Records Requestors Can Be Required To Post A CCP Section 529 Undertaking

CATEGORY: Client Update for Public Agencies, Public Education Matters
CLIENT TYPE: Public Education, Public Employers
DATE: Dec 28, 2020

In 2007, the City of Sacramento adopted a resolution approving the destruction of records as allowed under the Government Code and authorizing its city clerk to adopt a new records retention policy.  In 2010, the city clerk did so.  The new records retention schedule allowed for the destruction of all correspondence, including emails, older than two years old, subject to certain exceptions.

Despite adopting this policy in 2010, the City lacked the technology to automatically delete older emails until 2014.  In December 2014, the City informed various media and citizen groups that it would begin automatically deleting emails under its 2010 policy starting July 1, 2015.  Less than one week before the City planned to begin automatically deleting emails, Richard Stevenson and Katy Grimes (Requestors) each submitted California Public Records Act (CPRA) requests for records that were set for destruction.  Stevenson’s request concerned 53 million records, and Grimes’ request concerned approximately 64 million.  The City objected and estimated it would take over 20,000 hours to comply with the requests.

Requestors then initiated a lawsuit against the City for refusing to provide them access to the records they requested in violation of the California Public Records Act.  They also sought and obtained a temporary restraining order barring the City from deleting records potentially responsive to their requests.  After obtaining their temporary injunction, they submitted new, narrower requests, concerning approximately 15 million potentially responsive e-mails.

The superior court granted Requestors a preliminary injunction and ordered the City to preserve the 15 million potentially responsive emails.  However, the court conditioned the injunction on Requestors posting a $2,349.50 undertaking pursuant to Code of Civil Procedure Section 529 (Section 529).  Pursuant to Section 529, a court generally must require a party who has obtained a preliminary injunction to post an undertaking or a sum is given as a security, in case a court later determines the injunction was improper.  Courts set the amount of the undertaking based on an estimate of the harmful effect the injunction is likely to have on the restrained party.  If a court later concludes that the injunction was wrongly issued, it may require some or all of this amount to be distributed to the restrained party to compensate it for the harm it suffered.

Requestors appealed arguing that they did not have to provide a Section 529 undertaking because it: 1) conflicted with the CPRA; and 2) was an unlawful prior restraint under the First Amendment.  The Court of Appeal disagreed with both arguments.

First, the Court noted that compliance with Section 529’s requirements is a necessary condition to obtain a valid preliminary injunction.  While certain statutes expressly exempt certain parties from Section 529’s requirements, the CPRA does not.

Next, the court determined that Section 529’s undertaking requirement does not conflict with the CPRA.  The Court reasoned that Section 529 provides a general rule: in the event, the court grants an injunction, it must require the party that obtained the injunction to post an undertaking.  However, the CPRA says nothing on the topic of undertakings.  The Court also noted that just because CPRA applicants can be required to pay copying costs and, in frivolous cases, court costs and attorney’s fees, it does not follow that CPRA requestors are exempt from other generally applicable requirements.  Further, the court reasoned that requiring an undertaking for CPRA injunctions did not conflict with the statute’s purpose of allowing the public broad access to public records.

Finally, the Court of Appeal concluded that requiring a party seeking records under the CPRA to post a bond is not an “unlawful prior restraint” in violation of the First Amendment.  For First Amendment purposes, a “prior restraint” forbids certain communications in advance of the time that such communications are to occur. However, in this case, the City did not forbid the Requestors from any communications.  It simply asked them to post an undertaking pursuant to Section 529. Thus, the Court of Appeal affirmed the trial court’s decision.

Stevenson v. City of Sacramento, 55 Cal. App. 5th 545 (2020).


The superior court initially set the undertaking at $80,000 based on the City’s estimate it would cost $80,000 each year to retain all its emails indefinitely.  However, the undertaking was reduced to $2,349.50 after the City later determined it would spend as little as $2,349.50 to comply with the injunction.

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