Government Liability Update

Court Granting Preliminary Injunction under California Public Records Act May Require Plaintiff to Post Undertaking

In Stevenson v. City of Sacramento, published October 6, 2020, the Third District Court of Appeal affirmed a trial court order conditioning the grant of a request for a preliminary injunction under the California Public Records Act on posting a $2,349.50 undertaking.  The plaintiffs submitted CPRA requests to the defendant city for e-mails scheduled for automatic deletion.  When the city informed the plaintiffs their request was excessive, but offered to postpone deletion a week to allow plaintiffs to narrow their requests, the plaintiffs agreed to narrow the requests but also sued the city for allegedly refusing to provide them access to the requested records.  At the plaintiffs' request, the trial court issued a temporary restraining order to maintain the status quo.  At a later hearing, the court granted the plaintiffs' request for a temporary restraining order directing the city to preserve the 15 million e-mails the city identified as responsive to the narrowed CPRA requests.  Over the plaintiffs' objection, the court conditioned the grant of the injunction on the plaintiffs posting an undertaking under Code of Civil Procedure section 529, based on the city's estimated cost of complying with the injunction.

The appellate court rejected the various arguments of the plaintiffs and amici curiae that section 529 was incompatible with the CPRA.  The court noted that various statutory schemes that permit injunctive relief expressly exempt certain parties from section 529's requirement that a party seeking a preliminary injunction post an undertaking.  CPRA does not contain an express exemption.  Thus, section 529 provides the general rule, and the CPRA does not provide an exception; although Government Code section 6258, part of the CPRA, expressly allows parties to obtain injunctions, it says nothing about undertakings.  While Government Code sections 6253 and 6259 specify costs that may be charged requesters under the CPRA, these rules do not mean the Legislature, by implication, believed CPRA applicants should be exempted from other generally applicable requirements.  Trial courts retain discretion not to require undertakings if circumstances warrant.

California Public Records Act's Venue Statute Is Not Jurisdictional, and Does Not Supersede Venue Statute Governing Actions against State

In The California Gun Rights Foundation v. Superior Court (Department of Justice), published May 29, 2020, the Second District Court of Appeal, Division 3 issued a writ of mandate reversing a trial court's order transferring the underlying action for lack of jurisdiction.  The petitioner brought a California Public Records Act writ proceeding in the Los Angeles Superior Court, seeking records from the California Department of Justice and the California Attorney General.  The state presented evidence that the records sought were kept in servers in Sacramento, and that the personnel who maintained those records and responded to CPRA requests worked in Sacramento.  The state argued that under Government Code section 6259, part of the CPRA, the action had to be litigated in Sacramento rather than Los Angeles.  Section 6259, subdivision (a) provides, “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 the officer or person should not do so.”  The petitioner argued that under Code of Civil Procedure section 401, whenever an action against a state agency may or must be brought in Sacramento, it may be brought in any city or county of the State in which the Attorney General has an office.  The trial court concluded that section 6259 deprived the Los Angeles Superior Court of jurisdiction to entertain the petition, and ordered the petition transferred to Sacramento County.

The Court of Appeal ruled that the trial court erred in interpreting section 6259 as jurisdictional.  Instead, jurisdiction is set forth in Government Code section 6258, which provides that a CPRA writ petition may be brought "in any court of competent jurisdiction . . . ."  Superior Courts in California are courts of general jurisdiction, and the appellate court ruled that section 6259 should not be read to defeat the exercise of the court's discretion.  Instead, the court interpreted section 6259 as a venue statute.  Thus, absent another applicable statutory provision, venue in this case would be proper only in Sacramento County, where the records are kept.  But Code of Civil Procedure section 401 provides for jurisdiction in this case wherever the Attorney General has an office.  Since section 401's purpose is to reduce the expense of litigating against state agencies, section 401 predates the CPRA, and the Legislature was presumed to be aware of section 401 when it passed the CPRA, section 6259 of the CPRA does not supersede section 401.  Therefore, the Los Angeles Superior Court had jurisdiction to hear the case, and venue in that court was proper.

Agency May Not Shift Cost of Redacting Electronic Records Requested under Public Records Act to Requester

In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, published May 28, 2020, the California Supreme Court reversed an appellate court decision allowing a city to shift the cost of editing exempt material out of police body camera footage requested under the California Public Records Act.  At issue was interpretation of Government Code section 6253.9, subdivision (b)(2).  Section 6253.9 requires agencies to produce electronic records requested under the CPRA in any electronic format in which the agency holds the information.  Under subdivision (b)(2), “the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record” if “[t]he request would require data compilation, extraction, or programming to produce the record.”   The city contended that redacting exempt material from electronic records such as video footage was "extraction" for which it could recover staff time and expenses.  The requester contended that "extraction" referred to constructing a record by removing data from a computer or other source.  The trial court agreed with the requester.  The appellate court agreed with the city.

The Supreme Court concluded that the requester's interpretation was correct.  Construing the language of the statute, the legislative intent of limiting the expense of requesting electronic records (by preventing agencies from increasing expense by printing out electronic records), and the statute's purpose, the Supreme Court interpreted the term "extraction" to cover costs uniquely associated with the production of electronic record copies—including the need to retrieve responsive data to produce a record that can be released to the public—but not the costs of redacting exempt information from the record.

One justice wrote a separate concurring opinion, opining that if a data retrieval method also included simultaneous redaction of exempt material, the opinion might not limit charging the requester the cost of retrieval.

Court May Not Condition Intervention in Reverse-CPRA Suit on Waiver of Prayer for Statutory Attorney Fees

In Carlsbad Police Officer's Association v. City of Carlsbad (ACLU), published May 18, 2020, the Fourth District Court of Appeal, Division 1 reversed an order conditioning the intervention in a reverse California Public Records Act petition of the ACLU and various media organizations on the striking of the intervenors' prayers for attorney fees under Code of Civil Procedure section 1021.5.  Multiple police officer associations brought a reverse-PRA action against their respective agencies, seeking to limit the agencies' release of records under Senate Bill No. 1421.  The new law, expanding access to police records, took effect January 2019.  The police officer associations sought to prevent their agencies from releasing pre-2019 records, on the ground that the new legislation was not retroactive.  The ACLU and media organizations had CPRA requests pending with the agencies, seeking pre-2019 records.  They sought to intervene in the petition both on a permissive basis and as a matter of right.  The associations and some of the agencies opposed intervention.  The trial court permitted intervention, but conditioned it on the intervenors striking their requests for section 1021.5 fees.  After the trial court entered a judgment permitting release of pre-2019 records, the intervenors appealed the order conditioning intervention.

The appellate court ruled that the trial court erred. Successful intervenors in reverse-PRA actions are generally entitled to fees under section 1021.5 if they meet the criteria under the statute. Because the intervenors' interests in recovering records under their pending CPRA requests were affected by the reverse-CPRA order, and the existing parties were not interested in representing the intervenors' position, their intervention was as a matter of right.  The trial court's inherent power to control litigation entitled it to condition intervention on reasonable, housekeeping-type procedural limitations.  But it did not have discretion to impose a substantive limitation, such as conditioning intervention on giving up the right to seek attorney fees.

Penal Code section 832.7 Requires Law-Enforcement Agencies to Produce Officer-Related Records Produced by Other Agencies; but CPRA Catch-All Exception Applies

In Becerra v. Superior Court (First Amendment Coalition), published January 29, 2020, the First District Court of Appeal, Division 3 affirmed a trial court decision ordering the California Department of Justice and California Attorney General to disclose police officer related records under Penal Code section 832.7 in response to a California Public Records Act request.  In 2018, the Legislature amended section 832.7, part of the statutory scheme that governs production of police officer records, to provide that notwithstanding Government Code section 6254, subdivision (f) (which exempts law enforcement investigation records from production under the CPRA), peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be
confidential and shall be made available for public inspection under the CPRA if the records relate to officer discharge of firearm or use of deadly force against a member of the public; a sustained finding that an officer committed sexual assault; or a sustained finding of dishonesty by an officer relating to a crime or the misconduct of another officer.  Various real parties sought records under the statute held by the Department of Justice and Attorney General's office over the course of three to five years.  The Department refused to produce the records.  The trial court granted a writ of mandate directing the respondents to produce all requested records except those the court deemed could be withheld or redacted.  The respondents sought appellate writ relief challenging the order.

The appellate court rejected the respondents' argument that Penal Code section 832.7 did not apply to records the Attorney General and Department of Justice held that had been created by other law enforcement agencies.  A review of the statutory language, the statute's purpose, and the policy that CPRA exemptions are construed narrowly compelled the conclusion that the statute applies to all responsive records a state or local agency holds regardless of origin.  The appellate court agreed with the respondents' argument, however, that the "catch-all" exemption to the CPRA under Government Code section 6255 applies to production under section 832.7.  Under that exemption, otherwise non-exempt records are exempt from production under the CPRA if the public interest in the records remaining confidential outweighs the public interest in disclosing the records.  Finally, the appellate court applied the catch-all exemption in this case, and concluded that the respondents had produced insufficient evidence establishing a clear overbalance on the side of confidentiality.  The court remanded the case to the trial court, and held that its ruling did not prevent the respondents from making a showing in the trial court as to any of the requested records upon a proper showing by the respondents.

CPRA and Private Attorney General Fees Appropriate for Requesting Party Intervening in Reverse-CPRA Action Between Public Agencies

In City of Los Angeles v. Metropolitan Water Dist. of So. Cal., West Basin Municipal Water Dist., and The San Diego Union-Tribune, LLC, published November 19, 2019, the Second District Court of Appeal, Division 8 affirmed in part and reversed in part a trial court decision awarding fees in a reverse-CPRA action.  MWD, a cooperative water wholesaler with 26 members (including the DWP and the other intervening utilities), began a turf removal rebate program.  The utility of the program was questioned.  A reporter for the Union-Tribune made a California Public Records Act request to MWD for information about the participants in the turf program.  Instead of denying the request (which would have entitled the newpaper to file a CPR action compelling disclosure), MWD provided the request to DWP. DWP objected to the disclosure.  At DWP's request, MWD released redacted information.  The newspaper objected to the redactions.  DWP filed a reverse-CPRA action against MWD, seeking to enjoin it from releasing any information about anyone who participated in the turf program, regardless of whether they were DWP customers.  Reverse-CPRA actions are not authorized by the CPRA, but have been recognized by the Second District Court of Appeal.  The newspaper intervened in the action, and filed a CPRA cross-petition against MWD to compel disclosure of the information.  The court issued a TRO limited to DWP customers.  Other utilities who were members of MWD joined DWP's lawsuit.  The trial court ruled that DWP was co-custodian of the records.  It denied DWP's petition for writ of mandate and granted the newspaper's CPRA.  The court awarded the newspaper attorney fees under the CPRA against MWD for the newspaper's work on the CPRA cross-petition.  It granted the newspaper fees under Code of Civil Procedure section 1021.5--the private attorney general statute--against DWP and the intervenor utilities.   DWP and the utilities appealed the award under section 1021.5.  The newspaper cross-appealed the order to the extent it denied fees for the newspaper's reply papers.

The court of appeal affirmed the fee award.  It agreed with a previous published decision from another division of the court that section 1021.5 fees may be awarded to an intervening requesting party in a reverse-CPRA action.  DWP was seeking to restrict the public's right to access information that was relevant to an issue of public interest.  The issues did not benefit only the private interests of a small  group.  DWP's motives (to protect its customers' privacy) were irrelevant.  The newspaper prevailed on the disclosure issue, and DWP was the co-custodian of the records.  The intervening utilities were also proper subjects of the fee award.  They were not akin to amici curiae; they were active participants in the lawsuit.  The ability of the public to monitor expenditure of public funds is a significant public benefit.  The trial court acted within its discretion in not reducing the fee for work on issues on which the newspaper did not prevail.

On the cross-appeal, the court held that the trial court erred in declining to award fees for work on the reply briefs, without explanation.

Ballots Are Exempt from Disclosure under the California Public Records Act

In Citizens Oversight v. Vu, published May 21, 2019, the Fourth District Court of Appeal, Division 1 affirmed a trial court decision declaring that ballots cast by registered voters during the 2016 California Presidential Primary Election are exempt from disclosure under the California Public Records Act.  Government Code section 6254, subdivision (k), exempts from the CPRA disclosure of records that are expressly protected by statute.  With exceptions that did not apply here, the Election Code prescribes that after ballots are counted, they shall be sealed and kept unopened and unaltered for 22 months, after which they shall be recycled or destroyed.  By contrast, other election materials, such as voting rosters and tally sheets, are specifically open for public inspection.  The statutes therefore expressly protect ballots from disclosure.

2019 Amendment to Police Record Disclosure Law Applies to Pre-2019 Records

In Walnut Creek Police Officers' Association v. City of Walnut Creek, ordered published March 29, 2019, the First District Court of Appeal, Division 4 denied a petition for writ of supersedeas filed in multiple consolidated matters.  The appellants contended that Penal Code section 832.7(b)(1), as amended in 2019, did not apply to pre-2019 police records, because that would be improper retroactive application of the new law.  The amended statute prescribes that police personnel records relating to police shootings, uses of force resulting in death or great bodily injury, or sustained findings of various types of misconduct are not confidential and shall be made available under the California Public Records Act.  The appellate court determined that the appeals lacked merit.  Because the event necessary to trigger the law's application--a request for an agency's records--necessarily occurs after the law's effective date, and the new law does not change the legal consequences for officer conduct described in pre-2019 records, application to pre-2019 records is not improperly retroactive.

Sheriff Entitled to Discretionary Immunity for Enacting Policy of Not Informing ICE of Undocumented Alien Releases

In Steinle v. City and County of San Francisco, published March 25, 2019, the 9th Circuit affirmed dismissal of state law negligence claims against the defendant municipality.  The county sheriff informed the federal government that his department would not honor Immigration and Customs Enforcement detainer requests (to detain released prisoners for ICE) or notify ICE of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal.  The sheriff then issued a memo establishing protocols and parameters for the department's communications with ICE.  The memo changed the longstanding practice of freely providing information to ICE regarding undocumented aliens in custody.  After serving federal time for drug offenses, an undocumented alien was released to the sheriff's custody to face felony charges for selling drugs.  The charges against him were dropped the next day.  ICE sent the sheriff's department a detainer request asking to be notified 48 hours before the alien's release and that the sheriff's department hold the alien until ICE could take custody of him.  The sheriff's department released the alien without notifying ICE.  Later, the alien shot and killed plaintiffs' decedent.  The plaintiffs sued the municipality for negligence in issuing the policy.  The district court granted the municipality's motion to dismiss the negligence claim.

The 9th Circuit panel unanimously held that the municipality was entitled to discretionary immunity under Government Code sections 820.2 and 815.2(b).  The memo was the sort of policy decision that is immunized by section 820.2.  The sheriff actually exercised his discretion in issuing the policy.  Further, the law gave the sheriff discretion to issue the policy.  Under Government Code section 26605, the sheriff had the authority to keep the jail and the prisoners in it.  8 U.S.C. sections 1373(a) and 1644, which prohibit local restrictions on sending information regarding the immigration status of individuals to the INS, did not deprive the sheriff of discretion to enact the policy; despite legislative history to the contrary, nothing in the statutes' language required sharing information about the release of prisoners to the ICE.  The federal government's control over immigration matters did not require the sheriff to provide ICE with the release date.  The court rejected the argument that issuing the policy was an act of legislation outside the sheriff's discretion.  It also rejected the argument that the sheriff violated the California Public Records Act by not sharing the information.  The detainer request was not a CPRA request;  the CPRA did not require the sheriff to create a record; and at the time the detainer request was made, there was no record of a release that had not happened yet.  The court also rejected arguments that the policy conflicted with California or local laws.  A concurring judge opined that liability for the prisoner's release was barred by Government Code sections 845.8 (immunity for paroling or releasing a prisoner) and 846 (immunity for failure to retain a person in custody).

Under California Public Records Act, Public Entity's Right to Access Contractor's Records Does Not Give the Entity Constructive Possession of the Records

In Anderson-Barker v. Superior Court (City of Los Angeles), published January 22, 2019, the Second District Court of Appeal, Division 7 denied a petition for a writ of mandate challenging a trial court's decision denying a California Public Records Act petition. The petition sought electronically-stored data relating to vehicles that private towing companies had impounded at the direction of the Los Angeles Police Department.  The records were stored by an organization composed of the private towing companies.  By contract, the city had the right to inspect the records.  The trial court nevertheless ruled that the city had no obligation to produce the records under the CPRA because it did not possess the records.

The appellate court agreed.  Under the CPRA, an entity must produce non-exempt public records it either actually or constructively possesses.  "Constructive possession" means the right to control the records.  That means to manage, direct, or oversee the records.  The city did not direct what information was put in the records, and it had no power to modify the data in those records.  That the city could access the data did not equate to possession or control.