Legislation to prohibit settlement offers in CPRA litigation is moving

A measure introduced by Senator Bob Wieckowski (D-Fremont) that would prohibit the use of settlement offers in Public Records Act litigation was unanimously voted out of the Senate Judiciary Committee on a 5-0 vote and placed on the suspense file of the Senate Appropriations Committee.

SB 510 would clarify that offers to compromise made under California Code of Civil Procedure Section 998 shall not be effective in cases brought under the California Public Records Act (CPRA).

Section 998 was created to encourage settlements in civil litigation. Settlement offers made pursuant to Section 998, if rejected, provide that the offering party is entitled to recover its litigation costs in the event the rejecting party fails to obtain a better result at trial.

Section 998 offers are useful as a tool in civil cases where money damages are in dispute. In the CPRA context, however, where the dispute involves an agency’s alleged improper denial of a request for information, Section 998 offers are inapt.

Several public agencies, however, have used 998 offers to scare requesters into prematurely settling legitimate CPRA disputes out of fear that if they do not, the court may not award them attorney’s fees and costs.

Under existing law, prevailing CPRA litigants are entitled to recover their attorney’s fees when they have to go to court to obtain records that are improperly withheld. Section 998 offers, if allowed to be used in the context of a CPRA dispute, could undermine the Act’s only enforcement mechanism intended to deter agencies from unlawfully blocking access to public information.

The Appropriations Committee is scheduled to consider the Suspense file at its hearing next week where the fate of SB 518 will be announced.