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Board of Pilot Commissioners for Bays of San Francisco v. Superior Court (Pacific Merchant Shipping Association)

California Court of Appeals, First District, Fifth Division

August 1, 2013

THE BOARD OF PILOT COMMISSIONERS FOR THE BAYS OF SAN FRANCISCO, SAN PABLO AND SUISUN et al., Petitioners,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent PACIFIC MERCHANT SHIPPING ASSOCIATION, Real Party in Interest. SAN FRANCISCO BAR PILOTS et al., Petitioners,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; PACIFIC MERCHANT SHIPPING ASSOCIATION, Real Party in Interest.

Superior Court of the City and County of San Francisco, No. CPF-12-512320, Curtis E.A. Karnow, Judge.

Kamala D. Harris, Attorney General, John Saurenman, Assistant Attorney General, Christiana Tiedemann, Deputy Attorney General, for Petitioners in No. A136803.

Phillips, Erlewine & Given, R. Scott Erlewine and Cari A. Cohorn for Petitioners in No. A136806.

No appearance for Respondent.

Flynn, Delich & Wise, Conte C. Cicala; Davis Wright Tremaine, Thomas R. Burke; and Michael C. Jacob for Real Party in Interest.

Ram, Olson, Cereghino & Kopczynski, Karl Olson as Amici Curiae on behalf of Real Party in Interest.

Bruiniers, J.

The California Public Records Act (CPRA) (Govt. Code, § 6250 et seq.) provides for the inspection of public records maintained by state and local agencies. The Pacific Merchant Shipping Association (PMSA), real party in interest in this case, petitioned the trial court for a writ of mandate compelling production under the CPRA of certain records held by Captain Bruce Horton, the then designated port agent of the Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun (hereafter Port Agent and Board respectively). The trial court granted the petition. Horton, who also served as president of petitioner San Francisco Bar Pilots (Bar Pilots), seeks a writ of mandate and/or prohibition in this court directing the trial court to set aside its order. The Board separately challenges the trial court order. The Board, Horton, [1] and Bar Pilots all argue that the Port Agent is not a state officer subject to the CPRA, and that the records sought are private, not public.

We stayed the trial court’s order and requested briefing. After consideration of the petitions, the opposition of PMSA, and the petitioners’ replies, we ordered consolidation of the petitions and issued an order to the trial court to show cause why the relief requested should not be granted.[2] We now grant that relief, finding that, while the Port Agent is, for at least certain purposes, a public officer, PMSA has not established that the requested records are subject to the CPRA.

I. Background and Procedural History

One of the first acts of the California Legislature in 1850 was to establish the Board. (Harb. & Nav. Code, § 1101, subd. (g).) The Board licenses and regulates pilots[3] on San Francisco Bay and its tributaries. (Harb. & Nav. Code, § 1100 et. seq.)[4] The Board presently consists of seven members, appointed by the Governor with the consent of the Senate, with two members required to be licensed pilots, two members representing the shipping industry, and three public members.[5] (Harb. & Nav. Code, § 1150.)

Bar Pilots is a private unincorporated association of pilots licensed by the Board. Piloting services are compulsory and monopolistic.[6] Subject to limited exceptions, pilots licensed by the Board have “exclusive authority... to pilot vessels from the high seas to Monterey Bay and the Bays of San Francisco, San Pablo, and Suisun and the ports thereof, and from those bays and ports to the high seas, ” as well as “exclusive authority to pilot vessels within and along the waters of those bays....” (Harb. & Nav. Code, §§ 1125, subd. (a), 1132–1133.) Fees for most, but not all, pilotage services are set by statute. (See Harb. & Nav. Code, §§ 1190–1191.) Pilots are required to provide pilotage to vessels requiring a pilot (such as large container, cargo, military, and passenger cruise ships), and are subject to a fine and suspension or revocation of their license if they fail to do so. (Harb. & Nav. Code, § 1138.)

PMSA is a private maritime trade association composed of companies that own or operate ocean-going vessels in California waters. Its members pay fees for private pilot services rendered by members of the Bar Pilots. PMSA nominates the shipping industry representatives to the Board. (Harb. & Nav. Code, § 1150, subd. (a)(2).)

The Port Agent is a licensed pilot appointed by a majority of all licensed pilots, subject to confirmation by the Board. (Harb. & Nav. Code, § 1130; Cal. Code Regs., tit. 7, § 218, subd. (a).)[7] The Port Agent’s duties are “to carry out the orders of the Board, under applicable laws, and to otherwise administer the affairs of the pilots” (Regs., § 218, subd. (a)), including general responsibility for the “supervision and management of all matters related to the business and official duties of pilots” (Harb. & Nav. Code, § 1130, subd. (b); Regs., § 218, subd. (b)) and the specific responsibility of assigning pilots to vessels (Regs., § 218, subd. (d)(1)). The Port Agent does not serve as a member or officer of the Board and receives no compensation from the Board (see Regs., §§ 206, 207); he does, however, have certain reporting obligations to the Board, including:

Immediate notification of the Board’s executive director of a suspected violation, navigational incident, misconduct, or other rules violation to which the Port Agent is a witness or receives a report. (Harb. & Nav. Code, § 1130, subd. (c).)

Collection of data, preparation of accounts and making of payments to the Board required of pilots by statute and regulation, including the name, class, high gross tonnage and deep draft of each vessel subject to pilotage. (Regs., § 218, subd. (d)(4).)

Reports of all accidents, groundings, collisions or similar navigational incidents involving a vessel to which a pilot has been assigned, as well as suspected pilot misconduct, including all pertinent details of the incident as set forth in the regulation. (Regs., § 218, subd. (d)(6).)

Reports of any matter that in the Port Agent’s opinion affects the ability of a pilot to carry out his or her lawful duties. (Regs., § 218, subd. (d)(8).)

Reports whenever any pilot is absent from duty because of illness lasting longer than seven days, including the nature of the illness, the probable duration of absence and the anticipated date of return to duty. (Regs., § 218, subd. (f).)

Beginning in July 2011, PMSA requested records regarding the Port Agent’s assignment of pilots to ships transiting the San Francisco Bay. PMSA made document production requests to the Port Agent and to the Board in 2011 (Jul. 15, Aug. 30) and 2012 (Jan. 4, Mar. 26). At issue here are the latter two requests, which sought disclosure of what PMSA identifies as “Pilot Logs.”

The January 4, 2012 request, from PMSA’s counsel and directed to “Capt. Bruce Horton, Port Agent, ” made a CPRA request for “any and all documents written, utilized or kept current by the Port Agent, including those in electronic format, related to the following: [¶] The annual Pilot Log, which is a document created under the direction of the Port Agent as a memorialization of all pilot assignments to vessels made pursuant to the Port Agent’s duties under [Regulations section] 218[, subdivision] (c)(1) [(current subd. (d)(1))] and reflects the administration of pilot vacation schedules pursuant to the Port Agent’s duties under [Regulations section] 218[, subdivision] (c)(2) [(current subd. (d)(2))].” PMSA alleged that “[t]he annual Pilot Log is completed annually for each pilot in the normal course of affairs to effectuate the Board’s requirement that all time be presented to the public pursuant to [Regulations section 237[, subdivision] (d) and, under certain circumstances, [Regulations section] 237[, subdivision] (f)(1).” Specifically requested were Pilot Logs for the years 2002 through 2011 for each pilot licensed during the years in question.

On February 22, 2012, Horton replied that “[t]here is no document maintained by the Port Agent named the ‘Pilot Log.’ There is a data set that bears headings that are similar to those set forth in your e-mail to [Board counsel] of January 30, 2012. This data, however, is not used by the Port Agent in assigning pilots to vessels or in preparing or administering the pilots’ vacation schedule, nor are they supplied to [the Board] in discharge of any obligation to the Board under the provisions of [Regulations] section 237[.] [¶] The documents containing this data are documents that are maintained by [Bar Pilots] in its capacity as a private organization and not in connection with any duties imposed upon the Port Agent by statute or by the regulations of [the Board]. For that reason, they are not disclosable under the [CPRA].”

The March 26, 2012 request was directed to the Board, and again sought production of the 2002–2011 Pilot Logs. Demand was made for “all responsive documents in the [Board’s] possession, custody and control, including but not limited to those which are in the possession of your Port Agent.” The request further defined a Pilot Log as “a multi-page document created at the direction of the Port Agent in the normal course of his business under [Harbors and Navigation Code section] 1130 and to keep track of a Pilot’s time. This document is described in proceedings before the United States Tax Court[8] as an annual ‘Pilot Log, ’ which is a document created for each year as a memorialization of all pilot assignments to vessels made pursuant to the Port Agent’s duties as further described at [Regulations section] 218[, subdivision] (c)(1) [(current subd. (d)(1))] and reflects the administration of pilot vacation schedules pursuant to the Port Agent’s duties under [Regulations section] 218[, subdivision] (c)(2) [(current subd. (d)(2))]. The Pilot Log is completed annually for each pilot in the normal course of affairs to effectuate the Board’s requirement that all time be presented to the public pursuant to [Regulations section] 237[, subdivision] (d) and, under certain circumstances, [Regulations section] 237[, subdivision] (f)(1).” PMSA further asserted that a Pilot Log “is created in part to comply with the [Board’s] requests to provide the amount of Minimum Rest Period ...


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