CNPA, several media organizations participate in brief to protect integrity of Public Records Act

Last week, CNPA and the Reporters Committee for Freedom of the Press filed an amicus brief in the second appellate court in support of the Los Angeles Times, which is litigating one of the most consequential issues facing California’s Public Records Act — “reverse-CPRA actions.”

The reverse-CPRA action is a relatively new phenomenon in California, which threatens the very structure of the CPRA. The L.A Times case, Pasadena Police Officers Assn. v. City of Pasadena, is just one of many examples of the problem percolating in the court, and is the first to reach an appellate court since 2012.

In the L.A Times’ case, the newspaper and other members of the public sought a report detailing the police department’s response to the controversial shooting of an unarmed 19 year-old man. Instead of producing the report promptly, the police department notified the local police union that it would release the report. This spurred the union to file a reverse-CPRA action by seeking an injunction in the trial court to prevent the department from releasing the report.

The L.A Times intervened in the case in order to represent the public’s right to know, and to enforce its constitutional right of access. The L.A Times prevailed in the case, eliciting the release of a substantial portion of the report. But it took several years of litigation to prevail, at significant cost.

In normal cases, the California Public Records Act provides an absolute mandate that a requester be paid attorneys’ fees when it prevails in court and forces an agency to release records that it had previously withheld. But in a reverse-CPRA action, the mandate for attorneys’ fees is uncertain at best.

That’s due in part to the fact that a reverse-CPRA action is a judicial construct. The Legislature has never authorized third party actions, and consequently, it has never spoken as to what the rules should apply if such actions proceed. The courts are left to sort out this quandary with little guidance.

In support of the L.A Times’ efforts, CNPA staff worked with the Reporters Committee for Freedom of the Press to address the myriad, vexing policy problems that arise if the mandatory fee-shifting principle in the CPRA does not translate to reverse-CPRA actions. In short, the failure to grant fees encourages the agency to facilitate reverse-CPRA actions instead of making any decision about disclosure. This encourages gamesmanship and collusion by agencies and third parties to avoid embarrassing disclosures. It undermines the agency’s duty to even execute the CPRA and ultimately, threatens the fundamental structure of the law.

The amicus brief details the several active reverse-CPRA cases which are currently before the courts, and argues that any requester who litigates a CPRA case should be entitled to mandatory attorneys’ fees as if the requester had filed the lawsuit. This result would preserve the proper incentives of the CPRA and ensure that the public’s constitutional right of access is not diluted.

Fourteen other media organizations, including the Sacramento News & Review and the Sacramento Bee, which have both been involved in reverse-CPRA cases, also joined the brief in support of the L.A Times.