If you were looking for a way to sabotage America's freedom of information laws, you couldn't do much better than a legal strategy being pursued by government entities in two California towns.
The public school district of Willows, in Glenn County, and the town of Sebastopol, near Petaluma, have been sued, in unrelated cases, for access to public records emails of government employees, primarily. These government defendants have vigorously opposed the suits. That, of course, is their right (although one might question their judgment in opting to litigate, rather than negotiate a compromise settlement, at a time of financial crisis in municipal budgets).
In both cases, the trial courts sided with the towns, ruling that the requesters -- in the Willows suit, a newspaper editor seeking information for news stories; in the Sebastopol suit, a lawyer requesting evidence for his representation of an injured client -- were not entitled to more records than they had already received. While these rulings, in my view, are wrong, and should be reversed on appeal, they are not totally beyond the pale.
What happened next, however, is completely indefensible -- and a threat to government transparency and accountability.
The courts, acting on motions filed by the towns, chose to punish the individuals who had filed the record requests by ordering them to pay the legal fees and costs incurred by the government entities -- more than $80,000 in one case, nearly $60,000 in the other!
Penalties of $60,000 or $80,000 are no mere slaps on the wrist. Not for these requesters -- indeed, the Willows editor, Tim Crews, will be forced to shut down his weekly newspaper if the penalty is sustained. Nor for the news organizations, nonprofits, community activists and all others who, through their requests for information under the California Public Records Act (PRA), try to learn what their elected officials are doing (or not doing) and to hold them accountable.
The First Amendment Coalition, the organization I work for, has joined these cases, filing amicus briefs in support of the requesters, who are now appealing the rulings on legal fees. Our concern: If enforcing rights to public records carries with it a risk of having to pay the government's legal fees and costs, the PRA will be a dead letter.
Some background: Government agencies do not willingly disclose records revealing policies and actions that they don't want the public to know about. They disclose these records only under pressure: to avoid an enforcement proceeding to compel disclosure of the records (with its attendant cost and embarrassment to the agency).
Enforcement of the PRA relies entirely on private civil litigation initiated by requesters. California has no open-records ombudsman with authority to force the release of documents. The attorney general and district attorneys take no interest in PRA violations, regardless of how egregious. For better or worse, only the prospect of a civil suit, filed by a requester determined to get the information she wants, gives agencies a reason to comply with the law.
The PRA was carefully designed to foster this system of private enforcement. First, persons whose record requests have been unjustly denied are often able to get relief in court, even if they can't afford a lawyer. This is because, if they prevail in court, requesters receive an award of fees to pay their lawyer.
Second, requesters are protected against catastrophic liability resulting from the uncertainty and unpredictability of litigation. Even a requester who reasonably expects to win may nonetheless lose in America's crap-shoot legal system. Section 6259(d) says, in effect, not to worry: requesters can't be punished merely for being on the losing side of a PRA dispute. Only if a PRA lawsuit is "clearly frivolous" -- not just "frivolous," as in many other laws, but "clearly frivolous" -- will a requester be at risk of having to pay the opposition's legal fees and expenses.
Back to the Willows and Sebastopol cases: The trial courts in both lawsuits purported to apply the "clearly frivolous" standard, but in reality the judges did nothing of the kind. They ignored that standard and awarded fees and costs to the towns on the patently insufficient basis that the requesters hadn't prevailed in their access claims. The courts in effect rewrote the PRA's fee-award language to say, "loser pays."
Why does that matter? Because no one will ever go to court to enforce a PRA request if losing means the requester could be on the hook for tens of thousands of dollars in legal fees and costs incurred by the government. No one, not even corporate requesters, can afford to take that chance.
All enforcement of the PRA will come to a grinding halt unless an appeals court, in clear and unequivocal terms, restores the PRA's essential protection for requesters. Let's hope that happens -- and soon.
Peter Scheer is executive director of the First Amendment Coalition. The cases discussed are Crews v. Willows Unified School District, 3d Appellate District C066633 (2012), and Bertoli v. Sebastopol, 1st Appellate District District, A132793 (2012).
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