Using Legal Action to Compel Disclosure
California Public Records Act:
Using Legal Action to Enforce Disclosure
Q: What legal action is available to enforce rights under CPRA?
Q: Can a public agency pre-emptively go to court and have a record declared not public?
Q: Once the judge rules in a CPRA case, can the losing party appeal?
Q: How does using a CPRA request compare with using the rules of discovery in litigation?
Q: What legal action is available to enforce rights under CPRA?
A: The ultimate legal leverage for obtaining records under the Public Records Act is a civil action to obtain a court order for their release. There is no criminal sanction for simply refusing to provide records to a requester, although it is a felony to destroy public records, and in appropriate cases a temporary restraining order may be issued to prevent their destruction. A successful plaintiff in a public records suit can also get the court to order the defendant public agency to pay its court costs and attorney’s fees — sometimes even when the records are made available prior to any action by the court.
Section 6258. Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.
Section 6259. (a) 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 he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.
(b) If the court finds that the public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.
(c) In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.
(d) The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.
Section 6260. The provisions of this chapter shall not be deemed in any manner to affect the status of judicial records as it existed immediately prior to the effective date of this section, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state, nor to limit or impair any rights of discovery in a criminal case.
Q: Can a public agency pre-emptively go to court and have a record declared not public?
A: No. Under the CPRA, the litigation initiative is always with the requester; a public agency may not go to court on its own to obtain a declaratory judgment that a record is not subject to disclosure (City of Santa Rosa v. Press Democrat, 187 Cal. App. 3d 1315 (California Court of Appeal, 1st Dist. 1986)).
Q: If a public agency denies access to records, must the requester appeal to some higher authority in the agency before taking legal action?
A: No. Once a requester has been turned down once it is not necessary to seek administrative review or appeal prior to going to court. It may be useful to ask for a higher-level reconsideration of an initial refusal (asking the city council to waive an earlier asserted right by a department head, for example), but doing so is not legally required.
Q: Once a CPRA case is in court, will the judge actually look at the disputed records before rendering a decision?
A: It depends. If the agency takes the position that a document or class of documents is by its very nature designated as completely confidential under some law, the dispute is about the law, not the contents, and a court will not review the records in camera. (City of Richmond v. Superior Court (San Francisco Bay Guardian), 32 Cal. App. 4th 1430 (California Court of Appeal, 1st Dist. 1995)). But if the requester satisfies the court that certain “confidential” files may have public material commingled in them, or raises other issues about the applicability of exemptions that can only be judged by reviewing the material in question, in camera examination by the court is necessary (Williams v. Superior Court, 5 Cal. 4th 337 (California Supreme Court 1993)).
Q: Once the judge rules in a CPRA case, can the losing party appeal?
A: In effect, yes, but it’s not called an appeal. There is no appeal per se of a trial court’s decision granting or denying access to public records under the CPRA. But there is review in the court of appeal by special writ. The principal difference in practice is that the court of appeal may decline to review a superior court judgment without granting a hearing or issuing a written opinion. But if it accepts the case on a writ, the scope of review and the procedure are essentially the same as for appeal — the appellate court will review the entire record from the lower court to determine whether, on the merits, the court has abused its discretion, namely whether the judge’s findings were free from an error of law and supported by substantial evidence (State Board of Equalization v. Superior Court, 10 Cal. App. 4th 1177 (California Court of Appeal, 3d Dist. 1992))
Also, since the reason for the Legislature’s substituting writ review for appeal was to provide speedier appellate attention to an order granting or denying access to records — not arbitrarily to keep parties out of the appellate courts — “an appellate court may not deny an apparently meritorious writ petition, timely presented in a formally and procedurally sufficient manner, merely because, for example, the petition presents no important issue or law or because the court considers the case less worthy of its attention than other matters …” (Powers v. City of Richmond, 10 Cal. 4th 85 (California Supreme Court, 1995)).
Q: What if an agency denies access, or ignores a request, counting on the requester to be deterred from taking action by the cost of hiring an attorney and going to court?
A: There is some incentive under the CPRA to sue, or at least not to hesitate to sue on cost grounds, if the requester is reasonably certain that the records should be public. If the requester “prevails” as plaintiff in a public records disclosure suit, the court is required to order the public agency not only to release the disputed records but to pay the plaintiff’s court costs and reasonable attorney’s fees.
If a public agency releases the disputed records after the plaintiff has filed suit, and demonstrably because the plaintiff has done so, the plaintiff is then entitled to costs and fees as the “prevailing party” even though the matter has not resulted in a court judgment — or even a hearing (Belth v. Garamendi, 232 Cal. App. 3d 896 (California Court of Appeal, 1st Dist. 1991). This rule is intended to prevent public agencies from arbitrarily denying access and forcing requesters to spend money on litigation, then releasing the records whose withholding would have been found indefensible if ever presented to a court.
Q: If the agency seems to be making a good faith effort to produce the records, but is simply taking longer to do so than the requester would like, is it a good idea to file suit to speed the process along?
A: Probably not. A court will not order payment of fees under the Belth case unless satisfied that the disclosure of records came not only after but as the result of the plaintiff’s filing suit. If the agency has never declined to provide the records and has been reasonably diligent in attempting to find, compile and produce them, for example, the fact that delivery of the information to the plaintiff occurred only after the filing of suit will not entitle the plaintiff to costs and fees (Rogers v. Superior Court, 19 Cal. App. 4th 469 (California Court of Appeal, 2d Dist. 1993)).
Q: How does using a CPRA request compare with using the rules of discovery in litigation?
A: There are two principal legal processes for obtaining information from government officials or agencies. The CPRA is the more general, and can be used by any person at any time for any reason. The discovery laws in the Evidence Code provide another avenue, but one restricted to parties in court actions — those suing or being sued by the government in a civil case, or defendants in a criminal case.
The restrictions against disclosure are far fewer in the discovery process than under the CPRA, since discovery is intended to allow parties to obtain any information that might constitute, or even lead to, admissible evidence. But these restrictions — privileges — are also more powerful, in the sense that privileged information is also deemed exempt from disclosure under the Public Records Act (Government Code Section 6254, subdivision (k)). On the other hand, exemptions from the CPRA do not operate as disclosure restrictions in the discovery process.
Consequently, for example, an information requester using the Public Records Act will not be able to obtain confidential memoranda between a public agency and its attorney, because such communications are privileged under the discovery rules (Roberts v. City of Palmdale, 5 Cal. 4th 363 (California Supreme Court 1993)). But a party suing a police agency for the misconduct of its officers will not be blocked in obtaining law enforcement investigative or intelligence records which would be exempt from disclosure under the Public Records Act, since such records are not privileged under the discovery rules (ACLU v. Deukmejian, 32 Cal. 3d 440 (California Supreme Court 1982)).
Finally, a requester suing for information under the Public Records Act may be allowed some discovery to assist in preparing its case, for example to determine whether certain records were created or destroyed. But this discovery cannot be used to force officials to disclose the very information which is the subject of the dispute in the first place, and is claimed to be exempt under the Act (Los Angeles Police Department v. Superior Court, 65 Cal. App. 3d 661 (California Court of Appeal, 2d Dist. 1977)).
