Consider this scenario: An investigative reporter gets a document dump from the county in response to a California Public Records request. Later, the county calls and demands that the reporter return the records because it accidentally disclosed a document in the cache. When the reporter says “no,” the county sues asking the court to order the return or destruction of the records.
First Amendment jurisprudence has long said that such an attempt to control information is an unconstitutional prior restraint. But this scenario is playing out in California in light of a recent, flawed state supreme court decision, Ardon v. City of Los Angeles, which permitted an agency to claw back records released under the CPRA.
In reaction, Senator Bob Wieckowski (D-Fremont) has introduced SB 1244 which seeks to ensure that no requester is similarly sued by a government agency seeking the destruction or return of documents. The bill clarifies the law by providing that when a government agency inadvertently releases a record, it waives the exemptions it may have otherwise asserted. Clarifying this point would overturn the supreme court’s decision in Ardon, and fix the CPRA’s ambiguity as the court identified in favor of First Amendment principles.
The case for SB 1244 is exemplified by ongoing litigation in Newark Unified School District v. Superior Court, where citizen Elizabeth Brazil made a CPRA request and received documents that, after inadvertently releasing, the school district wanted returned. When Brazil refused to return the records, the district sued her.
The district prevailed on clawing back the records, based on the imperfect reasoning in Ardon, and is now seeking to recover $500,000 in attorney fees against Brazil-arguing that she frivolously defended her right to retain the records. Last month, CNPA joined other media organizations in objecting to the district’s request for fees. The issue is currently pending in the Alameda Superior Court.
The Newark case raises serious First Amendment implications. Federal courts have long held that when the government inadvertently discloses information, it cannot order the genie back in the bottle-such action is tantamount to a prior restraint.
To then punish an individual for opposing such a prior restraint by seeking $500,000 in attorney fees adds insult to injury. It also sets a framework for abuse that could have a palpable chilling effect on the utility of the CPRA. If abused, the principles affirmed in Ardon and Newark provide a roadmap to regularly roping requesters into lawsuits, and harassing them with the prospect of large fee awards.
SB 1244, sponsored by CNPA, would protect CPRA requesters by ensuring that the law favors protections for requesters who obtain public records and litigate in favor of the right of access. The bill will be heard by the Senate this spring.