Agencies fight for right to sue requesters

On Tuesday, the Senate Judiciary Committee will hear SB 1244, CNPA sponsored legislation, which would prohibit agencies from suing requesters who receive documents inadvertently.

The purpose of the legislation is to protect an innocent requester from being dragged into litigation over an agency’s mistake. That’s what happened to a requester who obtained records from the Newark School District. To make it worse, the district asked a court to order the requester to pay it $500,000 in attorney fees under the California Public Records Act fee recovery provision.

SB 1244 would make two important changes. It would clarify the CPRA’s fee recovery provision to say that it is “requesters” who are able to recover mandatory fees-not public agencies who sue requesters. The bill would also explicitly state that agencies cannot sue requesters for the return of records.

Senator Bob Wieckowski (D-Fremont) will present the bill next week to opposition from agencies who argue that they should be able to bring these lawsuits not just to get the return of records, but to prevent newspapers from disseminating information contained in those records.

This broad interpretation is exactly the sentiment that concerns CNPA. While well-heeled requesters may be able to fight off frivolous and potentially unconstitutional actions to squelch speech, there are many who cannot stomach a legal fight like student journalists and citizen activists. The chilling effect of even the threat of a lawsuit is immense and has detrimental effects on the effectiveness of California’s access law.