Records Requesters May Recover Attorney Fees in Reverse-CPRA Actions

This article is provided to ACSA by Lozano Smith, an ACSA Partner4Purpose

Background

The CPRA requires public entities to disclose public records unless there is a specific legal exemption. Under the CPRA, if a public entity has refused to produce documents and the matter is litigated, the plaintiff may recover attorney fees against the public entity if the plaintiff prevails.

In 2012, a court recognized private parties' right to go to court to protect their records by filing a "reverse-CPRA" lawsuit. (Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250.) Until recently, private parties filing a reverse-CPRA suit were not required to pay the requester's attorney fees if the requester prevailed. That has changed. Now, private parties must proceed with caution when seeking to protect their personal records or risk being ordered to pay a records requester's attorney fees.

Pasadena Police Officers Association v City of Pasadena

In Pasadena, a newspaper sought to obtain records regarding a police shooting, including personnel records of the officers involved. The city refused to disclose the information, and the newspaper sued. The city was joined in the litigation by the police officers and their union, who filed a reverse-CPRA action to protect the officers' private information. The newspaper prevailed, and the trial court ordered the city to pay the newspaper's attorney fees pursuant to the CPRA. But the court denied the newspaper's request to award attorney fees against the union and the police officers.

The Court of Appeal reversed, granting attorney fees against the union and the individual police officers. The court held that the union and police officers were responsible for attorney fees under California Code of Civil Procedure section 1021.5, the Private Attorney General Act (PAGA). The statute allows a court to grant attorney fees when certain criteria are met.

National Conference of Black Mayors v. Chico Community Publishing

In National Conference, a newspaper requested records which included communications between Sacramento's mayor and a law firm representing his private organization. Unlike in the Pasadena case, the city was willing to release the records requested, but the mayor, in his private capacity, filed a reverse-CPRA action to prevent their disclosure. A court ordered the release of some of the records. However, the court denied the newspaper's request for attorney fees from the city and the mayor, which it made pursuant to the CPRA.

The Court of Appeal affirmed the trial court's decision not to award fees, stating that while the CPRA allows for attorney fees against a governmental agency, it does not allow recovery of attorney fees against a private party who files a reverse-CPRA action. Since the city was willing to disclose the records, it was not subject to attorney fees. The court specifically noted that the newspaper failed to challenge the trial court's decision to deny fees under PAGA, adding that attorney fees would have been granted against the mayor under PAGA, consistent with the Pasadena ruling.

Takeaways

Pasadena and National Conference encourage private parties to think carefully before suing to prevent the release of their personal information pursuant to CPRA requests. Individuals who may otherwise have fought to keep their information private may now be inclined to allow release of their records to avoid the risk of being ordered to pay the requester's attorney fees.


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