OPEN GOVERNMENT -- In a case inspired and made possible by CalAware’s first statewide public records compliance audit, the California Court of Appeal for the Sixth District has ruled that, quite apart from court actions to obtain access to particular information under the California Public Records Act (CPRA) on a case by case basis, plaintiffs who have not themselves requested any records from a public agency can use a taxpayer suit to force the agency to correct policies and procedures that violate the CPRA.

CalAware's first audit of compliance by law enforcement agencies with their California Public Records Act disclosure obligations, published two years ago, showed most police and sheriff’s departments failing to release public information on time, without improper identification demands—and/or at all. To CalAware's surprise, a San Jose law firm filed a taxpayer suit against a handful of departments in Santa Clara County based on the audit results. The contention is that the departments used public funds improperly in enforcing policies and practices forbidden by the CPRA. 

The suit seeks declaratory and injunctive relief to remedy this situation, including an order directing corrective staff training, periodic reports to the court, and the appointment of a monitor to oversee compliance.  The named plaintiffs are a wealthy Saratoga couple prominent in civic affairs who had nothing to do with the audit and do not allege that they ever sought public records from the defendant departments.

The trial court ruled that they could proceed with the taxpayer action, at least against the departments in whose jurisdictions they owned taxable property.  The Sixth District Court of Appeal, on a writ petition by Santa Clara County, most of the defendant municipalities and the California Highway Patrol arguing that the CPRA itself provides the exclusive remedy for violations of its requirements, rejected that contention. 

The CPRA not only determines which records are or are not accessible to the public; it also has procedural mandates and prohibitions that, if disregarded, have no corrective remedy spelled out in the CPRA itself.  That correction, the court concluded, can be supplied in a taxpayer action alleging that public funds are being wrongfully spent to support policies or practices contrary to CPRA requirements. 

For example, closely tracking CalAware's audit findings, the suit alleges that the defendant law enforcement agencies violated the CPRA by:

  • “Requiring, as a condition of inspecting or copying records, that a person requesting records provide his or her name, driver’s license, employer’s name, or other personal or identifying information that is not required to view or copy records under state law;
  • "Requiring, as a  condition of inspecting or copying records, that a person requesting records state the  purpose for which the records are sought; 
  • "Charging ‘research,’ ‘look up,’ or other illegal fees; 
  • "Requiring a person requesting records to purchase copies of  documents in order to view them; 
  • "Failing to respond to lawful requests to inspect or copy public records in a timely fashion; 
  • "Failing to respond at all to lawful requests to inspect or copy public records; 
  • "Refusing to accept lawful requests to inspect or copy public records; and 
  • "Refusing to release public records upon lawful request.”