California Public Records Act Case Law Update

While an expansive array of records can be sought via a California Public Records Act request, the right to inspect public records is not without limits. The CPRA does not give unlimited access to records that may be exempt from disclosure. Occasionally the public’s right of access must yield to exemptions, such as individual privacy rights and defined privileges. However, transparency remains the goal.

Last year, the California Legislature and courts gave further guidance in balancing the rights of the public with those of the individual, aiming to further transparency when appropriate. In Part 2 of this Best Best & Krieger Legal Alert series, we look at court decisions from last year that impact the CPRA.

Remedy for Wrongful Denial of CPRA Request – Booth v. Burdick
In Booth v. Burdick, the U.S. District Court for the Eastern District of California held that an alleged wrongful denial of a CPRA request did not equate to a violation of the plaintiff’s constitutional rights. In reaching this conclusion, the court cited Houchins v. KQED, Inc., a case in which the U.S. Supreme Court held that, “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.” Thus, according to the court, the plaintiff’s sole remedy for denial of a proper CPRA request is compelled disclosure through a writ of mandamus. Monetary damages are unavailable, though a petitioner can still recover costs and attorneys’ fees if they are deemed the prevailing party in the writ action, according to Government Code section 6259(d).

ICE Detainer Request Not a Request for Records Under the CPRA – Steinle v. City and County of San Francisco
Requests for information are sometimes interpreted or treated as requests for records under the CPRA. However, in Steinle v. City and County of San Francisco, the U.S. Ninth Circuit Court of Appeals held that U.S. Immigration and Custom Enforcement’s detainer request, which asked the San Francisco Sheriff’s Department to inform ICE of the release date of an undocumented immigrant in custody, was not a records request under the CPRA. Additionally, the court concluded that, “even if the detainer request were construed as a public records request for documents reflecting a release date, the Sheriff’s Department did not violate the CPRA because the CPRA does not require agencies to create records.”

Voter Ballots Exempt from Disclosure – Citizens Oversight, Inc. v. Vu
In Citizens Oversight, Inc. v. Vu, the Fourth District Court of Appeal held that voter ballots are exempt from disclosure under the CPRA. The court relied on the CPRA’s express exemption for “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law.” In doing so, it pointed to sections 15370 and 17301 of the California Elections Code. Section 15370 states that, “[a]fter ballots are counted and sealed, the elections official may not open any ballots or permit any ballots to be opened,” and section 17301 states that, after being counted, ballots “shall be kept . . . unopened and unaltered.”

No In Camera Review of Attorney-Client Privileged Records – City of Hemet v. Superior Court of Riverside County
When a public agency asserts that a record — or portion of it — is exempt from disclosure under the attorney-client privilege, and the requester challenges the agency’s assertion, a court may require the agency to submit a privilege log to justify its privilege claim. City of Hemet v. Superior Court of Riverside County considered what a court can do when a public agency’s privilege logs are insufficient to justify a privilege claim. In an unpublished decision, the Fourth District Court of Appeal held that an in camera review (a private review by the judge) of records claimed to be exempt under the attorney-client privilege is not an option; instead, the court may order supplemental privilege logs or impose sanctions, as appropriate.

Read more in our Legal Alert, Attorney-Client Privilege Successfully Argued by City in PRA Case .

SB 1421 Applies to Records Created Prior to Jan. 1, 2019 – Walnut Creek Police Officers' Assn. v. City of Walnut Creek
Since SB 1421, which provides for the disclosure of certain police records under the CPRA, went into effect on Jan. 1, 2019, there has been uncertainty as to whether the newly enacted law requires the disclosure of records created prior to the law’s effective date. Several police departments have argued that doing so would make the law impermissibly retroactive; requesters have argued that doing so is required to effectuate the Legislature’s intent. Numerous trial courts have considered the issue. In Walnut Creek Police Officers’ Assn. v. City of Walnut Creek, the First District Court of Appeal was the first appellate court to consider the issue. The court held that SB 1421 does apply to records created prior to Jan. 1, 2019. In reaching this holding, the court reasoned that the police union’s arguments against the disclosure of such records were “without merit” because “the event necessary to ‘trigger application’ of the new law — a request for records maintained by an agency — necessarily occurs after the law’s effective date.”

California trial courts are bound by the decision of any appellate court unless the California Supreme Court or a different appellate court has ruled otherwise. Thus, the First District’s ruling in this case is controlling on this issue at this time.

Read more in our previous Legal Alerts:

Mere Access to Records Insufficient to Establish Constructive Possession – Anderson-Barker v. Superior Court
In Anderson-Barker v. Superior Court, the Second District Court of Appeal decided that mere access to records held by a third party is insufficient to establish “constructive possession” of the records by the public agency. The case involved a CPRA request to the Los Angeles Police Department for vehicle towing and impounding records. While the LAPD agreed to provide records in its possession, it declined to provide records held in third-party electronic databases, even though it had access to them. The requester asked the court to order the LAPD to disclose the records; however, the court rejected the requester’s petition, finding that the LAPD did not “possess or control” the records in the electronic databases because it did not input the data, could not add or delete data, and could not modify the data, among other actions. On appeal, the Second District upheld the trial court’s finding.

Attorney Fees Recoverable in Reverse-CPRA Actions Under Private Attorney General Statute– City of Los Angeles v. Metropolitan Water District of Southern California
In City of Los Angeles v. Metropolitan Water District of Southern California, the California Second District Court of Appeal held that attorney fees are recoverable in reverse-CPRA actions brought under Code of Civil Procedure section 1021.5, a provision that codifies the “private attorney general” exception to the general rule that parties bear their own attorney fees unless a statute expressly provides otherwise. Prior to this decision, the Second District had recognized the viability of reverse-CPRA actions in Marken v. Santa Monica-Malibu Unified School Disrict. However, the court in that case suggested that attorney fees would not be recoverable in such actions.

Rejecting the Marken court’s pronouncement on the unavailability of attorney fees position on the matter as dicta and factually distinguishable, the Second District held in this case that, so long as a party meets all of the requirements of Civil Procedure section 1021.5, the party is entitled to an award of attorney fees. The court found that a newspaper that intervened in an action brought by a department of the City of Los Angeles seeking a declaration that certain of its records are not disclosable was properly entitled to attorney fees because it was successful in securing disclosure of the records, which the court viewed as the enforcement of an important right and as conferring a significant benefit to the public.

Read more in our previous Legal Alert, Public Agency Access to Data Does Not Make Data Disclosable Under PRA.

If you have any questions about these developments and how they may impact your agency, please contact the authors of this Legal Alert listed at the right in the firm’s ARC: Advanced Records Center, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Facebook @BestBestKrieger and on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.