Cmty. Action Agency of Butte Cnty. v. Superior Court of Butte Cnty.

79 Cal.App.5th 221

294 Cal.Rptr.3d 586

The COMMUNITY ACTION AGENCY OF BUTTE COUNTY, Petitioner,

v.The SUPERIOR COURT OF BUTTE COUNTY, Respondent;

Lynne Bussey et al., Real Parties in Interest.

C093020

Court of Appeal, Third District, California.

Filed May 27, 2022

Diepenbrock Elkin Dauer McCandless and Jennifer L. Dauer, Sacramento, for Petitioner.

Caufield & James and Santino M. Tropea, San Diego, for California Community Action Partnership Association as amicus curiae on behalf of Petitioner.

Alcorn Law Corporation, Mark Alcorn, Sacramento, and Molly Alcorn for California Community Economic Development Association, California Association of Food Banks, and the California Association of Nonprofits as amici curiae on behalf of Petitioner.

No appearance for Respondent.

Paul Nicholas Boylan for Real Party in Interest Lynn Bussey.

Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Gregory D. Brown and Kevin L. Quade, Deputy Attorneys General, for Real Party in Interest Department of Community Service and Development.

RAYE, P.J.

In this writ proceeding, we consider whether petitioner, The Community Action Agency of Butte County (CAA), must produce its business records pursuant to the California Public Records Act (CPRA), the Freedom of Information Act (FOIA), and/or a regulation promulgated by real party in interest, California's Department of Community Services and Development (the Department).

After concluding CAA was subject to both FOIA and CPRA as an "other local public agency" within the meaning of Government Code section 6252, subdivision (a)¹ (which defines a "local agency" for CPRA purposes) respondent superior court ordered CAA to produce records that real party in interest Lynne Bussey requested from CAA. CAA filed a petition for writ of mandate in this court, seeking review of the superior court's order.

After considering the arguments presented (including those of amici curiae The California Community Action Partnership Association and The California Community Economic Development Association, et al.), the text and history of CPRA, and other applicable authorities, we conclude: (a) a nonprofit entity like CAA may be an "other local public agency" only in exceptional circumstances not present here; (b) under a four-factor test we adopt based on persuasive out-of-state authority, there is not substantial evidence for the trial court's ruling that CAA is an "other local public agency"; (c) FOIA does not apply to CAA; and (d) the Department's regulation does not require CAA to provide public access to its records generally.²

Accordingly, we vacate the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2019, Bussey requested from CAA "access to and copies of" 14 categories of records, including "check registers from 2012-2017," "credit card statements, 2012-2017," and "[r]ecords documenting CAA reimbursements to" its chief executive officer "for travel expenses ... from 2012-2017." CAA declined Bussey's request, stating the records sought were "not required to be maintained" under California law, and CAA was "not subject to" CPRA or FOIA.

In July 2019, Bussey filed a petition for writ of mandate in the superior court to compel CAA to give her access to the records. Bussey argued that CAA was a "Community Action Agency," "an explicit designation by local or state government" arising out of efforts by the federal government "to combat poverty in geographically designated areas." Bussey asserted that she was entitled to copies of CAA's records on two grounds: (1) CPRA, and (2) "Regulation § 100765" promulgated by the Department ( Cal. Code Regs., tit. 22, § 100765 (Regulation 100765)).

According to Bussey, public access to CAA records is compelled by section 6252, which extends the reach of CPRA to local agencies. "Local Agency" is defined thusly: " ‘Local agency’ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952." ( § 6252, subd. (a).)

Bussey asserted CAA was a "local agency" subject to CPRA, because CAA was "another local public agency" as contemplated by section 6252, subdivision (a). Furthermore, Bussey asserted that CAA was "a grantee" within the meaning of Regulation 100765, a regulation promulgated the Department, which Bussey quoted as providing: "Any person who wishes to inspect or copy records regularly maintained by a grantee may do so after making a request. Information and records will be made available to the requestor in accordance with the Freedom of Information Act ...."

In a later pleading, Bussey described herself as an "involved member of the Butte County community" who had "work[ed] directly with" CAA "to bolster ... funded services provided as part of the war on poverty." Bussey explained that she "became concerned with [CAA's] operations" after (a) she "heard complaints from [CAA's] employees about perceived accounting and spending irregularities," and (b) CAA "rejected a $150,000 private donation needed to bridge the gap between federal block grant funds and [CAA's] budgetary requirement ... because the donation requested an accounting of how the donated funds would be spent."

Bussey also quoted what she claimed was language on CAA's website—that " ‘[i]n January 1967, the Board of Supervisors of the County of Butte created the Economic Opportunity Commission of Butte County, Inc. (EOC; now known as Community Action Agency of Butte County, Inc.) in order to qualify for federal funds’ "—and asserted that CAA was "created, organized and regulated by federal and state law," and was "a recipient of federal Community Block Grant funds as distributed by the State of California." She attached several exhibits indicating CAA was a recent recipient of "federal Community Block Grant funds" via the State of California and the City of Chico.

CAA admitted that it was "a Community Action Agency ... that ... work[ed] to address poverty," but maintained that it was "a private entity, not subject to" CPRA. As for Regulation 100765, CAA argued the provision applied "only to records related to the administration of" Community Block Grants that were "required to be maintained by the grantee under that regulatory scheme," and Bussey's requests concerned records not covered under the scheme. CAA further argued that any interpretation of Regulation 100765 "impos[ing] broader public records access requirements than" federal law was an "[in]correct interpretation," because federal regulations prohibit a state from imposing public "records access requirements on non-Federal entities, such as CAA."

"[I]n an effort to promote transparency," CAA submitted "its 2015, 2016, and 2017 financial statements audited by a qualified independent auditor." Those documents showed that in 2016 and 2017 CAA had annual total expenses of around $5.6 million and received "federal awards" funding totaling around $3.5 million (most of it "passed through" the Department).

In November 2020, after oral argument, the superior court issued a written ruling, ordering CAA to produce most of the records requested by Bussey in April 2019, including CAA's check registers, credit card statements, and travel reimbursements to CAA's chief executive officer. That ruling was based on the superior court's conclusion that CAA was a "public entity subject to both" FOIA and CPRA, "not as a matter of law, but based upon the factual situation presented." CAA was "an ‘other local public agency’ as included in the definition of ‘local agency.’ Gov't Code § 6252(a). This determination [was] based upon the fact that [CAA] receive[d] federal grant funding and has been delegated authority to carry out public functions in Butte County."

The superior court "decline[d] to order that the State of California be joined in th[e] action as requested by" CAA, "as that matter [was] not properly before the [c]ourt."

Within 20 days of the superior court's order, CAA filed a petition for writ of mandate in this court, the statutory method for seeking review of a CPRA order of the superior court. ( § 6259, subd. (c).) In the caption of the petition, CAA named Bussey and the Department as real parties in interest.

We stayed the superior court's order and issued an order to show cause why the relief requested in the petition should not be granted.

DISCUSSION

ICPRA

A. Legal Context

1. Community Action Agencies

"A community action agency shall be a public or private nonprofit agency that fulfills all of the following requirements: [¶] (1) Has been designated by the director [of the Department] to operate a community action program. [¶] (2) Has a tripartite board structure meeting the requirements of Section 12751.³ [¶] (3) Has the power, authority, and capability to plan, conduct, administer, and evaluate a community action program, including the power to enter into contracts with other public and private nonprofit agencies and organizations to assist in fulfilling the purposes of this chapter." ( § 12750, subd. (a).)

"A community action program is a locally planned and operated program comprising a range of services and activities having a measurable and potentially major impact on causes of poverty in the community or those areas of the community where poverty is a particularly acute problem." ( § 12750, subd. (b).)

"CAAs provide services for underprivileged persons at the local level." ( Conecuh-Monroe Community Action Agency v. Bowen (D.C. Cir. 1988) 852 F.2d 581, 584.) In 1981, "Congress established the Community Services Block Grant Program, which provides lump sums to state governments. One reason for adopting the block grant approach was to allow states to choose local providers of social services that the states themselves believe are best able to do the job." ( Ibid. )

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