The California Court of Appeal for the First District has concluded that an attorney’s overly “aggressive” demands for public records, including a proposal to search officials’ private computers for documents dealing with city business, may have been needlessly burdensome on the City of Sebastopol, but was not completely lacking in merit or intended to harass, and was therefore not “frivolous” litigation that justified ordering the attorney and his client to pay the city  its attorney’s fees spent resisting the litigation.

The court’s decision in Bertoli v. City of Sebastopol echoes the rationale of the Third District Court of Appeal in Crews v. Willows Unified School District, a 2013 case concluding that while a newspaper editor’s filing a Public Records Act suit for a large number of school district records while the district was working to comply with his request may have been overly hasty and improvident, the litigation was not utterly without merit or filed with intent to harass—and therefore not “frivolous” to a degree warranting an order to the editor to pay the district’s attorney’s fees.

Julia Ann Bertoli is a young woman who was crippled and brain-damaged by a car that struck her in a crosswalk at a busy intersection on the main street of Sebastopol—also a state highway route—in 2009.  Her lawyer, David Rouda, hoped that public records would show that city officials had known about the street’s dangerous condition near the accident site and had done little or nothing to mitigate it.

Despite thousands of paper records provided him in response to his original requests, he came to believe that several key officials had electronic records relevant to his case on their private computers.  He offered to pay for a neutral technical expert to examine those computers for the information he sought, but the city refused. When he sued under the Public Records Act alleging unlawfully deficient responses to his requests, the trial court not only ruled for the city but ordered Rouda and his client to pay the city’s attorney fees accrued in defending the suit, which the court eventually determined to be more than $44,000. The sanction was imposed when the court decided that the litigation was “clearly frivolous,” remarking, “In nearly 25 years of judging, this court has not seen discovery disproportionality of this magnitude before.”

While the appellate court relieved Rouda and Bertoli from paying the city’s fees, Rouda emerges from the case with no fees, having agreed to represent her on a contingency basis.

As noted by attorneys familiar with the decision, it implies:
• that the high barrier against a finding of “frivolous” public records litigation sufficient to warrant the fee reversal sanction protects “scorched earth” demands by personal injury attorneys as an alternative to civil discovery in conventional damage suits, as well as uncompromising Crews-type investigative enterprise journalism, so long as a straight-faced argument can be made that the requester’s approach has some substance to it and is not mounted to harass the government.
• that the notion of considering documents concerning government business to be accessible public records even when created or stored on officials’ private devices or email accounts may well be one whose time is coming, or at least not nearly as outlandish at the trial court in Bertoli insisted.

The First District observed:

(G)iven the current state of the law in this area, it was not entirely frivolous to take the position that public documents responsive to a PRA request could exist on private electronic devices. . .  In fact, an email message which both relates to the conduct of the public’s business and is written and retained by an agency employee on his/her personal computer or cell phone is arguably a “writing” that is “prepared, owned, used, or retained” by a local agency. Thus, under a plain reading of the PRA, it is a public record subject to disclosure. (§ 6252, subds. (e) & (g).) Although it can be argued that an individual employee is not a “local agency” as defined by the PRA, it is equally plausible that an employee acting on behalf of a local agency should be treated as indistinguishable from that agency for PRA purposes. Indeed, as discussed above, it appears beyond dispute that the emails of City employees located on public computers constitute public records under the PRA. . . To permit a different rule simply because the employee is conducting public business from his/her home computer would allow a public agency to shield its public documents from disclosure simply by instructing its employees to use their private email accounts . . . In fact, the very issue involved in this case is currently the basis for a petition for review in our own Supreme Court; persuasive evidence that this is an area of the law which remains in flux. (See City of San Jose v. Superior Court (2014) 225 Cal.App.4th 75, review granted June 25, 2014, S218066 [noting in the case summary that the question presented is as follows: “Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records‟ within the meaning of the California Public Records Act?”].) That several amici curiae have filed briefs supporting appellants position also buttresses our conclusion that not all reasonable attorneys would agree that the Petition was entirely without merit.