FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the Sacramento News and Review (the newspaper), published by appellant Chico Community Publishing, Inc., investigated Sacramento's then Mayor Kevin Johnson and his staff's use of city resources in the take over and eventual bankruptcy of the National Conference of Black Mayors (the National Conference). As part of that investigation, the newspaper made a request to the City of Sacramento (the City) pursuant to the Act for e-mails in the City's possession that were sent from private e-mail accounts associated with Johnson's office. The City disclosed approximately 900 pages of records responsive to the request. In the City's review of the records on its servers, however, it identified communications between Johnson's office and the law firm Ballard Spahr LLP (the law firm), which represented the National Conference in its bankruptcy proceedings and Johnson, along with the National Conference, in litigation connected with Johnson's contested election as the National Conference's president. The City flagged these e-mails as potentially containing attorney-client privileged information. It then contacted the law firm to notify it that the City would "have no choice but to release these emails absent a court order stating otherwise" because the City had no authority to assert attorney-client privilege over the records on behalf of outside counsel.
The law firm then contacted the newspaper and asked it to agree the City could withhold any records it determined included attorney-client communications. The newspaper refused and contacted the City, which admitted telling the law firm "that some of the emails the City Attorney planned to release to [the newspaper] included attorney-client communication between the Mayor's office and [the law firm]." The City also confirmed to the newspaper that it "suggested" the law firm contact the newspaper to see if the newspaper would "agree the emails should be withheld." The City further told the newspaper
Following the newspaper's refusal to allow the City to withhold e-mails containing attorney-client communications, the National Conference, Johnson in his official capacity as the former president of the National Conference, and Edwin K. Palmer in his official capacity as Chapter 7 Trustee for the
The parties stipulated that the City would give the law firm copies of the records it identified as potentially privileged so that the law firm could create a privilege log. After reviewing the records, the law firm determined "several hundred" of the records were not privileged and the City produced those records to the newspaper. The law firm also created a privilege log identifying 158 records as being privileged. Following a meet and confer period, the law firm agreed to produce 13 of the challenged records, and the newspaper agreed to withdraw its challenge to 32 of them-leaving 113 records, which petitioners requested be reviewed in camera after failing to make a prima facie showing of privilege. Following an in camera review, the trial court ordered disclosure of 58 e-mails in full and 17 with redaction. It also ruled that 38 e-mails were privileged and did not need to be disclosed.
Based on these findings, the newspaper moved for attorney fees under the Act (§ 6259, subd. (d) ) from Johnson for using his status as a public official to oppose the newspaper's request for public documents. The newspaper also moved for attorney fees under the private Attorney General statute ( Code Civ. Proc. § 1021.5 ) from "each of the [p]etitioners" because it successfully secured important public rights. The trial court denied both of those motions.
As is relevant to the newspaper's motion pursuant to the Act, the trial court doubted but assumed the newspaper could recover attorney fees if it showed it was the functional equivalent of a prevailing plaintiff in an action brought pursuant to the Act under the reasoning of Fontana Police Dept. v. Villegas-Banuelos (1999)
Further, the newspaper did not request attorney fees from a public agency and instead requested attorney fees from Johnson under the theory that he acted as a public official of the public agency when he petitioned to prevent disclosure of the requested public records. The court found this contention without merit for two reasons: (1) Johnson could have only brought his petition as the president of the National Conference because his argument that the records should not be disclosed rested on the privilege he, as the president of the National Conference, claimed to have over the records, whereas Johnson as the Mayor of the City had no claim of privilege over the records; and (2) the newspaper presented no evidence showing Johnson acted in his capacity as a public official when attempting to prevent disclosure of the requested records. The newspaper appeals this decision.
DISCUSSION
I
Legal Background
"The California Legislature in 1968, recognizing that 'access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state' [citation], enacted the California Public Records Act, which grants access to public records held by state and local agencies." ( Long Beach Police Officers Assn. v. City of Long Beach (2014)
The Act's purpose is to increase freedom of information by providing public access to information in the possession of public agencies. ( Filarsky , supra ,
These statutory exemptions from mandatory disclosure under the Act must be narrowly construed. ( Cal. Const., art. I, § 3, subd. (b)(2).) Moreover, the exemptions are permissive, not mandatory-they allow nondisclosure but do not prohibit disclosure. ( CBS, Inc. v. Block (1986)
When the public agency that holds the records refuses to disclose a requested public document, the Act provides that "[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." (§ 6258; Filarsky , supra ,
If, on the other hand, the public agency intends to disclose a public record that could infringe upon an interested party's rights, the Act provides no mechanism
With these principles in mind, we now turn to the question of whether a requester of public documents who, in the absence of public agency opposition, opposed the writ petition of a person seeking to enjoin the public agency from disclosing public records is entitled to attorney fees under the Act. While we usually review an award of attorney fees and costs for abuse of discretion ( Crews v. Willows Unified School Dist . (2013)
The Attorney Fee Provision In The Act Does Not Apply To Mandamus Proceedings Seeking To Prevent Disclosure Of Public Records
As it pertains to attorney fees, "California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees." ( Trope v. Katz (1995)
"The very purpose of the attorney fees provision [in the Act] is to provide protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure." (
The language of the attorney fee provision in the Act explicitly limits an attorney fee award to a plaintiff who prevails "in litigation filed pursuant to [section 6259]." (§ 6259, subd. (d).) Relying on Fontana , the newspaper would have us ignore this explicit language and instead conclude it is entitled to attorney fees under the Act because it prevailed in achieving the purpose of the Act-disclosure of public records following litigation against a public official seeking to keep the records from disclosure. We disagree.
In Fontana , the court interpreted the attorney fee provision in the Act to find a requester of public documents entitled to attorney fees despite not
The newspaper argues Fontana is binding authority, and we must apply the " 'functional equivalent' " test to this case. Not so. Our Supreme Court's subsequent decision in Filarsky eroded the holding of Fontana and clarified when a cause of action under the Act arises and who could bring that action.
In Filarsky , an attorney sought records related to a public agency's hiring of a police captain. The public agency initially denied the attorney's request and then, in response to a letter threatening litigation pursuant to the Act, disclosed a small portion of the records requested and on the same day filed a complaint for declaratory relief pursuant to Code of Civil Procedure section 1600 to obtain " 'a judicial determination of its rights and duties under [the Act].' " ( Filarsky , supra ,
The newspaper urges us not to reach this conclusion by citing to the constitutional provision that the Act be read broadly in favor of public disclosure and to cases purportedly construing the Act beyond the confines announced in Filarsky . First, the newspaper cites Law Offices of Marc Grossman v. Victor Elementary School Dist. , supra ,
The newspaper's reliance on City of San Jose v. Superior Court (2017)
In so holding, our Supreme Court recognized that documents do not lose their status as public records simply because " 'the official who possesses them takes them out the door.' " ( City of San Jose v. Superior Court , supra ,
The goal of achieving access to public records is not adversely affected by our conclusion in this case. As the Filarsky court noted, the Act, like its federal equivalent Freedom of Information Act, "expressly provides only for a cause of action to compel disclosure, not an action to prohibit disclosure." ( Marken , supra , 202 Cal.App.4th at pp. 1264-1265,
It was this reasoning that led the Marken court to recognize an interested party's right to bring a mandamus action preventing disclosure of records.
Further, the Marken court found a records requester's procedural protections under the Act are not impaired by this type of mandamus proceeding. ( Marken , supra , 202 Cal.App.4th at pp. 1267-1268,
The newspaper takes issue with the Marken court's findings in this regard because it (the newspaper) could not rely on the City to assert its right to public disclosure since the City did not oppose Johnson's petition seeking to prevent disclosure of the requested e-mails. This fact is even more problematic, the newspaper argues, considering it was an officer of the City who sought to prevent disclosure, equating this legal proceeding to a public officer withholding access to public records. As will be discussed, we do not find the City's failure to oppose the petition or the fact that an officer of the public agency initiated the proceedings material to the question of whether the newspaper is entitled to attorney fees under the Act.
First, the City was not required to oppose Johnson's petition and advocate for disclosure of the requested e-mails. In the City's review of requested public records, it came across records that it determined were public but potentially fell under the attorney-client privilege exemption in the Act. The City, however, was not the attorney or the client in those communications, thus it could not assert the privilege that exempted the records from disclosure. ( Evid. Code, § 954 ["the client, whether or not a party, has a privilege ... to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege; or [¶] (c) The person who was the lawyer at the time of the confidential communication ...."].) The City's determination that it must disclose the requested emails was a determination of its own responsibilities under the Act, not a determination of an interested party's ability to
Second, Johnson is entitled to challenge the public agency's decision to disclose records without morphing the proceeding into one under the Act. The newspaper argues that because the communications at issue involved Johnson in his capacity as mayor, his attempt to prevent the e-mails from disclosure equated to a public officer withholding public records from a member of the public who requested them. Again, we disagree.
"[The Act] and the Constitution strike a careful balance between public access and personal privacy." ( City of San Jose v. Superior Court , supra ,
Another contributing factor, as the newspaper points out, was likely Johnson's use of city resources, including city time and staff, to conduct National Conference business. The inter-related positions, however, did not transform all of Johnson's actions with regard to the National Conference into actions of Johnson the public official. Johnson's claim of privilege over the e-mails stemmed from his position as the president of the National Conference and not from his position as mayor of the City. Johnson did not abandon his right to privacy or his right to assert the attorney-client privilege when he was elected mayor. (See City of San Jose v. Superior Court , supra ,
Accordingly, because the newspaper did not prevail in litigation it initiated under the exclusive procedure provided in the Act, it is not entitled to attorney fees under those provisions.
DISPOSITION
The order denying attorney fees is affirmed. In the interests of justice, the parties are to bear their own costs on appeal. ( Cal. Rule of Court, rule 8.278(a)(5).)
We concur:
Hull, Acting P. J.
Hoch, J.
Notes
Government Code section 6250 et seq. Further section references are to the Government Code unless otherwise indicated.
A mandamus action initiated by an interested party designed to prevent disclosure of public records falling under an exemption to the disclosure requirements provided in the Act is commonly referred to as a reverse-CPRA action. (Marken v. Santa Monica-Malibu Unified School Dist. (2012)
We emphasize that the newspaper does not appeal the trial court's denial of its motion for attorney fees under the private Attorney General statute. (Code Civ. Proc., § 1021.5.)
Indeed, when recognizing mandamus proceedings as an appropriate avenue for interested parties to prevent disclosure of public documents, the Marken court assumed the requester, although an interested party, would not be entitled to attorney fees for efforts spent in opposing the mandamus petition. (Marken , supra ,
The Reporters Committee for Freedom of the Press along with 14 media organizations filed an amicus brief arguing the mandamus proceeding recognized in Marken is contrary to California law. We do not address this argument because it was not raised by the parties either at trial or on appeal.
The exemptions to the Act do "not prevent any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law." (§ 6254.) The newspaper does not argue the City was prohibited by law from disclosing the requested e-mails.
The Reporters Committee for Freedom of the Press also argues in its amicus brief that our failure to apply the fee-shifting provisions in the Act to mandamus proceedings initiated by interested parties, especially public officials, will lead to an abuse of the mandamus proceeding by officials seeking to prevent disclosure of public records. This argument ignores the fact that a requester could get attorney fees under the private Attorney General statute (Code Civ. Proc., § 1021.5 ), which the newspaper sought in this case. (3 JA 607:17-24) (See Pasadena Police Officers Association et al. v. City of Pasadena , supra ,
Thus, contrary to the amici argument, a fee-shifting deterrent currently exists to prevent the abuse amici fears will result from our conclusion.
Because we have concluded the newspaper is not entitled to attorney fees under the Act, we need not consider its remaining arguments.