San Diegans for Open Government ("SDOG") sued the City of San Diego ("City") for violations of the California Public Records Act ("Act") after the City failed to produce emails in response to a request made pursuant to the Act. Following the trial court proceedings, the court granted SDOG's request for attorney's fees after finding that the City improperly withheld the requested documents. On appeal, the Fourth District Court of Appeal reviewed the trial court's decision for abuse of discretion and thereafter affirmed the order granting SDOG attorney's fees. A copy of the Fourth District's June 7, 2016 decision is available here.
Attorney's Fees Under The Public Records Act
The Act states " '[p]ublic records' " include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." (Gov. Code, § 6252, subd. (e).) Under the Act, a public agency must make "a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records." (Gov. Code, § 6253.1, subd. (b).) As noted by the Fourth District, "[i]n a proceeding under the Act the court is required to award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section."
A plaintiff is a prevailing party pursuant to Section 6259 if it "files an action which results in defendant releasing a copy of a previously withheld document." (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391.)
Summary Of The Decision
SDOG submitted a public records request to the City for all e-mail communications pertaining to City's official business sent to or from the City Attorney's personal email account during a specific time period. The City initially refused to produce any emails, and stated that all such emails were contained on private servers, were not public records, and were not retained by the City. However, after reading SDOG's complaint, the City produced over 900 pages of e-mails, claiming for the first time it realized SDOG sought e-mails stored in the City's computer system, rather than on private servers.
The Fourth District noted that four City attorneys had reviewed SDOG's request and had concluded it sought only emails stored on the City Attorney's private email account, rather than emails saved to City's servers. In declarations submitted to the trial court, the City attorneys explained that they came to this conclusion based on their treatment of similar previous requests by SDOG's counsel that sought emails regardless of whether the account was public or private. The Court noted that the "City attorneys conceded they were aware private emails stored on City servers are considered to be public records."
The City argued that SDOG should have stated it sought private emails stored on the City's servers and, "had SDOG done so, the City would have produced all non-privileged emails." However, the Fourth District stated that the "City's claim it did not understand the request sought emails stored in its computer system rings hollow." The Court noted that "the City declined to produce any documents claiming it did not 'retain' them," but failed to verify whether that assertion was true.
The City separately argued that it should not be subject to attorneys' fees because the lawsuit did not cause it to disclose the 900 pages of emails, and, even after an in camera review of the other privileged records, the trial court only required the disclosure of "one insignificant e-mail."
In ruling in SDOG's favor, the Fourth District determined that SDOG's action motivated City to actually look for and ultimately produce private emails stored on the City's servers, and that the "City improperly narrowed the request rather than seek clarification as it was obligated to do."
What This Means To You
This case serves as a reminder to broadly, rather than narrowly, consider Public Records Act Requests. Public agencies should check with requesting parties to obtain clarification when there are doubts about the scope of a request. Though no specific technique is required by statute, one way to ensure compliance with this obligation may be to notify requestor of how the agency is interpreting the request, perhaps by restating it, explaining what records are searched, and describing any manner in which the agency is construing the request narrowly, to allow the requesting party an opportunity to clarify the request.
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