In one of his final actions on bills passed by the legislature this session, Gov. Gavin Newsom vetoed a bill by Sen. Bob Wieckowski (D-Fremont) that would have prohibited agencies from attacking the ability of requesters who prevail in CPRA litigation to obtain their attorney’s fees and costs.
The bill, SB 518, would have prohibited the use of “offers to compromise” made under California Code of Civil Procedure Section 998 in CPRA cases.
CNPA was a strong supporter of the measure.
Offers to compromise are used to encourage settlements in civil litigation where the dispute centers on monetary damages. These types of settlement offers, if rejected, provide that the offering party is entitled to limit its litigation costs in the event the rejecting party fails to obtain a better result at trial.
In the CPRA context, however, where the dispute involves an agency’s alleged improper denial of a request for information, offers to compromise are inappropriate and can be misused by agencies to manipulate requesters who sue to enforce their rights when requests for information have been improperly denied by agencies.
In his veto message, the Governor wrote, “Preventing public agencies from making good-faith efforts to settle litigation by providing additional records that may have been inadvertently overlooked or mistakenly withheld actually delays timely disclosure. This legislation would provide a perverse incentive for more litigation instead of more transparency.”
Several public agencies have recently used these offers to scare requesters into prematurely settling legitimate CPRA disputes out of fear that if they do not, the court may not allow them to obtain the total amount of their attorney’s fees and court costs.