On One Day in Two Decisions, Courts Reaffirm Californians’ Right to Know

Two California courts on a single day broadened the public’s access to government documents via a California Public Records Act (“CPRA”) request.

In one case (City of San Jose v. Superior Court (Smith)), the California Supreme Court unanimously declared on March 2 that public officials’ e-mails and texts are in fact public documents, even when they are sent over personal devices.

In a related case on that same day, a state appeals court in Los Angeles declared that the public is allowed to seek “discovery” in lawsuits filed by requestors of public documents to enforce their rights in Court under the CPRA statute.

Both cases are widely seen as a victory for transparency, and a reaffirmation of the state’s Watergate-era California Public Records Act.

In the Supreme Court decision, the court relied on public policy favoring disclosure of public records and case law, including a 2007 case (Com. On Peace officer Standards and Training v. Superior Court) to conclude that the content of documents – not their location – determines whether a public record is subject to disclosure under the California Public Records Act.

The court left it to trial court judges in each case to determine what constitutes a public record and what does not. (The court offered a hypothetical text between spouses – “My co-worker is an idiot” – as a record not subject to disclosure.) The court also suggested that public agencies should draft internal rules – such as giving all officials an agency-owned e-mail account and/or cellular telephone – and prohibiting any use of private accounts.

In the second case, City of Los Angeles v. Superior Court (Anderson-Barker), the Second Appellate District Court upheld a lower court’s finding that civil discovery rules apply to CPRA cases just as they do other civil lawsuits in California.

In that case, a plaintiff had sued the City of Los Angeles to enforce a CPRA request seeking records on the Los Angeles Police Department’s use of private companies contracted to tow and store impounded vehicles. As part of the litigation, the requestor’s attorney sent the city’s attorneys written questions (what attorneys call interrogatories) and a request for production of certain documents. The issue before the appeals court is whether a requestor may seek this type of information in lawsuits to enforce their CPRA rights. The answer was a resounding yes.

As an attorney for requestors in CRPA cases, I can attest to the value of the use of civil discovery tools. For example, I often hope to find through questions and responses: Who at the agency handled the CRPA request;

if documents were withheld, which official approved the withholding and whether an attorney was involved in those decisions; if the public agency is claiming some documents are being withheld in their entirety (versus portions of a document being redacted). I want to know the legal basis and reasoning for that decision. I hope to find out, as I have in some cases, that the public entity knew (or should have known) that it was violating the CRPA. I may go so far as to depose agency personnel – that is, interview them under oath – about their reasoning for withholding documents and the manner in which they conducted the search for records when it was originally requested.

Responses to this type of discovery in a CRPA lawsuit may strongly show the lawsuit is meritorious and that officials improperly withheld documents. This can and often does result in a settlement between the parties. When there is a settlement, the agency does not need to expend more taxpayer dollars on a needless hearing process it would likely lose anyway – and then pay out additional attorney’s fees to CPC. Avoiding this also saves the court’s time to allow the Judge to focus on other cases.

In all, March 2, 2017, was a very good day for Californians. The Supreme Court and Appeals Court strongly reaffirmed that citizens have a right to obtain documents that show what their government is doing and where their taxpayer dollars are going.

Craig P. Alexander is General Counsel for California Policy Center, and practices law in the areas of the California Public Records Act, contract negotiation, office leasing, homeowner association (HOA) law and civil litigation. His office is in Dana Point, California, and he can be contacted at cpalexander@cox.net.