Ruling requires public records act petitioners to post undertaking

In the recent case of Stevenson v City of Sacramento, 2020 DJDAR 10842 (Oct. 6, 2020), the 3rd District Court of Appeal considered whether Code of Civil Procedure Section 529 requires parties granted a preliminary injunction under the California Public Records Act (Government Code Sections 6250 et seq.) to post an undertaking. Appellants argued the CPRA preempted Section 529's requirement. However, the appellate court affirmed the trial court's decision imposing this requirement, noting the purpose of Section 529 is to "provide a measure of protection to parties who are mistakenly enjoined." This case addresses the unique question of the interplay between the CPRA and Section 529.

Background

In 2010, the Sacramento city clerk adopted a policy under city council direction to destroy many city records, including emails, more than two years old pursuant to Government Code Section 34090. In 2014, the city attained the technological ability to automatically delete such emails under the 2010 policy. In December 2014, the city informed various media and citizen groups that it would begin to automatically delete emails under the policy as of July 1, 2015.

Petitioners and appellants Stevenson and Grimes submitted CPRA requests to the city for various emails scheduled for deletion pursuant to the 2010 policy. The city estimated it was deleting approximately 81 million emails and that Stevenson's CPRA request involved approximately 53 million of these records while Grimes' request involved approximately 64 million emails. City staff estimated it would take over 20,000 hours to comply with the two CPRA requests. The city advised the appellants that their requests were excessive and overly broad, but also offered to postpone the deletion date by one week to allow them to narrow the scope of their requests. The appellants agreed to narrow the scope but also sued the city for violation of the CPRA and their right of access. As part of their lawsuit, the appellants requested the trial court to issue a temporary restraining order barring the city from deleting records potentially responsive to their requests. The court issued the restraining order and scheduled a subsequent hearing to consider whether to grant a preliminary injunction. The trial court also directed the appellants to submit, prior to that hearing, new CPRA requests to address the city's objection of overbreadth. They did so, with the city indicating the new requests involved approximately 15 million potentially responsive emails.

At the subsequent hearing, the trial court granted the request for a preliminary injunction, directing the city to preserve the 15 million emails. Over the appellants' objections, the court also conditioned the injunction on the appellants posting an undertaking pursuant to Section 529. Initially, the court set the amount of the undertaking at $80,000 based on the city's representation that it would spend over $80,000 per year to retain the emails. However, relying on the city's supplemental briefing where it indicated the cost could be as little as $2,349.50, the court reduced the amount of the undertaking to $2,349.50.

The appellants filed the appeal, challenging the trial court's requirement that they post an undertaking. Joining Appellants as amici curiae were the Sacramento Bee, the First Amendment Coalition, and the Reporters Committee for Freedom of the Press. Joining the city as amici curiae were the League of California Cities and the California State Association of Counties.

Appellants' Arguments

Appellants advanced two theories to support their position as to Section 529's inapplicability. First, they argued that, based on statutory construction, Section 529's terms conflicted with the CPRA and, thus, were inapplicable. Second, they argued that requiring an undertaking constituted a prior restraint on speech.

Appellants' first theory had two key bases. The first basis was that, while both the CPRA and Section 529 referenced injunctive relief, only Section 529 referenced the requirement of an undertaking. Therefore, according to Appellants, a more specific statute controlled over a more general statute and the undertaking requirement did not apply to CPRA cases. However, the court found this rule only applied when the two statutes were in conflict and, since no conflict existed, this argument failed.

The second basis was that the CPRA specified the fees and costs which a party requesting records under the CPRA must pay: certain costs of reproduction and, if the requesting party's litigation is found to be frivolous, court costs and attorneys' fees. Thus, according to Appellants, the CPRA had specified the universe of fees and costs which could be charged to a requesting party; CPRA's silence as to an undertaking indicated a court could not require the posting of an undertaking. The court disagreed, finding that the Legislature expressed no such intent.

Appellants' second theory was that the undertaking requirement constituted an unlawful prior restraint under the First Amendment. The court found that a prior restraint is where a court in fact forbids certain speech-related activities. Here, however, the court noted that Appellants were not constrained from engaging in any form of speech. Rather, the trial court merely required Appellants to post an undertaking under Section 529 which only incidentally affected expression.

Conclusion

The CPRA is constantly evolving, whether by new statutes or by case law. However, its fundamentals remain the same: the public has the right to access the records of a public entity, unless a specific exemption applies. Failure of a public entity to comply places the entity at risk for litigation and mandatory award of attorney fees. Here, with this case, the court made clear that, a requesting party which successfully obtains a preliminary injunction preventing the entity's destruction of records will be subject to the same procedures as any other private party which obtains a preliminary injunction -- the posting of an undertaking to protect the public entity, as any other enjoined party, from a preliminary injunction later determined to have been improperly issued. 