Existing law, in a civil action to be resolved by trial or arbitration, authorizes a party to serve an offer in writing on any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at the time. Existing law shifts specified postoffer costs to a plaintiff who does not accept a defendants offer if the plaintiff fails to obtain a more favorable judgment or award. Existing law also authorizes a court or arbitrator to order a party who does not accept the opposing partys offer and fails to obtain a more favorable judgment or award to cover the postoffer costs for the services of expert witnesses, as specified. Existing law exempts certain actions from those provisions, including any labor arbitration filed pursuant to a memorandum of understanding under the Ralph C. Dills Act.

This bill would also exempt from those provisions any action to enforce the California Public Records Act.

 VETO  

Bill No: SB 518

Author: Wieckowski (D)

Amended: 6/20/19

Vote: 27

SENATE JUDICIARY COMMITTEE: 6-2, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Umberg, Wieckowski

NOES: Borgeas, Jones

NO VOTE RECORDED: Stern

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SENATE FLOOR: 29-9, 5/23/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NOES: Bates, Borgeas, Chang, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

SENATE FLOOR: 28-11, 9/11/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NOES: Bates, Borgeas, Chang, Dahle, Grove, Jones, Moorlach, Morrell, Nielsen, Stone, Wilk

NO VOTE RECORDED: Hurtado

ASSEMBLY FLOOR: 62-13, 9/9/19 - See last page for vote

SUBJECT: Civil actions: settlement offers

SOURCE: Author

DIGEST:

This bill clarifies that litigation to enforce the California Public Records Act (CPRA) is exempted from the application of Civil Procedure Code Section 998.

ANALYSIS:

Existing law:

1. Declares, under 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, § 3.)
2. Governs, pursuant to the CPRA, the disclosure of information collected and maintained by public agencies. (Gov. Code § 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 § 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information.
3. Defines “public agency”, for purposes of the CPRA, 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 § 6252(c),(d)&(f).)
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. (Gov. Code § 6253(b).)
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 therefore. (Gov. Code § 6253(c).)
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. (Gov. Code § 6253(c).)
7. Prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records. (Gov. Code § 6253(d).)
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. (Gov. Code § 6255(a).)
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. (Gov. Code § 6255(b).)
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 with the object of securing a decision as to these matters at the earliest possible time. (Gov. Code § 6258.)
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 they 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 § 6259(a).)
12. Provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, they 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, they shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Gov. Code § 6259(b).)
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 they are not in contempt of court. (Gov. Code § 6259(c).)
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 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 § 6259(d).)
15. Provides for Section 998 Offers to Compromise, a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs, as specified, if the party that rejected the offer fails to obtain a better result at trial. (Civ. Proc. Code § 998.)

This bill clarifies that litigation to enforce the CPRA is exempted from the application of Civil Procedure Code Section 998.

Background

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 CPRA requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why they should not do so. The CPRA requires the court to award court costs and reasonable attorney’s fees to the requester if the requester prevails in litigation filed pursuant to these provisions. On the other hand, the CPRA requires the court to award court costs and reasonable attorney’s fees to the public agency only in the situation where the court finds that the requester’s case is clearly frivolous. This high standard for the public agency to meet is clearly written into the CPRA. Indeed the CPRA was designed with the balance tilted toward sunshine into public records. 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 v. Superior Court (2002) 28 Cal.4th 419, 427.) If Section 998 offers to compromise were allowed to be utilized by public agencies where public records are requested, the intentionally asymmetrical aspect of the CPRA’s fee-shifting provisions would be thwarted and the CPRA would be undermined. Because the author received reports that 998 offers are being utilized by some public agencies, the author introduced this bill to make clear that 998 offers shall not have any impact on the determination of attorney’s fees and costs in CPRA actions, thus preserving the spirit of the CPRA.

This bill is author-sponsored and supported by the California Employment Lawyers Association, League of Women Voters of California, and other organizations that support sunshine in the business of the government. It is opposed by a coalition of organizations that represent public agencies.

Comments

The CPRA was Enacted to Ensure that the Public Knows the Public’s Business

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).)

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 § 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 § 6259 (d).)

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 § 6250.)

Offers to compromise made under California Code of Civil Procedure Section 998 are a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs if the party that rejected the offer fails to obtain a better result at trial.

According to the author, Section 998 offers “are an important tool in getting parties to settle in certain cases, however they do not work in CPRA cases.” The author highlights Dunes Development v. California Coastal Commission as an example. According to the author:

Dunes Development requested public documents from the California Coastal Commission which the agency refused to release. Dunes Development took the Commission to court to retrieve the requested documents. The Coastal Commission made a [section] 998 offer of $10,000, along with a proposal that it release some of the documents requested. Dunes Development rejected the offer and the Coastal Commission offered a second [section] 998, which again proposed release of only some of the documents requested and $30,000. Dunes Development refused again. [section] 998 offers were never intended to be used by the government to prevent disclosable documents from being withheld to the public.

The author further asserts:

It is the fundamental right of every Californian to inspect identifiable and disclosable records held by their government. The California Public Records Act established this transparency and accountability which is essential to functioning democracy. Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail. My bill will ensure that the CPRA is being used as it was intended: as a way for Californians to get information from their government without fear of being burdened by court fees.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Assembly Appropriations Committee, costs (GF/special funds) possibly in the hundreds of thousands of dollars annually to state agencies, including the Department of Justice (DOJ), in additional workload to handle an increase in CPRA litigation. Costs may also include court costs paid to petitioners in CPRA cases. A petitioner does not receive costs if a court awards a lesser amount of costs to a petitioner than the agency offered to pay early in the litigation. This creates an incentive for petitioners, once they have received responsive documents, to settle their claims. Specifically, DOJ estimates personnel costs of $445,000 in Fiscal Year (FY) 2019-20 and $887,000 in FY 2020-21 and annually thereafter to litigate ongoing and new CPRA cases because there is less chance a CPRA case will settle early and a greater chance of financial gain in filing CPRA lawsuits.

SUPPORT: (Verified 10/29/19)

California Broadcasters Association

California Employment Lawyers Association

California Gun Rights Foundation

California News Publishers Association

Coalition for Sensible Public Records Access

Firearms Policy Coalition

Firearms Policy Foundation

First Amendment Coalition

Jeffer Mangels Butler & Mitchell LLP

Law Office of Anna Von Herrmann

League of Women Voters of California

Motion Picture Association of America, Inc.

National Lawyers Guild

Oakland Privacy

OPPOSITION: (Verified 10/29/19)

Association of California Healthcare Districts

California Downtown Association

California Special Districts Association

California State Association of Counties

League of California Cities

Old Pasadena Management District

Rural County Representatives of California

Urban Counties of California

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 518 without my signature.

This bill would prohibit pretrial settlement offers in California Public Records Act (CPRA) litigation.

While transparency is essential to maintaining trust in the work of public agencies, this bill does little to advance that ideal. Preventing public agencies from making good-faith efforts to settle litigation by providing additional records that may have been inadvertently overlooked or mistakenly withheld actually delays timely disclosure. This legislation would provide a perverse incentive for more litigation instead of more transparency.

ASSEMBLY FLOOR: 62-13, 9/9/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Fong, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Patterson, Petrie-Norris, Quirk, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Cunningham, Diep, Flora, Irwin, Lackey, Mathis, Mayes, Melendez, Obernolte, Voepel, Waldron

NO VOTE RECORDED: Choi, Frazier, Gallagher, Quirk-Silva

Prepared by: Margie Estrada / JUD. / (916) 651-4113

10/31/19 15:24:48

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 518

Author: Wieckowski (D)

Amended: 6/20/19

Vote: 21

SENATE JUDICIARY COMMITTEE: 6-2, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Umberg, Wieckowski

NOES: Borgeas, Jones

NO VOTE RECORDED: Stern

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SENATE FLOOR: 29-9, 5/23/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NOES: Bates, Borgeas, Chang, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

ASSEMBLY FLOOR: 62-13, 9/9/19 - See last page for vote

SUBJECT: Civil actions: settlement offers

SOURCE: Author

DIGEST:

This bill clarifies that litigation to enforce the California Public Records Act (CPRA) is exempted from the application of Civil Procedure Code Section 998.

Assembly Amendments

remove the clarification from the CPRA and instead place the provision directly into Civil Procedure Code Section 998.

ANALYSIS:

Existing law:

1. Declares, under 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, § 3.)
2. Governs, pursuant to the CPRA, the disclosure of information collected and maintained by public agencies. (Gov. Code § 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 § 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information.
3. Defines “public agency”, for purposes of the CPRA, 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 § 6252(c),(d)&(f).)
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. (Gov. Code § 6253(b).)
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 therefore. (Gov. Code § 6253(c).)
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. (Gov. Code § 6253(c).)
7. Prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records. (Gov. Code § 6253(d).)
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. (Gov. Code § 6255(a).)
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. (Gov. Code § 6255(b).)
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 with the object of securing a decision as to these matters at the earliest possible time. (Gov. Code § 6258.)
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 they 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 § 6259(a).)
12. Provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, they 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, they shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Gov. Code § 6259(b).)
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 they are not in contempt of court. (Gov. Code § 6259(c).)
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 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 § 6259(d).)
15. Provides for Section 998 Offers to Compromise, a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs, as specified, if the party that rejected the offer fails to obtain a better result at trial. (Civ. Proc. Code § 998.)

This bill clarifies that litigation to enforce the CPRA is exempted from the application of Civil Procedure Code Section 998.

Background

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 CPRA requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why they should not do so. The CPRA requires the court to award court costs and reasonable attorney’s fees to the requester if the requester prevails in litigation filed pursuant to these provisions. On the other hand, the CPRA requires the court to award court costs and reasonable attorney’s fees to the public agency only in the situation where the court finds that the requester’s case is clearly frivolous. This high standard for the public agency to meet is clearly written into the CPRA. Indeed the CPRA was designed with the balance tilted toward sunshine into public records. 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 v. Superior Court (2002) 28 Cal.4th 419, 427.) If Section 998 offers to compromise were allowed to be utilized by public agencies where public records are requested, the intentionally asymmetrical aspect of the CPRA’s fee-shifting provisions would be thwarted and the CPRA would be undermined. Because the author received reports that 998 offers are being utilized by some public agencies, the author introduced this bill to make clear that 998 offers shall not have any impact on the determination of attorney’s fees and costs in CPRA actions, thus preserving the spirit of the CPRA.

This bill is author-sponsored and supported by the California Employment Lawyers Association, League of Women Voters of California, and other organizations that support sunshine in the business of the government. It is opposed by a coalition of organizations that represent public agencies.

Comments

The CPRA was Enacted to Ensure that the Public Knows the Public’s Business

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).)

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 § 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 § 6259 (d).)

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 § 6250.)

Offers to compromise made under California Code of Civil Procedure Section 998 are a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs if the party that rejected the offer fails to obtain a better result at trial.

According to the author, Section 998 offers “are an important tool in getting parties to settle in certain cases, however they do not work in CPRA cases.” The author highlights Dunes Development v. California Coastal Commission as an example. According to the author:

Dunes Development requested public documents from the California Coastal Commission which the agency refused to release. Dunes Development took the Commission to court to retrieve the requested documents. The Coastal Commission made a [section] 998 offer of $10,000, along with a proposal that it release some of the documents requested. Dunes Development rejected the offer and the Coastal Commission offered a second [section] 998, which again proposed release of only some of the documents requested and $30,000. Dunes Development refused again. [section] 998 offers were never intended to be used by the government to prevent disclosable documents from being withheld to the public.

The author further asserts:

It is the fundamental right of every Californian to inspect identifiable and disclosable records held by their government. The California Public Records Act established this transparency and accountability which is essential to functioning democracy. Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail. My bill will ensure that the CPRA is being used as it was intended: as a way for Californians to get information from their government without fear of being burdened by court fees.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Assembly Appropriations Committee, costs (GF/special funds) possibly in the hundreds of thousands of dollars annually to state agencies, including the Department of Justice (DOJ), in additional workload to handle an increase in CPRA litigation. Costs may also include court costs paid to petitioners in CPRA cases. A petitioner does not receive costs if a court awards a lesser amount of costs to a petitioner than the agency offered to pay early in the litigation. This creates an incentive for petitioners, once they have received responsive documents, to settle their claims. Specifically, DOJ estimates personnel costs of $445,000 in Fiscal Year (FY) 2019-20 and $887,000 in FY 2020-21 and annually thereafter to litigate ongoing and new CPRA cases because there is less chance a CPRA case will settle early and a greater chance of financial gain in filing CPRA lawsuits.

SUPPORT: (Verified 9/9/19)

California Broadcasters Association

California Employment Lawyers Association

California Gun Rights Foundation

California News Publishers Association

Coalition for Sensible Public Records Access

Firearms Policy Coalition

Firearms Policy Foundation

First Amendment Coalition

Jeffer Mangels Butler & Mitchell LLP

Law Office of Anna Von Herrmann

League of Women Voters of California

Motion Picture Association of America, Inc.

National Lawyers Guild

Oakland Privacy

OPPOSITION: (Verified 9/9/19)

Association of California Healthcare Districts

California Downtown Association

California Special Districts Association

California State Association of Counties

League of California Cities

Rural County Representatives of California

Urban Counties of California

ASSEMBLY FLOOR: 62-13, 9/9/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Fong, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Patterson, Petrie-Norris, Quirk, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Cunningham, Diep, Flora, Irwin, Lackey, Mathis, Mayes, Melendez, Obernolte, Voepel, Waldron

NO VOTE RECORDED: Choi, Frazier, Gallagher, Quirk-Silva

Prepared by: Margie Estrada / JUD. / (916) 651-4113

9/9/19 22:55:33

**** END ****

SENATE THIRD READING

STR Bill Id:SB 518

Author:(Wieckowski)

As Amended Ver:June 20, 2019

Majority vote

SUMMARY:

Exempts litigation to enforce the California Public Records Act from the application of Section 998 of the Code of Civil Procedure (CCP).

Major Provisions

Adds the following to the list of actions to which CCP Section 998 is inapplicable: "Any action to enforce the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)."

COMMENTS:

This bill involves the intersection of, and conflict between, two statutes that address the award of attorney fees and costs after trial: CCP Section 998, a general statute establishing rules for the award of costs to a party, depending on which party prevails at trial and whether the amount of damages obtained at trial; and Government Code Section 6259, a statute that is specific to the award of fees and costs for litigation to enforce the California Public Records Act (CPRA). This bill seeks to address the conflict by specifically exempting litigation to enforce the CPRA from the rules set forth in CCP Section 998.

Courts have found that statutes with general application to civil dispute are inapplicable when a specific statutory scheme addresses the issue at hand. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 434 - 35.) Given that a specific statute governing the award of post-adjudication costs and fees, Section 6259 (d), is in place, it seems likely that a court would find that CCP Section 998 is inapplicable as a matter of law to such determinations.

If the bill’s clarifying prohibition on the use of CCP 998 offers to compromise were enacted, agencies would still have a number of legal tools to avoid paying unreasonable costs for CPRA litigation. Agencies clearly can (and should) do the following in order to limit their liability under the CPRA: 1) take additional steps to address confidentiality issues of exempt records in order to provide those records to the requester; 2) negotiate a settlement of the dispute with the requester before a lawsuit is filed; 3) negotiate a settlement of the dispute—by means other than a CCP Section 998 settlement offer--with the requester after a lawsuit is filed; and 4) request a reduction of the cost award on the basis that the agency is only liable for only "reasonable attorney's fee awards."

According to the Author:

Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail.

Arguments in Support:

The California News Publishers argue that Section 998 is already inapplicable to CPRA disputes.

CNPA does not believe 998 offers apply to an attorney's fee award under the CPRA. Several public agencies, however, have used 998 offers to scare requesters into prematurely settling legitimate CPRA disputes out of fear that if they do not, the court may not award them attorney's fees and costs. . . . This nefarious tactic is contrary to the fundamental premise of the CPRA and Article I, Section 3 of the California Constitution[.]

Arguments in Opposition:

The California Special Districts Association and other groups representing local governments oppose the bill because they think CCP Section 998 should be applicable to CPRA litigation:

Proposing to eliminate this common litigation practice would discourage plaintiffs' attorneys in CPRA cases from settling because they would face no consequence for rejecting a reasonable and fair Section 998 offer, but potentially significantly more to gain in fees by proceeding with a costly litigation process, even if an attorney's client receives no additional benefit other than what would have been offered in a settlement. SB 518 creates a lopsided benefit to plaintiff attorneys over public agencies that encourages costly litigation, when a simple agreement could be reached.

FISCAL COMMENTS:

According to the Assembly Appropriations analysis, costs (GF/special funds) possibly in the hundreds of thousands of dollars annually to state agencies, including the Department of Justice (DOJ), in additional workload to handle an increase in PRA litigation. Costs may also include court costs paid to petitioners in PRA cases. A petitioner does not receive costs if a court awards a lesser amount of costs to a petitioner than the agency offered to pay early in the litigation. This creates an incentive for petitioners, once they have received responsive documents, to settle their claims. Specifically, DOJ estimates personnel costs of $445,000 in Fiscal Year (FY) 2019-20 and $887,000 in FY 2020-21 and annually thereafter to litigate ongoing and new PRA cases because there is less chance a PRA case will settle early and a greater chance of financial gain in filing PRA lawsuits.

VOTES:

SENATE FLOOR: 29-9-0

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Bates, Borgeas, Chang, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

ASM JUDICIARY: 10-1-1

YES: Mark Stone, Chau, Chiu, Gabriel, Holden, Kalra, Kiley, Maienschein, Petrie-Norris, Reyes

NO: Obernolte

ABS, ABST OR NV: Gallagher

ASM APPROPRIATIONS: 14-4-0

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Brough, Diep, Obernolte

UPDATED:

VERSION: June 20, 2019

CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001117

Date of Hearing: July 3, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 518

Author:(Wieckowski) – As Amended Ver:June 20, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill eliminates the use of an offer of compromise, as defined by Code of Civil Procedure section 998, in California Public Records Act (PRA) litigation.

FISCAL EFFECT:

Costs (GF/special funds) possibly in the hundreds of thousands of dollars annually to state agencies, including the Department of Justice (DOJ), in additional workload to handle an increase in PRA litigation. Costs may also include court costs paid to petitioners in PRA cases. A petitioner does not receive costs if a court awards a lesser amount of costs to a petitioner than the agency offered to pay early in the litigation. This creates an incentive for petitioners, once they have received responsive documents, to settle their claims. Specifically, DOJ estimates personnel costs of $445,000 in FY 2019-20 and $887,000 in FY 2020-21 and annually thereafter to litigate ongoing and new PRA cases because there is less chance a PRA case will settle early and a greater chance of financial gain in filing PRA lawsuits.

COMMENTS:

1. Purpose. According to the author:

Public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail. My bill will ensure that the CPRA is being used as it was intended: as a way for Californians to get information from their government without fear of being burdened by court fees.

1. CCP 998 Offer to Compromise and PRA Cases. Code of Civil Procedure section 998 is a cost-shifting statute that encourages the early resolution of lawsuits by penalizing parties who fail to accept reasonable pretrial settlement offers. A plaintiff who refuses a reasonable pretrial settlement offer and subsequently fails to obtain a “more favorable judgment” is penalized by a loss of prevailing party costs and is required to pay the defendant’s costs. However, 998 offers are not often used in writs of mandate cases such as PRA lawsuits because PRA cases do not involve “damages.” A PRA petitioner forced to file a lawsuit against a government agency for failure to comply with a request for documents may receive costs and fees if the petitioner prevails. Writs of mandate are equitable actions and seek to compel or prevent a specific government action. 998 offers are almost exclusively used to resolve lawsuits for damages (e.g., commercial, business, personal injury, and employment actions). There is no case law prohibiting use of a CCP 998 offer in a PRA case. This bill would prohibit use of a 998 offer in PRA cases.
2. Support. According to the California Employment Lawyers Association:

Section 998 offers are an important tool in getting parties to settle in certain cases, however they are not appropriate in CPRA cases. The use of 998 offers by public agencies in CPRA litigation may unduly force petitioners into accepting settlements that include very limited record production out of concern that they will otherwise be liable for respondents’ attorney’s fees.

1. Opposition. According to the California Special Districts Association:

Proposing to eliminate this common litigation practice would discourage plaintiffs’ attorneys in CPRA cases from settling because they would face no consequence for rejecting a reasonable and fair Section 998 offer, but potentially significantly more to gain in fees by proceeding with a costly litigation process, even if an attorney’s client receives no additional benefit other than what would have been offered in a settlement. SB 518 creates a lopsided benefit to plaintiff attorneys over public agencies that encourages costly litigation, when a simple agreement could be reached.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

SENATE THIRD READING

STR Bill Id:SB 518

Author:(Wieckowski)

As Amended Ver:June 20, 2019

Majority vote

SUMMARY:

Exempts litigation to enforce the California Public Records Act from the application of Section 998 of the Code of Civil Procedure (CCP).

Major Provisions

Adds the following to the list of actions to which CCP Section 998 is inapplicable: "Any action to enforce the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)."

COMMENTS:

This bill involves the intersection of, and conflict between, two statutes that address the award of attorney fees and costs after trial: CCP Section 998, a general statute establishing rules for the award of costs to a party, depending on which party prevails at trial and whether the amount of damages obtained at trial; and Government Code Section 6259, a statute that is specific to the award of fees and costs for litigation to enforce the California Public Records Act (CPRA). This bill seeks to address the conflict by specifically exempting litigation to enforce the CPRA from the rules set forth in CCP Section 998.

Given the competing interests and incompatible rules of CCP Section 998 and Section 6259, a court could find that the Legislature intended to exempt CPRA Litigation from CCP Section 998's rules. Courts have found that statutes with general application to civil dispute are inapplicable when a specific statutory scheme addresses the issue at hand. For example, the California Supreme Court held in Filarsky that the trial court abused its discretion by allowing a city to initiate an action for declaratory relief pursuant to CCP Section 1060 (which allows "[a]ny person interested under a written instrument . . . who desires a declaration of his or her rights of duties with respect to another") in light of the CPRA's statutory scheme allowing only the requester of public records, not the agency in possession of public records, from seeking a court order to release such records pursuant to Section 6259. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 434 - 35.) Given that a specific statute governing the award of post-adjudication costs and fees, Section 6259 (d), is in place, it seems likely that a court would find that CCP Section 998 is inapplicable as a matter of law to such determinations.

Agencies have a number of legal tools, separate and apart from CCP 998, to avoid paying unreasonable costs for CPRA litigation. Agencies clearly can do the following in order to limit their liability for a requester's under the CPRA: 1) take additional steps to address confidentiality issues of exempt records in order to provide those records to the requester; 2) negotiate a settlement of the dispute with the requester before a lawsuit is filed; 3) negotiate a settlement of the dispute—by means other than a CCP Section 998 settlement offer--with the requester after a lawsuit is filed; and 4) request a reduction of the cost award on the basis that the agency is only liable for only "reasonable attorney's fee awards."

According to the Author:

Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail.

Arguments in Support:

The California News Publishers support the bill on the basis that it clarifies existing law that Section 998 is inapplicable to CPRA disputes.

To be clear, CNPA does not believe 998 offers apply to an attorney's fee award under the CPRA. Several public agencies, however, have used 998 offers to scare requesters into prematurely settling legitimate CPRA disputes out of fear that if they do not, the court may not award them attorney's fees and costs. . . . This nefarious tactic is contrary to the fundamental premise of the CPRA and Article I, Section 3 of the California Constitution[.]

Arguments in Opposition:

The California Special Districts Association, League of California Cities, California State Association of Counties, California Downtown Association, Rural County Representatives of California, Urban Counties of California, and Association of California Healthcare Districts write the following in opposition to the bill:

Proposing to eliminate this common litigation practice would discourage plaintiffs' attorneys in CPRA cases from settling because they would face no consequence for rejecting a reasonable and fair Section 998 offer, but potentially significantly more to gain in fees by proceeding with a costly litigation process, even if an attorney's client receives no additional benefit other than what would have been offered in a settlement. SB 518 creates a lopsided benefit to plaintiff attorneys over public agencies that encourages costly litigation, when a simple agreement could be reached.

FISCAL COMMENTS:

None

VOTES:

SENATE FLOOR: 29-9-0

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Bates, Borgeas, Chang, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

ASM JUDICIARY: 10-1-1

YES: Mark Stone, Chau, Chiu, Gabriel, Holden, Kalra, Kiley, Maienschein, Petrie-Norris, Reyes

NO: Obernolte

ABS, ABST OR NV: Gallagher

UPDATED:

VERSION: June 20, 2019

CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001117

Date of Hearing: June 18, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 518

Author:(Wieckowski) – As Introduced Ver:February 21, 2019

As Proposed to be Amended

SENATE VOTE: 29-9

SUBJECT: PUBLIC RECORDS DISCLOSURE: COURT COSTS AND ATTORNEY FEES

KEY ISSUE: Should litigation to enforce the california public records act, which prohibits the award of attorney fees to a public agency except when litigation is frivolous, be specifically exempted from Section 998 of the code of civil procedure, which allows the award of attorney fees and costs to a prevailing defendant, including a public agency?

SYNOPSIS

This bill involves the intersection of, and conflict between, two statutes that address the award of attorney fees and costs after trial: CCP Section 998, a general statute establishing rules for the award of costs to a party, depending on which party prevails at trial and whether the amount of damages obtained at trial was greater than the amount offered in a pre-trial offer to compromise; and Government Code Section (hereafter “Section”) 6259, a statute that is specific to the award of fees and costs for litigation to enforce the California Public Records Act (CPRA). This bill seeks to address the conflict by specifically exempting litigation to enforce the CPRA from the rules set forth in CCP Section 998.

Regarding the award of the costs of litigation, the general rule is that the prevailing party—and only the prevailing party--is entitled to recover its costs. CCP Section 998 – which establishes rules for the award of costs (including attorney fees) to a party after a pre-trial offer to settle the litigation and meeting specified criteria was made by one party but rejected by another, depending on which party prevails at trial and whether the amount of damages obtained at trial was greater than the amount offered in a pre-trial offer to compromise - is an exception to the general rule. At the same time, there is a “special” rule for the award of costs in disputes regarding the CPRA, 6259 (d) that requires the award of costs to a member of the public who obtains public records as the result of suing an agency to release them.

Public agencies (who are opposed to the bill), believe that CCP Section 998 offers a valuable tool in many types of litigation including CPRA disputes. The author and supporters of this bill, on the other hand, believe that Section 998 undermines the CPRA and should be (or already is) inapplicable to CPRA disputes. The analysis describes why the two schemes for determining an award of costs are incompatible in terms of policy goals, binary (versus asymmetrical) effect, and even demonstrates why and how application of CCP Section 998 could lead to absurd and perverse results that would undermine the clear goals of the CPRA.

The author proposes to amend the bill—deleting its current content and amending CCP Section 998 instead—in a manner that achieves the exact policy goal of the bill in print but seems to achieve that goal in a more straightforward way. The bill as proposed to be amended would add CPRA litigation to the types of litigation which are already exempt from the application of CCP Section 998. The amendments are describe in and incorporated into the analysis. The bill is supported by a large group of open government, civil rights, and free speech organizations. It is opposed by local government groups and other public entities.

SUMMARY: Exempts litigation to enforce the California Public Records Act from the application of Section 998 of the Code of Civil Procedure (CCP). Specifically, this bill adds the following to the list of actions to which CCP Section 998 is inapplicable: “Any action to enforce the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).”

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. Provides, under the California Public Records Act (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.)
3. 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).)
4. Requires a public agency that receives a request for public records, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, to do all of the following, to the extent reasonable under the circumstances:
   1. Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
   2. Describe the information technology and physical location in which the records exist.
   3. Provide suggestions for overcoming any practical basis for denying access to the records or information sought. (Section 6253.1 (a).)
5. Deems the requirements of 4), above, to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records. (Id., at (b).)
6. Provides the following cost-shifting provision specific to litigation regarding the California Public Records Act:
   1. 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.
   2. If the court finds that the requester’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency. (Section 6259 (d).)
7. Provides the following rules regarding the award of costs, including attorney fees when authorized, depending on whether a pre-trial offer of compromise was made and which party prevails at trial:
   1. If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. (Code of Civil Procedure (CCP) Section 998 (c)(1).)
   2. If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs. (Id., at (d).)
   3. If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff; and if the costs awarded exceed the amount of the damages awarded to the plaintiff, the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly. (Id., at (e).)
8. Exempts the following from the rules set forth in 7), above:
   1. An offer that is made by a plaintiff in an eminent domain action. (CCP Section 998 (g)(1).)
   2. Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor. (Id., at (g)(2).)
   3. Labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act. (Id., at (i).)

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

COMMENTS: This bill involves the intersection of, and conflict between, two statutes that address the award of attorney fees and costs after trial: CCP Section 998, a general statute establishing rules for the award of costs to a party, depending on which party prevails at trial and whether the amount of damages obtained at trial was greater than the amount offered in a pre-trial offer to compromise; and Section 6259, a statute that is specific to the award of fees and costs for litigation to enforce the California Public Records Act (CPRA). This bill seeks to address the conflict by specifically exempting litigation to enforce the CPRA from the rules set forth in CCP Section 998. According to the author:

It is the fundamental right of every Californian to inspect identifiable and disclosable records held by their government. The California Public Records Act established this transparency and accountability which is essential to functioning democracy.

Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail. My bill will ensure that the CPRA is being used as it was intended: as a way for Californians to get information from their government without fear of being burdened by court fees.

General Rule – Award of Costs (Sometimes Including Attorney Fees) in Civil Litigation. Regarding the award of the costs of litigation, the general rule is that the prevailing party—and only the prevailing party--is entitled to recover its costs. CCP Section 1032 (b) provides that, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Regarding attorney fees, the general “American Rule” is that each party is responsible for paying their own fees. (See 7 Witkin. Cal. Procedure (5^th ed. 2008) Judgment, Section 149 (1), p. 682 – 84.) But attorney fees may be specifically authorized by contract, statute, or law may be recovered as allowable costs. (Id., at p. 684.)

Exception: CCP Section 998 – Award of Attorney Fees and Costs After Judgment When Pre-Trial Offer to Compromise was Rejected. CCP Section 998 establishes rules for the award of costs (including attorney fees) to a party after a pre-trial offer to settle the litigation and meeting specified criteria was made by one party but rejected by another, depending on which party prevails at trial and whether the amount of damages obtained at trial was greater than the amount offered in a pre-trial offer to compromise. CCP Section 998 “is itself an exception to section 1032's provision that only a prevailing party is entitled to costs.” (Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 520.) It provides the following rules:

• If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. (CCP Section 998 (c)(1).)
• If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding . . . the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff’s costs. (CCP Section 998 (d).)
• If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff; and if the costs awarded exceed the amount of the damages awarded to the plaintiff, the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly. (Id., at (e).)

CCP Section 998’s rules for the award of costs are binary, placing the plaintiff and defendant in similar positions vis-à-vis their offer or rejection of a pre-trial settlement and punishing them for rejecting a pre-trial offer to settle the dispute if they end up with a worse outcome after trial. In other words, under CCP Section 998, both the plaintiff and the defendant benefit from making a good faith effort to settle the dispute and could suffer for rejecting it if they get a less favorable result after trial. The purpose and rationale of Section 998 is “to encourage the settlement of lawsuits prior to trial.” (Toste v. Carportland Construction (2016) 245 Cal. App. 4^th 362.) Also, CCP Section 998 is focused primarily on monetary value: the amount of money offered to settle a claim versus the amount of a monetary award obtained after trial.

Special Rule – Award of Attorney Fees and Costs After Litigation to Enforce the CPRA. Section 6259 (d) sets forth a fee shifting provision that requires court costs and attorney fees to be awarded to a successful requester, and only allows such costs to be awarded to a prevailing public entity in exceptional cases. “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.” (Section 6259 (d).)

The intent of this fee-shifting provision is to provide “protection…for members of the public” seeking public records and it is intentionally asymmetrical. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 427 [emphasis added].)

The CPRA is asymmetrical not only in terms of the different standards it applies for the award of costs and fees under Section 6259, depending on whether the party is a requestor or an agency, but also because it limits who can be a plaintiff and seek court enforcement of their rights. Section 6258 allows “[a]ny person to institute proceedings for injunctive or declarative relief or writ of mandate . . . to enforce his or her right to inspect or to receive a copy of any public record[c.]” Section 6259 provides, only when “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 [emphasis added].” Thus, only a member of the public seeking the release of documents is allowed to enforce the CPRA via Sections 6258 and 6259.

As established above, Government Code sections 6258 and 6259 do not authorize a public agency to initiate a proceeding under the Act to determine that agency's obligation to disclose documents to a member of the public. This limitation is logical and consistent with the policies underlying the Act. If the person requesting the records does not deem it worthwhile to bring a judicial proceeding to compel disclosure after a public agency has denied a request for disclosure, no litigation will occur and the records will not be disclosed. Even if the request implicates important unresolved legal questions, such questions are not ripe for adjudication unless and until a person files a judicial proceeding pursuant to section 6258 that would require the resolution of these questions. A public agency's initiation of an action regarding disclosure before a person commences litigation to require disclosure frustrates the purpose of the Act by discouraging requests for public records and requiring persons who make such requests to defend lawsuits they otherwise might not initiate. It also results in a waste of judicial resources. A person might threaten to commence a lawsuit, but such a threat often results in no actual litigation. (Filarsky v. Superior Court, supra, 28 Cal.4th at p. 432.)

Filarsky demonstrates that the policy goals of the CPRA— “ensuring speedy public access to vital information regarding the government's conduct of its business” (Id., at p. 434) via court order, if necessary—are different from, and diametrically opposed to, the goals of CCP Section 998. Whereas CCP Section 998 seeks to discourage both plaintiffs and defendants from pursuing unnecessary litigation, the goal of Section 6259 is to encourage requesters to enforce their rights in court, if necessary, and prevent public agencies from doing so. And while CCP Section 998 is focused primarily on money, Section 6259 is focused on records.

Given the competing interests and incompatible rules of CCP Section 998 and Section 6259, a court could find that the Legislature intended to exempt CPRA Litigation from CCP Section 998’s rules. The Legislature has specifically exempted certain types of cases from CCP Section 998, apparently in recognition that CCP Section 998 could interfere with other public policy goals. The following three types of cases are exempt from the above rules: (1) an offer that is made by a plaintiff in an eminent domain action; (2) any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor; and (3) arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act. (CCP Section 998 (g), (i).)

While CPRA litigation is not specifically exempt from the application of CCP Section 998, for a number of reasons CCP Section 998 seems unsuited for application to such litigation. In addition to the reasons stated above--that the statutory schemes have different and conflicting goals; while one is binary, the other is asymmetrical—application of CCP 998 to CPRA cases could have absurd and illogical results that conflict with the goals for, and case law governing, the CPRA.

As a hypothetical example, requester P seeks all email of D city’s staff regarding P’s permit application for a business in the city. D responds in a timely manner and informs P in writing that D has identified 500 documents that are responsive to P’s request, but only 50 are subject to disclosure because of various exemptions to the CPRA. P files suit, seeking injunctive and declaratory relief pursuant to Section 6258. The court reviews D’s records and determines that only 100 documents were exempt from disclosure; 400 should have been provided to P upon request (in other words, D unlawfully withheld 350 documents). P’s costs and attorney’s fees for the litigation are $10,000.

• If D did not make a pre-hearing offer to provide additional documents or pay money to entice P to drop the litigation, P would have a right to recover $10,000 pursuant to Section 6259 (d).
• If D made a pre-hearing offer to provide 100 additional documents (for a total of 150/500) and pay P $15,000 and P refused the offer:
  • Under Section 6259 (d): P would have a right to recover $10,000 pursuant to Section 6259 (d) because D unlawfully withheld 300 documents.
  • Under CCP Section 998: P’s recovery would be reduced by the amount of D’s offer, meaning that P would owe D $5,000. In addition, P could end up owing D for D’s post-offer costs.

In the second scenario, where the defendant agency offered a pre-trial settlement and the requester rejected it and was later awarded less money (but more documents) at trial, the application of CCP Section 998 would be absurd. P prevailed on the quest to obtain records, but is stuck with paying for costs and fees and in debt to D, despite the fact that D violated the CPRA. This result would clearly conflict with the goals of the CPRA in general (to encourage prompt disclosure of records) and Section 6259 (d) in particular (to compensate members of the public for the costs of taking their records request to court). Thus, allowing CCP 998 to apply in CPRA disputes would basically encourage parties—both the requester and the agency--to seek monetary settlements, in lieu of records. This is obviously antithetical to the CPRA, which makes the release of records rather than the payment of settlements, its policy goal.

Courts have found that statutes with general application to civil dispute are inapplicable when a specific statutory scheme addresses the issue at hand. For example, the California Supreme Court held in Filarsky that the trial court abused its discretion by allowing a city to initiate an action for declaratory relief pursuant to CCP Section 1060 (which allows “[a]ny person interested under a written instrument . . . who desires a declaration of his or her rights of duties with respect to another”) in light of the CPRA’s statutory scheme allowing only the requester of public records, not the agency in possession of public records, from seeking a court order to release such records pursuant to Section 6259. (Filarsky v. Superior Court, supra, 28 Cal.4th at pp. 434 - 35.) The Court also provides a clear road map for the analysis of a dispute like the one at issue in this bill that shows it is likely that CPRA disputes are, under current law, exempt from the provisions of CCP Section 998:

[T]he court properly may refuse to grant relief where an appropriate procedure has been provided by special statute and the court believes that more effective relief can and should be obtained through that procedure. [Citations.] Although some decisions state that in order to deny declaratory relief on this ground, the alternative remedy must be available to the plaintiff (e.g., [Citation]), these decisions have not considered a situation where, as here, a special statutory scheme reflects an intention to deny the plaintiff the opportunity to seek declaratory relief, and where authorizing such relief pursuant to Code of Civil Procedure section 1060 would violate the policies underlying the statutory scheme. (Cf. West Coast Poultry Co. v. Glasner (1965) 231 Cal. App. 2d 747, 751-752 [42 Cal. Rptr. 297] [trial court properly dismissed private litigant's action for declaratory relief where determination of the controversy more properly was within the power of the state civil service and personnel boards].) In such a situation, the superior court would abuse its discretion if it permitted the plaintiff, by initiating an ordinary declaratory relief action, to circumvent the particular procedures and other provisions specified by the Legislature in the statutory scheme that was intended to govern such disputes. (Id., at p. 433.)

Other courts have relied on this reasoning to find, for example, that a potential defendant in a Consumer Legal Remedies Act (CLRA) damages action after receiving the statutory notice may not maintain a declaratory relief under a general statute to allege that there was no violation of the CLRA (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 466) and that a dispute between a landlord and tenant in San Francisco was governed by the applicable rent control ordinance, not the general statute authorizing an action for declaratory relief. (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 547.)

Given the fact that a specific statute governing the award of post-adjudication costs and fees, Section 6259 (d), is in place, it seems likely that a court would find that CCP Section 998 is inapplicable as a matter of law to such determinations. In order to clarify the point, and given the incompatibility of the two statutory schemes from a practical and policy perspective, it may very well be appropriate to specifically exempt CPRA disputes from CCP Section 998, as proposed by this bill as it is proposed to be amended.

Agencies have a number of legal tools, separate and apart from CCP 998, to avoid paying unreasonable costs for CPRA litigation. Given that the only enforcement mechanisms in the CPRA (Section 6258 and 6259) are premised on public records not being provided to the requester, the most obvious way for a public agency to avoid litigation about the CPRA is to comply with the CPRA, including by providing requested records whenever possible. An agency is not prohibited by the CPRA from providing an exempt record to the public (although other laws may prohibit disclosure of certain records, such as medical records). Rather, because the CPRA does not “require disclosure” of an exempt record (See Section 6254), the agency may generally provide it. Agency fears that the CPRA is a trap that imposes liability one them if a single record is inadvertently missed, or a responsive record is provided one day after the statutory deadline provide it, seem exaggerated. For example, the City of Taft was not ordered to pay a requester’s attorney fees even though it refused to provide personnel records that the court ultimately determined should have been provided, because he obtained them through other means. (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 349.) Likewise, courts have held that an agency are not liable for a “slight delay” in the production of records. “The fact a delay in production was slight and was due in part to unavailability of critical personnel is relevant to show the delay was due to administrative problems rather than agency intransigence. This in turn suggests production would ultimately have occurred whether or not suit was filed.” (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1346.)

As explained below, a court’s paramount concern in reviewing an agency’s attempts to comply with the CPRA is whether the agency’s efforts to comply with the CPRA were reasonable in light of the CPRA’s policy goals to make records publically available to the greatest extent allowed by law. Even if an agency cannot provide every record that is requested before a lawsuit is filed, it can take a number of steps to reduce the likelihood of litigation and to reduce its expose to liability for the requester’s costs under Section 6259 (d) in the event that a lawsuit is filed:

1. Take additional steps to address confidentiality issues of exempt records in order to provide those records to the requester

Even if an agency can claim an exemption, that does not mean that an agency should necessarily do so. Instead, the agency should consider ways to provide an exempt document, or as much non-exempt information within such a document, as possible. For example, in response to a request for propriety documents of an insurance carrier, Insurance Commissioner refused the request. Later, the Commissioner sought and obtained the company’s consent to disclosure, which she had neglected to do before the requester filed suit. The Commissioner argued that she was not liable for costs under 6259 (d) because the records were provided before the court hearing. The appellate court opined as follows about the Commissioner’s interpretation:

She warns that if attorney fees are awarded on this basis, "no agency, once a public records action had been commenced, would ever turn over documents absent a court order." (Italics in original.) That is one way to look at it. Another is that awarding fees in a case like this will encourage public agencies to consider seeking consent for disclosure of possibly confidential records before refusing requests for access. This would further the Public Records Act's objective of increasing freedom of information. (Belth v. Garamendi (1991) 232 Cal.App.3d 896, 902-903.)

Thus, agencies can protect themselves by erring on the side of disclosure of public records whenever possible (i.e. unless disclosure is prohibited), even when a record technically is exempt from disclosure and therefore not required to be disclosed by the CPRA.

1. Negotiate a settlement of the dispute with the requester before a lawsuit is filed.

Section 6253.1 (a) expresses the Legislature’s expectation that public agencies diligently work with members of the public to formulate requests for records successfully lead to the disclosure of public records. It provides as follows:

When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought. (Section 6253.1 (a).)

While 6253.1 does not explicitly require a requester of public records to also cooperate with this process before filing a lawsuit, courts have considered a requester’s pre-litigation cooperation with an agency in deciding whether the filing of the lawsuit prompted the disclosure of records (thus triggering the right to costs in Section 6259 (d)). For example, the 3^rd District Court of Appeal upheld the trial court’s denial of attorney fees—even though one document that was withheld by DGS was ordered by the trial court to be disclosed--because of the efforts of DGS to comply with Motorola’s request and Motorola’s lack of mutual cooperation.

As to the single, "proprietary" document excluded from production, the record indicates Motorola was alerted to its existence after a lawsuit was threatened but before it was filed. Motorola argues this chronology suggests the lawsuit was the motivating factor for the disclosure. This may be true. However, entitlement to costs and attorney fees does not turn on whether disclosure occurred because of a threatened lawsuit. . . . The critical question is whether the requesting party was required to follow through with the implicit threat of a suit in order to obtain the documents. Here, as the record amply demonstrates, Motorola was not required to do so.

Based on the uncertainties inherent in Motorola's public records requests, and the timely efforts by the Department to respond, we conclude substantial evidence supports the superior court's implicit finding this litigation did not cause the Department to disclose any of the documents ultimately made available to Motorola. Hence, Motorola was not a prevailing party within the meaning of section 6259, subdivision (d) and is not entitled to an award of costs and attorney fees. (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1351.)

1. Negotiate a settlement of the dispute—by means other than a CCP Section 998 settlement offer--with the requester before or after a lawsuit is filed.

Nothing in the law—or even under the bill as it is proposed to be amended—would prohibit an agency from reaching a settlement, including the payment of some of the requester’s costs and a release of the agency from liability, with a requester. Such a settlement is likely to be far less costly and time-consuming to the agency than continuing a dispute about records to the point that it must be adjudicated pursuant to Section 6259. Even if such a settlement is rejected, the court may consider it in determining whether requested fees are reasonable. (See 4), below.)

1. Request a reduction of the cost award on the basis that the agency is only liable for only “reasonable attorney’s fee awards.”

Even though a requester who prevails pursuant to Sections 6258 or 6259 is entitled to recover their costs, including attorney fees, that does not mean that a court is required to award the entirety of the requested costs. “California courts have long held that trial courts have broad discretion in determining the amount of a reasonable attorney's fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.” (Meister v. Regents of Univ. of Cal. (1998) 67 Cal.App.4th 437, 452.) In determining whether the amount of attorney fees is reasonable, courts can certainly consider the agency’s efforts to assist the requester and settle the dispute. It can also consider pre-trial efforts to settle the case, even when CCP Section 998 is inapplicable.

Section 998 was enacted to facilitate California's policy of encouraging parties to accept reasonable settlement offers. (Poster v. Southern Cal. Rapid Transit Dist., supra, 52 Cal. 3d at p. 270.) This policy is not inconsistent with permitting a trial court to consider informal settlement offers in cases where section 998 does not apply and the trial court has the discretion to set the amount of a reasonable attorney's fee award. We are confident that our trial courts are capable of avoiding "uneven results," and we can see no justification for Cowan's belief that "misuse" is a significant danger. California trial courts regularly exercise their discretion to determine what is reasonable under particular circumstances. This situation is not so rife with potential for abuse that we cannot trust our trial courts to continue to exercise their discretion in the interests of fairness and justice. Consequently, we do not believe that prohibiting trial courts from considering informal settlement offers in setting the amount of a reasonable attorney's fee award is warranted. (Id., at pp. 452-453.)

Author’s amendments. As currently in print, the bill amends Section 6259 (d) to provide that, “Notwithstanding Section 998 of the Code of Civil Procedure.” attorney fees must be awarded to a prevailing party in a CPRA enforcement action. As proposed to be amended, the bill’s current content, amending Section 6259 would be deleted, and the following amendment would be made to subdivisions (g) and (i) of CCP Section 998. This accomplishes the author’s goal in what appears to be a more straightforward way. Also, given that CCP Section 998 already exempts certain type of litigation from its application, adding another express exemption to Section 998 seems appropriate.

(g) This chapter does not apply to either of the following:

(1) An offer that is made by a plaintiff in an eminent domain action.

(2) Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.

(3) Any labor arbitration filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).

(4) Any action to enforce the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).   

(h) The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.

(i) This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code).

It should be noted that the language that is proposed to be added as a new (g)(3) is only a technical change. Striking out the exemption for arbitrations filed pursuant to the Ralph Dills Act in subdivision (i), which refers to this “section”, and moving it to subdivision (g), which refers to this “chapter” appears to have no substantive effect. Section 998 is its entire “chapter,” so section and chapter have the same meaning in the context of this statute.

ARGUMENTS IN SUPPORT: The California Employment Lawyers Association, in support, writes:

Because CPRA petitions are filed by people seeking to enforce their fundamental right to access records, the courts and the legislature have carefully and thoroughly restricted the circumstances under which respondents can recover their fees and costs from requesters. The law as it now stands disallows fee recovery by a prevailing agency unless the litigation is “clearly frivolous.” The use of 998 offers in CPRA petitions undermines this essential element of the law by conceivably allowing public agencies to recover fees from requesters even if the requester is the prevailing party.

Section 998 offers are an important tool in getting parties to settle in certain cases, however they are not appropriate in CPRA cases. The use of 998 offers by public agencies in CPRA litigation may unduly force petitioners into accepting settlements that include very limited record production out of concern that they will otherwise be liable for respondents’ attorney’s fees.

The California News Publishers support the bill on the basis that it clarifies existing law that Section 998 is inapplicable to CPRA disputes.

To be clear, CNPA does not believe 998 offers apply to an attorney’s fee award under the CPRA. Several public agencies, however, have used 998 offers to scare requesters into prematurely settling legitimate CPRA disputes out of fear that if they do not, the court may not award them attorney’s fees and costs.

This nefarious tactic is contrary to the fundamental premise of the CPRA and Article I, Section 3 of the California Constitution: “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.”

ARGUMENTS IN OPPOSITION: The California Special Districts Association, League of California Cities, California State Association of Counties, California Downtown Association, Rural County Representatives of California, Urban Counties of California, and Association of California Healthcare Districts write the following in opposition to the bill:

Failure of a public agency to disclose records pursuant to the CPRA can result in significant financial consequences for the agency from potential litigation.

[ . . . ]

Under current law, records requesters that believe a public agency has improperly withheld a record may sue the agency immediately. There is no “meet and confer” requirement that a requester work with an agency to resolve a dispute over any records that may have been withheld by an agency. Additionally, should a requestor prevail in court by having even a single record released that had previously been withheld, the CPRA mandates that a court award costs and reasonable attorney fees to the plaintiff. Offers to compromise made under Code of Civil Procedure section 998 (“Section 998 offers”) are intended to encourage litigants to settle their disputes in an amicable and reasonable fashion and avoid excessive litigation costs.

[ . . . ]

Proposing to eliminate this common litigation practice would discourage plaintiffs’ attorneys in CPRA cases from settling because they would face no consequence for rejecting a reasonable and fair Section 998 offer, but potentially significantly more to gain in fees by proceeding with a costly litigation process, even if an attorney’s client receives no additional benefit other than what would have been offered in a settlement. SB 518 creates a lopsided benefit to plaintiff attorneys over public agencies that encourages costly litigation, when a simple agreement could be reached.

Prior Related Legislation: SB 1244 (Wieckowski, Chap. 463, Stats. 2018) replaced 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 person or entity that requested the records should that party prevail in litigation filed pursuant to the Public Records Act.

REGISTERED SUPPORT / OPPOSITION:

Support

California Broadcasters Association
California Employment Lawyers Association
California News Publishers Association
Coalition For Sensible Public Records Access
First Amendment Coalition
Jeffer Mangels Butler & Mitchell LLP
League Of Women Voters Of California
National Lawyers Guild
Oakland Privacy

Opposition

Association of California Healthcare Districts
California Downtown Association

California Special Districts Association
California State Association of Counties
League of California Cities
Old Pasadena Management District
Rural County Representatives Of California
Urban Counties Of California

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

 THIRD READING  

Bill No: SB 518

Author: Wieckowski (D)

Introduced: 2/21/19

Vote: 21

SENATE JUDICIARY COMMITTEE: 6-2, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Umberg, Wieckowski

NOES: Borgeas, Jones

NO VOTE RECORDED: Stern

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SUBJECT: Public records: disclosure: court costs and attorney’s fees

SOURCE: Author

DIGEST:

This bill clarifies that notwithstanding Code of Civil Procedure Section 998, the court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation under the California Public Records Act.

ANALYSIS:

Existing law:

1. Provides that 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, § 3.)
2. Provides that the California Public Records Act (CPRA) governs the disclosure of information collected and maintained by public agencies. (Gov. Code § 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 § 6254.) 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. (Gov. Code § 6252(c),(d)&(f).)
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. (Gov. Code § 6253(b).)
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 therefore. (Gov. Code § 6253(c).)
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. (Gov. Code § 6253(c).)
7. Prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records. (Gov. Code § 6253(d).)
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. (Gov. Code § 6255(a).)
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. (Gov. Code § 6255(b).)
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 with the object of securing a decision as to these matters at the earliest possible time. (Gov. Code § 6258.)
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 they 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 § 6259(a).)
12. Provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Government Code Section 6254 or 6255, they 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, they shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Gov. Code § 6259(b).)
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 they are not in contempt of court. (Gov. Code § 6259(c).)
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 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 § 6259(d).)
15. Provides for Section 998 Offers to Compromise, a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs, as specified, if the party that rejected the offer fails to obtain a better result at trial. (Civ. Proc. Code § 998.)

This bill provides that notwithstanding Section 998 of the Code of Civil Procedure, 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. 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 requester’s case is clearly frivolous, it shall award court costs and reasonable attorney’s fees to the public agency.

Background

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 CPRA requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why they should not do so. The CPRA requires the court to award court costs and reasonable attorney’s fees to the requester if the requester prevails in litigation filed pursuant to these provisions. On the other hand, the CPRA requires the court to award court costs and reasonable attorney’s fees to the public agency only in the situation where the court finds that the requester’s case is clearly frivolous. This high standard for the public agency to meet is clearly written into the CPRA. Indeed the CPRA was designed with the balance tilted toward sunshine into public records. 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 v. Superior Court (2002) 28 Cal.4th 419, 427.) If Section 998 offers to compromise were allowed to be utilized by public agencies where public records are requested, the intentionally asymmetrical aspect of the CPRA’s fee-shifting provisions would be thwarted and the CPRA would be undermined. Because the author received reports that 998 offers are being utilized by some public agencies, the author introduced this bill to make clear that 998 offers shall not have any impact on the determination of attorney’s fees and costs in CPRA actions, thus preserving the spirit of the CPRA.

Comments

The CPRA was Enacted to Ensure that the Public Knows the Public’s Business

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).)

The plain language of the CPRA’s fee-shifting provision, Government Code 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 § 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 § 6259 (d).)

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 § 6250.)

Offers to compromise made under California Code of Civil Procedure Section 998 are a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs if the party that rejected the offer fails to obtain a better result at trial.

According to the author, Section 998 offers “are an important tool in getting parties to settle in certain cases, however they do not work in CPRA cases.” The author highlights Dunes Development v. California Coastal Commission as an example. According to the author:

Dunes Development requested public documents from the California Coastal Commission which the agency refused to release. Dunes Development took the Commission to court to retrieve the requested documents. The Coastal Commission made a [section] 998 offer of $10,000, along with a proposal that it release some of the documents requested. Dunes Development rejected the offer and the Coastal Commission offered a second [section] 998, which again proposed release of only some of the documents requested and $30,000. Dunes Development refused again. [section] 998 offers were never intended to be used by the government to prevent disclosable documents from being withheld to the public.

The author further asserts:

It is the fundamental right of every Californian to inspect identifiable and disclosable records held by their government. The California Public Records Act established this transparency and accountability which is essential to functioning democracy. Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail. My bill will ensure that the CPRA is being used as it was intended: as a way for Californians to get information from their government without fear of being burdened by court fees.

Related/Prior Legislation

SB 749 (Durazo, 2019) provides that all information in a public contract between a private industry employer and a state or local agency pertaining to job creation, job quality, and job retention, as well as Buy America laws compliance, is not exempted from the CPRA as a trade secret.

SB 1244 (Wieckowski, Chapter 463, Statutes of 2018) replaced 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 the CPRA 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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee, unknown, potentially-significant post-offer plaintiff (record requester) litigation costs and non-recoverable defendant (record holder) litigation costs in the aggregate to various state entities that make a settlement offer, as described, that is more favorable than the judgment or award to the record requestors. Actual costs would depend on how many state entities are sued for allegedly improperly withholding public records, how many make a more favorable offer than the award, and the duration (and associated costs) of the trial to determine if the record is subject to disclosure. (General Fund, various funds)

SUPPORT: (Verified 5/20/19)

California Employment Lawyers Association

California News Publishers Association

Coalition for Sensible Public Records Access

First Amendment Coalition

Jeffer Mangels Butler & Mitchell LLP

League of Women Voters of California
National Lawyers Guild

Oakland Privacy

OPPOSITION: (Verified 5/20/19)

Association of California Healthcare Districts

California Downtown Association

California Special Districts Association

California State Association of Counties

League of California Cities

Rural County Representatives of California

Urban Counties of California

Prepared by: Margie Estrada / JUD. / (916) 651-4113

5/20/19 9:54:19

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 518 (Wieckowski) - Public records: disclosure: court costs and attorney’s fees

Bill Summary:

SB 518 would require the court, despite an offer by a party to settle, to award court costs and reasonable attorney’s fees to a prevailing public record requester in litigation filed to obtain improperly-held public records.

Fiscal Impact:

Unknown, potentially-significant post-offer plaintiff (record requester) litigation costs and non-recoverable defendant (record holder) litigation costs in the aggregate to various state entities that make a settlement offer, as described, that is more favorable than the judgment or award to the record requestors. Actual costs would depend on how many state entities are sued for allegedly improperly withholding public records, how many make a more favorable offer than the award, and the duration (and associated costs) of the trial to determine if the record is subject to disclosure. (General Fund, various funds)

Background:

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 requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why they should not do so. The act requires the court to award court costs and reasonable attorney’s fees to the requester if the requester prevails in litigation filed pursuant to these provisions. Alternatively, the act requires the court to award court costs and reasonable attorney’s fees to the public agency only when the court finds that the requester’s case is clearly frivolous.

Separately, if a defendant makes a written offer to settle a case at least 10 days before the start of the trial (or arbitration) pursuant to Code of Civil Procedure section 998 (i.e., a 998 offer) and the plaintiff rejects the settlement offer but fails to obtain a better result at trial, the plaintiff is barred from recovering post-offer costs and is required to pay the defendant’s costs from the time of the offer.

Proposed Law:

This bill would require the court, notwithstanding a 998 offer, to award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed to obtain improperly-held public records.

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SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 518 (Author:Wieckowski)

Version: February 21, 2019

Hearing Date: April 23, 2019

Fiscal: No

Urgency: No

Consultant: MEC

SUBJECT

Public records: disclosure: court costs and attorney’s fees

DIGEST

This bill clarifies that notwithstanding Code of Civil Procedure Section 998, the court must award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation under the California Public Records Act.

EXECUTIVE SUMMARY

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 they should not do so. The CPRA requires the court to award court costs and reasonable attorney’s fees to the requester if the requester prevails in litigation filed pursuant to these provisions. On the other hand, the CPRA requires the court to award court costs and reasonable attorney’s fees to the public agency only in the situation where the court finds that the requester’s case is clearly frivolous. This high standard for the public agency to meet is clearly written into the CPRA. Indeed the CPRA was designed with the balance tilted toward sunshine into public records. 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 v. Superior Court (2002) 28 Cal.4th 419, 427.) If Section 998 offers to compromise were allowed to be utilized by public agencies where public records are requested, the intentionally asymmetrical aspect of the CPRA’s fee-shifting provisions would be thwarted and the CPRA would be undermined. Because the author received reports that 998 offers are being utilized by some public agencies, the author introduced this measure to make clear that 998 offers shall not have any impact on the determination of attorney’s fees and costs in CPRA actions, thus preserving the spirit of the CPRA.

This bill is author-sponsored and supported by the California Employment Lawyers Association. It is opposed by a coalition of organizations that represent public agencies.

PROPOSED CHANGES TO THE LAW

Existing law:

1. 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, § 3.)
2. The CPRA governs the disclosure of information collected and maintained by public agencies. (Gov. Code § 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 § 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information.
3. 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 § 6252(c),(d)&(f).)
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. (Gov. Code § 6253(b).)
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 therefore. (Gov. Code § 6253(c).)
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. (Gov. Code § 6253(c).)
7. Prohibits construing the CPRA to permit an agency to delay or obstruct the inspection or copying of public records. (Gov. Code § 6253(d).)
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. (Gov. Code § 6255(a).)
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. (Gov. Code § 6255(b).)
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 with the object of securing a decision as to these matters at the earliest possible time. (Gov. Code § 6258.)
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 they 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 § 6259(a).)
12. Provides that if the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, they 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, they shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Gov. Code § 6259(b).)
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 they are not in contempt of court. (Gov. Code § 6259(c).)
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 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 § 6259(d).)
15. Provides for Section 998 Offers to Compromise, a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs, as specified, if the party that rejected the offer fails to obtain a better result at trial. (Civ. Proc. Code § 998.)

This bill provides that notwithstanding Section 998 of the Code of Civil Procedure, 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. 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 requester’s case is clearly frivolous, it shall award court costs and reasonable attorney’s fees to the public agency.

COMMENTS

1. The CPRA was enacted to ensure that the public knows the public’s business

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).)

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 § 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 § 6259 (d).)

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 § 6250.)

Offers to compromise made under California Code of Civil Procedure Section 998 are a litigation tool to encourage settlement. If the 998 settlement offer is rejected, the party that made the offer is entitled to recover litigation costs if the party that rejected the offer fails to obtain a better result at trial.

2. Code of Civil Procedure Section 998 is in direct conflict with the CPRA

The Code of Civil Procedure Section 998 settlement scheme is in extreme conflict with the CPRA. Allowing public agencies to use 998 offers in CPRA disputes would push those who are requesting public records, pursuant to their constitutional rights, into accepting settlements out of fear of being liable for the public agencies’ attorney’s fees. The Legislature crafted the CPRA to only allow attorney’s fees and court costs to be awarded to public agencies if the court finds the request was clearly frivolous.

The National Lawyers Guild, a supporter of the bill, explains that the “CPRA ensures the fundamental right of every person to inspect and to obtain copies of any public record. The right to have state and local agencies comply with the CPRA is so important that it is also guaranteed by the State Constitution at Article I, Section 3.”

The California Employment Lawyers Association, in support, writes:

Because CPRA petitions are filed by people seeking to enforce their fundamental right to access records, the courts and the legislature have carefully and thoroughly restricted the circumstances under which respondents can recover their fees and costs from requesters. The law as it now stands disallows fee recovery by a prevailing agency unless the litigation is “clearly frivolous.” The use of 998 offers in CPRA petitions undermines this essential element of the law by conceivably allowing public agencies to recover fees from requesters even if the requester is the prevailing party.

Section 998 offers are an important tool in getting parties to settle in certain cases, however they are not appropriate in CPRA cases. The use of 998 offers by public agencies in CPRA litigation may unduly force petitioners into accepting settlements that include very limited record production out of concern that they will otherwise be liable for respondents’ attorney’s fees.

The Coalition for Sensible Public Records Access explains the following in support of the bill:

[A]s a matter of public policy, [Section 998 offers] were intended to encourage settlement before trial in civil suits. Applying them to public records matters is inappropriate. The damages are to public trust and accountability flowing from the records being withheld from public scrutiny.

3. Section 998 offers in CPRA actions undermine the CPRA

According to the author, section 998 offers “are an important tool in getting parties to settle in certain cases, however they do not work in CPRA cases.” The author highlights Dunes Development v. California Coastal Commission as an example. According to the author:

Dunes Development requested public documents from the California Coastal Commission which the agency refused to release. Dunes Development took the Commission to court to retrieve the requested documents. The Coastal Commission made a [section] 998 offer of $10,000, along with a proposal that it release some of the documents requested. Dunes Development rejected the offer and the Coastal Commission offered a second [section] 998, which again proposed release of only some of the documents requested and $30,000. Dunes Development refused again. [section] 998 offers were never intended to be used by the government to prevent disclosable documents from being withheld to the public.

The author further asserts:

It is the fundamental right of every Californian to inspect identifiable and disclosable records held by their government. The California Public Records Act established this transparency and accountability which is essential to functioning democracy. Unfortunately, public agencies are using 998 offers in court to prevent the release of disclosable documents. To make matters worse, 998 offers can shift court costs onto the requestor. This undermines the CPRA which requires the requester to have their court costs covered if they prevail. My bill will ensure that the CPRA is being used as it was intended: as a way for Californians to get information from their government without fear of being burdened by court fees.

The California Special Districts Association, League of California Cities, California State Association of Counties, California Downtown Association, Rural County Representatives of California, Urban Counties of California, and Association of California Healthcare Districts write the following in opposition to the bill:

Failure of a public agency to disclose records pursuant to the CPRA can result in significant financial consequences for the agency from potential litigation.

[ . . . ]

Under current law, records requesters that believe a public agency has improperly withheld a record may sue the agency immediately. There is no “meet and confer” requirement that a requester work with an agency to resolve a dispute over any records that may have been withheld by an agency. Additionally, should a requestor prevail in court by having even a single record released that had previously been withheld, the CPRA mandates that a court award costs and reasonable attorney fees to the plaintiff. Offers to compromise made under Code of Civil Procedure section 998 (“Section 998 offers”) are intended to encourage litigants to settle their disputes in an amicable and reasonable fashion and avoid excessive litigation costs.

[ . . . ]

Proposing to eliminate this common litigation practice would discourage plaintiffs’ attorneys in CPRA cases from settling because they would face no consequence for rejecting a reasonable and fair Section 998 offer, but potentially significantly more to gain in fees by proceeding with a costly litigation process, even if an attorney’s client receives no additional benefit other than what would have been offered in a settlement. SB 518 creates a lopsided benefit to plaintiff attorneys over public agencies that encourages costly litigation, when a simple agreement could be reached.

The California News Publishers Association (CNPA) “does not believe 998 offers apply to an attorney’s fee award under the CPRA.” However, public agencies, according to the CNPA, “have used 998 offers to scare requesters into prematurely settling legitimate CPRA disputes out of fear that if they do not, the court may not award them attorney’s fees and costs.” The CNPA refers to this as a “nefarious tactic” that “is contrary to the fundamental premise of the CPRA and Article I, Section 3 of the California Constitution.” Given that the clear design of the attorney’s fees and costs of the CPRA is to promote the release of records and ensure that the public does not shy away from public records requests, 998 offers would undermine the CPRA and arguably should not be allowed to have an effect on a requester’s ability to recover attorney’s fees in an action under the CPRA.

SUPPORT

California Employment Lawyers Association

California News Publishers Association

Coalition for Sensible Public Records Access

First Amendment Coalition

Jeffer Mangels Butler & Mitchell LLP
National Lawyers Guild

Oakland Privacy

OPPOSITION

Association of California Healthcare Districts

California Downtown Association

California Special Districts Association

California State Association of Counties

League of California Cities

Rural County Representatives of California

Urban Counties of California

RELATED LEGISLATION

Pending Legislation: SB 749 (Durazo, 2019) provides that all information in a public contract between a private industry employer and a state or local agency pertaining to job creation, job quality, and job retention, as well as Buy America laws compliance, is not exempted from the CPRA as a trade secret. This scheduled for hearing in the Senate Committee on Judiciary.

Prior Legislation: SB 1244 (Wieckowski, Ch. 463, Stats. 2018) Replaced 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 the Public Records Act 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.

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