PUBLIC INFORMATION -- Courts have interpreted the California Public Records Act as entitling a plaintiff who is forced to sue to get records to get his attorney's fees paid by the defendant agency if the latter releases the records only after, and in reaction to, the filing of the lawsuit. But what happens if the agency's attorney, off somewhere else when the records were denied, shows up after the suit is filed and says if he'd been consulted, he'd have authorized release?
That and several other questions whose answers could greatly hobble attorney fee recoveryand hence much of litigation to obtain public recordsare seeking review in the California Court of Appeal for the Third District in Crews v. City of Willows, where the plaintiff, Tim Crews, is California's most aggressive journalist enforcer of the open govenment laws (and a member of the board of directors of Californians Aware), and the defendant is one of his recurrent targets as editor of the Sacramento Valley Mirror, based in that municipality.
As Crews' attorney, Paul Boylan, relates the facts in his reply brief, Crews requested production of certain public records but the city clerk, instead of using the 10-day response period to consult with the city's legal counsel, who was temporarily out of touch, produced unlawfully redacted records. Twelve days after the request, Boylan filed an action in court to force release of the redacted information and challenge the high copying fees, after which the city's legal counsel appeared, reviewed the documents and the request, and concluded that there was no basis for the redactions.
Nonetheless, the city tried to avoid producing the redacted information, instead trying to settle the case by seeking a dismissal in exchange for reimbursing copy fees alone. Negotiations lasted nearly a month; eventually the city unconditionally produced the unlawfully redacted information and returned the fee Crews had paid for copies.
But when Boylan moved that the court order the city to pay Crews' attorney fees, the trial court denied the motion for two reasons. First, the court ruled that while Crews obtained the relief he sought, he nevertheless did not "prevail"in the litigation because of the city's legal counsel's declaration that, if he had been asked for his opinion, he would have told the city clerk to provide unredacted documents. Second, the trial court held that, even if Crews did prevail, he deserved no attorney fee award because he had not attempted to settle the dispute prior to filing suita condition to obtaining fees under the Code of Civil procedure but not found in the California Public Records Act.
In a perfect world, public agencies would embrace their responsibilities under the CPRA and respond quickly and efficiently when citizens request access to public information. The world, however, is far from perfect. Public agencies are often at war with those requesting information. Public agencies feel they win that war if they produce as little information as possible. They achieve this by providing less information than requested, not producing more information until after a suit is filed, and then avoid paying fees and costs after they produce, thereby discouraging future requests.
(City officials) ask this court to ratify and excuse the lack of diligence that caused this dispute. As a matter of policy, this Court should agree with (Crews), thereby recognizing that public agencies must exercise a reasonable duty of diligence to consult with their legal counsel if they feel the need. A ruling in (the city's) favor will encourage public agencies to forego legal consultation that in turn will create delay antithetical to the purposes underlying and permeating the CPRA.