Fifth District Determines Plaintiff Did Prevail Under Public Records Act in Establishing Denial of Access to All Local Agency Documents.
The case we next review is important to all practitioners (most likely public interest or land use attorneys) seeking to make sure there is transparency in the government decision making process or there is candidness in allowing access to government documents.
In Galbiso v. Orosi Pub. Util. Dist., Case No. F053236 (5th Dist. Oct. 23, 2008) (certified for publication), plaintiff/appellant had a long-running dispute with the Orosi Public Utility District (OPUD) about sewer assessments against appellant’s land and OPUD’s enforcement activities in connection with these assessments. Among other claims, appellant claimed that OPUD violated (1) the Brown Act (Gov. Code, sec. 54950 et seq.), which overall holds that local governmental agency meetings must be open and not closed except for circumscribed circumstances, and (2) California’s Public Records Act (Gov. Code, sec. 6250 et seq.), which allows citizens access to state governmental records as long as certain procedures and exemptions are recognized. These claims are hardly without consequence. If a Brown Act violation is proven, a trial court has discretion to award attorney’s fees and costs to the litigant proving the violation. (Gov. Code, sec. 54960.5; Bell v. Vista Unified Sch. Dist., 82 Cal.App.4th 672, 682 (2000) [condition precedent to plaintiff’s fee recovery is proof of violation of the Brown Act].)
Even more significant from a fee recovery perspective, a plaintiff prevailing in litigation under the California Public Records Act (CPRA) is entitled to a mandatory fee award. (Gov. Code, sec. 6259(d).) The parties reached a settlement agreement, after plaintiff had obtained a preliminary injunction based on OPUD denying access to documents altogether, by which OPUD agreed to be compliant with both schemes and allowed the trial court to determine subsequent entitlement to fees and costs in a post-settlement proceeding.
In the post-judgment proceedings, the trial court denied fee recovery to plaintiff, determining that (1) plaintiff had not proven any Brown Act violation, and (2) even though plaintiff had prevailed on a “denial of access” theory, she did not obtain a release of any specific documents which had been claimed to have been previously withheld.
Plaintiff appealed, and obtained a reversal and remand on both counts.
Galbiso adds to the jurisprudence on fee recovery under these two statutory schemes in significant ways, containing thorough discussions of fee entitlement under the Brown Act/CPRA and the abuse of discretion/de novo standards depending on the germane facts at issue.
Brown Act Fee Recovery: This one was not as hard as the CPRA issue. The Fifth District disagreed with the trial court, finding there were Brown Act violations. Based on this substantive issue overturn, the appellate court remanded to have the lower court exercise its discretion in awarding fees, paying attention to these factors (among other matters): (1) the necessity for the lawsuit; (2) any injury (or lack thereof) to the public; (3) the likelihood of solving the problem through other means; and (4) the likelihood of recurrence of the unlawful actions in the absence of plaintiff’s lawsuit. (Bell, supra, 82 Cal.App.4th at 686.) The Fifth District also noted that special circumstances must be shown to deny an award of attorney’s fees as unjust once a Brown Act violation is proven, citing L.A. Times Communication v. L.A. County Bd. of Supervisors, 112 Cal.App.4th 1313, 1327 (2003).
California Public Records Act Recovery: This issue was more substantively challenging for the Fifth District in its 3-0 decision authored by Justice Kane. As a prelude to its actual determination, the appellate court noted that a plaintiff prevails for purposes of a CPRA attorney’s fees award when he/she files an action resulting in defendant’s release of previously withheld documents, as long as the lawsuit was a “motivating factor” in the document release. (See L.A. Times v. Alameda Corridor Transp. Auth., 88 Cal.App.4th 1381, 1391 (2001).) The determinative factor was that the trial court had earlier granted plaintiff a preliminary injunction on the basis that OPUD had failed to allow her access to documents in OPUD’s office. This was a sufficient predicate for a mandatory fee award under section 6259(d), with no need to establish that only specific documents were withheld to the requesting plaintiff. Here is what Justice Kane had to say: “We believe the language of section 6259 is sufficiently broad to include the present lawsuit. That is, where a means is employed by a public agency to effectively deny access to all public records and a lawsuit is filed to remedy the problem, that lawsuit would constitute a claim that ‘certain public records are being improperly withheld from a member of the public’ within the scope of section 6259.” (Slip Opn., at p. 27.) In fact, logical extension of the argument and general disclosure-oriented policies behind the CPRA dictated the result: it made no sense that that agency could bar complete access to documents without fee exposure, but be subject to an award of attorney’s fees for only selectively withholding one or two documents.
The Fifth District overturned and remanded the CPRA determination for an actual fee award, while remanding the Brown Act ruling for exercise of discretion by the lower court.
Plaintiff, however, was not content to just win. She also suggested to the appellate court that an application of a fee multiplier was mandatory under the facts of the case. Way too far, said the appellate panel. No multiplier in this context is mandatory, but a matter for discretionary determination by the court below. (Nichols v. City of Taft, 155 Cal.App.4th 1233, 1240-1241 (2007).) So, the cause was remanded back to the trial court, which means that appellant will definitely be awarded some fees on the CPRA claim and may well obtain additional fees on the Brown Act claim.