Government Liability Update

Agency Has Burden of Establishing Documents Demanded in Public Records Request Are Exempt from Production

In Getz v. Superior Court (County of El Dorado), published December 13, 2021, a divided panel of the Third District Court of Appeal reversed in part and affirmed in part a trial court decision denying writ relief in a California Public Records Act case.  The petitioner requested from the real party county records between the county and any other party concerning a planned development.  The county produced an index of responsive documents, including e-mails, on a CD with hyperlinks to the texts of the e-mails or documents.  Believing he had not received all of the documents he sought, the petitioner submitted a new CPRA request, seeking all e-mails between any county department and anyone at four e-mail domains over a five-year period.  The county notified the petitioner it had located approximately 47,000 responsive e-mails, of which over 42,000 were newly identified.  The county asked the petitioner to refine his request to allow for a more focused search and to allow the county to review the responsive records before production.  The petitioner declined.  One of the domains was for a law office with which the county counsel worked.  The county produced an index of the 42,000 new emails (without hyperlinks) and asked the petitioner to narrow his focus.  He declined.  The petitioner also submitted a request to the county for all records in connection with the District Attorney's efforts to review an alleged misdemeanor by the petitioner.  The petitioner had never been charged, and the statute of limitations had run out.  The county declined to produce the documents, asserting they were exempt from production under Government Code section 6254(f) as law enforcement investigatory files and records.  The petitioner sought a writ compelling the county to respond further to his CPRA requests for the e-mails and investigatory files.  The trial court denied the petition as to the e-mail request on the ground the request was overbroad.  It denied writ relief as to the investigatory files on the ground they were exempt.

The appellate court majority ruled that the trial court's finding that the e-mail request was overbroad and burdensome was not supported by substantial evidence.  Because the county had identified the responsive documents and indexed them, the evidence established that the records could be located with reasonable effort and the volume was not unmanageable.  Although the county contended that it would have to search the e-mails to confirm they were public records, there was no evidence before the trial court that the county's e-mail exchanges with the requested domains would contain anything but information regarding the county's business with the entities at those domains.  The county did not provide evidence that the e-mails would contain personal information.  Further, the county had failed to provide sufficient evidence to require review of the e-mails to determine whether any exemptions from the CPRA would apply.  Although the county submitted evidence that e-mails exchanged with the law firm might contain attorney-client information protected under the common interest doctrine, that did not support a claimed need to review all of the indexed e-mails--only those relating to the litigation at issue, which might be identified by sender, recipient, and subject matter line.  The county must make some showing that exempt or privileged information exists in the records requested, especially where that seems unlikely.  Public agencies can reduce the potential burden by identifying and segregating potentially exempt records when they are created.

One justice dissented from this holding.  He opined that the burden on the county clearly outweighed the public interest underlying the request.

The court unanimously affirmed the trial court's ruling that the investigatory documents were exempt from disclosure, since the exemption applies after the investigation has closed.

Under California Public Records Act, Public Interest in Protecting Contact Tracing Outweighs Public Interest in Disclosing Locations of COVID-19 Outbreaks

In Voice of San Diego v. Superior Court (County of San Diego), published July 16, 2021, the Fourth District Court of Appeal, Division 1 declined to issue a writ of mandate disturbing a trial court's decision on a California Public Records Act petition.  The petitioner news media organizations made a CPRA request for records showing the locations of all businesses or other entities where COVID-19 community outbreaks have occurred from March 1, 2020 through July 15, 2020.  The county responded by producing a spreadsheet of outbreaks redacting the names and addresses for the locations of outbreaks.  The county provided an explanation that the public interest in protecting a candid exchange of information between those linked to the outbreak locations and the county Public Health Officer's disease investigators, to permit contact tracing.  The explanation also stated that publicly releasing specific locations after the outbreak had taken place would not protect the public.  The county asserted that the information was exempt from the public under the CPRA's catch-all provision, Government Code section 6255(a), which permits nondisclosure where the public interest served by not disclosing the record outweighs the public interest in disclosure.  The county submitted the declaration of the county's public health officer in support.  The trial court denied the writ petition seeking to enforce the CPRA request.

The appellate court agreed that the catch-all exemption applied.  Although the court could reject the health officer's expert opinion if it were unduly speculative or lacked a proper basis.  But her declaration was specific and based on her expertise and extensive experience.  The petitioners did not submit any contrary evidence.  That the county had released location information for outbreaks of other diseases, and COVID-19 information for a university, did not undermine the officer's opinion.  The county provided valid explanations that when outbreaks of conditions such as hepatitis A or tuberculosis, the public could take specific action in response to protect themselves and avoid further spread.  By contrast, the county established, when the public visits a location where a COVID-19 outbreak had occured, the public does not need to take any additional protective measures because community transmission of COVID-19 is widespread.  The county showed that the public interest in promoting contact tracing by keeping information about locations confidential outweighs the public interest in knowing the locations of outbreaks to protect themselves, and determining the effectiveness of government efforts to combat COVID-19 by knowing specific locations of outbreaks.

Suit against City for Releasing Police Officer Records without Prior Notice to Officer Was Subject to Anti-SLAPP; because Law Required Production, the Plaintiff's Claims Were Unlikely to Succeed

In Collondrez v. City of Rio Vista, published March 16, 2021, the First District Court of Appeal, Division 3 affirmed in part and reversed in part a trial court's ruling on an anti-SLAPP special motion to strike.  When the plaintiff was a police officer, he received a notice of intent to impose discipline for allegedly falsifying a police report concerning an arrest and use of force.  The officer pursued his Skelly rights and administrative appeal, but settled before the appeal was arbitrated.  A provision of the settlement agreement required the city to give the plaintiff prior notice before releasing disciplinary notices and reports concerning him. When Penal Code section 832.7, requiring disclosure of police personnel records pertaining to sustained findings of dishonesty or making false reports, went into effect, the city received media requests under the California Public Records Act and section 832.7 for the plaintiff's records.  The city released them, giving the plaintiff notice before some but not all of the releases.  Due to media coverage, the plaintiff's then-current employer fired him.  The plaintiff sued the city for breach of contract, invasion of privacy, interference with prospective economic advantage, and intentional infliction of emotional distress.  The trial court denied the city’s anti-SLAPP suit as to the breach of contract and privacy counts, and granted it as to the other counts.  It found the entire action arose from acts in furtherance of free speech and in connection with an issue of public concern, but found the plaintiff made a showing he would likely prevail on the breach of contract and privacy counts.

The appellate court agreed that the action arose out of conduct protected by the anti-SLAPP statute.  The focus is the defendant’s activity giving rise to the statute.  Here, the activity is release of the plaintiff’s personnel information to media outlets.  That is the activity that gave rise to the plaintiff’s alleged harm.  The addition of breach of contract causes of action does not change the gravamen of the suit.  Providing information to news outlets involves a matter of public interest.  The court rejected the plaintiff’s argument that anti-SLAPP did not appear because the city had a nondiscretionary duty to comply with the CPRA.  The CPRA requires agencies to make determinations whether the requested records are subject to or exempt from disclosure, and whether public interest in nondisclosure outweighs that served by disclosure.  That determination is not immune from the chilling effect of potential litigation anti-SLAPP is designed to prevent. 

The appellate court disagreed with the trial court’s determination that the plaintiff was likely to prevail on the breach of contract and invasion of privacy claims.  The court concluded the disclosure was required by Penal Code section 832.7(b)(1)(C).  The plaintiff contended that the statute required a “sustained finding” of dishonesty, which requires completion of the administrative appeal process.  The appellate court concluded that the “sustained finding” language includes an agency finding that remains in place because the plaintiff settles the case before his administrative appeal is heard.  The appellate court further rejected the plaintiff’s argument that the agency failed to properly redact information in the produced files as required by statute.

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.