A superior court ordered a newspaper publisher to pay the attorney fees of a school district because it determined the publisher’s Public Records Act petition was frivolous. The court of appeal held that the publisher’s petition lacked merit, but was not frivolous, and reversed the superior court’s order requiring the publisher to pay attorney fees. (Crews v. Willows Unified School District (--- Cal.Rptr.3d ----, 217 Cal.App.4th 1368, Cal.App. 3 Dist., July 17, 2013).
What This Means To You
Courts will carefully examine whether litigation brought to compel the disclosure of documents under the California Public Records Act was meritless or frivolous. The distinction is important as litigation that is frivolous may result in an award of attorney fees, while litigation that is merely without merit does not. Although, it can be costly for public agencies to defend Public Records Acts litigation in court, attorney fees are only recoverable in limited circumstances.
Tim Crews (“Crews”) is a publisher of a small-circulation newspaper in Glenn County. On March 5, 2009, Crews requested that the Willows Unified School District (“District”) produce all of the e-mails the Superintendent sent and received the preceding year pursuant to Crews’ rights under the California Public Records Act (“CPRA”). The District replied on March 15, 2009, that it would comply with the request except for those documents that were exempt from disclosure, and requested Crews limit his request. Crews declined the District’s request to narrow his request for documents. The District estimated there were approximately 60,000 e-mails, which would result in about 30,000 printed pages. The District told Crews it would begin producing documents on April 28, 2009.
On the same day that the District indicated it would begin producing documents, Crews filed a petition to compel the production of documents pursuant to the CPRA. At that time, he had not received any of the requested e-mails. However, by the time Crews served his petition on May 5, 2009, he had received the first set of documents from the District. Crews asked the trial court to “order the District ‘to provide anew all of the e-mails previously requested in the exact electronic format that the e-mails are held in (also known as Native Format).’” The District asserted that it had complied with Crews’ request to the best of its ability because the District did not have the technology to provide the documents in native format. Instead, the District printed, redacted, and scanned the emails in order to redact information that was exempt from disclosure.
The superior court reviewed 3,200 pages of e-mails, concluded that the documents withheld by District were exempt or privileged, and denied Crews’ CPRA petition. The superior court also found that the District was entitled to attorney fees and costs because Crews’ CPRA petition was frivolous. The District asked the trial court to award it $104,230 in attorney fees. The trial court awarded the District $53,926 in attorney fees and $2,669.50 in costs.
On appeal, Crews challenged both the denial of his CPRA petition and the order awarding attorney fees. However, the court of appeal determined that Crews could not challenge the denial of his CPRA petition and that the trial court properly denied the CPRA petition. (Crews v. Superior Court (Willows Unified School District)(Dec. 16, 2010, C066514)[nonpub. Order]). The appellate court allowed the challenge to the award of attorney fees and costs. The issue before the court was whether Crews’ CPRA petition was frivolous, or in other words, whether Crews’ “action totally lacked merit, i.e., that any reasonable attorney would agree it lacked merit.” The appellate court concluded that the suit, although meritless, was not frivolous and therefore Crews should not have been ordered to pay attorney fees and costs.
In reaching this decision, the appellate court stated: “Californians have a constitutional right to access the records of their public agencies.” To support the policy of disclosure, the CPRA, at Government Code § 6529, subdivision (d), mandates that a trial court must “award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation” under the CPRA. Public agencies, however, are not ordinarily entitled to attorney fees and costs where a person who requested documents failed to secure them pursuant to the CPRA. “Public agencies may recover attorney fees and costs only ‘[i]f the court finds that the plaintiff’s case is clearly frivolous.’” There is no definition of “clearly frivolous” in section 6529. The appellate court noted that the California Supreme Court previously wrote that a case is frivolous if it is “prosecuted for an improper motive – e.g., to harass the respondent or for purposes of delay – or when lacking any merit – i.e., when any reasonable attorney would agree the appeal is totally without merit.”
For these reasons, the appellate court, on the record before it, found that Crews’ CPRA petition was not frivolous.