Nat'l Conference of Black Mayors v. Chico Cmty. Publ'g, Inc.

25 Cal.App.5th 570

236 Cal.Rptr.3d 1

NATIONAL CONFERENCE OF BLACK MAYORS et al., Plaintiffs and Respondents,

v.CHICO COMMUNITY PUBLISHING, INC., Defendant and Appellant;

City of Sacramento et al., Defendants and Respondents.

C083956

Court of Appeal, Third District, California.

Filed July 25, 2018

Davis Wright Tremaine LLP, Thomas R. Burke, San Francisco, Rochelle L. Wilcox, Los Angeles, and Dan Laidman, Los Angeles, for Defendant and Appellant Chico Community Publishing, Inc.

Katie Townsend, Bruce D. Brown, Caitlin Vogus and Michael Shapiro for Reporters Committee for Freedom of the Press as Amicus Curiae on behalf of Defendant and Appellant Chico Community Publishing, Inc.

Ballard Spahr LLP, Peter L. Haviland and Scott S. Humphreys, Los Angeles, for Plaintiffs and Respondents National Conference of Black Mayors et al.

Matthew Ruyak and Andrea M. Velasquez for Defendants and Respondents City of Sacramento.

Patrick Whitnell, Sacramento, Corrine L. Manning, Alison E. Leary for League of California Cities, California State Association of Counties, and California Special Districts Association as Amici Curiae on behalf of Defendants and Respondents City of Sacramento.

Robie, J.

A requester of public records who successfully litigates against a public agency for disclosure of those records is entitled to reasonable attorney fees under the California Public Records Act¹ (the Act). This case asks us to determine whether the Act also allows for an award of attorney fees to a requester when the requester litigates against an officer of a public agency in a mandamus action the officer initiated to keep the public agency from disclosing records it agreed to disclose.² We conclude the answer is no. The Act limits the award of attorney fees to plaintiffs who prevail after "seeking a judicial determination of a public agency’s obligation to disclose records in the event the agency denies a request by a member of the public." ( Filarsky v. Superior Court (2002) 28 Cal.4th 419, 423, 426, 121 Cal.Rptr.2d 844, 49 P.3d 194 ( Filarsky ); § 6259.) A mandamus action seeking to prevent disclosure of public records does not arise under the Act nor does it seek to achieve the purposes of the Act—to compel a public agency to disclose records it refuses but is obligated to disclose. Accordingly, a requester of public records is not entitled to attorney fees under the Act after successfully litigating against a party attempting to prevent a public agency from disclosing the public records requested.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, the Sacramento News and Review (the newspaper), published by appellant Chico Community Publishing, Inc., investigated Sacramento’s then Mayor Kevin Johnson and his staff’s use of city resources in the take over and eventual bankruptcy of the National Conference of Black Mayors (the National Conference). As part of that investigation, the newspaper made a request to the City of Sacramento (the City) pursuant to the Act for e-mails in the City’s possession that were sent from private e-mail accounts associated with Johnson’s office. The City disclosed approximately 900 pages of records responsive to the request. In the City’s review of the records on its servers, however, it identified communications between Johnson’s office and the law firm Ballard Spahr LLP (the law firm), which represented the National Conference in its bankruptcy proceedings and Johnson, along with the National Conference, in litigation connected with Johnson’s contested election as the National Conference’s president. The City flagged these e-mails as potentially containing attorney-client privileged information. It then contacted the law firm to notify it that the City would "have no choice but to release these emails absent a court order stating otherwise" because the City had no authority to assert attorney-client privilege over the records on behalf of outside counsel.

The law firm then contacted the newspaper and asked it to agree the City could withhold any records it determined included attorney-client communications. The newspaper refused and contacted the City, which admitted telling the law firm "that some of the emails the City Attorney planned to release to [the newspaper] included attorney-client communication between the Mayor’s office and [the law firm]." The City also confirmed to the newspaper that it "suggested" the law firm contact the newspaper to see if the newspaper would "agree the emails should be withheld." The City further told the newspaper it had "identified ‘about 96’ emails that contained information that—if it had been communication between City Attorney staff and mayor’s staff—[it] would have withheld because of attorney-client privilege. But since it didn’t involve the City Attorney, ... the [C]ity couldn’t withhold the emails. ‘As far as [it was] concerned, they are public records’ " the City told the newspaper.

Following the newspaper’s refusal to allow the City to withhold e-mails containing attorney-client communications, the National Conference, Johnson in his official capacity as the former president of the National Conference, and Edwin K. Palmer in his official capacity as Chapter 7 Trustee for the National Conference (collectively petitioners) filed a verified petition for peremptory writ of mandate against the City and its City Attorney’s Office pursuant to Code of Civil Procedure section 1085 to prevent disclosure of records to the newspaper. Petitioners also named the newspaper as a respondent in the action. Petitioners sought to keep e-mails between Johnson’s office and the law firm from disclosure arguing the e-mails constituted privileged attorney-client communications and attorney work product; however, petitioners had not seen any of the records the City planned to disclose before initiating their action. The City did not oppose petitioners’ writ petition; however, the newspaper did.

The parties stipulated that the City would give the law firm copies of the records it identified as potentially privileged so that the law firm could create a privilege log. After reviewing the records, the law firm determined "several hundred" of the records were not privileged and the City produced those records to the newspaper. The law firm also created a privilege log identifying 158 records as being privileged. Following a meet and confer period, the law firm agreed to produce 13 of the challenged records, and the newspaper agreed to withdraw its challenge to 32 of them—leaving 113 records, which petitioners requested be reviewed in camera after failing to make a prima facie showing of privilege. Following an in camera review, the trial court ordered disclosure of 58 e-mails in full and 17 with redaction. It also ruled that 38 e-mails were privileged and did not need to be disclosed.

Based on these findings, the newspaper moved for attorney fees under the Act (§ 6259, subd. (d) ) from Johnson for using his status as a public official to oppose the newspaper’s request for public documents. The newspaper also moved for attorney fees under the private Attorney General statute ( Code Civ. Proc. § 1021.5 ) from "each of the [p]etitioners" because it successfully secured important public rights. The trial court denied both of those motions.

As is relevant to the newspaper’s motion pursuant to the Act, the trial court doubted but assumed the newspaper could recover attorney fees if it showed it was the functional equivalent of a prevailing plaintiff in an action brought pursuant to the Act under the reasoning of Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249, 1252-1253, 88 Cal.Rptr.2d 641. The trial court found the newspaper could not make this showing because it was not a prevailing plaintiff, the legal proceeding was not the functional equivalent of an action under the Act, and the newspaper was not seeking attorney fees from a public agency. The court explained that the Act provides requesters of public records with a cause of action to compel a public agency to disclose those public records. Here, although the newspaper advocated for disclosure because the City did not oppose petitioners’ writ petition, the City was prepared to disclose the requested records before litigation commenced. Because the City intended to disclose the requested records, the newspaper did not act like the type of plaintiff contemplated by the Act (i.e. one seeking disclosure of public records the public agency refuses to disclose) and was not entitled to attorney fees.

Further, the newspaper did not request attorney fees from a public agency and instead requested attorney fees from Johnson under the theory that he acted as a public official of the public agency when he petitioned to prevent disclosure of the requested public records. The court found this contention without merit for two reasons: (1) Johnson could have only brought his petition as the president of the National Conference because his argument that the records should not be disclosed rested on the privilege he, as the president of the National Conference, claimed to have over the records, whereas Johnson as the Mayor of the City had no claim of privilege over the records; and (2) the newspaper presented no evidence showing Johnson acted in his capacity as a public official when attempting to prevent disclosure of the requested records. The newspaper appeals this decision.³

DISCUSSION

ILegal Background

"The California Legislature in 1968, recognizing that ‘access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state’ [citation], enacted the California Public Records Act, which grants access to public records held by state and local agencies." ( Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 66-67, 172 Cal.Rptr.3d 56, 325 P.3d 460.) "As the result of an initiative adopted by the voters in 2004, this principle is now enshrined in the state Constitution: ...