Not "Clearly Frivolous" - City Loses Attorney's Fees in Public Records Act Case

February 5, 2015 | Bulletin No. 1180735.1

Although often mentioned as a possible remedy when defending meritless Public Records Act (PRA) lawsuits, it is actually very difficult for public agencies to obtain attorneys’ fees and costs when they prevail in PRA litigation. In practice, Courts may only award such fees and costs when a plaintiff's case is "clearly frivolous." As an example, in Bertoli v. City of Sebastopol (2015) ____ Cal.App.4th ____, the First District Court of Appeal recently held that a PRA request was not "clearly frivolous" even though it was "unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights." As a result, the Court reversed a Superior Court order granting $44,630 in attorneys’ fees and costs.

Facts

Bertoli was 15 years old when she was struck by a car in 2009. At the time of the accident, she was walking in a crosswalk across Highway 116 in the City of Sebastopol ("City"). As a result of her injuries, Bertoli suffered permanent physical and mental disabilities.

Bertoli's attorney, David Rouda, filed several PRA requests with the City requesting information related to her accident. The City produced many documents in response to the PRA requests, but the City refused to produce documents in response to Rouda's "open-ended and nonspecific" requests, and it refused to provide privileged police information, and electronic information that existed in the private accounts of the City's employees. Rouda offered to hire a third-party to collect the electronic information, but the City declined his offer.

Bertoli filed a petition for writ of mandate to compel the City to produce the requested documents. The Superior Court issued an order denying the petition, and the Court of Appeal refused to grant review of the order. The City then filed a request for attorneys’ fees and costs in accordance with the PRA, which permits courts to award fees and costs to prevailing public agencies if a plaintiff's case is "clearly frivolous." Noting that the City "reasonably complied with [its] access obligations" and that the petition was unduly burdensome and "compromise[d] interests in privacy and confidentiality[,]" the Superior Court agreed that the case was "clearly frivolous" and ordered $44,630 in fees and costs to be paid to the City. Bertoli appealed.

The Decision

The Court of Appeal ("Court") overturned the Superior Court's order granting attorneys’ fees and costs. The Court noted that the PRA is designed to promote disclosure and that attorneys’ fees may only be awarded to public agencies upon a showing that the petition was "clearly frivolous." The Court held that "clearly frivolous" meant "completely lacking in merit or brought for an improper purpose." The Court noted that Bertoli's attorney appeared only to be zealously representing his client's interests in requesting information related to pending litigation involving her injury. As such, the petition was not brought for an improper purpose. The Court further found that the request regarding electronic information involved an unsettled area of law, and the mere fact that the request was overbroad, did not make the petition "completely lacking in merit." As a result, Bertoli's petition was not "clearly frivolous" and the award of fees and costs was improper.

What This Means To You

This decision illustrates how difficult it is for public agencies to obtain an award of attorney's fees and costs in PRA cases. Indeed, the Court noted that such fees and costs have only been upheld in one published decision. Although public agencies do not need to respond to unduly burdensome requests, public agencies should not expect fees or costs in litigation involving such requests absent extraordinary circumstances.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Anthony Bento | 916.321.4500