PUBLIC INFORMATION — The California Newspaper Publishers Association (CNPA) is rallying its members to contribute funds to the preparation of a friend of the court brief supporting a weekly newspaper's effort to recover its attorney's fees for forcing disclosure of public information.
As reported in the May 11 issue of CNPA's memberhip newsletter,
To counter a potential threat to the California Public Records Act, your
newspaper should sign on, before noon
Friday, May 14, to an amicus brief that would support the appeal
of a decision that threatens the right of successful plaintiffs in CPRA
cases to recover their attorney fees and costs associated with the
litigation. CNPA's Governmental Affairs Committee yesterday directed
staff to help organize broad member support for this brief.
In Crews v. City of
Willows, Sacramento Valley Mirror editor and publisher Tim Crews made a request for applications filed by
those seeking a vacant planning commission seat. The agency initially
said it would not comply with the request without talking to its
attorney (who was apparently unavailable). After making this
representation, the agency did produce a redacted version of the
applications (without stating the basis for the withholding). Crews then
sued for the unredacted applications. The agency's attorney then
reviewed the withheld records, and the agency reversed course and
produced the unredacted documents.
Declarations by the agency say The
Mirror "badgered" the clerk to produce the records, and, if The Mirror
had not pressured the clerk, she would have had the opportunity to run
it by counsel and the records would have been produced. Yet, before the
agency reversed course, but after counsel represented it, it filed an
answer claiming the records were rightly withheld under the Act's
personnel record exemption (Govt. Code 6254(c)).
In its ruling
denying attorney fees to Crews, the trial court concluded: "Given
respondent's agreement to disclose unredacted copies of the applications
once its attorney had reviewed the matter shortly after the proceeding
was filed, it is likely that respondent (City of Willows) would have
disclosed the unredacted copies if petitioner had notified respondent of
his objections and demanded unredacted copies before filing the
lawsuit. Having failed to make any settlement demand prior to filing the
lawsuit, petitioner is prevented from claiming an award of attorney
fees pursuant to subdivision (d) of Government Code section 6259."
upheld on appeal, the court's decision to require plaintiffs, in order
to qualify as a prevailing party entitled to fees, to make a settlement
demand before initiating litigation, would have a devastating impact on
the public's rights to obtain information in a timely fashion. Such a
ruling would motivate agencies to not comply with the law until
litigation was threatened. No agency would ever give requesters what
they ask for until they are sure they are about to be sued, causing
unnecessary delay. Since few requesters have an attorney in their hip
pocket, agencies would often prevail without a fight, or only fully
comply once they determined a requester was serious enough about the
request to hire an attorney.
The settlement demand requirement could
also alert third parties interested in the outcome (public employee
unions, for example), who might try to beat the requester to the
courthouse to seek an injunction (a proven tactic to thwart the public's
rights under the law). The court's ruling is not only contrary to the
plain meaning of the PRA, but is also inconsistent with Prop. 59, the
Constitutional Sunshine Amendment.
Because the right to
mandatory attorney fees for prevailing plaintiffs is the primary
motivator for quick agency action on public records requests, CNPA urges
each of its members to join this amicus effort, and to make this
decision very quickly.