Document Disclosure Was Not Motivated By Records Request, Rules Fourth District, Division 3
The California Public Records Act (PRA), Gov. Code, § 6250 et seq., has a mandatory fee shifting provision when a plaintiff prevails and compels disclosures of public records after initiating civil proceedings for injunctive or declaratory relief or mandate in court to enforce public record inspection or copying rights under PRA. (Gov. Code, § 6259(d).) However, Motorola Communication & Electronics, Inc. v. Department of General Services, 55 Cal.App.4th 1340, 1344-1346 (1997) established an important wrinkle for fee recovery in this area: the successful plaintiff must show that the litigation “motivated” the release of documents by defendant, which involves an examination of such factors as the timing of the disclosure in relation to the lawsuit commencement, whether the agency made a good faith effort to discover and disclose material, whether the scope of the request caused a disclosure delay, and whether the agency was burdened by other duties that delayed its response. Motorola was focal to the resolution of the next case we examine.
In Hong v. Regents of the University of California, Case No. G043856 (4th Dist., Div. 3 May 18, 2011) (unpublished), two UCs voluntarily produced documents requested by plaintiff on certain grants but at least some documents were not produced based on confidentiality concerns and the fact that only one employee was working on gathering responsive documents. Plaintiff filed the PRA suit, and the documents were released. However, the record showed that the documents were disclosed based on two factors: (1) a change in circumstances–the partners involved in the grant changed course such that confidentiality considerations evaporated; and (2) more time was needed to produce the documents because only one employee was charged with assembling the responsive documents. Plaintiff sought $430 in filing/motion fees and over $117,000 in attorney’s fees. The trial court denied the fee request on two grounds. An appeal followed.
The Fourth District, Division 3 affirmed, in a 3-0 opinion authored by Acting Presiding Justice Rylaarsdam.
The appellate court agreed that Motorola controlled, with the record having substantial evidence to demonstrate that the document release was triggered by factors other than the timing of the PRA lawsuit. Changed circumstances and the passage of time were overriding causes of the document disclosures, with “[m]ore than post hoc, ergo propter hoc” needing to be demonstrated. (Motorola, supra, 55 Cal.App.4th at 1345.)
BLOG UNDERVIEWS–Know what that Latin phrase means? It is this: “after this, therefore because of this”–the logical fallacy that “since that event followed this one, that event must have been caused by this one.” Also, the trial court in Hong denied fees because plaintiff was disqualified from fee recovery because he was a self-represented attorney. The appellate court did not have to reach this issue, but this Trope type question likely will be involved in some future case.