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Measure to protect attorney’s fees in CPRA litigation given nod by Legislature

Last week the Senate and Assembly overwhelmingly voted to send to Gov. Gavin Newsom a measure introduced by Senator Bob Wieckowski (D-Fremont) that would protect the ability of requesters who prevail in CPRA litigation to obtain their attorney’s fees and costs. The Assembly vote was 62-13 and the Senate vote was 28-11.

The bill, SB 518, would prohibit the use of offers to compromise made under California Code of Civil Procedure Section 998 in CPRA cases.

Section 998 was created to encourage settlements in civil litigation where the dispute centers on monetary damages. Settlement offers made pursuant to Section 998, 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, Section 998 offers 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.

Several public agencies have recently used 998 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.

Under existing law, prevailing CPRA litigants are entitled to recover their reasonable 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, would coerce requesters into accepting less information than they would otherwise be entitled to receive under the law. This undermines the CPRA’s only enforcement mechanism which was intended to deter agencies from unlawfully blocking access to public information.

Gov. Gavin Newsom has not yet taken a position on SB 518.

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