New CPRA decision: police union that filed losing "reverse-CPRA" action must pay CPRA requestor’s attorney’s fees under CCP 1021.5.
In Pasadena Police Officers Association et al. v. City of Pasadena, the Second District Court of Appeals held that a California Public Records Act ("CPRA") requestor can recover attorney’s fees from the police union that filed a losing reverse-CPRA lawsuit.
The case arose when the Pasadena Police Officers Association (“PPOA”) filed a reverse-CPRA action to prevent disclosure of records related to a police shooting. The Los Angeles Times (“the Times”), which had requested the records, successfully opposed PPOA’s lawsuit and moved for attorney’s fees against both the City and the PPOA. The trial court awarded the Times a portion of its fees against the City under the CPRA, but declined to award fees against the PPOA. The Court of Appeal reversed in part, and held that the Times is entitled to fees against the PPOA under CCP 1021.5. The Court of Appeal deferred to the trial court with respect to fees against the City.
Under the California Public Records Act, the mechanism to obtain records is straightforward. A member of the public submits a request and, if the agency wrongfully withholds records in response, the requestor files a lawsuit against the agency to enforce the request. If the requestor prevails in that lawsuit, the agency is required to pay the requestors attorney’s fees. That mandatory fee-shifting provision is crucial to enforcement of the CPRA. Without it, only those willing to pay thousands of dollars in attorney’s fees would have meaningful access to records.
But so-called “reverse-CPRA” lawsuits have complicated the picture. In a reverse-CPRA suit, a third party files a lawsuit to prevent the disclosure of requested records. Those lawsuits were authorized by Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250. Whereas attorney’s fees for prevailing requestors are mandatory in CPRA lawsuits, it has been unclear whether, or under what circumstances, a requestor is entitled to fees for successfully opposing a third-party’s reverse-CPRA lawsuit.
The uncertainty around attorney’s fees presents requestors with a difficult choice when faced with a reverse-CPRA lawsuit: should they intervene and risk not being able to recover attorney’s fees? Or not intervene and risk losing access to the records?
Here, the Times, and others, requested a report created in the wake of a police shooting (“the OIR report”). The PPOA filed its reverse-CPRA to block disclosure, and the Times intervened, arguing for disclosure. The Court of Appeal sided with the Times and held that portions of the OIR report are public and must be disclosed. You can read the Court’s decision regarding disclosure of the records here: Pasadena Police Officers Assn. v. Superior Court (2015) 240 Cal.App.4th 268.
After successfully opposing PPOA’s reverse-CPRA action, the Times moved for attorney’s fees, under both the CPRA and CCP 1021.5, against the PPOA and the City. The trial court awarded fees under the CPRA for a portion of the litigation against the City, but declined to award any fees for the litigation against PPOA. In so ruling, the trial court acknowledged that the criteria for a fee award under CCP 1021.5 was met–the Times succeeded in the litigation; enforced an important right affecting the public interest; conferred a significant benefit on the public; and private enforcement by the Times was necessary. However, the trial court found that fee recovery was barred under Adoption of Joshua S.(2008) 42 Cal.4th 945 (Joshua S.) which states that a private individual is not liable for fees under CCP 1021.5 when that individual sought a judgment that determined only his or her private rights and did nothing to adversely affect the public interest other than being on the losing side of an appellate case.
The Court of Appeal disagreed with the trial court and ordered the PPOA to pay the Times’ attorney’s fees under CCP 1021.5. In awarding fees under CCP 1021.5, the court noted that the Joshua S. exception is narrow in scope and did not apply here for two reasons: (1) the PPOA’s reverse-CPRA suit compromised public rights by attempting to restrict the public’s right of access to police records; and (2) that, because the PPOA’s suit sought to expand the application of the Pitchess statutes, the suit was in the pursuit of the PPOA’s institutional interest, rather than merely the officers’ individual rights.
As it pertains to CPRA fees against the City, the appellate court deferred to the trial court in limiting the Times fee recovery to litigation against the City, and not the litigation aimed at defeating the reverse-CPRA suit.
Reverse-CPRA suits remain controversial, and there are strong arguments that Marken should be overturned and that reverse-CPRA should be prohibited altogether. However, this case provides important clarity that, should a third-party such as a police union file a reverse-CPRA lawsuit, a CPRA requestor may recover attorney’s fees if the requestor intervenes and succesfully argues for disclosure.
Read more about reverse CPRA suits here: