California Public Records Act: Who pays attorney fees and when in ‘reverse’ actions?

In Pasadena Police Officers Association v. City of Pasadena, 2018 DJDAR 3242 (April 16, 2018), the appellate court analyzed complicated issues relating to which party in a "reverse CPRA" lawsuit pays attorney fees. The court found that a party which prevailed against a public agency's partial redaction of a document and against a private party seeking to block release of the overall document could recover attorney fees from both the public agency and the private party, but under different legal theories. The case adds another factor to consider when public agencies find themselves between one party that demands the release of records and another party that demands the records not be released.

A "reverse CPRA" action involves litigation under the California Public Records Act among the party requesting records from a public agency, the public agency holding the records, and the party who is the subject of the records. The public agency receives the records demand from the requestor; the subject receives notice from the public agency that the agency intends to release records relating to the subject and the subject, in turn, sues the public agency to block the release of the records. The requestor often intervenes in the lawsuit to demand that the records be released.

This is a "reverse CPRA" action because, rather than the more common situation in which the requestor sues the public agency to force release of the records, the subject sues the public agency to block the records' release.

Under the CPRA, a requestor who successfully sues a public agency to force release of records is entitled to recover its attorney fees against the public agency. But, what happens in a reverse CPRA action when the requestor prevails?

The Pasadena case related to a 70-page report, prepared by the Office of Independent Review Group for the city of Pasadena, investigating a police officer involved shooting which resulted in the death of the suspect. The decedent's family and other parties requested a copy of the report from the city. The city indicated it would release the report, subject to redacting certain information (approximately fourteen pages) which the city viewed as confidential. (Confidential peace officer personnel records are exempt from disclosure under Gov. Code Section 6254(k)). The city also notified the Pasadena Police Officers Association of the city's intent to release. The police officers association responded by filing a reverse CPRA action against the city, seeking to block release of the report. The Los Angeles Times intervened in the reverse CPRA lawsuit and added its CPRA request to release the report to the already existing request from the decedent's family.

After various hearings by the trial court, the appellate court ruled that the report was a public record, subject to redaction. The appellate court, however, ordered not only the release of the report but also the release of approximately five of the 14 pages which the city had proposed to redact. Thus, overall, the police officers association was unsuccessful in blocking the release of the report, the Times was completely successful against the association and partially successful against the city by getting five more pages released, and the city was somewhat successful in that it had been willing to release the redacted report.

The Times argued that it was entitled to the entirety of its attorney fees of $350,422 against the city as a prevailing party under the CPRA. The appellate court found that the Times was not the initial requestor for the report. Rather, the court found that the Times' role vis-a-vis the city related to the release of the additional five pages, as ordered by the appellate court. Therefore, the court found the Times was entitled to recover from the city only those attorney fees relating to that portion of the appeal -- approximately $45,470.

The Times also argued that it was entitled to recover additional attorney fees against the police officers association and the individual police officers (who also sued to enjoin release of the report) under Code of Civil Procedure Section 1021.5, the private attorney general theory. (Section 1021.5 allows recovery of attorney fees when the court determines that a plaintiff enforced an important public right affecting the public interest, a significant benefit was conferred on the general public, and the necessity and financial burden of private enforcement make the award appropriate.).

The association argued that the Times was not entitled to recover any attorney fees against the association because the CPRA only allows recovery of attorney fees against the public agency. The appellate court disagreed; it determined that the association had filed suit, not under the CPRA, but rather as a "reverse CPRA" action, which is not specifically authorized by the CPRA. The appellate court determined that the Times was entitled to recover its reasonable attorney fees against the association and/or the individual police officers for the Times' work during all stages of the case, both at trial and on appeal.

Similar to the city of Pasadena, public agencies can find themselves caught in the middle between a requestor demanding that records be released and a private party demanding the records not be released. Numerous judicial decisions make clear that a public agency does not have the right to seek declaratory relief from a court as to whether a document is a public record, subject to release. Therefore, a public agency has three choices: (1) release the document, with the possibility of being sued by an affected individual claiming a violation of privacy rights, (2) withhold the document, with the possibility of being sued by the requestor, or (3) (as the city of Pasadena did in this case) notify the private party of the city's intent to release, and -- if the private party sues -- letting the private party and the requestor duel over the issue in court. The Pasadena case adds another variable to this situation -- the possible award of attorney fees under CCP Section 1021.5 for the requestor against the private party.