1 DONALD W.

RICKETTS (CSBN 39825)

28855 Kenroy Avenue
2 Santa Clarita, CA 91387
Telephone: (661) 250-3091 FILED
3 Facsimile: (661) 250-1767 10/12/10
E-mail: SOL@socal.rr.com
4
Attorney for Plaintiff
5 SAVE OUR LIBRARY, INC.
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF LOS ANGELES
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NORTH VALLEY DISTRICT
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SAVE OUR LIBRARY, INC., a California )
11 non-profit corporation, individually, )
on behalf of its members, and in the public ) No. PC 049312
12 interest, )
)
13 Plaintiff, ) VERIFIED FIRST AMENDED
vs. ) COMPLAINT/PETITION FOR
14 ) INJUNCTIVE AND
CITY OF SANTA CLARITA, } DECLARATORY RELIEF, AN
15 a political subdivision of the State ) OSC, AND FOR MANDAMUS
of California; KENNETH R. )
16 PULSKAMP, City Manager of the ) Assigned for all purposes to Hon
City of Santa Clarita, in his official ) Barbara M. Scheper, Dept. F49
17 capacity and not as an individual; )
DARREN HERNANDEZ, Deputy ) Immediate Relief Requested
18 City Manager & Director of ) (Govt.C. §§6258, 6259
Administrative Services of the City )
19 of Santa Clarita, in his official )
capacity and not as an individual; )
20 COUNTY OF LOS ANGELES, a )
political subdivision of the State of )
21 California; and DOES 1-50, )
)
22 Defendants )
_____________________________________ ) Complaint Filed: 10/4/10
23
24 COMES NOW Plaintiff and complains of Defendants, and each of them, and
25 alleges as follows:
26 1. Plaintiff SAVE OUR LIBRARY, INC. (“SOL”), is a California non-profit
27 corporation with a principal place of business in the City of Santa Clarita, County of Los
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 1 Angeles, State of California.
2 2. Plaintiff brings this action individually, on behalf of its members, and in
3 the public interest.
4 3. Plaintiff’s members are residents of defendants CITY OF SANTA CLARITA
5 (“CITY”) and COUNTY OF LOS ANGELES (“COUNTY’), hold library privileges to the
6 Los Angeles County Public Library (“County Library”) and are beneficially interested
7 herein.
8 4. Defendant CITY is a California general-law city and a political subdivision
9 of the State of California.
10 5. Defendant KENNETH R. PULSKAMP (“PULSKAMP”) is City Manager of
11 Defendant CITY and is sued herein in his official capacity and not individually.
12 6. Defendant DARREN HERNANDEZ (“HERNANDEZ”) is Deputy City
13 Manager and Director of Administrative Services of Defendant CITY and is sued herein
14 in his official capacity and not individually.
15 7. Defendant COUNTY is a political subdivision of the State of California.
16 8. Plaintiff does not know the true names and identities of the Defendants
17 sued herein by the fictitious names DOES 1-50, and will amend its complaint at the time
18 they become known to it. Said fictitiously named Defendants participated in and/or
19 performed the acts hereinafter alleged.
20 9. In 1912, under authority of California’s County Free Library Act
21 (California Education Code section 19100, et seq.), the County established the County
22 Library.
23 10. The County Library provides library service to over 3.5 million residents ,
24 including residents in 51 of the 88 incorporated cities located within the COUNTY. It has
25 a 7.5 million books which is available to all of the patrons of the various libraries it
26 operates. It also offers magazines, newspapers, government publications and many
27 specialized materials and access to the World Wide Web through computer terminals in
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 1 the libraries.
2 10. Plaintiff’s members and all patrons of the County Library obtained library
3 privileges by submitting an application to the County Library. The application required
4 a patron to provide his or her full name, mailing address, residence address, telephone
5 number, birth date, California driver’s license or I.D. number, and the last four numbers
6 of the patron’s Social Security number. A true and correct copy of the application is
7 attached hereto as Exhibit A.
8 11. Once a patron obtains library privileges, the patron’s usage of the
9 facilities–books borrowed, websites visited on library-provided computer terminals–is
10 tracked.
11 12. The information provided in the application and the patron’s usage history
12 is recorded in databases which are in the possession of defendant COUNTY and its
13 County Library.
14 13. By 1999 local government was faced with diminishing revenues and severe
15 cutbacks in library funding were occurring. In that year, defendant CITY commissioned
16 Public Management Associates and Arroyo Associates to survey public opinion and
17 evaluate options available to the CITY for funding library services.
18 14 Three options were evaluated:
19 a Continue with the County Library and negotiate with the COUNTY
20 for improved service levels at the existing facilities and the new Canyon Country
21 library.
22 b. Withdraw from the County Library system and provide
23 independent library services through the CITY.
24 c. Withdraw from the County system and contract with a private firm
25 to provide library services.
26 15. Arroyo Associates reviewed the operation and financing and found that the
27 COUNTY “spent $649,271 more to operate the Santa Clarita libraries than it received in
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 1 Santa Clarita based revenues.” The survey of library patrons found that “library users
2 appear generally satisfied with the library services provided in Santa Clarita.”
3 16. On December 2, 1999, Arroyo Associates delivered its report to the CITY. It
4 concluded:
5 “Withdrawals from the LACPL system would, however, require an
agreement with the County regarding unincorporated revenues and re-adoption
6 of the Library parcel tax in the City to avoid significant negative financial and/or
library service level impacts. Based on the findings in this report, it is
7 recommended that the City maintain County library services.”
8 17. Prior to 2008, Defendant CITY resolved to construct a new library in
9 Newhall to replace the present Newhall library. The building would be owned by
10 defendant CITY and would be stocked, operated and maintained by the County Library,
11 and Defendants CITY and COUNTY entered into negotiations for a contract for the
12 COUNTY to operate the new Newhall library.
13 18. In 2008 the CITY’s City Council established an ad hoc committee to explore
14 means of funding the construction of the new Newhall Library. The committee was
15 originally composed of Council Members TimBen Boydston and Marsha McLean.
16 Council Member Boydston was subsequently replaced by Council Member Laurie Ender.
17 19 Plaintiff is informed and believes and thereon alleges that, at a date and
18 time unknown to plaintiffs, the focus of the ad hoc committee changed to explore the
19 prospect of privatizing the CITY’s libraries.
20 20 At the same time that defendant CITY was negotiating with the COUNTY
21 regarding the terms and conditions for operation and maintenance of the new Newhall
22 Library, defendant HERNANDEZ met with representatives of Library Systems &
23 Services, LLC (“LSSI US”) to explore the possibility of having LSSI operate and maintain
24 the libraries if the CITY withdrew from the County Library.
25 21. LSSI US, is a sister corporation of Library Systems & Services UK, Ltd., a
26 British corporation. Both appear to be under common management.
27 22. On or about June 16, 2010, the COUNTY submitted to the CITY a draft
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 1 memorandum of understanding for operation of the new Newhall library.
2 23. Plaintiffs are informed and believe and thereon allege that no further
3 discussions were held between the COUNTY and CITY regarding operation of the new
4 Newhall Library
5 24. Prior to July 13, 2010, the deliberations of the Council’s ad hoc committee on
6 the library, and Defendant HERNANDEZ’s discussions with LSSI US were not widely
7 known and certain individuals have alleged that Brown Act violations occurred. The
8 CITY has advised that no records of the deliberations and activities of the ad hoc
9 committee and Defendant HERNANDEZ’s discussions/negotiations with LSSI US exist
10 and none were produced by the CITY pursuant to requests by SOL and several
11 individuals pursuant to California’s Public Records Act.
12 25. On July 13, 2010, at the last meeting of the City Council prior to its summer
13 recess, Council Member Laurie Ender, a member of the ad hoc committee, suggested that
14 the CITY consider taking over operation of the library from the COUNTY. Council
15 Member Ender asked that the matter be placed on the agenda for the City Council
16 meeting on August 24, 2010, and it was. No mention was made of a possible contract
17 with LSSI US to operate the libraries.
18 26. On July 16, 2010, Council Member Ender published an article in the local
19 newspaper again suggesting that the CITY “assume responsibility for providing library
20 services in Santa Clarita.” No mention was made that the City was considering the
21 possibility of privatizing the libraries by contracting with LSSI US.
22 27. On August 8 and 11, 2010, the CITY issued a request for proposals “seeking
23 a contractor to deliver library services in the City of Santa Clarita [to] manage all aspects
24 of the day to day administration of the libraries.”
25 28. On June 10, 2010, more than two months before the CITY issued the
26 request for proposals, and one month before Council Member Ender requested that the
27 takeover be put on the agenda for the City Council meeting of August 24, LSSI US
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 1 submitted a proposal to the CITY to operate the CITY’S libraries. Attached hereto as
2 Exhibit B is a true and correct copy of LSSI US’s letter transmitting the proposal to the
3 CITY
4 29. The proposal from LSSI US was the only proposal received by the CITY for
5 operation of the CITY’s libraries.
6 30 On August 24, 2010, Defendant HERNANDEZ reported to the City Council
7 that other than continuing COUNTY operation of the CITY’s libraries, there were two
8 options open to the city: Withdraw from the County Library and operate the library
9 with CITY employees or withdraw from the County Library and enter into a contract
10 with a private company to operate the libraries (“the Contract Model”).
11 31. Defendant HERNANDEZ advised the Council that operation of the
12 libraries using CITY employees would require financing of $16 million and to implement
13 the Contract Model would require financing of $33 million.
14 32. Defendant HERNANDEZ made few other comments regarding the CITY-
15 operated model and extensively described the benefits of the Contract Model using LSSI
16 US as the contractor.
17 33 As part of Defendant HERNANDEZ’s presentation to the Council, a
18 representative of LSSI US appeared before the Council and advocated for employment of
19 LSSI US.
20 34 Over 50 members of the public addressed the Council. But for persons
21 affiliated with the CITY or LSSI US few spoke in favor of the proposal.
22 35. Unlike the procedure followed in 1999, defendant CITY conducted no
23 public surveys; commissioned no outside, objective studies and inadequately analyzed
24 and assessed the possible options, the economic and service implications of each, and the
25 potential dangers to privacy rights which the contract model held. .
26 36. At the conclusion of discussion, the City Council adopted Resolution No.
27 10-71 providing that “the City of Santa Clarita no longer desires to be part of the Los
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 1 Angeles County Free Library System and that the City of Santa Clarita will assume
2 responsibility for the delivery of public library services within the City of Santa Clarita
3 effective July1, 2011.” It authorized Defendants PULSKAMP and HERNANDEZ and
4 others “to take such actions as the City Manager deems necessary to carry out, effectuate,
5 implement, and fulfill the actions taken”. It loaned $250,000 to the Public Library Fund
6 to initially carry out the Resolution. A true and correct copy of Resolution 10-71 is
7 attached hereto as Exhibit C.
8 37. Defendant PULSKAMP has, in numerous writings, stated that the CITY
9 has entered into a contract with LSSI US to operate the CITY’s libraries, though none has
10 been made public nor produced in response to Plaintiff’s CPRA request..
11 38. In response to the CITY’s notice to the COUNTY that it was withdrawing
12 from the County Library, the COUNTY has advised the CITY that it will no longer
13 provide funds for renovation of the Canyon Country Library, which has been closed for
14 over a month while renovations were proceeding, will no longer participate in the
15 planning and building of the new Newhall Library, and will no longer collect the taxes
16 that pay for operation of the Santa Clarita libraries.
17 39. As a result of the COUNTY’s refusal to spend further sums on a library it
18 will no longer operate, access to the Canyon Country library will be unavailable to
19 Plaintiffs and the public for an indefinite further period and construction of the new
20 Newhall Library will be delayed. .
21 40. By withdrawing from the County Library, the CITY is obligated, pursuant
22 to California law, to pay to the COUNTY the fair market value of the County’s library
23 real property (buildings and land) and personal property (books, computer systems,
24 etc.). It will also be required to stock, puchase furnishings and equipment for the new
25 Newhall Library, and, if the contract with LSSI US is consummated, add employees to
26 supervise LSSI. The amount has been estimated at several million dollars.
27 41 The CITY proposes to meet this financial obligation, and to pay for future
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 1 ongoing operating expenses of the libraries it will own, and its bonded indebtedness for
2 the new Newhall library, by contracting with LSSI US to operate the CITY’s libraries. The
3 net effect will be an increase in taxes, capital expenditures, and annual operating
4 expenses to modify the operations of libraries which, in the end, the public will pay for.
5 FIRST CAUSE OF ACTION
6 vs. All Defendants for an Injunction
7 42. Plaintiffs hereby incorporate by reference, the same as though fully set
8 forth herein, paragraphs 1 through 41 above.
9 43. California Constitution , Article 1, provides:
10 “SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are . . . privacy.
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* * * * *
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“SEC. 3(b)(3) Nothing in this subdivision supersedes or modifies the right of
13 privacy guaranteed by Section 1 or affects the construction of any
statute, court rule, or other authority to the extent that it protects that right to
14 privacy . . . .”
15 43. California Government Code, sections 6250, 6254(j) and 6267 (portions of
16 California’s Public Records Act, “CPRA”) provide as follows:
17 “6250. In enacting this chapter, the Legislature, mindful of the right of
individuals to privacy, finds and declares that access to information concerning
18 the conduct of the people's business is a fundamental and necessary right of every
person in this state.”
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“6254. Except as provided in Sections 6254.7 and 6254.13, nothing in
20 this chapter shall be construed to require disclosure of records that are any of the
following:
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* * * * *
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“(j) Library circulation records kept for the purpose of identifying the
23 borrower of items available in libraries, and library and museum materials made
or acquired and presented solely for reference or exhibition purposes. The
24 exemption in this subdivision shall not apply to records of fines imposed on the
borrowers.”
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26 “6267. All registration and circulation records of any library which
is in whole or in part supported by public funds shall remain confidential and
27 shall not be disclosed to any person, local agency, or state agency except as
follows:
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 1 “(a) By a person acting within the scope of his or her duties
within the administration of the library.
2
“(b) By a person authorized, in writing, by the individual to whom
3 the records pertain, to inspect the records.
4 “(c) By order of the appropriate superior court.”
5 44. Defendants CITY and COUNTY are local agencies within the meaning of the
6 CPRA and they and their elected officials, officers and employees are subject to its
7 provisions.
8 45. The management of “all aspects of the day to day administration of the
9 libraries” requires access to the identity information which the patrons provided to the
10 COUNTY to gain library privileges and the information which the COUNTY has
11 subsequently gathered regarding books borrowed and computer usage. Pursuant to the
12 California Constitution and the Public Records Act all such information is private and
13 confidential and may not be disclosed.
14 46. Giving LSSI US that data, or access to it, violates Plaintiffs’ privacy rights
15 and the privacy rights of all library patrons and the CPRA.
16 47 It would be equally improper to allow LSSI US to gather the identification
17 data anew, as a condition of continued library privileges, and to collect usage data (often
18 generally referred to as the “borrowing history”). The data is confidential and may not be
19 gathered or used by a private company as a condition of continued use of the books and
20 other resources of publicly owned libraries, operated on publicly owned facilities, and
21 financed by public funds. Such data may be collected by, only, public employees who are
22 directly subject to California law, directly answerable to the voters and elected officials,
23 and on whom the duty to not disclose is imposed by the CPRA.
24 48. The privacy laws are based on and protect the right of individuals to decide
25 whether to make their lives public or not, to receive or decline commercial solicitations by
26 “spam,” “broadcast faxes,” mail, and 6:30 p.m. telephone calls, and to guard against
27 identity theft.
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 1 50. Placing that data in the hands of a private, for-profit corporation, with non-
2 public employees and connections to foreign entities not subject to U.S. laws dilutes, at
3 least, those protections and the damage done by doing so is irreparable and cannot be
4 fully compensated for by damage actions, individual or class, for privacy violations.
5 SECOND CAUSE OF ACTION
6 vs. CITY Defendants To Compel Production of Public Records
7 51. Plaintiff hereby incorporates by reference, the same as though fully set forth
8 herein, paragraphs 1 through 6 and 8 through 40, above.
9 52. Plaintiff brings this action pursuant to the CPRA, Government Code sections
10 6258 and 6259.
11 53. On September 17, 2010, Plaintiff, through counsel and pursuant to the
12 CPRA, requested that defendant CITY produce for inspection “all writings re the
13 proposal/resolution to take over the library, including all studies, proposals,
14 correspondence, bids, etc.; list of attendees at Council meeting on 8/24; e-mails and other
15 written correspondence to and from City.”
16 54. On September 27, 2010, Defendant CITY responded to Plaintiff’s CPRA
17 request and advised that inspection would be allowed of all records except, “pursuant to
18 Government Code 6254(k) [those] subject to the attorney client privilege.”
19 55. Arrangements were made for inspection on September 30.
20 56. On the morning of September 30, based upon later-acquired information,
21 Plaintiff requested that it also be allowed to inspect, in addition, “all writings regarding
22 the County’s action [to delay renovation of the Canyon Country Library]; all writings sent
23 to or received from Library Systems and Services LLC, and all writings mentioning,
24 referring to or concerning Library Systems and Services LLC; and the letter signed by 10
25 residents and two county library workers asking the city to correct an alleged violation of
26 the Brown Act.”
27 57. The inspection took place on September 30 and Defendants produced
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 1 certain records, advised that there had been insufficient time to gather the records
2 requested that morning, and advised that the CITY would provide a written response to
3 that request.
4 58. On October 11, 2010, the CITY advised Plaintiff, in writing, that it would
5 allow inspection of certain records, in addition to those produced on September 30, but
6 that “there are some documents that will not be disclosed: records falling under
7 Government Code 6254(a) subject to the preliminary draft exemption and Government
8 Code 6254(c) which would constitute an unwarranted invasion of personal privacy.”
9 59. The CPRA (Govt.C. §6255(a)) provides:
10 “(a) The agency shall justify withholding any record by demonstrating that
the record in question is exempt under express provisions of this chapter or that on
11 the facts of the particular case the public interest served by not disclosing the
record clearly outweighs the public interest served by disclosure of the record. “
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60. Defendant CITY’s response to Plaintiff’s CPRA request is conclusionary,
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fails to give any indication of the nature of the records which it is withholding, and fails to
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present adequate justification for withholding the records.
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61. Given Defendants’ position that library patrons’ confidential data may be
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given to a private company, Defendants’ concern for privacy rights of unnamed
17
individuals is, at least, ironic.
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THIRD CAUSE OF ACTION
20
vs. All Defendants for Declaratory Relief
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62. Plaintiffs hereby incorporate by reference, the same as though fully set forth
22
herein, paragraphs 1 through 61, above.
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63. Defendants deny Plaintiffs’ allegations herein and there exists between
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Plaintiffs and Defendants a controversy regarding the respective rights and duties of the
25
parties in the premises.
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WHEREFORE Plaintiffs pray for judgment against Defendants, and each of them,
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as follows:
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 1 1. Under the First Cause of Action, an order by the court:
2 a. Restraining Defendants CITY, PULSKAMP and HERNANDEZ from
3 entering into a contract with LSSI US for operation of the public libraries within its
4 boundaries, or, if a contract has been entered into, restraining said Defendants from
5 carrying out its provisions;
6 b. Restraining all Defendants from giving, furnishing, or providing to
7 LSSI US the personal information of its borrowers, including their identity and
8 borrowing/computer usage history, or allowing LSSI to gather such information from
9 patrons in order to obtain library privileges ; and,
10 c. An award of attorney’s fees and costs.
11 2. Under the Second Cause of Action:
12 a. Immediate issuance of an order to Defendants CITY, PULSKAMP
13 and HERNANDEZ to disclose the public records they are withholding and allow
14 inspection and copying by plaintiff or to show cause why they should not do so;
15 b. Issuance of writ of mandate to Defendants CITY, PULSKAMP and
16 HERNANDEZ compelling them to disclose the public records they are now withholding,
17 and all other records encompassed by Plaintiff’s CPRA requests, and to allow inspection
18 and copying by Plaintiff; and,
19 c. An award of attorney’s fees and costs.
20 3. Under the Third Cause of Action:
21 a. A declaration of the rights and duties of the parties in the premises,
22 and,
23 B. An award of attorney’s fees and costs.
24 DATED: October 12, 2010
25 /s/
__________________________________
26 DONALD W. RICKETTS
Attorney for Plaintiff
27 SAVE OUR LIBRARY, INC.
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 1 VERIFICATION
2 MAX RICKETTS declares as follows:
3 1. I am an officer of Plaintiff SAVE OUR LIBRARY, INC. If called as a witness
4 herein, I would be competent and qualified to and would testify to the following facts.
5 2. I have read the foregoing Verified First Amended Complaint/Petition for
6 Injunctive and Declaratory Relief and Mandamus.
7 3. The facts set forth in the foregoing amended complaint/petition are, except
8 where stated on information and belief, within my personal knowledge or the knowledge
9 of my attorney. As to matters stated on information and belief, I believe they are true and
10 correct.
11 I declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct and that this verification was executed this 12th day of
13 October 2010, at Santa Clarita, California.
14 /s/
15 ___________________________________
MAX RICKETTS
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