The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.

The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The act requires the court to award court costs and reasonable attorneys fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorneys fees to the public agency if the court finds that the plaintiffs case is clearly frivolous.

This bill would replace plaintiff with requester in that provision, would make conforming changes, and would specify that these provisions do not preclude the award of fees and costs pursuant to other provisions of law.

The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.

The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The act requires the court to award court costs and reasonable attorneys fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorneys fees to the public agency if the court finds that the plaintiffs case is clearly frivolous.

This bill would replace plaintiff with requester in that provision, would make conforming changes, and would specify that these provisions do not preclude the award of fees and costs pursuant to other provisions of law.

The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.

The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The act requires the court to award court costs and reasonable attorney attorneys fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney attorneys fees to the public agency if the court finds that the plaintiffs case is clearly frivolous.

This bill would replace plaintiff with requester in that provision. provision, would make conforming changes, and would specify that these provisions do not preclude the award of fees and costs pursuant to other provisions of law.

The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.

The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The act requires the court to award court costs and reasonable attorney fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney fees to the public agency if the court finds that the plaintiffs case is clearly frivolous.

This bill would replace plaintiff with requester in that provision.

The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.

This bill would specify that the waiver of the exemptions applies whether the disclosure is intentional or inadvertent. if an agency discloses a record that is otherwise exempt from disclosure, it is prohibited from initiating an action to recover that record from a requester who received it pursuant to these provisions, as specified.

The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The act requires the court to award court costs and reasonable attorney fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney fees to the public agency if the court finds that the plaintiffs case is clearly frivolous.

This bill would replace plaintiff with requester in that provision.

The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.

The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure.

This bill would make nonsubstantive changes to that provision.

 UNFINISHED BUSINESS  

Bill No: SB 1244

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 5/8/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE FLOOR: 38-0, 5/29/18

AYES: Allen, Anderson, Atkins, Bates, Beall, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Berryhill

ASSEMBLY FLOOR: 71-0, 8/9/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: California News Publishers Association

DIGEST:

This bill replaces the term “plaintiff” with the term “requester” in Government Code Section 6259(d) to clarify that the court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to this section and to clarify that the court shall award court costs and reasonable attorney fees to the public agency if the court finds that the requester’s case is clearly frivolous.

Assembly Amendments clarify that nothing in this section shall be construed to limit a requester’s right to obtain fees pursuant to this section or any other law; and make conforming and nonsubstantive changes.

ANALYSIS:

Existing law:

1. Declares, in The California Constitution, the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”) (Cal. Const., art. I, Sec. 3.)
2. Governs, through the CPRA, the disclosure of information collected and maintained by public agencies. Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information.
3. Defines, for purposes of the CPRA: “public agency” as any state or local agency; “state agency” to include every state office, officer, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary; and “person” to include any natural person, corporation, partnership, limited liability company, firm, or, association.
4. Provides that except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, is required to make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.
5. Requires each agency, upon a request for a copy of records and within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor.
6. Provides that in unusual circumstances, as defined, the 10-day time limit may be extended by written notice from the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension of more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.
7. Prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records.
8. Provides that the agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA or that on 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.
9. Provides that a response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.
10. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under the CPRA. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.
11. Provides that whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.
12. Provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.
13. Provides that in an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.
14. Provides that the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the agency.

This bill replaces the term “plaintiff” with the term “requester” in Government Code Section 6259(d) to clarify that the court shall award court costs and reasonable attorney fees to the requester should the requester prevail in litigation filed pursuant to this section and to clarify that the court shall award court costs and reasonable attorney’s fees to the public agency if the court finds that the requester’s case is clearly frivolous.

Background

The California Constitution provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” (Cal. Const., art. I, Sec. 3.) The California Public Records Act (CPRA), enacted in 1968, requires public disclosure of public agency documents. The CPRA gives every person the right to inspect and obtain copies of all state and local government documents not exempt from disclosure. (Gov. Code Sec. 6253.) The CPRA requires each public agency, upon a request for a copy of records and within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. The CPRA provides that when it appears to a superior court that certain public records are being improperly withheld from a member of the public, the CPRA requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The CPRA requires the court to award court costs and reasonable attorney fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney fees to the public agency if the court finds that the plaintiff’s case is clearly frivolous. As explained by the California Supreme Court in Filarsky v. Superior Court, 28 Cal. 4^th 419, 431-32 (2002):

[ J]udicial proceedings conducted pursuant to the [California Public Records] Act may be commenced only by a person seeking disclosure of documents (§ 6258) [.] The provision authorizing an award of attorney fees to a prevailing plaintiff is limited expressly to litigation filed pursuant to section 6259. (§ 6259, subd. (d).) This provision also reflects a legislative intent that the plaintiff in a proceeding pursuant to sections 6258 and 6259 cannot be the public agency from which disclosure is sought, because the provision contemplates that the public agency always will pay any costs and attorney fees “should the plaintiff prevail.” (§ 6259, subd. (d).) [ . . . ] Government Code sections 6258 and 6259 do not authorize a public agency to initiate a proceeding under the [California Public Records] Act to determine that agency’s obligation to disclose documents to a member of the public.

SB 1244 seeks to clarify that only the requester of documents can recover attorney’s fees and court costs as a prevailing plaintiff under Government Code Section 6259(d). This bill is a response to the Newark Unified School District’s attempt to seek an award of attorney fees from a person who made a request for records under the CPRA.^[1] Newark Unified School District (NUSD) inadvertently released documents to that person that were exempt from disclosure together with documents that were public documents disclosable under the CPRA. NUSD sought an injunction requiring the person to return or destroy the inadvertently produced documents. The injunctive relief was granted and the NUSD attempted to recover attorney fees and court costs under the CPRA Government Code Section 6259(d). Although the court refused to grant attorney fees to the public agency and explained in the court order that “plaintiff” means “a person seeking an order directing a public agency to disclose public records” for “purposes of the attorney fee provision” in Government Code Section “6259(d),” the author and sponsor of this bill wish to clarify in statute that “plaintiff” means a requester of public records in Government Code section 6259(d).

Comments

The author writes:

SB 1244 clarifies that the CPRA was intended to allow attorney fees to a prevailing plaintiff only when the plaintiff is the requester of public records.  To require that a member of the public pay the government’s attorney fees when the government sues a requester would have a chilling effect on the people’s right to access information in the pursuit of transparency and accountability.

As explained by the California News Publishers Association, the sponsors:

The need for this clarification is apparent from the Newark litigation, as the Newark Unified School district argued that the district was the “plaintiff” contemplated under Gov. Code 6259 and was entitled to recover fees from the requester for the litigation under the CPRA’s mandatory fee-shifting provision.

In analyzing whether NUSD was the “plaintiff” within the meaning of the CPRA, the Newark court stated that, “The remedy section does not anticipate that a public agency will be seeking a remedy against a CPRA requestor.” Newark Trial Cord Order, Pg. 3, Dated March 28, 2018 [.] The court cited Filarsky in concluding that a public agency cannot be considered a “plaintiff” under Gov. Code 6259, finding that “as a matter of statutory construction that for purposes of the attorney fee provision in Govt. Code 6259(d) that ‘plaintiff’ means a person seeking an order directing a public agency to disclose public records.” Newark Order, Pg. 4.

[. . . ]

The intent of the CPRA’s fee-shifting provision is to provide “protection…for members of the public” seeking public records and it is intentionally asymmetrical. (Filarsky, 28 Cal.4^th at 427.) Fees are mandatory for a successful requester, but they can be awarded to a prevailing public entity only if the requester’s claim was “clearly frivolous”—“If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” (Gov. Code, § 6259, subd. (d).)

Also in support of the bill, the First Amendment Coalition writes:

By clarifying that a records “requester” is entitled to seek fees, rather than a “plaintiff,” SB 1244 brings Section 6259(d) into clear(er) conformity with the plain language of the CPRA as a whole, case law interpreting the CPRA, and the purpose and history of the statute[ . . . ] As noted by the Newark Superior Court in its order denying the school district’s fees motion, the plain language of the CPRA’s fee-shifting provision, Section 6259(d), makes clear that the only circumstance in which the government may recover fees is when a records requester files a “clearly frivolous” lawsuit. Thus, Section 6259(d) simply does not contemplate government agencies as “plaintiffs” entitled to fee recovery. [ . . . ]

Indeed, with regard to a public agency’s ability to recover attorney fees and court costs, current law provides that a court “shall award court costs and reasonable attorney fees to the public agency” “[i]f the court finds that the plaintiff’s case is clearly frivolous”. (Gov. Code Sec. 6259(d).) However, with regard to a public agency having to pay court costs and attorney fees, the statute reads: “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” (Id.)

As further pointed out by the First Amendment Coalition:

Case law further confirms this dichotomy. (See e.g., Filarksy v. Superior Court (2002) 28 Cal.4^th 419 [holding that the CPRA “does not authorize a public agency to initiate an action to determine the agency’s obligation to disclose public records,” and further holding that “the provision authorizing an award of attorney fees to a prevailing plaintiff is limited expressly to litigation filed pursuant to section 6259, [which] reflects a legislative intent that the plaintiff in a proceeding pursuant to sections 6258 and 6259 cannot be the public agency from which disclosure is sought,” [emphasis added]; Fontana Police Dept. v. Villegas-Banuelos, 74 Cal. App. 4^th 1249, 1253 [fees available to requester of records, even though agency was nominally the “plaintiff” because they “got to the courthouse first”].)

Thus SB 1244’s modest alteration of Government Code section 6259(d), to replace “plaintiff” with “records requester,” brings Section 6259(d) into clear(er) conformity with the plain language of the CPRA as a whole, case law interpreting that provision, and the purpose and history of the CPRA.

An interpretation of Government Code Section 6259(d) that would allow a public agency to recover attorney fees and court costs from a requester of public documents outside of the very unsympathetic circumstance where a court finds a requester’s case is “clearly frivolous,” would arguably deter the public from requesting public documents because of fear. Such an interpretation runs counter to the provision in the California Constitution that provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” and the provision in the CPRA that provides that in “enacting the CPRA, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code Sec. 6250.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/10/18)

California News Publishers Association (source)

American Civil Liberties Union of California

California Broadcasters Association

Firearms Policy Coalition

First Amendment Coalition

League of Women Voters of California

Motion Picture Association of America, Inc.

Pacific Media Workers Guild

OPPOSITION: (Verified 8/10/18)

None received

ASSEMBLY FLOOR: 71-0, 8/9/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bonta, Burke, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rivas, Rodriguez, Rubio, Salas, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood

NO VOTE RECORDED: Bloom, Brough, Caballero, Carrillo, Cristina Garcia, Mathis, Mullin, Santiago, Rendon

Prepared by:

8/10/18 13:56:05

**** END ****

1. Newark Unified School District v. Superior Court (2015) 245 Cal. App. 4^th 887, 245 Cal.App.4^th; Superior Court of California, County of Alameda Hayward Hall of Justice, (April 10, 2018) Order regarding Motion to Tax Costs in the matter of Newark Unified School District v. Snyder, Case No. RG1438281. ↑

Date of Hearing: July 3, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 1244

Author:(Wieckowski) – As Amended Ver:May 15, 2018

PROPOSED CONSENT (As Proposed to be Amended)

SENATE VOTE: 38-0

SUBJECT: PUBLIC RECORDS: DISCLOSURE; REQUESTER FEES

KEY ISSUE: SHOULD THE CALIFORNIA PUBLIC RECORDS ACT BE CLARIFIED TO ALLOW THE AWARD OF ATTORNEY FEES AND COSTS ONLY TO A PERSON OR ENTITY THAT REQUESTS PUBLIC RECORDS AND PREVAILS IN LITIGATION PURSUANT TO THE ACT?

SYNOPSIS

The California Public Records Act (PRA or CPRA) was enacted in 1968, codified as Government Code sections 6250 through 6276.48, and enshrined in California’s Constitution. The PRA has been amended and strengthened by the voters and the Legislature numerous times since then. Nevertheless, many open government advocates and newspaper organizations are still frustrated by public agencies that delay responding or failing to comply with CPRA requests. In order to encourage the public and open government advocates to enforce their rights under the CPRA, current law (Section 6259 (d) of the Government Code) allows a “plaintiff” who prevails in litigation pursuant to the CPRA to recover attorney fees and costs. Unfortunately, at least one public agency has attempted to use this provision in order to recover their litigation fees and costs from members of the public who sought public records but did not prevail in litigation about the request. This bill would clarify that only a “requester” may recover attorney fees and costs pursuant to Section 6259 (d) of the CPRA.

The bill in print arguably creates an ambiguity that could be interpreted to impose a limitation on public access, which is contrary to the stated intent of the bill (to clarify that the Legislature intends for the CPRA’s mandatory fee-shifting provision to protect a “requester” who successfully litigates to further the public’s right of access, regardless of the requester’s position on the case caption). The wording of the bill in print could be interpreted to limit the public’s right of access in the so-called “reverse-CPRA action,” a judicial creation that has allowed a third party to pursue an action to enjoin the disclosure of public records. The propriety of these actions remains an open question. To ensure that the bill is properly interpreted to further the public’s right of access, the author has agreed to the following clarifying amendment, saying that “Nothing in this section shall be construed to limit a requester’s right to obtain fees pursuant to this section or any other law.” The amendment is incorporated into and reflected in this analysis. Although prior versions of the bill had significant opposition, all groups in opposing are now neutral on the bill. The bill is sponsored by the California News Publishers Association and supported by many open government and civil rights organizations. It has no opposition on file.

SUMMARY: Clarifies that only a “requester” of public records who prevails in litigation pursuant to the California Public Records Act is entitled to recover attorney fees and costs. Specifically, this bill:

1. Clarifies that the California Public Records Act (CPRA) allows the award of attorney fees and costs to a “requester” of public records who prevails in litigation pursuant to the CPRA.
2. Clarifies that nothing in the bill shall be construed to limit a requester’s right to obtain fees pursuant to this section or any other law.

EXISTING LAW:

1. Provides, in the California Constitution, that “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. 1, sec. 3, subd. (b), par. (1).)
2. Requires, pursuant to the California Constitution, that “A state, court rule, or other authority . . . that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” (Cal. Const., art. 1, sec. 3, subd. (b), par. (2).)
3. Provides, under the CPRA, that all public agency records are open to public inspection upon request, unless the records are otherwise exempt from public disclosure. (Government Code Section 6250 et seq. All further statutory references are to this code, unless otherwise indicated.)
4. Requires, except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. (Section 6253 (b).)
5. Requires each agency, upon a request for a copy of records, to, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. (Section 6253 (c).)
6. Provides that, if the court finds that the public official’s decision to refuse disclosure is not justified, he or she shall order the public official to make the record public and also provides that if the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Section 6259 (b).)
7. Requires the court to award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to the CPRA and specifies that the costs and fees shall be paid by the public agency, but also provides that the public official who denied the request does not have personal liability. (Section 6259 (d).)
8. Requires the court, if it finds that the plaintiff’s case is clearly frivolous, award court costs and reasonable attorney fees to the public agency. (Ibid.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: The California Public Records Act (PRA or CPRA) was enacted in 1968 (Chapter 1473, Statutes of 1968) and codified as Sections 6250 through 6276.48. Similar to the federal Freedom of Information Act, the CPRA requires that the documents and "writings" of a public agency be open and available for public inspection, unless they are exempt from disclosure. (Sections 6250-6270.) The CPRA is premised on the principle that "access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state." It defines a “public record” to mean “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” (Section 6252 (e).)

The CPRA requires a public agency to, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency. (Section 6253 (c).) In litigation about a CPRA request, it also provides that if the court finds that the public official’s decision to refuse disclosure is not justified, the court must order the public official to make the record public and also provides that if the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Section 6259 (b).) Finally, the CPRA requires a court to award court costs and reasonable attorney fees to the “plaintiff” in a CPRA case if the “plaintiff” prevails in litigation filed pursuant to the CPRA, specifies that the costs and fees shall be paid by the public agency, but also provides that the public official who denied the request does not have personal liability. (Section 6259 (d).) Fees are mandatory for a successful requester, but they can be awarded to a prevailing public entity only if the requester’s claim was “clearly frivolous”—“If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” (Ibid.)

“Reverse CPRA Actions.” A so-called “reverse-CPRA action” is something that arises when a public agency releases or intends to release documents in response to a CPRA request and a third party attempts to stop the disclosure. There is no provision within the CPRA to allow for a third party to commence an action to thwart the disclosure of documents. The propriety of these actions remains an open question. (Long Beach Police Officers Assoc. v. City of Long Beach (2014) 59 Cal.4th 59, 66 n.2 [noting that the propriety of reverse-CPRA cases “remains open” and stating that requesters may continue to reassert the issue in future proceedings].) The Legislature has never approved a procedure to permit a third party to thwart the public’s right of access, let alone to allow such a third party to collect attorney fees and costs if they prevailed in litigation to thwart the release of public records.

Only two appellate court decisions address reverse-CPRA cases. In Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, the appellate court ruled that a third party can seek a writ of mandate pursuant to Code of Civil Procedure Section 1085 to prevent the public agency from releasing information the disclosure of which is prohibited by law. (Id. at p. 1266.) The Marken court noted that, “[A]lthough the CPRA provides a specific statutory procedure for the resolution of disputes between the party seeking disclosure and the public agency, no comparable procedure exists for an interested third party to obtain a judicial ruling precluding a public agency from improperly disclosing confidential documents.” (Id. at p. 1267.)

The only other appellate authority to discuss reverse-CPRA actions is Pasadena Police Officers Ass'n v. City of Pasadena (2018) 22 Cal. App. 5th 147, in which the appellate court held that requesters who prevailed in compelling disclosure of records could recover fees against the City of Pasadena under Government Code section 6259, as well as fees against the third parties who filed the lawsuit unsuccessfully under Code of Civil Procedure section 1021.5. (Id. at p. 153.) In that case, the Los Angeles Times filed a motion seeking to intervene in the action filed by the third parties and a cross-petition under Code of Civil Procedure Section 1085 and Government Code Section 6250 et seq., and seeking an order to compel the release of an un-redacted report in the City’s custody. The court noted that the case was initiated by a third party based not on statutory authority, but solely on case law, specifically Marken:

However, the PPOA brought its reverse-PRA action pursuant to Marken, not the PRA. Indeed, the Marken court's rationale for recognizing reverse-PRA lawsuits is that they are not permitted under and do not arise from the PRA.16 (Marken, supra, 202 Cal.App.4th at p. 1267, 136 Cal.Rptr.3d 395.) Consequently, as the trial court correctly concluded, the PRA does not authorize, and thus cannot limit, fee-shifting against third parties who pursue reverse-PRA suits under Marken. (Pasadena Police Officers Ass'n v. City of Pasadena, supra, 22 Cal. App. 5th at p. 160.)

Without direction from the Supreme Court or the Legislature, the propriety of this type of lawsuit remains at issue. However, if the courts ruled that these actions were permitted, then the current wording of Section 6259 (d) could run afoul of the constitutional policies promoting transparency in government, including the right to recover attorney fees under two fee-shifting schemes in the CPRA and CCP 1021.5, that are designed to promote openness and the award of attorney fees only in actions to enforce important rights affecting the public interest. Therefore, such fees should only be awarded to a party who is seeking the transparency of public records as a “requester,” in furtherance of the goals of the CPRA, and should never be awarded to a party who opposes the release of records, in contravention of the CPRA, regardless of which party happens technically to be the “plaintiff” in the case.

Litigation That Prompted This Bill: Newark Unified School District v. Brazil. In 2014, Elizabeth Brazil requested records from the Newark Unified School District (NUSD or district) during a time when some parents and district residents were blaming school board members for pushing a former superintendent out of the district. The district released thousands of documents to Brazil and others in August 2014. However, just hours after the release, the district realized that some of the documents, including emails, had not been reviewed properly and contained sensitive information subject to attorney-client privilege, and asked Brazil to return them. When Brazil refused, the school district sued to force her to return or destroy the records, a matter that ultimately was appealed to the state’s 1st District Court of Appeal court in San Francisco. In July of 2015, the appellate court reversed a lower court decision, and ordered Brazil to return the records. The school district then sought to recoup its $500,000 in attorney fees and costs on the basis that it was a prevailing “plaintiff” in the litigation and was therefore entitled to those fees and costs under Section 6259 (d).

In analyzing whether NUSD was the “plaintiff” within the meaning of the CPRA, the court stated that, “The remedy section does not anticipate that a public agency will be seeking a remedy against a CPRA requestor.” (Newark Trial Court Order, Pg. 3, Dated April 10, 2018.) The court cited Filarsky v. Superior Court (2002) 28 Cal.4^th 419 in concluding that a public agency cannot not be considered a “plaintiff” under Section 6259, finding that “as a matter of statutory construction that for purposes of the attorney fee provision in Govt Code 6259 (d) that ‘plaintiff’ means a person seeking an order directing a public agency to disclose public records.” (Newark Order, Pg. 4.)

According to the author:

Unfortunately, some public entities have unwittingly disclosed records they later decided were privileged and tried to claw them back from the requestor. Even worse, at least one government agency sued the person requesting the records for refusing to return them to the agency and then sought recovery of half a million dollars in attorneys’ fees. (Newark Unified School District v. Brazil)

This Bill. This bill would replace the term “plaintiff” with the term “requester” in Section 6259 (d) in order to clarify that it is the “requester” who is permitted to recover fees under the CPRA’s mandatory fee recovery provision. The need for this clarification is apparent from the Newark litigation, as the NUSD argued that because the district was the “plaintiff,” it was entitled to recover fees under the CPRA’s mandatory fee-shifting provision. The intent of the CPRA’s fee-shifting provision is to provide “protections...for members of the public” seeking public records and it is intentionally asymmetrical. (Filarsky, surpa, 28 Cal.4th at 427.)

An interpretation of Section 6259 (d) that would allow a public agency to recover attorney fees and court costs from a requester of public documents would arguably deter the public from requesting public documents. Such an interpretation runs counter to the provision in the California Constitution that provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” and the provision in the CPRA that provides that in “enacting the CPRA, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Section 6250.)

Author’s Amendment. The Legislature has the authority to amend the PRA in a manner that improves or expands the right of the public to obtain government records. Although the California Constitution requires that a “state . . . rule. . . that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest” (Cal. Const., art. 1, sec. 3, subd. (b), par. (2) [emphasis added]), no such requirement applies to a measure that expands public access to government records. A measure that furthers the public right of access need not contain findings pursuant to the constitution.

The bill in print arguably creates an ambiguity that could be interpreted to impose a limitation on public access, which is contrary to the stated intent of the bill (to clarify that the Legislature intends for the CPRA’s mandatory fee-shifting provision to protect a “requester” who successfully litigates to further the public’s right of access, regardless of the requester’s position on the case caption). The wording of the bill in print could be interpreted to limit the public’s right of access in the so-called “reverse-CPRA action,” a judicial creation that has allowed a third party to pursue an action to enjoin the disclosure of public records. The propriety of these actions remains an open question. And any legislation ratifying the use of a reverse-CPRA action, or limiting the application of the CPRA’s fee recovery provisions, would impose a limitation on the public’s right of access, requiring legislative findings to that effect.

To ensure that the bill is properly interpreted to further the public’s right of access, the author has agreed to the following clarifying amendment:

On Page 4, after Line 29, insert the following:

(e) Nothing in this section shall be construed to limit a requester’s right to obtain fees pursuant to this section or any other law.

Related Prior Legislation: SB 657 (Bates, 2017-18) would have specifically authorized a third party to file a reverse-CPRA action. The bill was referred to, but never heard in, the Senate Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California News Publishers Association (sponsor)

American Civil Liberties Association

California Broadcasters Assn

California Society of Professional Journalists

Firearms Policy Coalition

First Amendment Coalition

League of Women Voters

Motion Picture Association of America, Inc.

Pacific Media Workers Guild

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 1244

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 5/8/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SUBJECT:

SOURCE: California News Publishers Association

DIGEST:

This bill replaces the term “plaintiff” with the term “requester” in Government Code Section 6259(d) to clarify that the court shall award court costs and reasonable attorney fees to the requester should the requester prevail in litigation filed pursuant to this section and to clarify that the court shall award court costs and reasonable attorney fees to the public agency if the court finds that the requester’s case is clearly frivolous.

ANALYSIS:

Existing law:

1. Declares, in The California Constitution, the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”) (Cal. Const., art. I, Sec. 3.)
2. Governs, through the CPRA, the disclosure of information collected and maintained by public agencies. Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information.
3. Defines, for purposes of the CPRA: “public agency” as any state or local agency; “state agency” to include every state office, officer, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary; and “person” to include any natural person, corporation, partnership, limited liability company, firm, or, association.
4. Provides that except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, is required to make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.
5. Requires each agency, upon a request for a copy of records and within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor.
6. Provides that in unusual circumstances, as defined, the 10-day time limit may be extended by written notice from the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension of more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.
7. Prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records.
8. Provides that the agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA or that on 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.
9. Provides that a response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.
10. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under the CPRA. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.
11. Provides that whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.
12. Provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.
13. Provides that in an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.
14. Provides that the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the agency.

This bill replaces the term “plaintiff” with the term “requester” in Government Code Section 6259(d) to clarify that the court shall award court costs and reasonable attorney fees to the requester should the requester prevail in litigation filed pursuant to this section and to clarify that the court shall award court costs and reasonable attorney fees to the public agency if the court finds that the requester’s case is clearly frivolous.

Background

The California Constitution provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” (Cal. Const., art. I, Sec. 3.) The California Public Records Act (CPRA), enacted in 1968, requires public disclosure of public agency documents. The CPRA gives every person the right to inspect and obtain copies of all state and local government documents not exempt from disclosure. (Gov. Code Sec. 6253.) The CPRA requires each public agency, upon a request for a copy of records and within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. The CPRA provides that when it appears to a superior court that certain public records are being improperly withheld from a member of the public, the CPRA requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The CPRA requires the court to award court costs and reasonable attorney fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney fees to the public agency if the court finds that the plaintiff’s case is clearly frivolous. As explained by the California Supreme Court in Filarsky v. Superior Court, 28 Cal. 4^th 419, 431-32 (2002):

[ J]udicial proceedings conducted pursuant to the [California Public Records] Act may be commenced only by a person seeking disclosure of documents (§ 6258) [.] The provision authorizing an award of attorney fees to a prevailing plaintiff is limited expressly to litigation filed pursuant to section 6259. (§ 6259, subd. (d).) This provision also reflects a legislative intent that the plaintiff in a proceeding pursuant to sections 6258 and 6259 cannot be the public agency from which disclosure is sought, because the provision contemplates that the public agency always will pay any costs and attorney fees “should the plaintiff prevail.” (§ 6259, subd. (d).) [ . . . ] Government Code sections 6258 and 6259 do not authorize a public agency to initiate a proceeding under the [California Public Records] Act to determine that agency’s obligation to disclose documents to a member of the public.

SB 1244 seeks to clarify that only the requester of documents can recover attorney fees and court costs as a prevailing plaintiff under Government Code Section 6259(d). This bill is a response to the Newark Unified School District’s attempt to seek an award of attorney fees from a person who made a request for records under the CPRA.^[1] Newark Unified School District (NUSD) inadvertently released documents to that person that were exempt from disclosure together with documents that were public documents disclosable under the CPRA. NUSD sought an injunction requiring the person to return or destroy the inadvertently produced documents. The injunctive relief was granted and the NUSD attempted to recover attorney fees and court costs under the CPRA Government Code Section 6259(d). Although the court refused to grant attorney fees to the public agency and explained in the court order that “plaintiff” means “a person seeking an order directing a public agency to disclose public records” for “purposes of the attorney fee provision” in Government Code Section “6259(d),” the author and sponsor of this bill wish to clarify in statute that “plaintiff” means a requester of public records in Government Code section 6259(d).

Comments

The author writes:

SB 1244 clarifies that the CPRA was intended to allow attorney fees to a prevailing plaintiff only when the plaintiff is the requester of public records.  To require that a member of the public pay the government’s attorney fees when the government sues a requester would have a chilling effect on the people’s right to access information in the pursuit of transparency and accountability.

As explained by the California News Publishers Association, the sponsors:

The need for this clarification is apparent from the Newark litigation, as the Newark Unified School district argued that the district was the “plaintiff” contemplated under Gov. Code 6259 and was entitled to recover fees from the requester for the litigation under the CPRA’s mandatory fee-shifting provision.

In analyzing whether NUSD was the “plaintiff” within the meaning of the CPRA, the Newark court stated that, “The remedy section does not anticipate that a public agency will be seeking a remedy against a CPRA requestor.” Newark Trial Cord Order, Pg. 3, Dated March 28, 2018 [.] The court cited Filarsky in concluding that a public agency cannot be considered a “plaintiff” under Gov. Code 6259, finding that “as a matter of statutory construction that for purposes of the attorney fee provision in Govt. Code 6259(d) that ‘plaintiff’ means a person seeking an order directing a public agency to disclose public records.” Newark Order, Pg. 4.

[. . . ]

The intent of the CPRA’s fee-shifting provision is to provide “protection…for members of the public” seeking public records and it is intentionally asymmetrical. (Filarsky, 28 Cal.4^th at 427.) Fees are mandatory for a successful requester, but they can be awarded to a prevailing public entity only if the requester’s claim was “clearly frivolous”—“If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” (Gov. Code, § 6259, subd. (d).)

Also in support of the bill, the First Amendment Coalition writes:

By clarifying that a records “requester” is entitled to seek fees, rather than a “plaintiff,” SB 1244 brings Section 6259(d) into clear(er) conformity with the plain language of the CPRA as a whole, case law interpreting the CPRA, and the purpose and history of the statute[ . . . ] As noted by the Newark Superior Court in its order denying the school district’s fees motion, the plain language of the CPRA’s fee-shifting provision, Section 6259(d), makes clear that the only circumstance in which the government may recover fees is when a records requester files a “clearly frivolous” lawsuit. Thus, Section 6259(d) simply does not contemplate government agencies as “plaintiffs” entitled to fee recovery. [ . . . ]

Indeed, with regard to a public agency’s ability to recover attorney fees and court costs, current law provides that a court “shall award court costs and reasonable attorney fees to the public agency” “[i]f the court finds that the plaintiff’s case is clearly frivolous”. (Gov. Code Sec. 6259(d).) However, with regard to a public agency having to pay court costs and attorney fees, the statute reads: “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” (Id.)

As further pointed out by the First Amendment Coalition:

Case law further confirms this dichotomy. (See e.g., Filarksy v. Superior Court (2002) 28 Cal.4^th 419 [holding that the CPRA “does not authorize a public agency to initiate an action to determine the agency’s obligation to disclose public records,” and further holding that “the provision authorizing an award of attorney fees to a prevailing plaintiff is limited expressly to litigation filed pursuant to section 6259, [which] reflects a legislative intent that the plaintiff in a proceeding pursuant to sections 6258 and 6259 cannot be the public agency from which disclosure is sought,” [emphasis added]; Fontana Police Dept. v. Villegas-Banuelos, 74 Cal. App. 4^th 1249, 1253 [fees available to requester of records, even though agency was nominally the “plaintiff” because they “got to the courthouse first”].)

Thus SB 1244’s modest alteration of Government Code section 6259(d), to replace “plaintiff” with “records requester,” brings Section 6259(d) into clear(er) conformity with the plain language of the CPRA as a whole, case law interpreting that provision, and the purpose and history of the CPRA.

An interpretation of Government Code Section 6259(d) that would allow a public agency to recover attorney fees and court costs from a requester of public documents outside of the very unsympathetic circumstance where a court finds a requester’s case is “clearly frivolous,” would arguably deter the public from requesting public documents because of fear. Such an interpretation runs counter to the provision in the California Constitution that provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” and the provision in the CPRA that provides that in “enacting the CPRA, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code Sec. 6250.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/16/18)

California News Publishers Association (source)

American Civil Liberties Union of California

California Broadcasters Association; Firearms Policy Coalition

First Amendment Coalition

Motion Picture Association of America, Inc.

OPPOSITION: (Verified 5/24/18)

Association of California School Administrators

Prepared by:

5/24/18 16:23:29

**** END ****

1. Newark Unified School District v. Superior Court (2015) 245 Cal. App. 4^th 887, 245 Cal.App.4^th; Superior Court of California, County of Alameda Hayward Hall of Justice, (April 10, 2018) Order regarding Motion to Tax Costs in the matter of Newark Unified School District v. Snyder, Case No. RG1438281. ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 1244 (Author:Wieckowski)

Version: April 30, 2018

Hearing Date: May 8, 2018

Fiscal: No

Urgency: No

Consultant: MEC

SUBJECT

Public records: disclosure

DESCRIPTION

Existing law provides that when it appears to a superior court that certain public records are being improperly withheld from a member of the public, the California Public Records Act (CPRA) requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The CPRA requires the court to award court costs and reasonable attorney fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney fees to the public agency if the court finds that the plaintiff’s case is clearly frivolous.

This bill would replace the term “plaintiff” with the term “requester” in these provisions.

(The author has agreed to remove Section 1 of the bill. Therefore this document solely provides an analysis of Section 2 of the bill.)

BACKGROUND

The California Constitution provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” (Cal. Const., art. I, Sec. 3.) The California Public Records Act (CPRA), enacted in 1968, requires public disclosure of public agency documents. The CPRA gives every person the right to inspect and obtain copies of all state and local government documents not exempt from disclosure. (Gov. Code Sec. 6253.) The CPRA requires each public agency, upon a request for a copy of records and within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. The CPRA provides that when it appears to a superior court that certain public records are being improperly withheld from a member of the public, the CPRA requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The CPRA requires the court to award court costs and reasonable attorney fees to the plaintiff if the plaintiff prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney fees to the public agency if the court finds that the plaintiff’s case is clearly frivolous. As explained by the California Supreme Court in Filarsky v. Superior Court, 28 Cal. 4^th 419, 431-32 (2002):

[ J]udicial proceedings conducted pursuant to the [California Public Records] Act may be commenced only by a person seeking disclosure of documents (§ 6258) [.] The provision authorizing an award of attorney fees to a prevailing plaintiff is limited expressly to litigation filed pursuant to section 6259. (§ 6259, subd. (d).) This provision also reflects a legislative intent that the plaintiff in a proceeding pursuant to sections 6258 and 6259 cannot be the public agency from which disclosure is sought, because the provision contemplates that the public agency always will pay any costs and attorney fees “should the plaintiff prevail.” (§ 6259, subd. (d).) [ . . . ] Government Code sections 6258 and 6259 do not authorize a public agency to initiate a proceeding under the [California Public Records] Act to determine that agency’s obligation to disclose documents to a member of the public.

SB 1244 seeks to clarify that only the requester of documents can recover attorney fees and court costs as a prevailing plaintiff under Government Code Section 6259(d). This bill is a response to the Newark Unified School District’s attempt to seek an award of attorney fees from a person who made a request for records under the CPRA.^[1] Newark Unified School District (NUSD) inadvertently released documents to that person that were exempt from disclosure together with documents that were public documents disclosable under the CPRA. NUSD sought an injunction requiring the person to return or destroy the inadvertently produced documents. The injunctive relief was granted and the NUSD attempted to recover attorney fees and court costs under the CPRA Government Code Section 6259(d). Although the court refused to grant attorney fees to the public agency and explained in the court order that “plaintiff” means “a person seeking an order directing a public agency to disclose public records” for “purposes of the attorney fee provision” in Government Code Section “6259(d),” the author and sponsor of this bill wish to clarify in statute that “plaintiff” means a requester of public records in Government Code section 6259(d).

CHANGES TO EXISTING LAW

Existing law, the California Constitution, declares the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”) (Cal. Const., art. I, Sec. 3.)

Existing law, the California Public Records Act (CPRA), governs the disclosure of information collected and maintained by public agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information.

Existing law, for purposes of the CPRA, defines: “public agency” as any state or local agency; “state agency” to include every state office, officer, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary; and “person” to include any natural person, corporation, partnership, limited liability company, firm, or, association. (Gov. Code Sec. 6252(c),(d)&(f).)

Existing law provides that except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, is required to make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. (Gov. Code Sec. 6253(b).)

Existing law requires each agency, upon a request for a copy of records and within 10 days from receipt of the request, to determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. (Gov. Code Sec. 6253(c).)

Existing law provides that in unusual circumstances, as defined, the 10-day time limit may be extended by written notice from the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension of more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available. (Gov. Code Sec. 6253(c).)

Existing law prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records. (Gov. Code Sec. 6253(d).)

Existing law provides that the agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA or that on 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. (Gov. Code Sec. 6255(a).)

Existing law provides that a response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing. (Gov. Code Sec. 6255(b).)

Existing law provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under the CPRA. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time. (Gov. Code Sec. 6258.)

Existing law provides that whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow. (Gov. Code Sec. 6259(a).)

Existing law provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Gov. Code Sec. 6259(b).)

Existing law provides that in an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court. (Gov. Code Sec. 6259(c).)

Existing law provides that the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency. (Gov. Code Sec. 6259(d).)

This bill would replace the term “plaintiff” with the term “requester” in Government Code Section 6259(d) to clarify that the court shall award court costs and reasonable attorney fees to the requester should the requester prevail in litigation filed pursuant to this section and to clarify that the court shall award court costs and reasonable attorney fees to the public agency if the court finds that the requester’s case is clearly frivolous.

COMMENT

1. Stated Need for the Bill

According to the author:

SB 1244 clarifies that the CPRA was intended to allow attorney fees to a prevailing plaintiff only when the plaintiff is the requester of public records.  To require that a member of the public pay the government’s attorney fees when the government sues a requester would have a chilling effect on the people’s right to access information in the pursuit of transparency and accountability.

2. Clarification to CPRA section regarding the award of attorney fees and court costs

The opposition letters received by the Committee focus on the language in Section 1, the portion of the bill that would have prohibited a public agency from recovering records they inadvertently release. The author has agreed to the following amendments to remove this portion of the bill.

Amendment 1

On page 1, delete lines 1 through 31, inclusive.

Amendment 2

On page 2, delete lines 1 through 24, inclusive.

Amendment 3

On page 2, in line 25, delete “SEC. 2” and insert:

SEC. 1

Thus, the only portion of the bill that remains is the section that would clarify in statute that for purposes of recovering attorneys fees and court costs pursuant to Government Code section 6259(d) “plaintiff” means a “requester” of public records.

As explained by the American Civil Liberties Union of California, a supporter of this bill:

The impetus for this bill is a case in which the Newark school district produced records in response to citizen Elizabeth Brazil’s request for public records. After the district disclosed documents, it stated that it had inadvertently produced some of the documents and demanded their return. When Ms. Brazil refused, arguing that the district had waived exemptions to the records, the district sued Ms. Brazil seeking to have the documents returned, preventing her from disclosing any information contained in those records, and demanding $500,000 in fees against her. Newark Unified School District v. Superior Court (2015) 245 Cal. App. 4^th 887, 894.

As further explained by the California News Publishers Association, sponsors of the bill:

The need for this clarification is apparent from the Newark litigation, as the Newark Unified School district argued that the district was the “plaintiff” contemplated under Gov. Code 6259 and was entitled to recover fees from the requester for the litigation under the CPRA’s mandatory fee-shifting provision.

In analyzing whether NUSD was the “plaintiff” within the meaning of the CPRA, the Newark court stated that, “The remedy section does not anticipate that a public agency will be seeking a remedy against a CPRA requestor.” Newark Trial Cord Order, Pg. 3, Dated March 28, 2018 [.] The court cited Filarsky in concluding that a public agency cannot be considered a “plaintiff” under Gov. Code 6259, finding that “as a matter of statutory construction that for purposes of the attorney fee provision in Govt. Code 6259(d) that ‘plaintiff’ means a person seeking an order directing a public agency to disclose public records.” Newark Order, Pg. 4.

[. . . ]

The intent of the CPRA’s fee-shifting provision is to provide “protection…for members of the public” seeking public records and it is intentionally asymmetrical. (Filarsky, 28 Cal.4^th at 427.) Fees are mandatory for a successful requester, but they can be awarded to a prevailing public entity only if the requester’s claim was “clearly frivolous”—“If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” (Gov. Code, § 6259, subd. (d).)

Also in support of the bill, the First Amendment Coalition writes:

By clarifying that a records “requester” is entitled to seek fees, rather than a “plaintiff,” SB 1244 brings Section 6259(d) into clear(er) conformity with the plain language of the CPRA as a whole, case law interpreting the CPRA, and the purpose and history of the statute[ . . . ] As noted by the Newark Superior Court in its order denying the school district’s fees motion, the plain language of the CPRA’s fee-shifting provision, Section 6259(d), makes clear that the only circumstance in which the government may recover fees is when a records requester files a “clearly frivolous” lawsuit. Thus, Section 6259(d) simply does not contemplate government agencies as “plaintiffs” entitled to fee recovery. [ . . . ]

Indeed, with regard to a public agency’s ability to recover attorney fees and court costs, current law provides that a court “shall award court costs and reasonable attorney fees to the public agency” “[i]f the court finds that the plaintiff’s case is clearly frivolous”. (Gov. Code Sec. 6259(d).) However, with regard to a public agency having to pay court costs and attorney fees, the statute reads: “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” (Gov. Code Sec. 6259 (d).)

As further pointed out by the First Amendment Coalition:

Case law further confirms this dichotomy. (See e.g., Filarksy v. Superior Court (2002) 28 Cal.4^th 419 [holding that the CPRA “does not authorize a public agency to initiate an action to determine the agency’s obligation to disclose public records,” and further holding that “the provision authorizing an award of attorney fees to a prevailing plaintiff is limited expressly to litigation filed pursuant to section 6259, [which] reflects a legislative intent that the plaintiff in a proceeding pursuant to sections 6258 and 6259 cannot be the public agency from which disclosure is sought,” [emphasis added]; Fontana Police Dept. v. Villegas-Banuelos, 74 Cal. App. 4^th 1249, 1253 [fees available to requester of records, even though agency was nominally the “plaintiff” because they “got to the courthouse first”].)

Thus SB 1244’s modest alteration of Government Code section 6259(d), to replace “plaintiff” with “records requester,” brings Section 6259(d) into clear(er) conformity with the plain language of the CPRA as a whole, case law interpreting that provision, and the purpose and history of the CPRA.

An interpretation of Government Code Section 6259(d) that would allow a public agency to recover attorney fees and court costs from a requester of public documents outside of the very unsympathetic circumstance where a court finds a requester’s case is “clearly frivolous,” would arguably deter the public from requesting public documents because of fear. Such an interpretation runs counter to the provision in the California Constitution that provides that the “people have the right of access to information concerning the conduct of the people’s business, and therefore…the writings of public officials and agencies shall be open to public scrutiny...” and the provision in the CPRA that provides that in “enacting the CPRA, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code Sec. 6250.)

3. Attorney fees and cost awards in reverse-CPRA actions are not impacted by this bill

The California Special Districts Association (CSDA) asserts their opposition to the attorney fee and court cost clarification as follows:

[T]he proposed change to section 6259 of the Government Code will create ambiguity, sow confusion, and likely lead to increased litigation at the cost of significant public resources. This provision would allow “requesters” (instead of a plaintiff) to seek court costs and attorney fees from public agencies in “reverse-CPRA” cases. In reverse-CPRA litigation, the public agency is placed in the middle of disputes between third parties and CPRA requesters, with no control over the litigation process. In such cases, public agencies are often want to disclose records, but are prevented from doing so by a legal action filed by a third party. Requiring public agencies to pay fees in a reverse-CPRA action would be unjust given that the agency’s hands are tied as to whether records may be disclosed.

CSDA understands that the intent of this provision is to ameliorate the effect of the court decision in Newark Unified School District v. Snyder. In Newark, the public agency sought attorney fees and costs from a requester after prevailing in litigation over inadvertent disclosure.

This bill would not alter current law regarding attorney fees and court costs in reverse-CPRA actions. As discussed in the Background, Government Code Section 6259(d) governs when a requester can obtain attorney fees and costs from the public agency they request the documents from and governs when a public agency can obtain attorney fees from a requester. The courts have made it clear that only a requester can bring an action under Government Code Section 6258 and pursue attorney fees from a public agency under 6259(d). A reverse-CPRA action arises when a Public Agency intends to release documents in response to a CPRA request and a third party attempts to stop the disclosure. The court has explained that there is no provision within the CPRA to allow for a third party to commence an action to thwart the disclosure of documents. As explained in Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4^th 1250, 1267 (2012):

[A]lthough the CPRA provides a specific statutory procedure for the resolution of disputes between the party seeking disclosure and the public agency, no comparable procedure exists for an interested third party to obtain a judicial ruling precluding a public agency from improperly disclosing confidential documents. If the public agency elects to disclose records in response to a CPRA request, absent an independent action for declaratory relief or traditional mandamus, no judicial forum will exist in which a party adversely affected by the disclosure can challenge the lawfulness of the agency’s action. [ . . . ]

[I]n the case of a third party seeking to challenge an agency’s decision to disclose documents, the Legislature has not specified any special procedures to resolve the issue. A petition for writ of mandate is the appropriate procedure to present the issue to the court.

The court noted that a third party can seek a writ of mandate pursuant to Code of Civil Procedure section 1085 to prevent the public agency from releasing information the disclosure of which is prohibited by law. (Marken at 1266.) This is the so-called reverse-CPRA action. The reverse-CPRA action does not arise out of Government Code section 6258 or 6259(d) and is not implicated by the statutory clarification sought by the author. It should be noted that courts have allowed “a sufficiently interested party opposed to disclosure to participate in a lawsuit under the CPRA to compel the release of public records.” (Id. at 1270.) In other words, if an action exists whereby a requester filed a lawsuit to compel the release of public records, a sufficiently interested third party that is opposed to disclosure can request to intervene. The Marken court details examples dating back to at least 1986 where courts have permitted interested parties to intervene in the underlying CPRA lawsuit. (Id.) This intervention into an existing CPRA lawsuit is not a “reverse-CPRA” action.

Support: American Civil Liberties Union of California; California Broadcasters Association; Firearms Policy Coalition; First Amendment Coalition; Motion Picture Association of America, Inc.

Opposition: Association of California School Administrators; California Municipal Utilities Association; California School Boards Association; California Special Districts Association; California State Association of Counties; League of California Cities; Rural County Representatives of California; Urban Counties of California

HISTORY

Source: California News Publishers Association

Related Pending Legislation: None Known

Prior Legislation: None Known

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1. Newark Unified School District v. Superior Court (2015) 245 Cal. App. 4^th 887, 245 Cal.App.4^th; Superior Court of California, County of Alameda Hayward Hall of Justice, (April 10, 2018) Order regarding Motion to Tax Costs in the matter of Newark Unified School District v. Snyder, Case No. RG1438281. ↑