing at present prevents a counterfeiter from negotiating a phony warrant. The Controller has presented nothing other than speculation in her supporting declarations that the incidence of counterfeiting will increase if she provides the requested information. This is insufficient. (CBS, Inc., supra, 42 Cal.3d at p. 652, 230 Cal.Rptr. 362, 725 P.2d 470; New York Times Co., supra, 218 Cal.App.3d at p. 1585, 268 Cal.Rptr. 21.) But even if we credit these speculations as expert opinion, the Controller never challenged the trial court's conclusion at the hearing that its proposed limitations on the data disclosed to Argent would make it extremely difficult for a counterfeiter to create an exact copy of an existing outstanding warrant. Instead, the Controller reiterates in this court the concerns expressed in her declarations about release of the full panoply of data requested by Argent. Once again, the Witten declaration provides an adequate basis for the trial court's conclusion that its modifications to Argent's request eliminated the Controller's legitimate security concern.
2. Among the Act's specific exemptions from disclosure are “Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures” of the state and local law enforcement agencies (subject to extensive provisos). (§ 6254, subd. (f).) Acknowledging her records do not come literally within this provision, the Controller argues the outstanding warrants are akin to the files identified by this provision because there are “security” concerns. She cites Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788, 792–793, 184 Cal.Rptr. 840, where we held there is a compelling public interest in the nondisclosure of investigative records to prevent potential violators of the law from escaping detection. We confined our analysis to section 6255, identifying the public interest in nondisclosure by analogy to an exception for similar records contained in the parallel federal Freedom of Information Act (FOIA). Thus, we agreed a hospital could not have access to a manual which described the “game plan” for audits of Medi–Cal programs, because unscrupulous health-care providers could manipulate records of expenditures to avoid triggering audits. (Id. at pp. 793–794, 184 Cal.Rptr. 840.) 8
Argent cites numerous cases which purportedly establish the narrow contours of the Act's express investigatory-records exception.9 But this is beside the point. As noted, the Controller is not relying on the express investigatory-records exception, but is instead merely citing it as analogous support for its security argument. As we have already determined that the trial court could resolve the factual disputes regarding the Controller's security concerns in favor of Argent, it adds nothing to the analysis to frame it in terms of a specific exemption in the Act.
3. This leaves the claim that the undue inconvenience and expense in providing the requested information weighs in favor of nondisclosure. (ACLU, supra, 32 Cal.3d at pp. 452–453, 186 Cal.Rptr. 235, 651 P.2d 822.)
In a brief argument, the Controller reiterates her trial-court contentions. Pointing to the daily fluctuations in the file caused by newly-issued and newly-canceled warrants, she asserts she could be subjected to daily demands by numerous asset-finders. She also relies on the averment in the Larrea declaration that the data requested by Argent are not contained in a single file (forcing her employees to cull several files to obtain the information) and would require manual editing to remove the names of individual payees. She again asserts disclosure would overtax her personnel resources.
We first consider the contention there is not an existing file. While the Larrea declaration may aver that the five data fields originally requested by Argent were not contained in any one file, there is no evidence the three data fields in the trial court's ultimate order are not in the outstanding-warrant file maintained by the Controller. More importantly, the Witten counterdeclaration avers that the outstanding-warrant file during his tenure contained all the data requested by Argent, and the Controller did not present evidence that present practice had changed since Witten's time (even though Larrea took the occasion to file a supplementary declaration).10 Finally, even if we disregard the outstanding-warrant file itself, the Controller has admitted her own locator program searches for names, dates, and amounts (over $2000 and, someday, over $1000), which would be further substantial evidence on which the trial court could conclude there is an existing record containing the three data fields which the trial court ordered disclosed to Argent.
Turning to the Controller's remaining contentions, this court has previously held that an agency may be forced to bear a tangible burden in complying with the Act absent legislative direction to the contrary. (State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1190, fn. 14, 13 Cal.Rptr.2d 342; Northern Cal. Police Practices Project v. Craig (1979) 90 Cal.App.3d 116, 124, 153 Cal.Rptr. 173.) In response to the Controller's argument, the trial court acted to alleviate the suggested burdens. It limited Argent's request to a date certain (eliminating the specter of multiple requests by Argent). It also required Argent to prepare an editor program to delete the data to which Argent is not entitled along with individual payees (eliminating the specter of manual editing).11 There is substantial evidence in the Witten declaration to support the trial court's implicit finding these modifications eliminated any undue burden (including the averment the Controller's unclaimed-property division provides similarly redacted information). Despite the invitation of the trial court, the Controller never offered evidence the modified disclosure would not alleviate the Controller's original objections. “[W]e are given no reason to reject the trial court's [implicit] finding that the burden is sufficiently alleviated․” (State Bd. of Equalization, supra, 10 Cal.App.4th at p. 1190, 13 Cal.Rptr.2d 342.) As for the defendant's hypothecated multiple requests by other asset-locators, our focus under section 6255 are the facts of the present case. We leave to future litigation the determination whether the functioning of her office will be overwhelmed by other asset-finders operating under similar conditions.
We have determined the Controller has demonstrated on the facts of this case no more than a slight public interest in the nondisclosure of the data included in the trial court's order. On the other side of the balance, the Controller argues there is no public interest in disclosure of these records, so even a slight interest in nondisclosure should be determinative.
In the Controller's view, she exercises no discretion in issuing warrants to pay bills and there is no claim she has failed to pay bills, thus there is no public interest in holding her accountable for this ministerial task. While she concedes the purpose for which a request is made under the act is “generally” irrelevant, the Controller also claims no court has ordered disclosure solely for commercial purposes. Finally, the Controller asserts the existence of her own locator program for identifying and paying outstanding warrants expunges any public interest in outstanding warrants.
As we have previously held, “If the records sought pertain to the conduct of the people's business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.” (Citizens for a Better Environment v. Department of Food & Agriculture (1985) 171 Cal.App.3d 704, 715, 217 Cal.Rptr. 504 [emphasis supplied].) The existence and weight of this public interest are conclusions derived from the nature of the information. (Ibid.) The purpose for which the requested records are to be used is not just “generally” irrelevant; we have held, “What is material is the public interest in disclosure, not the private interest of a requesting party; section 6255 does not take into consideration the requesting party's profit motives or needs.” (State Bd. of Equalization, supra, 10 Cal.App.4th at p. 1191, 13 Cal.Rptr.2d 342.) Thus, we held the fact a requesting party is a commercial entity using the information for strictly commercial purposes does not diminish the public interest inherent in the material requested. (Id. at pp. 1190–1191, 13 Cal.Rptr.2d 342.)
As the trial court correctly concluded, the records pertain to the government's conduct in managing public revenues. The Controller may depict her office's part in the allocation of revenues to be drab and ministerial, but bill-paying is no less essential to the proper workings of state government than legislating (or, dare we say, adjudicating), thus there is a public interest of sufficient gravity. While the Controller may assert the public has no interest in these records because she is performing her task properly and is herself seeking out unpaid vendors to ensure they receive compensation for goods and services, this is akin to asking that we allow her “to exercise absolute discretion, shielded from public accountability” in the operations of her office. (New York Times Co., supra, 218 Cal.App.3d at p. 1585, 268 Cal.Rptr. 21.) However, the public interest demands the ability to verify. Only in this way can the public be certain, for example, that there is not a conspiracy of silence about outstanding warrants so that the payees are lulled into inaction until the warrants are canceled.12
Since there is a strong public interest in disclosure, the balance must tip in favor of access to the outstanding warrant file. We shall therefore deny the Controller's petition for an extraordinary writ.
We come to the Controller's petition for a writ of error coram vobis. We first recount the facts on which the petition rests.13
Based on a tip from a Bay Area attorney who had read our prior decision, the Controller contacted a federal prosecutor in Boston. The prosecutor furnished proof of the following information.
In October 1995, the grand jury for the District of Massachusetts indicted Argent and Matthew Drohan (a co-owner and executive vice-president of Argent) for embezzling nearly $2 million from the Department of Defense. Apparently Drohan appropriated to his own use a check mistakenly issued by the Treasury Department to Argent in March 1995 on behalf of its client (First Hawaiian Bank), which had filed a claim for the money against the Department of Defense; the Department of Defense had already determined it was not a valid claim. In February 1996, all Argent shareholders other than Drohan transferred their interests in the corporation to him, and all other corporate officers resigned. On April 23, 1996, Drohan signed an agreement with the prosecutor to plead guilty on behalf of Argent to all counts in the indictment. Drohan had previously been convicted (and granted probation) in North Carolina in 1987 on three counts of embezzlement of premiums by an insurance agent.
“[U]nder our procedure, [the writ of error coram nobis] is the equivalent of a motion to vacate the judgment․” (People v. Tuthill (1948) 32 Cal.2d 819, 821, 198 P.2d 505.) It is addressed to the court which rendered the judgment. (Cal. Civil Writ Practice (Cont.Ed.Bar 1996), § 4.113, p. 167.) The writ of error coram vobis is identical except that it is addressed to the appellate court rather than the trial court. (People v. Brady (1973) 30 Cal.App.3d 81, 83, 105 Cal.Rptr. 280.)
“The writ[ ] of ․ [error] coram vobis [is] very rare in civil matters and [is] used almost exclusively in criminal cases.” (Cal. Civil Writ Practice, op. cit. supra, § 4.113, p. 167; accord Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 9, 156 Cal.Rptr. 805.)
In criminal proceedings, a court will issue the writ only where the petition establishes there are facts dehors the record which satisfy three criteria. (People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 397 P.2d 993.) First, the petitioner must have been unaware of the facts, and could not with due diligence have discovered them substantially earlier than the date of the petition. (Ibid.) Second, it must be probable these facts would have changed the result of the trial (ibid.); the newly discovered evidence must point “unerringly” to a different result by undermining the opponent's entire case (In re Kirschke (1975) 53 Cal.App.3d 405, 414, fn. 1, 125 Cal.Rptr. 680). Finally, the new facts cannot go to the merits of the issues tried (Shipman, supra, 62 Cal.2d at p. 230, 42 Cal.Rptr. 1, 397 P.2d 993), for “issues of fact once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.” (Tuthill, supra, 32 Cal.2d at p. 822, 198 P.2d 505 [emphasis supplied].) This latter criterion applies even where the time for moving for a new trial has expired. (Shipman, supra, 62 Cal.2d at p. 230, 42 Cal.Rptr. 1, 397 P.2d 993.)
In civil proceedings, “[t]he articulated grounds are the same as in the criminal arena, namely, where the error to be corrected does not appear in the record and no other remedy is available, and where the issue involved has not been previously determined. In general, newly discovered evidence is not a basis for [a] writ of error coram vobis.” (Los Angeles Airways, supra, 95 Cal.App.3d at p. 9, 156 Cal.Rptr. 805; see Betz v. Pankow (1993) 16 Cal.App.4th 931, 941, 20 Cal.Rptr.2d 841.) Los Angeles Airways, Inc., equates the third Shipman criterion with the standard for granting relief for extrinsic fraud. (95 Cal.App.3d at pp. 9–10, 156 Cal.Rptr. 805; accord Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1092, 267 Cal.Rptr. 457 (Chuidian ).) In any event, “the writ is unlikely to be granted unless the petitioner can make an exceptionally strong showing of injustice.” (Cal. Civil Writ Practice, op. cit. supra, § 4.114, p 168.)
Under these standards, the Controller's petition is inadequate. Even if we concede the Controller could not have discovered these facts substantially earlier with due diligence as required by the first Shipman criterion, she fails to satisfy the other criteria.
The new facts fail the second criterion because they do not “unerringly” point to judgment in the Controller's favor by eviscerating her opponent's case. At most, they add a concrete context to the Controller's inchoate concerns with false claims and counterfeiting by demonstrating the past potential for perfidy of Argent's principal.14 However, as we discussed at length above, the trial court determined the limits it placed on the data requested by Argent would eliminate the potential for counterfeiting, and there was evidence proper verification of claims by the Controller would prevent false claims. The Controller fails to show how the new facts neutralize these safeguards in the case before us (particularly since the Controller would be forewarned in connection with any outstanding-warrant claim filed by Argent) such that they establish conclusively the public interest in nondisclosure. Nor do these new facts affect the public interest in disclosure we have identified. Thus, “while [the new fact] would have been material and possibly beneficial to the defendant on that trial, it is not such a new fact as would have necessarily precluded the entry of judgment which was rendered. A cause for setting aside the judgment is, therefore, under the previously mentioned rules governing the writ [of error] coram nobis, not made out.” (Tuthill, supra, 32 Cal.2d at p. 827, 198 P.2d 505.)
The circumstances surrounding these omitted facts also involve issues actually litigated that do not amount to extrinsic fraud (in the Los Angeles Airways, Inc., formulation). Even if we consider Argent's nondisclosure of Drohan's 1987 embezzlement conviction and March 1995 embezzlement to be a suppression of facts pertinent to its trial-court petition (the indictment and guilty plea being subsequent to judgment), this did not have the effect of preventing the Controller from litigating the issue. It merely had the effect of reducing the strength of the Controller's opposition. (Chuidian, supra, 218 Cal.App.3d at p. 1091, 267 Cal.Rptr. 457 [failure to disclose fact during discovery]; Los Angeles Airways, Inc., supra, 95 Cal.App.3d at p. 8, 156 Cal.Rptr. 805 [same].) To the extent it may be a less exacting standard, these facts also do not satisfy the formulation in Shipman or Tuthill. (Tuthill, supra, 32 Cal.2d at p. 827, 198 P.2d 505 [writ denied; additional facts supporting issue of unconsciousness raised at trial; “the ‘new fact’ upon which the defendant relies is of the nature of newly discovered evidence pertinent to the issues which were litigated at the basic trial”]; compare Shipman, supra, 62 Cal.2d at p. 233, 42 Cal.Rptr. 1, 397 P.2d 993 [writ granted; facts suggesting defendant's insanity during crime and guilty plea; issue not previously litigated]; see Betz, supra, 16 Cal.App.4th at p. 941 [suggesting evidence arbitrator should be disqualified would warrant writ].)
The sole authority on which the Controller relies in her petition as supporting the requested relief is Rollins v. City and County of San Francisco (1974) 37 Cal.App.3d 145, 112 Cal.Rptr. 168. In Rollins, the jury rendered a defense verdict in a malpractice action in which the plaintiff had lacked evidence on which to base an expert opinion supporting his theories of liability. The trial court denied a motion for new trial based on insufficiency of the evidence. During the pendency of the plaintiff's appeal, counsel discovered the defendants had failed to disclose a portion of the decedent's medical records which would have supported an expert opinion in favor of the plaintiff. (Id. at p. 147, 112 Cal.Rptr. 168.) Although this fact involved an issue determined at trial (the opinion indeed noting the new facts “significantly contradict the testimony of the defendant experts” (ibid.)), the Rollins court nonetheless issued a writ of error coram vobis directing the trial court to reconsider its order “on grounds of the newly discovered autopsy addendum.” (Id. at p. 150, 112 Cal.Rptr. 168.) In support of its decision to issue the writ, the court cited the plaintiff's justified ignorance and due diligence in seeking the truth, and the materiality of the evidence. (Id. at p. 147, 112 Cal.Rptr. 168.) “Further authority for this disposition lies in our rarely exercised inherent discretionary powers in the interest of justice ․ where substantial rights have been affected and a different result would have been probable if the defect had not occurred․” (Id. at p. 150, 112 Cal.Rptr. 168.)
Rollins, however, is a derelict upon jurisprudential waters. “The opinion in Rollins does not explore the question [why] the same criteria that obtain on a motion for new trial[ ] should also control where the judgment is on appeal, nor does it discuss the limitations on coram vobis of People v. Shipman .․ The court simply assumes that material evidence, newly discovered while the judgment is pending on appeal, is a ground to reverse the judgment and reopen the new trial issue. In this respect the Rollins case is an abrupt departure from precedent in the area and, at least on the face of the opinion, the departure is not explicitly considered or justified. [¶] With all due respect, we decline to follow Rollins. A rule permitting the criteria for a new trial to govern a case where the evidence is discovered later, has no basis in the statutes or in any other case. It would extend the time for a motion for a new trial by pure judicial fiat․ [T]here is good reason to limit the time within which [the] broad discretion [to order a new trial] may be exercised, and to apply the stricter doctrines of extrinsic fraud which favor finality once we go beyond that limited time. The Legislature has in fact set such limit. We should not ignore it.” (Los Angeles Airways, Inc., supra, 95 Cal.App.3d at pp. 9–10, 156 Cal.Rptr. 805.) “We agree with the court in [Los Angeles Airways, Inc.] that the reasoning in Rollins is inadequate and that as a practical matter, were that case the law, a court would have carte blanche to disregard a final judgment whenever it perceived an injustice.” (Chuidian, supra, 218 Cal.App.3d at pp. 1091–1092, 267 Cal.Rptr. 457.) We concur with these criticisms
Furthermore, because (as we have explained above) this tendered evidence “does not compel or even make probable a different result,” the Controller does not satisfy even the more liberal standards of Rollins. (Chuidian, supra, 218 Cal.App.3d at p. 1092, 267 Cal.Rptr. 457.)
In short, the new facts may make the Controller's inchoate concerns of fraud more likely in the case of Argent. However, they do not eviscerate the safeguards incorporated by the trial court in response to those concerns. They do not affect our balance of the public interests in nondisclosure and disclosure. Consequently, there is no reason to grant the petition for a writ of error coram vobis.
The alternative writ is discharged. The petition for an extraordinary writ is denied. The petition for a writ of error coram vobis is denied. The stay previously issued by this court shall be dissolved as of the date this opinion is final. Neither party shall recover its costs.
1. After four years, defendant Controller cancels outstanding warrants.
2. This was in the waning days of the term of the present Controller's predecessor in office. We have substituted the incumbent officeholder in the caption.
3. When an agency raises the catchall provision as a defense, a court may analogize to the specific exemptions provided by the Act to identify situations in which nondisclosure furthers the public interest. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338–1339, 283 Cal.Rptr. 893, 813 P.2d 240.) However, the specific exemptions are not an exhaustive list. (Id. at p. 1339, 283 Cal.Rptr. 893, 813 P.2d 240.)
4. As was made clear at the hearing on the petition, a warrant is encoded with several fields of numerical data to facilitate its electronic verification. For security reasons, defendant Controller alluded to this system only generally, and the trial court did not insist on greater detail (nor will this court).
5. As the court expressed it at the earlier hearing, “We may not personally as individuals care who are the payees on unpaid warrants. But we have an interest fundamentally in the idea that our public business is public. [¶] And what could be more public than the payment of [ ] public taxpayer money to somebody, right? What's more public than that[,] as to who gets our tax dollars?”
6. For this proposition, she cites Neirbo Co. v. Bethlehem Shipbuilding Corp. (1939) 308 U.S. 165, 169, 60 S.Ct. 153, 155, 84 L.Ed. 167, which states “a corporation ․ [has] citizenship in the chartering state for [federal-court] jurisdictional purposes.” We have no occasion to consider whether this rule of federal jurisdiction has application in the context of the Act or other California statutes.
7. The Controller's alternative “purview” argument—that disclosure of this information does not further the purpose of the Act—echoes her contentions regarding the lack of public interest in disclosure. We will treat them in connection with that topic.
8. The Controller also cites Procunier v. Superior Court (1973) 35 Cal.App.3d 211, 110 Cal.Rptr. 531, a summary opinion which concludes an inmate-defendant is not entitled to prison blueprints or lists of gang-affiliated prisoners in response to a discovery request because this would endanger the security of the prison system and the safety of the citizens of the state. However, the terseness of the opinion makes it difficult to apply the holding outside its factual context.
9. Although Williams v. Superior Court (1993) 5 Cal.4th 337, 19 Cal.Rptr.2d 882, 852 P.2d 377 calls a number of earlier cases into question because it rejects reliance on FOIA precedent in interpreting the reach of this exception (id. at p. 354, 19 Cal.Rptr.2d 882, 852 P.2d 377), it nonetheless affirms the criterion that a record comes within the exception only if there was a concrete prospect of its use for law-enforcement purposes at the time of its creation. (Id. at pp. 356, 362, 19 Cal.Rptr.2d 882, 852 P.2d 377.) An outstanding-warrant file would not satisfy this criterion.
10. Again, even assuming a conflict in the declarations, we must credit the Witten declaration on this point.
11. Defendant Controller complains the trial court's order for Argent to develop and provide the editor program will compel her “to open files to [Argent] which are not open even to the majority of [her] employees” and “reveal how [her] computer records are kept.” In the first place, since this provision was added to the order at defendant Controller's insistence, the doctrine of invited error precludes her from raising any argument based upon it. Further, the order does not require Argent itself be given access to defendant Controller's database. All that need be provided to Argent is sufficient information to allow it to create a compatible program which will be run by the “few employees” who have access to the file. Finally, the Controller has not provided any facts to support this claim of an alleged breach of security.
12. We hasten to add that identifying a possible misfeasance is in no way intended to impugn the operations of the Controller's office.
13. After the Controller filed these materials, Argent stipulated to allowing its appellate attorneys to withdraw as counsel. In granting the request to withdraw in May 1996, we notified Argent that as a corporation it could not represent itself on appeal (Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501, 503, 163 Cal.Rptr. 573), and unless it filed a substitution of attorneys forthwith we would determine the petition for a writ of error coram vobis in accordance with California Rules of Court, rule 17(b). To date, Argent has not made further response. We thus accept the facts presented by the Controller as true and have submitted the matter on the Controller's petition.
14. Actually, the new facts do not even directly respond to either of these concerns. Argent did not obtain the First Hawaiian Bank check from the Treasury by trick. Rather, the Treasury erred in issuing the check. What the new facts do demonstrate is the tendency of Drohan to steal money from his clients, which is something the Controller cannot prevent (nor does it affect the security of her system). Nonetheless, we will accept the premise these convictions demonstrate Drohan's readiness to do evil and thus the potential for counterfeiting or presenting a false claim.
DAVIS, Associate Justice.
PUGLIA, P.J., and MORRISON, J., concur.