City Was Not Entitled to Attorney's Fees Because Litigation for Records Under Public Records Act Was Burdensome But Not Clearly Frivolous

Category: Client Update
Date: Feb 23, 2015 12:39 PM

A car struck Julie Anna Bertoli, age 15, while she was walking on a crosswalk located on Highway 116, which runs through the City of Sebastopol.  Bertoli was rendered permanently physically and mentally disabled.  Bertoli's family retained attorney David Rouda to represent her interests with respect to the accident. 

In August 2009, Rouda served the Sebastopol Police Department with a Public Records Act (PRA) request seeking all evidence with respect to Bertoli's accident and any surveys, pedestrian or traffic counts, and letters or complaints received in the prior ten years with respect to the intersection at issue.  Rouda claims the Police Department did not provide any records. The Department maintains it produced a complete copy of the traffic collision report related to Bertoli's accident, the handwritten notes of the officer, and a report listing all accidents on Healdsburg Avenue for the past ten years. 

In March 2010, Rouda submitted a PRA request to the City's Planning Department requesting 62 different categories of public records in electronic format, when possible.  Some of the requests were open-ended and nonspecific.  For instance, Rouda requested "[a]ny and all documents, including but not limited to traffic impact studies, reports, evaluations, and/or consultations, and correspondence (including but not limited to emails, letters, notes, records of phone calls), relating to Highway 116 through the entire city limits of Sebastopol, CA, 1995 to present." 

The City responded to each request by: attaching responsive documents, attaching a list of files that may contain responsive documents, designating certain departments and/or files where specific responsive documents could be found, referencing certain responsive documents already provided to Rouda, objecting that a request was too ambiguous or overly broad for a response, and/or indicating other agencies that were likely to possess responsive documents.  The City also notified Rouda that it was happy to work with him to narrow any overbroad requests, and made space in a City break room twice a week beginning in June 2010 so that Rouda could review documents and designate what he wanted copied.  Rouda ultimately spent 20 days over the course of three months reviewing 65,000 pages of potentially relevant documents and designating 16,000 pages for scanning at his expense. 

Rouda believed that potentially responsive electronically stored information (ESI) existed outside of the paper files provided by the City, and suggested that the City hire, at Rouda's expense, a neutral third-party collection company specializing in the retrieval of ESI, which could search all municipal computers, servers, and electronic storage devices, and any personal computers used by City employees to perform City work outside of the office.  The City declined the suggestion. 

Rouda filed a personal injury suit on Bertoli's behalf in June 2010, and named the State of California, the City, and 35 other defendants.  Over the next few months, the City and Rouda communicated about their disagreements over whether the writings of individual City Council members were disclosable public records and whether the City had to conduct over 700 individual email searches. The City refused to undertake the task, but said it was willing to discuss "reasonable parameters" for an email search.

Bertoli and Rouda filed a petition for writ of mandate in superior court in February 2011.  The petition sought an order mandating the City to produce ESI, including emails, responsive to Rouda's PRA requests, and allowing a third party collection company to copy electronic storage devices inside and outside the City.  The City vigorously opposed the petition, and the superior court ultimately denied it. 

The court found that the City had shown a "remarkable degree of openness and cooperation" in its response to Bertoli's PRA requests and had reasonably complied, and it characterized Rouda's petition as an "unprecedented fishing expedition."  Rouda and Bertoli filed an extraordinary writ challenging the trial court's decision, which the Court of Appeal summarily denied. 

Meanwhile, the City filed a motion for attorney's fees and costs under Government Code section 6259, which provides that a court may award costs and reasonable attorney's fees to a public agency if it finds that the plaintiff's case under the PRA was "clearly frivolous."  The court granted the motion, finding that the petition was "clearly frivolous," and awarded a total of $44,630 in fees and costs.  Rouda and Bertoli appealed. Because the Court of Appeal had already summarily denied Rouda and Bertoli's appeal challenging the trial court's denial of their writ petition, the Court of Appeal only addressed the issue of costs and attorney's fees, and reversed.

The PRA, Government Code section 6250 et seq., was intended to provide the public with broad access to government files. As such, the term "public records" is broadly defined, and disclosable records must be turned over regardless of the manner in which they have been stored. 

While a plaintiff that prevails in PRA litigation is entitled to costs and attorney's fees, a public agency that prevails is only entitled to costs and fees if the trial court finds that the plaintiff's case was "clearly frivolous."  However, the PRA does not define the term "clearly frivolous."  Based on previous case law, the Court of Appeal stated that an action is frivolous if it is entirely lacking in merit; i.e., any reasonable attorney would agree that the case is totally without merit.  An award of attorney's fees and costs against a plaintiff in a PRA action should only be used to deter the most egregious conduct. 

Further, an agency is only required to disclose records that can be located with reasonable effort, and any request that requires an agency to search an enormous volume of data for a "needle in a haystack" or "compels the production of a huge volume of material" may be objectionable as unduly burdensome. However, a request that is overly burdensome is not necessarily entirely lacking in merit.  Here, Rouda and Bertoli reasonably could have believed that there was responsive ESI that the City had not disclosed.  For instance, Rouda received emails written to the City's Engineering Director in response to a Caltrans PRA request that the City had not disclosed.  Therefore, while the actual requests and the petition were overly broad, the core of Rouda and Bertoli's requests were not completely without merit. 

Furthermore, when the superior court decided to award fees, it took into account the fact that Rouda and Bertoli sought access to the personal electronic devices of individuals.  However, Rouda and Bertoli's position that responsive public records could exist on private electronic devices was not entirely frivolous given the current state of the law.  The Court noted that an email that relates to the conduct of the public' business and is written and stored by an agency employee on his/her personal computer or cell phone is "arguably a ‘writing' that is ‘prepared, owned, used, or retained' by a local agency," and a rule exempting these records from disclosure would "allow a public agency to shield its public documents from disclosure simply by instructing its employees to use their private email accounts." 

In addition, this exact issue is currently pending before the California Supreme Court. In June 2014, the Supreme Court granted review to determine whether written communications pertaining to city business that are sent or received by public officials and employees on their private electronic devices using their private accounts and are not stored on city servers or directly accessible by the City are "public records."  Therefore, this area of the law is in flux, and Rouda and Bertoli's petition was not entirely lacking merit.

For the foregoing reasons, the Court of Appeal held that Rouda and Bertoli's PRA requests and writ petition were not clearly frivolous, and reversed the award of attorney's fees and costs. 

Note: 

The Court of Appeal suggests in its decision that an email sent from a public employee's home computer and private email account should be considered disclosable public records under the PRA as long as they relate to the conduct of the public's business.  However, as it further noted, this issue is currently in a state of flux, and will be addressed by the California Supreme Court later this year, when it reviews City of San Jose v. Superior Court (2014) 225 Cal.App.4th 75.  Suffice it to say that it is extremely difficult for a public entity to recover its costs and fees in defending against a public records act request, although payment of costs and fees to a successful requesting party is automatic.  

Bertoli v. City of Sebastopol (2015) 182 Cal.Rptr.3d 308.

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