New CPRA Case Law and Legislation for 2021
While an expansive array of records can be sought via a California Public Records Act request, the right to inspect public records is not without limits. The CPRA does not give unlimited access to records that may be exempt from disclosure. Occasionally the public’s right of access must yield to exemptions, such as individual privacy rights and defined privileges. However, transparency remains the goal.
Last year, the California Legislature and courts gave further guidance in balancing the rights of the public with those of the individual, aiming to further transparency when appropriate. The bulk of the new CPRA guidance comes from case law because most of the proposed legislation that would have affected the CPRA was sidelined by of the COVID-19 crisis. Some of the legislation that was proposed may resurface in 2021, such as Senate Bill 776, which would have significantly altered Penal Code section 832.7, subdivision (b) and expanded the public’s right of access to law enforcement records.
New Case Law
Public Agencies May Have to Disclose Peace Officer Records Prepared by Another Agency or Relating to Another Agency’s Employee(s)
In Becerra v. Superior Court of the City and County of San Francisco, the First District Court of Appeal held in January 2020 that a public agency cannot withhold peace officer records solely on the basis that they were prepared by another public agency or that they relate to another agency’s employee(s). The case involved requests submitted by the First Amendment Coalition and KQED, Inc. to the California Department of Justice and the California Attorney General for records subject to disclosure under Penal Code section 832.7, subdivision (b) — the provision enacted by SB 1421. The controversial 2019 law makes certain categories of peace officer records disclosable under the CPRA. In response to the requests, the DOJ and AG told the requesters that they would produce “only those non-exempt records, if any, relating to peace officers employed by the Department of Justice” subject to applicable redactions. Records not created by the DOJ and/or concerning officers not employed by the DOJ were withheld. When FAC and KQED sued, the trial court ordered the DOJ and AG to produce all requested records, not just those relating to officers employed by the DOJ.
On appeal, the First District upheld the trial court’s order. Specifically, the court examined both Penal Code section 832.7 and relevant provisions of the CPRA and found that the language of those statutes clearly requires disclosure of all records, not just those prepared by the DOJ or relating to the DOJ’s employee officers. Moreover, the court held that the DOJ and AG’s interpretation of the statutes would not comport with the aims of the CPRA to provide broad access to public records and SB 1421’s aim to meaningfully increase access to peace officer records. Accordingly, the court held that the DOJ and AG could only withhold the records at issue if a CPRA exemption, such as the Government Code section 6255 catch-all exemption, applied to the records. Notably, this gave guidance to local agencies about whether CPRA exemptions would apply to SB 1421 records.
Read more in our Legal Alert, Another SB 1421 Decision Against Law Enforcement Agencies
Disclosure to Public Agency May Defeat Trade Secret Privilege
In Amgen Inc. v. Health Care Services, the Second District Court of Appeal in April held that a disclosure of information to a public agency, even if required by law, may destroy the trade secret privilege. In the case, Amgen Inc. was required by statute to disclose price information to more than 170 drug purchasers. One of those purchasers was the California Correctional Health Care Services, which received a CPRA request from Reuters News for the same information. Amgen filed a reverse-CPRA action against CCHCS, seeking to prevent disclosure of the requested information because it was a trade secret and therefore could not be disclosed under the CPRA. The trial court agreed with Amgen and issued a preliminary injunction barring CCHCS from disclosing the information.
While the appellate court did not address whether the trade secret privilege was appropriately applied to the price information at issue, it repeatedly noted that the initial disclosure to the CCHCS and other purchasers may have destroyed the privilege because the purchasers could obtain economic value from the information and the purchasers could further disseminate this information. Accordingly, the Second District held that the trial court abused its discretion by granting the preliminary injunction.
Read more in our Legal Alert, New Public Records Act Opinion Considers Extent of Trade Secret Privilege
Trial Courts Cannot Condition Intervention in Reverse-CPRA Cases on the Striking of Requests for Attorney’s Fees
In Carlsbad Police Officers Association v. City of Carlsbad, the Fourth District Court of Appeal held in May that interveners in a reverse-CPRA action may be entitled to attorney’s fees. In this case, eight police officer associations filed a petition for writ of mandate seeking to prevent their respective agencies from disclosing police misconduct and use-of-force records under SB 1421. Several media organizations and the American Civil Liberties Union, among others, filed a motion seeking to intervene in the action. The trial court permitted the intervention on the condition they petitioners strike their requests for attorney’s fees under Code of Civil Procedure section 1021.5 (California’s private attorney general statute). When the trial court ruled in favor of the interveners on the merits of the case, they appealed the trial court’s ruling about the attorney’s fees. On appeal, the Fourth District reversed and held that forcing the interveners to strike their request for attorney’s fees was unreasonable because it undermines the policy considerations of furthering litigation in the public interest and avoiding delay and multiplicity of suits.
Public Agencies Cannot Charge for Body-Worn Camera Footage Redactions
In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, the California Supreme Court in May held that public agencies are prohibited from charging a fee to redact police body camera footage in response to a CPRA request. The case involved a CPRA request by the National Lawyers Guild to the City of Hayward, which, in relevant part, sought body-worn camera footage related to a protest over grand jury decisions to not indict the police officers involved in the deaths of Eric Garner and Michael Brown, both unarmed African-American men. Hayward charged NLG more than $3,000 to redact medical and police tactic information from body camera footage. NLG sued, arguing that the fee was not permissible. Hayward argued that the fee was the result of about 40 hours of editing and was permitted under Government Code section 6253.9 in the CPRA, which allows local agencies to charge for “data compilation, extraction, or programming.” The trial court sided with NLG, but theThird District Court of Appeal agreed with the City.
The California Supreme Court reversed the appellate court’s judgement and analyzed the word “extraction” as used in section 6253.9. The Court determined that, contrary to Hayward’s position, “extraction” meant creating new content and not applying redactions. Accordingly, the Court reaffirmed that local agencies may only charge the costs of duplicating records and not for other ancillary costs, such as document retrieval, inspection and handling of the files. Additionally, the Court considered Hayward’s video editing as merely a more sophisticated version of redactions done with a felt marker on paper and held that Hayward improperly assessed the body-worn camera footage redaction fee.
Read more in our Legal Alert, California Supreme Court: Government Cannot Charge Fee to Redact Police Body Camera Footage
All California State Trial Courts Have Subject-Matter Jurisdiction Over CPRA Cases
In California Gun Rights Foundation v. Superior Court of Los Angeles, the Second District Court of Appeal held that any California state trial court may have jurisdiction over a CPRA lawsuit, even though venue may not be proper under the CPRA. The court determined that the CPRA regulates where the case should be heard (venue) and not whether the court has the authority to decide the case (jurisdiction).
The case involved a CPRA request submitted to the state’s Department of Justice and Attorney General by the California Gun Rights Foundation. When the DOJ and AG denied or “reasonably delayed” a response to CGRF’s request, CGRF sued in the Los Angeles Superior Court. The DOJ and AG then filed a motion to transfer the action to the Sacramento Superior Court, where the records and witnesses were situated. They argued, in relevant part, that the Los Angeles Superior Court did not have subject-matter jurisdiction over the case. The trial court granted the motion.
On appeal, the Second District disagreed with the trial court’s order granting the DOJ and AG’s motion to transfer the case to the Sacramento Superior Court insofar as it rested on the notion that the Los Angeles Superior Court did not have subject-matter jurisdiction over the case. Specifically, the appellate court held that Government Code section 6259’s reference to “the superior court of the county where the records or some part thereof are situated” relates only to venue and not to jurisdiction.
Read more in our Legal Alert, Jurisdiction Over CPRA Cases Not Limited to Courts in the County Where Records are Situated
CPRA Requesters Must Meet Code of Civil Procedure Undertaking Requirements
In Stevenson v. City of Sacramento, the Third District Court of Appeal held that CPRA requesters must post an undertaking to cover a public agency’s email storage costs during injunction proceedings. In the case, CPRA requesters sought 15 million emails that the City of Sacramento planned to destroy as part of its two-year email retention policy. The trial court granted a preliminary injunction to prevent the destruction of the records at issue. However, it also required the requesters to post an undertaking of $2,349.50, which is the amount that Sacramento calculated it would need to spend to comply with the injunction. The requesters appealed, claiming that this would have a chilling effect on CPRA requests.
On appeal, the Third District analyzed the requirements of California Code of Civil Procedure section 529. The court held that section 529 did not exempt CPRA requesters from its undertaking requirements. Moreover, the court treated the undertaking requirement as one of a number of unavoidable obligations when challenging a public agency’s CPRA determination, such as court filing fees. Additionally, the court rejected the requesters’ argument that the undertaking requirements would limit the public’s right to access records because state law allows courts to except indigent parties from section 529’s undertaking requirements under specified conditions.
Read more in our Legal Alert, CPRA Requesters Could Pay Agency Costs to Store Emails
AB 79 Human services omnibus
Assembly Bill 79 expanded the confidentially provisions in Government Code section 6253.2, subdivision (a), which protects information about in-home care providers from being disclosed under the CPRA. The statute previously made confidential information about people who provide care to blind and disabled individuals, so that they can remain in their homes. The statute was expanded to also protect the information about those who apply to be an in-home care provider.