PRA Request Compliance May Not Shield from Attorney's Fees
California Appellate Court Orders City to Pay
The City of San Diego was ordered by an appellate court to pay attorney’s fees to a Public Records Act requestor-plaintiff — despite having produced all requested records, and the trial court having dismissed a PRA writ petition. The Fourth District Court of Appeal’s Aug. 15 ruling illustrates some common challenges to PRA compliance, including practical difficulties related to record storage and risks involved with PRA litigation.
The facts underlying the appellate decision in Sukumar v. City of San Diego are long and complex. But, in essence, the City was in process of responding to an extensive PRA request from Sukumar concerning threatened nuisance action by the City over conditions on property owned by Sukumar. The records were produced, but Sukumar believed it was done so inadequately. He brought a writ action under the PRA. After it was filed, the City produced additional documents. The City then told the court it had produced everything. Then, the plaintiff scheduled depositions and, as a result of those depositions, the City produced additional records. Still later, the City made another production, ostensibly completely responding to the PRA request. The trial court then dismissed the legal action and denied Sukumar’s attorney fee request, finding that he was not the prevailing party and that the litigation had not “motivated” or “substantially contributed to” the records production. The appellate court reversed this determination.
Under the PRA, a plaintiff need not prevail in a PRA writ proceeding to be entitled to attorney’s fees. For purposes of obtaining an attorney fees award under the PRA, a plaintiff is viewed as prevailing when the litigation “results in the defendant releasing a copy of a previously withheld record.” Even a voluntary disclosure will support an attorney fee award when it can be said the lawsuit “spurred defendant to act or was a catalyst speeding defendant’s response.” Here, the appellate court found that, but for the depositions, the City would not have made a complete disclosure. Therefore, the court found that the litigation spurred the location and disclosure of the records and the plaintiff was entitled to an award of attorney’s fees.
This decision illustrates both the practical difficulties of PRA compliance — here some of the records were archived on “old hard drives” — and the hazards of PRA litigation, which, under recent appellate decisions, can involve civil discovery. Contributing to the problems faced by the City here were failures to communicate adequately with the requestor and his attorney, inadequate records searches and attempting to achieve compliance while litigation was under way. It is crucial that a public agency attempting to respond to a PRA request communicate clearly and exactly with the requestor, and maintain a posture of cooperation and production. This will be helpful in forestalling a writ filing while a records search is exhausted and production is made. If litigation is brought, the agency must be absolutely certain it has made a complete production or is prepared to defend what it has produced or declined to produce.
If you have any questions about this opinion or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Government Policy & Public Integrity practice group, or your BB&K attorney.
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