JULIA ANNA BERTOLI еt al., Plaintiffs and Appellants, v. CITY OF SEBASTOPOL et al., Defendants and Respondents.
No. A132916
First Dist., Div. Four.
Jan. 20, 2015.
233 Cal. App. 4th 353
JULIA ANNA BERTOLI et al., Plaintiffs and Appellants, v. CITY OF SEBASTOPOL et al., Defendants and Respondents.
David Rouda for Plaintiffs and Appellants.
Geary, Shea, O‘Donnell, Grattan & Mitchell, Matthew K. Good and Steven C. Mitchell for Defendants and Respondents.
OPINION
REARDON, J.—In this case involving the California Public Records Act (PRA) (
I. BACKGROUND
On July 3, 2009, Bertoli (then 15 years old) was involved in a tragic accident when she was struck by a car as she walked inside a crosswalk located on Highway 116, a highway owned by the State of California which runs through the City. As a result, Bertoli was rendered permanently physically and mentally disabled. Subsequently, Bertoli‘s family retained Rouda to represent her interests with respect to the accident.
A. Requests for City Records Under the PRA
On August 14, 2009, Rouda served the Sebastopol Police Department (Police) with an “amended” PRA request (Police Request) seeking all evidence, including photos, reports, audio logs, handwritten notes, and e-mails, with respect to Bertoli‘s July 3 accident. The Police Request also asked for any surveys, traffic or pedestrian counts, and letters or complaints received with respect to the intersection at issue, all for the past 10 years. According to Rouda, the Police never provided any of the materials requested, claiming records of traffic collision reports were privileged. City claims never to have received the Police Request. However, it maintains that, in response to an earlier, August 10, 2009, PRA request, the Police produced a complete copy of the traffic collision report related to Bertoli‘s accident, handwritten notes of the investigating officer, and a report listing all accidents on Healdsburg Avenue for the past 10 years.2 In addition, in July and September 2010, the City instructed Rouda to review the general traffic collision information provided and indicate which collision reports he would like to review so that they could be made available to him. According to the City, Rouda never requested any additional reports.
On March 31, 2010, Rouda submitted an additional PRA request to the City through its planning department (Request). The Request contained 62 different categories of public records sought by Rouda. Some of these items were relatively straightforward. For example, number 28 asked for any and all “City of Sebastopol General Plan documents, amendments and modifications, 1990 to present.” Or, pursuant to number 53, the City was asked to provide “[a]ny and all documentation of or relating to the City of Sebastopol‘s
After asserting its right to a 14-day extension of the usual 10-day response period for a PRA request based on the voluminousness of the public records demanded, the City responded to the Request by letter dated April 22, 2010.3 In general, the City objected to the 62 separate requests as “overly extensive, overly brоad and, in some cases, unlimited in time.” It noted that many of the requests were “not reasonably limited to a certain file or project” and required “numerous City departments to search their entire catalog of records.” This was particularly true because the City does not keep files by street name or intersection, but many of the requests spoke in terms of documents relevant to the area in and around Bertoli‘s accident site. The City also reported that its seven-year document retention policy might limit the number of responsive documents available. Thereafter, the City responded to each specific request by (1) attaching certain responsive documents; (2) indicating that no responsive documents existed; (3) attaching a list of files that might contain responsive documents; (4) designating certain departments and/or files where specific responsive documents could be found; (5) referencing certain responsive documents already provided to Rouda; (6) objecting to a particular request as too ambiguous or overbroad for a response; and/or (7) indicating other agencies (such as the Department of Transportation (Caltrans)) which were likely to possess responsive documents.
Rouda, in contrast, believed that potentially responsive ESI existed outside of the paper files provided by the City. On June 2, 2010, he sent an e-mail to the City suggesting that the burden on City staff related to the Request could be alleviated by the hiring, at Rouda‘s expense, of a neutral third party collection company specializing in the retrieval of ESI. Such a company would conduct searches on all municipal computers, servers, and electronic storage devices, as well as on any personal computers used by City employees to perform City work outside of the office. Rouda suggested nine primary search terms related to the location of Bertoli‘s accident, and a host of possible secondary search terms. On June 4, 2010, Rouda facilitated a conference call between the City and an ESI collection company representative to further explain the third party ESI collection process. And, in his June 7 reply to the City‘s PRA response, Rouda reiterated his offer to hire a third party ESI collеctor and asked various questions regarding the number, type, and location of municipal and personal computers of City employees.4 In a meeting on June 8, 2010, however, the City declined Rouda‘s offer for third party ESI retrieval.
On June 22, 2010, Rouda filed a personal injury lawsuit on Bertoli‘s behalf naming the State of California, the City, and 35 other defendants. (Bertoli v. City of Sebastopol (Super. Ct. Sonoma County, 2010, No. SCV-247619).) The lawsuit claimed that Bertoli‘s significant injuries were caused by dangerous
Rouda responded immediately to the City‘s letter, disagreeing with each of the City‘s stated positions. With respect to responsive ESI, Rouda indicated that electronic materials related to the conduct of the public‘s business are clearly “writings” for purposes of the PRA and asked the City to reconsider its response to his electronic search request. In fact, at some point, the public works superintendent did conduct a word search for e-mails on his work computer and provided responsive documents to Rouda. Further, while at the engineering department conducting his paper document review on August 11, 2010, Rouda advised Sue Kelly, the City‘s engineering director, that he still wanted the City to produce responsive e-mails. Ms. Kelly told Rouda to send her something describing what e-mails he wanted from her. Thus, on August 12, 2010, Rouda responded to Ms. Kelly (Supplemental Request), indicating that she should search her e-mail correspondence for e-mails to or from 76 different people/organizations. Additionally, e-mails to or from 53 of these identified people/organizations should be further filtered by searсhes for 14 specified subjects.
The City sent a final letter to Rouda on August 20, 2010, seeking to resolve “ongoing issues” regarding the Request and the Supplemental Request. The City first stated that, if Rouda needed more time than the three months provided for paper document review, he would need to “seek court intervention.” Next, the City indicated that it stood by its refusal to produce the individual communications of City Council members and that such records would “not be produced without a court order.” Finally, with respect to the
B. The Petition for Writ of Mandate
On February 18, 2011, appellants filed a petition for writ of mandate (Petition) in Sonoma County Superior Court pursuant to
The Petition sought an order mandating that the City and its departmental employees produce ESI, including e-mails, responsive to the Request and the Police Request.6 Specifically, the Petition maintained that the City refused to search or produce responsive ESI and also refused to allow a neutral third party ESI collection company to retrieve the ESI and perform a search. Appellants therefore requested an order allowing “a neutral third party ESI collection company such as TERIS access to copy Respondents’ electronic storage devices inside and outside of City of Sebastopol department offices where city business related ESI is оr may be stored.” Indeed, the Petition claimed that, given the City‘s “bias and resistance,” there was no way that appellants could be assured of gaining access to all responsive ESI short of an order allowing such third party access. Appellants further requested that, once all pertinent electronic storage devices were copied, the ESI company be allowed to run searches of the copied data using designated search terms. Any results would then be turned over to the City, which would be required to review the material and create a privilege log within one month. Ultimately, under appellants’ plan, any ESI for which the City claimed privilege would be subject to in camera review by the trial court to determine whether or not it was disclosable.
With respect to the City, itself, the City argued that the Petition should be denied as unduly burdensome, emphasizing the confidentiality of many City documents and the “hundreds of hours” it would take to sort through all of the potentially responsive documents that would be identified by various computer searches in order to extract privileged material. The City further contended that it had reasonably complied with the Request and “reasonably produced all identifiable ESI and emails.” In this regard, the City Manager declared that it was his understanding that “significant emails are printed by the department heads and filed in the corresponding project files.” And, according to both the City‘s engineering director and the City‘s planning director, this was their practice. Under such circumstances, the City maintained that it was justified in refusing to permit appellants carte blanche to copy the designated hard drives.
In reply, appellants argued that the City misunderstood the invasiveness of the computer search process and exaggerated the number of responsive documents that would be generated, failing to appreciate that multiple search terms would be applied simultaneously to filter the results. They further asserted that the writings of individual City Council members and any public documents maintained on private computers do fall within the purview of the PRA. Appellants emphasized that they repeatedly asked for information regarding the location of all responsive ESI, but received no response from the City. Moreover, although the Request and the Police Request were directed solely to the City, Rouda declared that he made clear to the City on numerous occasions that he was seeking all responsive ESI regardless of its location. Finally, appellants characterized as implаusible the City‘s claim that no City Council members, who worked exclusively from personal computers and private e-mail addresses, possessed any responsive public records on
After the trial court published its tentative decision in the matter, however, Rouda took a much more circumscribed position during oral argument. He stated that his sole intention in filing the Petition was to assist his client, Bertoli, and that he never intended to unduly burden the City. Further, Rouda stressed the lack of settled law in this area, and also argued that his decision to name so many individual Respondents stemmed from the City‘s unwillingness to provide him with the location of computers relevant to the Request, despite numerous attempts by him to obtain that information. Finally, Rouda indicated that the hiring of a third party ESI collection company was a suggestion, not a demand, and that he would have been happy if the City had performed some type of limited e-mail search on its own.
By order dated June 17, 2011, the trial court—having “carefully weighed the competing interests at stake“—denied the Petition. In its order, it noted that the City had shown a “remarkable degree of openness and cooperation” in its response to Bertoli‘s PRA requests; that it had “reasonably complied with access obligations pertaining to electronically stored information;” and that it “did not unreasonably restrict access to public records.” In contrast, the trial court characterized the relief sought in the Petition as an “unprecedented fishing expedition” which would “constitute an alarming invasion of property rights, an extravagant use of limited city resources, and an unwanted green light for immoderate discovery.” With respect to the personal computer records of the individually named Respondents, the trial court concluded that there was “patently no basis” for the requested access as none of the named individuals had previously been served with a request to produce computer hard drives. Moreover, the declarations submitted by the individual Respondents amply showed that there were no public records on the private computers at issue. The trial court went on to reject the Petition with respect to the municipal computers as “not consistent with public interest.” Specifically, it concluded that “[t]he burden to be impоsed would be excessive, and the precedent to be set would be undesirable.”
Notice of entry of order was served on June 23, 2011, with notice of entry of judgment served on July 14, 2011. Thereafter, on August 2, 2011, appellants filed an extraordinary writ pursuant to
denied the writ. (Bertoli v. Superior Court of Sonoma (Aug. 9, 2011, A132793) [nonpub. order].) A subsequent petition for Supreme Court review was also denied. (Bertoli v. Superior Court (Sept. 28, 2011, S195819).)
C. The Motion for Attorney Fees and Costs
In the meantime, Respondents had also filed a request for attorney fees and costs in accordance with
As a part of its June 17, 2011, order, the trial court agreed with Respondents, finding the Petition to be “clearly frivolous.” It therefore awarded costs and attorney fees to Respondents pursuant to
Thereafter, Respondents filed a noticed motion increasing the amount of attorney fees requested to $64,010. In response, appellants argued that the amount awarded should reflect “reasonable compensation for reasonable attorney hours spent” rather than punishment. They then went on to argue that the fees sought were excessive for numerous reasons. And, despite the fact that he was a named petitioner, Rouda also requested that any fee award not be enforceable against him personally, as he was only pursuing the Petition as Bertoli‘s attorney. In reply, Respondents again increased the amount of fees sought, this time to $82,380, to compensate them fоr
Appellants filed their notice of appeal with respect to the trial court‘s finding of clear frivolousness on August 10, 2011. A notice of appeal challenging the amount of fees actually awarded was separately filed on March 2, 2012, in Bertoli v. City of Sebastopol, supra, A134799.
II. DISCUSSION
A. Appealability and Standard of Review
Our previous denial of appellants’ request for a writ of mandate pursuant to
Under similar circumstances, the Third District in Crews concluded that it had jurisdiction under the first notice of appeal (establishing the entitlement to attorney fees under
Crews also lays to rest the parties’ dispute regarding the appropriate standard of review to be applied in this court to the trial court‘s determination of clear frivolousness under
B. Statutory Framework Related to PRA Requests
When enacting the PRA in 1968, the Legislature expressly declared that, while it was “mindful of the right of individuals to privacy, access to information concerning the conduct of the people‘s business is a fundamental and necessary right of every person in this state.” (
In addition to embracing the public‘s right to access, however, the PRA, as stated above, also incorporates explicit support for individual privacy rights. (
To implement its goal of public access, the PRA provides that “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.” (
The ESI sought by appellants in this case is clearly a type of public record that may be subject to disclosure under the PRA. Indeed, the PRA defines
Finally, a public agency faced with a PRA request has certain obligations under the PRA designed to promote effective access to identifiable public records. Specifically, “[w]hen a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do аll of the following, to the extent reasonable under the circumstances: (1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated. (2) Describe the information technology and physical location in which the records exist. (3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.” (
C. Attorney Fees and Costs under the PRA
As discussed above, the PRA also contains special provisions with respect to the award of court costs and attorney fees. Specifically,
Appellant‘s sole argument in this action is that attorney fees and costs should not have been awarded to Respondents because the Petition was not “clearly frivolous” for purposes of
In Crews, the court adopted the Flaherty paradigm when analyzing whether PRA litigation was “clearly frivolous” for purposes of
Crews involved a PRA request by a newspaper publisher seeking one year of e-mails to and from the superintendent of the Willows Unified School District (District). The District indicated that it would comply with what the appellate court later characterized as a “burdensome request,” and ultimately turned over 60,000 e-mails, with only 3,200 pages withheld under claims of privilege. (Crews, supra, 217 Cal.App.4th at pp. 1371–1372.) On the day the District had previously indicated that it would begin turning over the requested e-mails, Crews filed a PRA petition in the superior court seeking to compel production of the promised documents. After reviewing the withheld documents in camera, the trial court concluded that the Distriсt had not improperly withheld any public records. It denied the petition and, finding it to be “clearly frivolous,” awarded attorney fees and costs to the District in the amount of $56,595.50. (Id. at pp. 1372-1373, 1377.) Specifically, the trial court found the petition frivolous because it failed to result in any benefit to Crews, as the District was already complying with his request at the time he served the petition on the agency. (Id. at p. 1377.)
The appellate court reversed the award of fees and costs. In particular, it concluded that the petition was not clearly frivolous because Crews used it (1) to confirm that the District had not improperly withheld any public records, and (2) to challenge whether the District should properly have produced the e-mails in their “native” format rather than in portable document format (PDF). (Crews, supra, 217 Cal.App.4th at pp. 1373-1374, 1382-1385.) Although the petition failed to generate the disclosure of any improperly withheld documents and Crews‘s attempt to obtain the e-mails in “native” format was ultimately unsuccessful, the Third District concluded that the petition was not completely lacking in merit or brought for an improper purpose. Thus, an award of fees and costs to the District pursuant to
We find the analytical structure set forth in Flaherty and adopted in Crews particularly appropriate in the PRA context where, pursuant to
Preliminarily, we conclude that the record in this case does not support the premise that appellants filed the instant action for an improper purpose, that is to harass Respondents or for purposes of delay. In fact, the trial court noted that the underlying accident which generated the Request was “indeed serious” and that, to a certain extent, it understood Rouda being zealous for his client. Further, Respondents’ argument that appellants’ motives were somehow questionable because the Request was proffered “as discovery for use in personal-injury litigation” is unavailing. By its plain terms, the PRA requires that public records be made available to “every person in this state” and further provides that “any person” aggrieved by a refusal to disclose рublic records may seek relief through PRA litigation. (
Indeed, in Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 79 (Wilder), a case very similar to the one at hand, petitioner Wilder was struck by a Blue Line train operated by the Los Angeles County Metropolitan Transportation Authority (MTA). After Wilder made two PRA requests related to her accident, the MTA refused to disclose a number of documents, claiming that the records were prepared in anticipation of litigation and that Wilder had a plain, speedy, and adequate remedy at law because she could file a claim against the MTA and receive any disclosable documents through the discovery process. (Id. at pp. 79–81.) Wilder filed a petition for writ of mandate in the trial court seeking to compel disclosure of the records, but the trial court adopted the MTA‘s analysis and dismissed the writ. (Id. at p. 81.)
The Second District reversed. Noting that Wilder “did not cease to be a ‘member of the public’ when she was struck by the Blue Line,” the Wilder court opined that, under the PRA, “[t]here is no exception for persons who may potentially have a claim for damages against a governmental agency.” (Wilder, supra, 66 Cal.App.4th at pp. 82-83Id. at p. 83 [quoting former version of Code Civ. Proc., now § 2017.010].) Moreover, the Wilder court recognized that “[t]he legislative purpose of expediency and immediate reviewability” embodied by the PRA “cannot be served by transforming a public record request into a drawn out discovery battle.” (Id. at p. 84.) Rather, as a “member of the public,” Wilder was “entitled to the broader categories of documents” in the timeframe available under the PRA. (Id. at p. 83.)
Similarly, in the present case, appellants’ Request and related Petition were no less legitimate simply because they were pursued in anticipation of litigation. Indeed, the trial court‘s apparent conflation of discovery concepts with the PRA request at issue in these proceedings is cause for some concern. In its order denying the Petition, the trial court began its analysis with the statement: “This is an automobile accident case.” It went on to characterize the Petition as, among other things, “an unwanted green light for immoderate discovery” (italics added). And, in finding the Petition clearly frivolous, the trial court declared: “In nеarly 25 years of judging, this court has not seen discovery disproportionality of this magnitude before” (italics added). However, appellants’ argument to the contrary notwithstanding, the record is clear that the trial court did apply the proper standard of clear frivolousness when assessing fees and costs against appellants herein, rather than the less stringent standard available for the imposition of discovery sanctions. (See, e.g.,
In sum, there was no basis for deeming appellants’ motives improper. Thus, the trial court‘s conclusion that the matter was “clearly frivolous” can only be supported if the Petition, itself, was entirely lacking in merit. Put another way, in order to uphold the award of attorney fees and costs in these proceedings, we must determine that “any reasonable attorney” would agree that the Petition was “totally” without merit. (Crews, supra, 217 Cal.App.4th at p. 1381, citing Flaherty.) Under the particular facts of this case, we cannot reach this conclusion.12
Undeniably, the Petition and underlying Request in these proceedings were overly aggressive, unfocused, and poorly drafted to achieve their desired outcomes. Further, a request which, like the Petition and Request herеin, “requires an agency to search an enormous volume of data for a ‘needle in the haystack‘” or which “compels the production of a huge volume of
Pursuant to
A PRA request denied under
In analyzing this issue, we note first that Respondents’ repeated assertion that appellants were demanding that the trial court order “33 private individuals to turn over thеir ‘personal computers, laptops, cell phones and other electronic devices’ so that Appellants could search every megabyte of data on each device” is an unhelpful exaggeration of the actual facts. In truth, although appellants suggested use of a private ESI retrieval company, they, themselves, were never seeking anything other than public documents and had no interest in reviewing or otherwise compromising the private information of the Respondents. That said, appellants’ assertion that they simply sought some “City pedestrian project related emails by City employees” also seriously misstates the scope and burden of the Petition. In fact, appellants’ Petition was onerous and clearly implicated the privacy rights of the many individual Respondents. However, given the current state of the law in this area, it was not entirely frivolous to take the position that public documents responsive to a PRA request could exist on private electronic devices.
In fact, an e-mail message which both relates to the conduct of the public‘s business and is written and retained by an agency employee on his/her personal computer or cell phone is arguably а “[w]riting” that is “prepared, owned, used, or retained” by a local agency. (
Moreover, private computer access under the PRA is clearly an evolving area of the law about which reasonable attorneys could hold differing opinions. In reality, courts throughout the country are struggling with the weighty issues raised by the use of emerging and rapidly changing technologies in the conduct of the public‘s business. (See, e.g., City of Champaign v. Madigan (2013) 2013 ILApp(4th) 120662 [concluding that text messages and e-mails sent or received by a city council member during council meetings were public records under Illinois‘s Freedom of Information Act]; In re Silberstein (Pa.Commw.Ct. 2011) 11 A.3d 629 [holding electronic communications between citizens and commissioners on a township board were not public records under Pennsylvania‘s Right-to-Know Law]; Howell Education Assn., MEA/NEA v. Howell Bd. of Education (2010) 287 Mich.App. 228, 235 [holding under Michigan‘s Freedom of Information Act that personal e-mails involving union matters retained on an agency computer system are not subject to disclosure unless used “‘in the performance of an official function‘“].) In fact, the very issue involved in this case is currently pending before our own Supreme Court; persuasive evidеnce that this is an area of the law that remains in flux. (City of San Jose v. Superior Court (2014) 225 Cal.App.4th 75, review granted June 25, 2014, S218066.) That several amici curiae have filed briefs supporting appellants’ position also buttresses our conclusion that not all reasonable attorneys would agree that the Petition was entirely without merit. (Tracy Press, supra, 164 Cal.App.4th at p. 1302 [noting, in its refusal to find a PRA request clearly frivolous under
Of course, whatever the underlying merits of appellants’ position with respect to the private electronics of City officials and employees, the Petition in this case was clearly overbroad with respect to the number of individual Respondents named. Moreover, such overbreadth cannot be forgiven, as appellants suggest, merely by reliance on Tracy Press. In that case, a newspaper sought e-mails related to public business, but sent by a city council member (Tucker) from her personal computer through her private e-mail account. (Tracy Press, supra, 164 Cal.App.4th at p. 1294.) The trial court concluded that Tucker was not a “‘local agency‘” for PRA purposes and thus her private e-mails were not “‘public records‘” subject to disclosure. (Ibid.) In a holding which highlights the practical problems associated with charаcterizing as “public” documents located on private electronic devices that are not in the possession of a public agency, the appellate court dismissed the case because Tucker was not named as a party. (Id. at p. 1295.) Specifically, the court concluded that any order giving access to her personal writings would necessarily affect Tucker‘s rights such that she was an indispensable party under
Appellants’ arguments, however, are insufficient to justify their failure to focus their efforts to obtain responsive ESI under the Petition, especially in light of the fact that they were aware as early as 2009, after a PRA request to Caltrans, that Sue Kelly, the City‘s engineering director, was the “hub of the wheel” for the projects they were interested in and thеrefore most likely to have responsive ESI. However, similar to our previous analysis of undue burden, the mere fact that the Petition was impermissibly overbroad and therefore properly rejected by the trial court does not necessarily mean that it was entirely without merit. Rather, as stated above, it is an open issue whether and to what extent public records may be obtained from private computers under the PRA. Further, there was evidence that several current employees had responsive documents that were not disclosed and that certain City Council members, at least, used their home computers for City-related
The First District recently acknowledged the unique and fact-specific nature of actions under the PRA, stating that the extent of the PRA‘s coverage “‘is a matter to be developed by the courts on a case-by-case basis. [Citation.]‘” (Pilot Commissioners, supra, 218 Cal.App.4th at p. 588.) In fact, “‘[t]his decision-making process is an unavoidable consequence resulting from “the ‘myriad organizational arrangements’ adopted ‘for getting the business of the government done.‘““’ (Ibid.) It follows, then, that “‘each arrangement must be examined in its own context.‘” (Ibid.; see ACLU, supra, 32 Cal.3d at p. 454, fn. 14 [noting that its holding under
The judgment is reversed to the extent it orders appellants to pay attorney fees and costs pursuant to
Ruvolo, P. J., and Rivera, J., concurred.
On January 30, 2015, the opinion was modified to read as printed above.