Third District Finds Good Faith of Agency in Releasing Redacted Documents Expeditiously Militated Against Award.
California Public Records Act, Government Code section 6259, mandates attorney’s fees to a “prevailing” petitioner. However, even though the law is clear, the next case demonstrates that many (if not most) cases are factually dependent, with the circumstances showing that petitioner’s Public Records Act actions did not really prompt the release of documents and that petitioner should have told the city clerk that disclosure of redacted documents were insufficient before filing for release of unredacted documents.
Crews v. City of Willows, Case No. C063066 (3d Dist. Nov. 23, 2010) (unpublished) was an interesting case that drew numerous amicus curiae briefs by various California newspapers and newspaper associations. They filed in support of petitioner/appellant Crews dba The Sacramento Valley Mirror’s appeal of a trial court’s denial of attorney’s fees to him for obtaining certain unredacted documents from the City of Willows. The basic facts were that the city clerk released certain redacted documents one day after a records request (and lots of badgering) from Crews because the clerk could not reach the city attorney. Crews never informed the city clerk, before filing for mandate, that unredacted documents were required. Even though Crews filed his records release mandate petition, unredacted documents were provided about a month later and he was refunded $258 in copying costs–after city counsel recommended it, which he indicated would have occurred had petitioner utilized the more informal 10-day request procedure under section 6253(c). Crews then moved to recover attorney’s fees for obtaining the unredacted records release and copying costs reimbursement, with the fee request being at least $12,590 (if not more). The trial court denied the fee request, primarily on the ground that no real effort had been made to settle the dispute by analogy to private attorney general catalyst principles. An appeal followed.
Crews primarily argued that the lower court had erroneously injected equitable, discretionary principles into a mandatory fee statute proceeding. The Third District rejected this argument based on the facts.
Initially, the appellate court found that the order denying fees under section 6259 was appealable as a final judgment, even if the underlying order was not appealable. (Los Angeles Times v. Alameda Corridor Transp. Auth., 88 Cal.App.4th 1381, 1388 (2001).)
Although showing some sympathy to applying the catalyst “settlement attempt doctrine” to the section 6259 inquiry, the appellate court did not have to go there. It found that the lawsuit was unnecessary and the City would have disclosed the unredacted records without a lawsuit had Crews simply let the City know that the redacted records were unsatisfactory–showing Crews did not “prevail” and there was lack of a causative effect. Also, the City’s good faith in providing the redacted documents expeditiously was a material consideration in the overall equation. (Motorola Communication & Electronics, Inc. v. Dept. of General Services, 55 Cal.App.4th 1340, 1350-1351 (1997).) Although timing alone can show causation, that inference was missing in this case, where Crews never told the clerk that redacted documents were insufficient and the documents were promptly released after the city attorney became available to review the situation.
The appellate court found that the same conclusion followed from looking at federal Freedom of Information Act (5 U.S.C. § 552) principles, even though an award is discretionary under the FOIA. The federal court in this scheme makes an initial inquiry about whether the filing of the FOIA lawsuit was necessary and had a causative effect on disclosure. (Maynard v. C.I.A., 986 F.2d 547, 568 (1st Cir. 1993).) The necessity for the litigation is an appropriate inquiry under both the FOIA and CPRA, such that this “equitable” factor was appropriately applied and showed Crews did not “prevail” for fee recovery purposes.
Crews lastly argued that fees were in order because the City refunded $258 in police report copying costs. Not so. CPRA is an expedited proceeding to obtain disclosure of documents, not a refund of allegedly excessive copy costs. Here, because Crews did receive disclosure of even redacted documents in upfront fashion, fees were not required as was the case where disclosure was barred by an agency to all documents–which distinguished the contrary result in Galbiso v. Orosi Public Utility Dist., 167 Cal.App.4th 1063 (2008).