Subsequently, John allegedly determined for the first time that he was not required to
register as a sex offender because his prior sex offense convictions had been reversed on
appeal.
The State DOJ contends the Does' causes of action arose from protected activity
under section 425.16 and the Does did not show a probability of prevailing. We agree.
As alleged, State agents' threats to arrest/prosecute John, collection of his information,
and communications with local law enforcement and the public regarding John's status as
a registered sex offender, involved and furthered protected speech and petitioning
activity. The protected activity also involved public issues or issues of public interest.
1 The married plaintiffs sued the State of California (State) under fictitious identities. The State Department of Justice (State DOJ) responded on the State's behalf.
2 Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure. SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1.) 2
(See Cross v. Cooper (2011) 197 Cal.App.4th 357, 377 (Cross) [discussing a "strong and
widespread public interest in knowing the location of registered sex offenders"].) For
reasons we will discuss, the Does did not show a probability of prevailing on their causes
of action. Accordingly, the trial court properly granted the special motion to strike, and
we affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
State Agents Inform John of Sex Offender Registration Requirements
In 1981, John was arrested and charged with forcible rape and forcible oral
copulation (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)). The following year, a jury
convicted him of the charged offenses. In 1983, the court of appeal reversed the
convictions based on jury instruction errors. Later the same year, John was released from
prison, and the State DOJ allegedly informed him that he must register as a sex offender
and required him to sign a registration form. In 1984, John was retried and convicted a
second time by a jury of the same offenses, which he appealed. The State DOJ again
allegedly informed John that he must register as a sex offender and required him to sign a
registration form for a change of residence. In 1985, the court of appeal reversed John's
second conviction based on the prosecution's destruction of material evidence and
instructional error. On remand, the superior court granted John's unopposed motion to
dismiss the information under Penal Code section 1385. John was not at the dismissal
hearing and was allegedly not informed or aware the charges against him were dismissed.
John's Ongoing Registration Based on State DOJ's Threats of Enforcement
3
In 1988, John and Jane got married, and in 1989, they moved to a permanent
residence in San Diego. In January 1995, John registered with the San Diego police
department (SDPD) as a sex offender, allegedly based in part on what he had been told
by the State DOJ. In April 1995, the California Attorney General's office sent a letter to
the SDPD, advising that John may be living in the SDPD's jurisdiction and that the SDPD
should take "whatever action [it] deem[ed] necessary" to ensure registration compliance
by John. The Attorney General's office enclosed a copy of John's sex offender
registration form from 1983. In the years that followed, John continued to register each
year around the time of his birthday, acknowledging his duty to register and to "know the
registration requirements." As alleged, State agents continued to threaten prosecution
and/or his arrest, maintain John's information in the sex offender registration system, and
publicly disseminate John's status as a registered sex offender, all of which caused
damages to him and Jane.
SDPD Arrests John, Who Determines He is Not Required to Register as a Sex Offender
In August 2014, the SDPD concluded John was in violation of his registration
requirement. Officers went to the Does' home to look for him, but John was not home at
the time. The next day, John went to the police station, and he was arrested, jailed, and
charged with failing to register as a sex offender by SDPD and/or the San Diego County
District Attorney's office. A public defender researched John's criminal records and
determined that John was under no obligation to register as a sex offender, since the time
when his last sex offense conviction was reversed. The court granted John's motion for a
4
finding of factual innocence and sealing and destruction of arrest records, and John's
name was removed from the official sex offender registry.
Proceedings in Superior Court
In June 2015, the Does filed their complaint against the State, the County of San
Diego (County), the City of San Diego (City), and "Doe" defendants. In relevant part,
the complaint alleges causes of action against the State, County, and City for: (A) civil
rights violations under the Bane Act (Civ. Code, § 52.1) (causes of action 6-9);
(B) negligence and vicarious liability under Government Code section 815.2 (cause of
action 10); (C) false and wrongful imprisonment (cause of action 11); (D) defamation per
se (cause of action 12); and (E) loss of consortium (cause of action 13).
On behalf of the State, the State DOJ filed a special motion to strike under section
425.16. The State DOJ argued the complaint arose from protected activity and the Does
could not prevail because: (1) the State was immune under Government Code sections
815.2 and 821.6 for claims based on threats of prosecution and investigatory activities;
(2) the Does' publication-based claims were barred by the litigation privilege (Civ. Code,
§ 47, subd. (b)); and (3) the Does had not sufficiently alleged the required element of
"threat, intimidation, or coercion" to state a Bane Act claim. Furthermore, the DOJ
pointed out that the Does had not pled the State was involved in the physical act of
arresting John; rather, the State's alleged involvement was in threatening prosecution and
relaying sex offender information to the SDPD.
5
The Does opposed the motion to strike. They argued their causes of action did not
arise from protected activity because the DOJ's actions were illegal as a matter of law
under Flatley v. Mauro (2006) 39 Cal.4th 299, 305. Their remaining arguments related to
their probability of prevailing on the claims. In support of their opposition, the Does
submitted a number of exhibits, including court documents showing the reversal of John's
sexual offense convictions, sex offender registration forms, letters from the Attorney
General's office, and other police or criminal records.
In October 2015, the trial court heard oral argument on the State DOJ's special
motion to strike. Regarding whether the causes of action arose from protected activity,
the Does' counsel agreed with the court that, because the anti-SLAPP statute had been
broadly construed under case law, the plaintiffs "didn't really make an opposition to
[prong one]" and "there doesn't really seem to be an issue about that." Counsel further
agreed the Does were "essentially, conceding Prong [One]," except they maintained the
State DOJ had engaged in illegal activities. The court went on to hear arguments
regarding the proper procedural way to analyze an anti-SLAPP motion and the Does'
probability of prevailing on their claims. The court confirmed its tentative ruling to grant
the State DOJ's special motion to strike.
The Does filed a timely notice of appeal.
DISCUSSION
A. The Anti-SLAPP Statute and Standard of Review
Under section 425.16, subdivision (b)(1), a "cause of action against a person
arising from any act of that person in furtherance of the person's right of petition or free
6
speech under the United States Constitution or the California Constitution in connection
with a public issue shall be subject to a motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim."
"[A] special motion to strike under section 425.16 involves a two-step process.
First, the moving defendant must make a prima facie showing 'that the act or acts of
which the plaintiff complains were taken "in furtherance of the [defendant's] right of
petition or free speech under the United States or California Constitution in connection
with a public issue," as defined in the statute.' [Citation.] If the defendant makes this
initial showing of protected activity, the burden shifts to the plaintiff at the second step to
establish a probability it will prevail on the claim. [Citation.] The plaintiff need only
state and substantiate a legally sufficient claim. [Citation.] The plaintiff's evidence is
accepted as true; the defendant's evidence is evaluated to determine if it defeats the
plaintiff's showing as a matter of law." (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 420 (Vasquez).)
Subdivision (e) of section 425.16 provides that an "act in furtherance of a person's
right of petition or free speech" includes "(1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative, executive, or
judicial body, or any other official proceeding authorized by law, (3) any written or oral
statement or writing made in a place open to the public or a public forum in connection
7
with an issue of public interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest."
We review independently whether a defendant showed a claim arose from
protected activity within the meaning of the anti-SLAPP statute and, if so, whether the
plaintiff showed a probability of prevailing on that claim. (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269 fn. 3.)
B. The State Was Not Categorically Barred from Filing an Anti-SLAPP Motion
For the first time on appeal, the Does contend that the State, as a governmental
entity, is not a "person" under section 425.16, subdivision (b)(1), and is not entitled to
invoke the protection of the anti-SLAPP statute. They argue that "person" is not defined
to include public entities and there is no private analogue to the State's activities.
We conclude the State, through the State DOJ, was entitled to file an anti-SLAPP
motion. Contrary to the Does' position, the statutory interpretation issue is not one of
first impression. After analyzing the statute's language and legislative history, our
Supreme Court held that "section 425.16 may not be interpreted to exclude governmental
entities and public officials from its potential protection." (Vargas v. City of Salinas
(2009) 46 Cal.4th 1, 19 (Vargas).) "[A] lawsuit against a public entity that arises from its
statements or actions is potentially subject to the anti-SLAPP statute[.]" (Ibid.) The
Legislature, in enacting the anti-SLAPP statute, was concerned about "the potential
chilling effect that abusive lawsuits may have on statements relating to a public issue or a
matter of public interest . . . by public officials or employees acting in their official
8
capacity." (Id. at pp. 18-19.) We discuss in section C., infra, that the protected activity
related to public issues.
Moreover, numerous courts, both before and after the Vargas decision, have
concluded that public entities are not categorically precluded from seeking protection
under the anti-SLAPP statute. (E.g., Bradbury v. Superior Court of Ventura County
(1996) 49 Cal.App.4th 1108, 1116 [district attorney's report]; Schaffer v. City and County
of San Francisco (2008) 168 Cal.App.4th 992, 1003-1004 [police officers' official
statements]; Maranatha Corrections, LLC v. Department of Corrections and
Rehabilitation (2008) 158 Cal.App.4th 1075, 1080 [applying anti-SLAPP protection to "a
statutorily created department within the executive branch of state government"]; Squires
v. City of Eureka (2014) 231 Cal.App.4th 577, 582 [applying anti-SLAPP protection to
City of Eureka's investigation and prosecution for building code violations].)
We are not persuaded by the Does' argument that the anti-SLAPP statute does not
apply in this case because there is no private analogue to the State's activities. The State
DOJ notifies and informs the public of registered sex offenders. (See Fredenburg v. City
of Fremont (2004) 119 Cal.App.4th 408, 413 ["California's Megan's Law . . . is a scheme
of detailed provisions for the collection and limited disclosure of information regarding
sex offenders who are required to register by Penal Code section 290."].) The State
DOJ's role is comparable to a private employment screening business that collects data on
potential employees and republishes the data in the form of background check reports.
(See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644,
9
1649-1650 (Mendoza).) "[P]roviding employment-screening reports is a constitutionally
founded, protected activity within the meaning of the anti-SLAPP statute." (Id. at
p. 1653.) Likewise, disclosing a person's sex offender registration is protected speech
under the anti-SLAPP statute. (E.g., Cross, supra, 197 Cal.App.4th at p. 376.) The State
DOJ was not categorically barred from filing an anti-SLAPP motion.
C. The Causes of Action Arose from Protected Activity
We turn to the Does' contention that the gravamen of their claims do not involve
protected speech or petitioning activity. They characterize the State's injurious conduct
as wrongful coercion and "forcing [John] to register" as a sex offender.
For purposes of the "prong one" analysis, we do not consider the merits of the
State agents' statements or conduct; suffice to say, the State disputes liability and
contends that its agents acted lawfully. (See Mendoza, supra, 182 Cal.App.4th at
p. 1653; City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358,
371.) Based on our review of the record, State agents engaged in the following allegedly
wrongful acts: informed John of his duty to register as a sex offender; included his
information in California's sex offender registry; communicated with local police
regarding John's potential failure to register and/or communicated directly with John
regarding the same; and disseminated his registration as a sex offender. The Does do not
allege that any State agent ever physically forced John to register as a sex offender.
We conclude the Does' causes of action arose from protected activity. The State
DOJ was not required to establish that the Does harbored an intent to chill protected
activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65.) The
10
Does' claims are plainly based on the statements of State agents in connection with an
issue being reviewed by an executive or judicial body, or as part of official proceedings.
(See, e.g., Pen. Code, § 290.017, subd. (a) ["Any person who is released, discharged, or
paroled from a jail . . . who is required to register pursuant to the [Sex Offender
Registration] Act, shall . . . be informed of his or her duty to register . . . and the official
shall require the person to read and sign any form that may be required by the [State
DOJ] . . . ."].) John's sex offense proceedings triggered a State official's duty to inform
him of the registration requirement. The State DOJ's continuous communications and
maintenance of his records, through letters, forms, and the like, either arose from those
initial proceedings or were connected to issues under periodic review by an executive
body. (See Johnson v. Department of Justice (2015) 60 Cal.4th 871, 877 [under Penal
Code, § 290, conviction of an enumerated offense imposes on each convicted person a
lifelong obligation to register].)
Additionally, category four of the anti-SLAPP statute protects "any other conduct
in furtherance of the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public interest."
(§ 425.16, subd. (e), italics added.) The last catch-all category is not limited to the
exercise of a person's right of free speech, but to all conduct in furtherance of the exercise
of the right of free speech in connection with a public issue. "Furtherance means helping
to advance, assisting." (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th
156, 166.)
11
We have no doubt the State DOJ's alleged statements and conduct were connected
to "a public issue or an issue of public interest." The State's activities were undertaken by
public officials and public employees acting on the Attorney General's behalf. Those
State officials patently communicate a message regarding the risk that sex offenders pose
in committing further offenses after they are released from prison and the need for the
public to protect themselves. (See Cross, supra, 197 Cal.App.4th at p. 376.) Reducing
recidivism and protecting the public from sexual predators, including disclosing the
identities of registered sex offenders, are "public issues or an issue of public interest."
(E.g., Id. at pp. 374-377 [summarizing cases]; Mendoza, supra, 182 Cal.App.4th at
p. 1653 ["[T]he Legislature . . . issued several findings which openly expressed the
public's strong interest in the dissemination of information regarding registered sex
offenders."].)
We are satisfied the State properly invoked the anti-SLAPP statute because the
Does' claims arose from State agents' speech and petitioning activity regarding public
issues, the State did not concede that the activity was illegal, and the evidence did not
conclusively establish that the activity was illegal.
D. The Does Did Not Show a Probability of Prevailing on Their Claims
When a defendant makes the threshold showing that a cause of action arises out of
the defendant's protected conduct, the anti-SLAPP statute affords the defendant the
opportunity, at the earliest stages of litigation, to have the claim stricken if the plaintiff is
unable to demonstrate both that the claim is legally sufficient and that there is sufficient
evidence to establish a prima facie case with respect to the claim. (Taus v. Loftus (2007)
12
40 Cal.4th 683, 714.) We turn now to whether the Does met their burden of
demonstrating a probability of prevailing on their claims.
1. Civil rights violations under the Bane Act (Civ. Code, § 52.1)
In causes of action 6-9 of the complaint, the Does summarily allege that State
agents used "threat, intimidation, and/or coercion" when they classified him as a sex
offender, compelled him to register, and threatened criminal prosecution. Their conduct
allegedly violated John's constitutional rights to be free from unwarranted governmental
restrictions, unjustified threats of criminal prosecution, and unjustified bodily restraint.
The Does submitted as evidence the State DOJ's letters, forms, and record of John's
inclusion in the sex offender registry. The Does conceded below that State agents did not
physically arrest John in 2014.
Civil Code section 52.1 provides in part:
"(a) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured . . . . [¶] (b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages . . . ." (Italics added.)
13
To prevail on a cause of action under Civil Code section 52.1, the plaintiff must show
that the defendant interfered with or attempted to interfere with the plaintiff's legal right
by threatening or committing violent acts. (Austin B. v. Escondido Union School District
(2007) 149 Cal.App.4th 860, 881-882; see generally Jones v. Kmart Corp. (1998) 17
Cal.4th 329, 334.) Coercion inherent in the alleged constitutional violation, i.e., an
overdetention in jail, is insufficient to meet the statutory requirement of " 'threat,
intimidation, or coercion.' " (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th
947, 959.) The statute requires a showing of threatening conduct independent from the
alleged interference or violation of a civil right. (Ibid.; see also Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 66 ["There are two distinct elements for a [Civil
Code] section 52.1 cause of action."].) " '[A] wrongful arrest and detention, without
more, cannot constitute "force, intimidation, or coercion" for purposes of section 52.1.' "
(Shoyoye, at p. 960.)
Here, assuming agents of the State DOJ threatened to arrest/prosecute John if he
failed to register as a sex offender, the Does did not allege those agents engaged in
independently threatening (or intimidating, coercive) conduct apart from the threats to
arrest/prosecute him. Moreover, the evidence shows that John could have determined his
legal duties regarding registration as a sex offender; State agents did nothing to prevent
him from exercising his legal rights. Under the circumstances, the State DOJ's sharing of
John's information with local law enforcement does not constitute " 'threat, intimidation,
or coercion' " for purposes of Civil Code section 52.1. Accordingly, the Does have not
established a probability of prevailing on their Bane Act claims.
14
2. Negligence, false/wrongful imprisonment, and defamation
Under cause of action 10, the Does contend that State agents were negligent in
maintaining the sex offender registration system, in failing to determine whether John
was legally obligated to register, and essentially, in continuing to include his information
in the system. Under cause of action 11, the Does contend that State agents' maintenance
of the sex offender registration system resulted in John's wrongful arrest even if they did
not physically arrest him.3 Finally, under cause of action 12, the Does allege that State
agents defamed John by publishing his registered sex offender information.
The State argues that the Does failed to state a claim for relief because the State
was immune from liability under Government Code sections 815.2 and 821.6.
Specifically, the State DOJ argues that its agents were engaged in prosecutorial activities
within the scope of their employment. We agree with the State that the Does failed to
show a probability of prevailing on their claims.
Government Code section 821.6 provides that a "public employee is not liable for
injury caused by his instituting or prosecuting any judicial or administrative proceeding
within the scope of his employment, even if he acts maliciously and without probable
cause." "California courts construe section 821.6 broadly in furtherance of its purpose to
protect public employees in the performance of their prosecutorial duties from the threat
of harassment through civil suits." (Gillan v. City of San Marino (2007) 147 Cal.App.4th
3 The arrest and investigator's report submitted by the Does show that SDPD officers analyzed John's records and made the decision to arrest him. Thus, the State's alleged role was limited to maintaining John's registration information. 15
statute is given an " 'expansive interpretation' " in order to best further its rationale].)
Courts have long held that acts undertaken in the course of an investigation or in
preparation for instituting a judicial proceeding cannot give rise to liability, even if no
proceeding is ultimately instituted. (E.g., Gillian, supra, 147 Cal.App.4th at p. 1048;
Richardson-Tunnell v. School Insurance Program for Employees (SIPE) (2007) 157
Cal.App.4th 1056, 1062.) "When the duty to investigate crime and to institute criminal
proceedings is lodged with any public officer, it is for the best interests of the community
as a whole that he be protected from harassment in the performance of that duty. The
efficient functioning of our system of law enforcement is dependent largely upon the
investigation of crime and the accusation of offenders by properly trained officers. A
breakdown of this system at the investigative or accusatory level would wreak untold
harm." (White v. Towers (1951) 37 Cal.2d 727, 729-30 [upholding immunity to
malicious prosecution claim].) The immunity under Government Code section 821.6
extends to intentional tortious conduct, including claims of defamation. (Gillian, supra,
at p. 1048.)
There is no dispute here that State agents' activities were conducted within the
scope of their employment. The Does argue, however, that John's sex offense
prosecutions ended in 1984 and that the agents' subsequent conduct was not immunized.
The Does' arguments are misplaced. The maintenance of a sex offender
registration system was "essential" (Kemmerer v. County of Fresno (1988) 200
Cal.App.3d 1426, 1436) to instituting or threatening to institute a judicial proceeding
16
against John for failing to register as a sex offender. Indeed, if sex offender registrations
were not tracked, we are hard pressed to see how prosecutions for failing to register
would be possible. In addition, an important goal of maintaining and publishing sex
offender information is to prevent crimes and to facilitate investigations. (See Wright v.
Superior Court (1997) 15 Cal.4th 521, 527 (Wright) [discussing that "the Legislature
perceives that sex offenders pose a 'continuing threat to society'. . . and require constant
vigilance"].) Given the purpose of Government Code section 821.6, we conclude that
State agents were immune from liability caused by their alleged negligent or tortious
conduct. The State could not be held vicariously liable. (Gov. Code, § 815.2, subd. (b)
["[A] public entity is not liable for an injury resulting from an act or omission of an
employee of the public entity where the employee is immune from liability."].)
The Does did not establish a probability of prevailing on their claims for another
reason. Fundamentally, the statutory duty to register as a sex offender or determine
whether to continue registering as a sex offender, lied with John, not the State. (Wright,
supra, 15 Cal.4th at p. 528 [statute imposes continuing duty to register on sex offender].)
The record supports that John could have taken steps to determine his legal obligations
because the necessary information was accessible and no State agent ever prevented him
from doing so. John was therefore estopped from complaining about the collection and
17
publication of his information since he was the one to continue registering as a sex
offender. The trial court properly struck the Does' claims against the State.4
3. Loss of consortium
Under cause of action 13, Jane alleges loss of consortium (e.g., loss of
companionship and care) caused by the State's conduct toward her spouse, John. Jane
would not prevail on her claim for the same reasons we have discussed.
DISPOSITION
The trial court's order granting the State's anti-SLAPP motion is affirmed. The
State is awarded its costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
4 Because of our conclusions, we need not decide whether the Does' claims were also barred by the litigation privilege, Civil Code section 47. 18
Filed 2/15/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOHN DOE et al., D069411
Plaintiffs and Appellants, (Super. Ct. No. 37-2015-00022295- CU-CR-CTL) v.
STATE OF CALIFORNIA, ORDER GRANTING PUBLICATION Defendant and Respondent.
THE COURT:
The opinion in this case filed January 26, 2017, was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), respondent's request pursuant to California Rules of Court, rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
BENKE, Acting P. J.
Copies to: All parties
AI Brief
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Holding. The court held that the State of California's actions in maintaining and disseminating sex offender registration information constitute protected activity under the anti-SLAPP statute, and that the plaintiffs failed to demonstrate a probability of prevailing on their claims due to statutory immunity and failure to meet the requirements of the Bane Act.
Issues
Whether the State of California is a 'person' entitled to invoke the anti-SLAPP statute.
Whether the plaintiffs' claims arose from protected activity under the anti-SLAPP statute.
Whether the plaintiffs established a probability of prevailing on their Bane Act and tort claims.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“[A] lawsuit against a public entity that arises from its statements or actions is potentially subject to the anti-SLAPP statute”
“The State DOJ's continuous communications and maintenance of his records, through letters, forms, and the like, either arose from those initial proceedings or were connected to issues under periodic review by an executive body.”