An Appellate Court’s Observation May Have Effect on Reverse-PRA Actions
Part II: Pasadena Police Officers Association v. City of Pasadena
In Pasadena Police Officers Association v. City of Pasadena, the Second District Court of Appeal made an interesting observation about the effect of the Public Records Act’s time requirement for a response to a PRA request and PRA litigation.
Following a 2012 fatal officer-involved shooting, the City of Pasadena hired a consultant to conduct an independent review, which generated a Report of the incident. The Report was immediately requested by the suspect’s family and the Los Angeles Times. Before making an independent determination that it would disclose the Report within the time permitted by the PRA, the City notified the Pasadena Police Officers Association that the Report was requested. PPOA filed a reverse-PRA action on behalf of itself and the two officers involved in the shooting seeking to stop release of the Report. The Los Angeles Superior Court dismissed the action and ordered the City to respond to the PRA requests, finding that the action was not ripe until the City made its determination. The City determined it would release the Report unless the court ordered otherwise.
An appellate court previously authorized the so-called reverse-PRA action to permit a party to seek judicial restraint of the disclosure of a public record by a public agency. (Marken v. Santa Monica-Malibu Unified School District) For a private party to have the right to seek judicial review, the private party must be notified of the public agency’s decision to disclose the records in question and given an opportunity to seek judicial review. Administering Marken notices and disclosures can be time-sensitive and delicate, but they are a unique legal tool for private parties to protect their privacy rights and other interests.
Yet, in its decision last week in PPOA v. City of Pasadena, the Court of Appeal stated, “It is unclear if the City’s purposeful delay [in disclosing the report while it was providing notice to the PPOA and awaiting action on its reverse-PRA suit] was allowed under the PRA, which mandates that copies be provided promptly upon payment of fees…, if applicable.” In the opinion, the court acknowledged that reverse-PRA actions are permitted, but these actions do not arise from the PRA itself, as the PRA makes no mention of these suits, which are a creature of judicial lawmaking. So, what could the court have intended by questioning the appropriateness of the City’s delay? There was less than a month between the Report’s completion and the filing of the reverse-PRA action. However, the PRA requires a public agency to respond to a request for the disclosure of a public record within 10 days of receiving the request, and an agency may extend that time by no more than 14 days. The PRA makes no provision for delaying the required response either to permit the filing of, or because of the pendency of, a reverse-PRA action.
The appellate court’s observation suggests that the prospect of, or filing of, a reverse-PRA action does not “toll” the statutory time for an agency to respond to a public records request. This would seem to set up a dash to the courthouse for the reverse-PRA plaintiff to obtain a judicial restraining order to prevent the disclosure because the PRA has no such restraints built into it.
Read Part I in this series: PRA Fee Award Narrowed to Cover the Issue of Scope of Redactions
Watch for Part III Friday, which will discuss the Court of Appeal’s findings as it relates to the use of the private attorney general statute to recover attorneys’ fees in reverse-PRA actions.
If you have any questions about this opinion or how it may impact your agency, please contact the authors 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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