CA Public Records Legislation: SB 1244 would protect requestors from fee liability if an agency sues for the return of a document.
Proposed legislation SB 1244 will discourage abusive government litigation by protecting public records requestors from fee liability in suits where agencies seek the return of disclosed documents.
The core idea of the California Public Records Act ("CPRA") is simple: the public has a right to request information from the government. The Legislature and Courts have worked together to make this right enforceable by virtue of the mandatory attorney's fee for prevailing plaintiffs contained in § 6259 which exists to create “protections and incentives for members of the public” to sue to enforce their rights under the CPRA. Filarsky v. Superior Court (2002) 28 Cal.4th 419, 427. Meanwhile, agencies are only entitled to fees where a lawsuit is “clearly frivolous.” § 6259(d).
But recent cases have raised a concern: what happens if an agency releases a document that it later wants back? Can the agency sue to force a requestor to return a document the agency provided? If the agency sues and wins, will the requestor have to pay the agency’s attorney’s fees?
This prospect was raised by a case I previously tweeted about, Newark Unified School District v. Brazil (Superior Court of Alameda County, Case No. RG14738281), where a school district disclosed a record, sued to get it back, and sought $500k in attorney’s fees against the requestor.
Standing up to power–either by suing the government for records or refusing to return disclosed records–takes courage. It’s not unusual for prospective clients to express concerns about government retaliation. For an average person, the prospect of owing half a million dollars is more than enough to coerce them into giving a record back after disclosure, whether or not they are required to under the law.
Thankfully, the Newark school district lost that case. Now, the California Legislature is considering SB 1244, introduced by Senator Bob Wieckowski of Fremont, to ensure that scenario doesn’t happen again.
SB 1244 initially set to accomplish two tasks: (1) to ensure that agencies could not sue for the return of documents, whether or not the agency claimed the disclosure was “inadvertent”; and (2) clarifying that attorneys fees under § 6259(d) are only awarded to “requestors,” rather than all “plaintiffs,” which would prevent agencies from seeking attorney’s fees when suing for previously released documents.
The Senate Judiciary Committee considered SB 1244 on May 8, 2018. Based on opposition from public agencies, the Committee amended SB 1244 to remove the portion preventing agencies from suing for the return of previously released documents. However, the amended bill still serves an important function: to ensure that if the government sues for the return of documents, there is no chance that the requester will be liable for the government’s attorney’s fees.
SB 1244 is now on the Senate floor.
Contact your State Senator about SB 1244 to let them know that protections for public records requestors is an important issue to you. Find your State Senator’s contact information at this link.
Find more information about SB 1244 at the links below:
Columbia Journalism Review: The ‘really dangerous’ precedent for reclaiming public records
First Amendment Coalition: FAC Supports CA Senate Bill 1244 to Protect Public Records Requestors
