Under the California Public Records Act, if a state or local government agency denies access to one or more of its records, the requester can sue, and if the court finds that the denial was not justified by law and orders that access be provided, it will order the agency to reimburse the requester the court costs and attorney fees it incurred in having to sue.

This straightforward distribution of risk has developed a kink in recent years known as “Reverse CPRA” litigation. Under this approach, if the public agency does not promptly deny access but instead alerts a person or organization with a possible stake in keeping the information out of the public’s eye, that party can sue the agency to block it from releasing the record. Such litigation is foreseeable coming from a business group arguing for trade secret protection or a public employee labor union asserting the privacy rights of its members.

The requester is then forced to choose between standing by and hoping the agency will make a winning case for disclosure, or intervening to defend its own access rights with full vigor. If it takes the latter course—as most news organizations would do—and succeeds in getting the court to conclude that the contested information is public and must be released, the requester will have won its right of access, but at what cost?

The CPRA does not account for this outcome. It presumes that the public agency has denied access and accordingly requires it to reimburse the requester’s fees and costs. And as the Los Angeles Times learned last year, the same judge who refused to block disclosure of an inquiry into a controversial police shooting that it sought from the City of Pasadena then denied the Times all but a small portion of its attorney fees.   The city was ordered to pay that much, and the Pasadena Police Officers Association, which sued the city unsuccessfully to block release, had to pay nothing.

The Times is challenging that outcome in the Second District Court of Appeal, supported by a friend of the court brief about to be filed by the Reporters Committee for Freedom of the Press and the California News Publishers Association, joined by Californians Aware, the Association of Alternative Newsmedia, the Center for Investigative Reporting, the E.W. Scripps Company, Gannett Co., Inc., MPA – The Association of Magazine Media, the National Press Club, the National Press Photographers Association, News & Review, News Media Alliance, The Sacramento Bee, and the Society of Professional Journalists.

The brief concludes, in part:

Permitting requesters to recover attorneys’ fees from third-party plaintiffs in reverse-CPRA lawsuits will discourage baseless and unsupported claims that public records must be withheld.  In case after case in reverse CPRA lawsuits, California courts have ruled in favor of disclosure of public records.  . . If third party plaintiffs are not responsible for requesters’ attorney fees, they will be more likely to bring reverse CPRA actions to discourage or simply to delay disclosure of  public records,  to the detriment of the public.

Comment: There is a powerful precedent for discouraging baseless and unsupported claims asserting injuries to personal or institutional interests—the anti-SLAPP motion. If the law required the third party seeking to block public records release to show upon filing suit that legal authority established that disclosure would violate his rights, the suit would be subject to a special motion to strike, unless the court determined that the third party had established that there was “a probability that (it would prevail) on the claim.” As with the SLAPP motion, the party failing to convince the court that it would likely prevail would be required to pay the requester’s court costs and attorney fees.