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

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

records before

The Act embodies a strong policy in favor of disclosure. ( Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041 , 1045, 13 Cal.Rptr.3d 517 .) Our state Constitution mandates the Act be construed broadly in favor of the people's right of access. ( Cal. Const., art. I, § 3, subd. (b)(2); County of Los Angeles v. Superior Court , supra , 211 Cal.App.4th at p. 63, 149 Cal.Rptr.3d 324 .) The people's right of access, however, is not absolute. ( Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233 , 1254, 155 Cal.Rptr.3d 93 .) The Act contains over two dozen express exemptions. (§ 6254; International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court , supra , 42 Cal.4th at p. 329, 64 Cal.Rptr.3d 693 , 165 P.3d 488 .) Subdivision (k) of section 6254 provides an exemption for "[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." Pursuant to this subdivision, documents protected by the attorney-client privilege are not subject to disclosure. ( County of Los Angeles , supra , at p. 64, 149 Cal.Rptr.3d 324 ; Roberts v. City of Palmdale , supra , 5 Cal.4th at p. 370, 20 Cal.Rptr.2d 330 , 853 P.2d 496 ["[b]y its reference to the privileges contained in the Evidence Code ... the Public Records Act has made the attorney-client privilege applicable to public records"]; Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516 , 527, 98 Cal.Rptr.3d 96 ["[t]he Public Records Act does not require the disclosure of a document that is subject to the attorney-client privilege"].)

These statutory exemptions from mandatory disclosure under the Act must be narrowly construed. ( Cal. Const., art. I, § 3, subd. (b)(2).) Moreover, the exemptions are permissive, not mandatory-they allow nondisclosure but do not prohibit disclosure. ( CBS, Inc. v. Block (1986) 42 Cal.3d 646 , 652, 230 Cal.Rptr. 362 , 725 P.2d 470 ; Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893 , 905, 205 Cal.Rptr. 92 .) Indeed, after listing the exemptions, section 6254 provides: "This section does not prevent any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law." (See also § 6253, subd. (e) ["[e]xcept as otherwise prohibited by law, a state or local agency may adopt requirements for itself

for that third-party to prevent the public agency from disclosing those records. Recognizing this omission in the Act, the court in Marken , supra , 202 Cal.App.4th at pages 1266-1267, 136 Cal.Rptr.3d 395 , identified the mechanism for an interested party to prevent a public agency from disclosing records that fall within an exemption to the disclosure requirements. In Marken , a teacher filed a petition for writ of mandate against a school district seeking to prevent the district from disclosing records from his personnel file in response to a parent's request under the Act. ( Marken , at pp. 1256-1257, 136 Cal.Rptr.3d 395 .) The teacher alleged by verified complaint that the district's decision to disclose the records was not authorized by the Act because disclosure would violate his (the teacher's) right to privacy. ( Id. at p. 1257, 136 Cal.Rptr.3d 395 ; see § 6254, subd. (c).) In concluding this was the proper procedure for an interested party to enjoin a public agency from disclosing records, the Marken court also acknowledged that the requester of the records has an interest in the outcome of the litigation and is properly joined as a real party in interest. ( Marken , at p. 1268, 136 Cal.Rptr.3d 395 .)

With these principles in mind, we now turn to the question of whether a requester of public documents who, in the absence of public agency opposition, opposed the writ petition of a person seeking to enjoin the public agency from disclosing public records is entitled to attorney fees under the Act. While we usually review an award of attorney fees and costs for abuse of discretion ( Crews v. Willows Unified School Dist . (2013) 217 Cal.App.4th 1368 , 1379, 159 Cal.Rptr.3d 484 ), we review de novo questions of statutory construction that define the criteria for an award of attorney fees ( ibid . ; Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353 , 365, 182 Cal.Rptr.3d 308 ).

Law Offices of Marc Grossman v. Victor Elementary School Dist. (2015) 238 Cal.App.4th 1010 , 1013, 190 Cal.Rptr.3d 86 .) The incentive is that a plaintiff will receive an award of costs and reasonable attorney fees from a public agency upon prevailing and will not be liable for the public agency's costs and reasonable attorney fees unless the action is frivolous. ( Filarsky , supra , 28 Cal.4th at p. 427, 121 Cal.Rptr.2d 844 , 49 P.3d 194 .)

The language of the attorney fee provision in the Act explicitly limits an attorney fee award to a plaintiff who prevails "in litigation filed pursuant to [section 6259]." (§ 6259, subd. (d).) Relying on Fontana , the newspaper would have us ignore this explicit language and instead conclude it is entitled to attorney fees under the Act because it prevailed in achieving the purpose of the Act-disclosure of public records following litigation against a public official seeking to keep the records from disclosure. We disagree.

In Fontana , the court interpreted the attorney fee provision in the Act to find a requester of public documents entitled to attorney fees despite not

denies a request by a member of the public ." ( Filarsky , at p. 426, 121 Cal.Rptr.2d 844 , 49 P.3d 194 , italics added.) The Act provides the "exclusive procedure" for determining whether a document must be disclosed as between a requester of public records and the public agency in possession of those records. That procedure is for the person seeking disclosure to commence a declaratory relief proceeding pursuant to sections 6258 and 6259. ( Filarsky , at pp. 423, 426-427, 121 Cal.Rptr.2d 844 , 49 P.3d 194 .)

to this case as an example of when our Supreme "Court

be exempted from disclosure under the Act. ( Id. at p. 1266, 136 Cal.Rptr.3d 395 .)

Further, the Marken court found a records requester's procedural protections under the Act are not impaired by this type of mandamus proceeding. ( Marken , supra , 202 Cal.App.4th at pp. 1267-1268, 136 Cal.Rptr.3d 395 .) In particular, it found requesters maintain the ability to avoid litigation, as they do under the Act, because the requester can rely on the public agency to assert the requester's right to disclosure of the public document. Thus, the Marken court reasoned, it was of no consequence that a requester would not be entitled to attorney fees in such a proceeding because the requester's involvement would be purely voluntary. ( Id. at p. 1268, 136 Cal.Rptr.3d 395 .)

The newspaper takes issue with the Marken court's findings in this regard because it (the newspaper) could not rely on the City to assert its right to public disclosure since the City did not oppose Johnson's petition seeking to prevent disclosure of the requested e-mails. This fact is even more problematic, the newspaper argues, considering it was an officer of the City who sought to prevent disclosure, equating this legal proceeding to a public officer withholding access to public records. As will be discussed, we do not find the City's failure to oppose the petition or the fact that an officer of the public agency initiated the proceedings material to the question of whether the newspaper is entitled to attorney fees under the Act.

First, the City was not required to oppose Johnson's petition and advocate for disclosure of the requested e-mails. In the City's review of requested public records, it came across records that it determined were public but potentially fell under the attorney-client privilege exemption in the Act. The City, however, was not the attorney or the client in those communications, thus it could not assert the privilege that exempted the records from disclosure. ( Evid. Code, § 954 ["the client, whether or not a party, has a privilege ... to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege; or [¶] (c) The person who was the lawyer at the time of the confidential communication ...."].) The City's determination that it must disclose the requested emails was a determination of its own responsibilities under the Act, not a determination of an interested party's ability to

designed to protect that right. ( [Citation]; see § 6254.) Similarly, while the Constitution provides for public access, it does not supersede or modify existing privacy rights. ( Cal. Const., art. I, § 3, subd. (b)(3).)" ( City of San Jose , at pp. 615-616, 214 Cal.Rptr.3d 274 , 389 P.3d 848 .) Although Johnson could only have been president of the National Conference because of his position as Mayor of Sacramento, these inter-related positions only contributed to the e-mails' classification as public records. (See League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976 , 986-987, 194 Cal.Rptr.3d 444 [E-mails pertaining to legal work a city attorney did for the League of California Cities were public records because the attorney was a member of the League based solely on his role as the city's attorney and his acts were intended to further the interest of the city as well as the League].)

Another contributing factor, as the newspaper points out, was likely Johnson's use of city resources, including city time and staff, to conduct National Conference business. The inter-related positions, however, did not transform all of Johnson's actions with regard to the National Conference into actions of Johnson the public official. Johnson's claim of privilege over the e-mails stemmed from his position as the president of the National Conference and not from his position as mayor of the City. Johnson did not abandon his right to privacy or his right to assert the attorney-client privilege when he was elected mayor. (See City of San Jose v. Superior Court , supra , 2 Cal.5th at p. 626, 214 Cal.Rptr.3d 274 , 389 P.3d 848 [the proper course to take when requested records implicate a public official's or employee's privacy rights is to assign the records the

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

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

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

Roberts v. City of Palmdale (1993) 5 Cal.4th 363 , 370, 20 Cal.Rptr.2d 330 , 853 P.2d 496 ; County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57 , 63, 149 Cal.Rptr.3d 324 .) To implement this policy, section 6253, subdivision (a) provides all persons with the right to inspect any public record maintained by state or local agencies, subject to various enumerated exemptions. ( Long Beach Police Officers Assn. v. City of Long Beach , supra , 59 Cal.4th at pp. 66-67, 172 Cal.Rptr.3d 56 , 325 P.3d 460 ; County of Los Angeles , at p. 63, 149 Cal.Rptr.3d 324 .) The Act "broadly defines ' "[p]ublic records" ' as including 'any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency. ...' ( Gov. Code, § 6252, subd. (e).)" ( Long Beach Police Officers Assn. , at p. 67, 172 Cal.Rptr.3d 56 , 325 P.3d 460 .)

that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter"].)

When the public agency that holds the records refuses to disclose a requested public document, the Act provides that "[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." (§ 6258; Filarsky , supra , 28 Cal.4th at p. 426, 121 Cal.Rptr.2d 844 , 49 P.3d 194 .) Section 6259 provides the superior court with the procedure for determining whether the public agency is unlawfully withholding public records. ( Filarsky , at p. 426, 121 Cal.Rptr.2d 844 , 49 P.3d 194 .) If, at the end of this process, the superior court determines the public agency or public official should have disclosed the requested documents "[t]he court shall award court costs and reasonable attorney fees to the plaintiff ...." (§ 6259, subd. (d).)

If, on the other hand, the public agency intends to disclose a public record that could infringe upon an interested party's rights, the Act provides no mechanism

The Attorney Fee Provision In The Act Does Not Apply To Mandamus Proceedings Seeking To Prevent Disclosure Of Public Records

As it pertains to attorney fees, "California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees." ( Trope v. Katz (1995) 11 Cal.4th 274 , 278, 45 Cal.Rptr.2d 241 , 902 P.2d 259 .) However, attorney fees are recoverable as costs by a prevailing party when authorized by contract, statute, or law. ( Code Civ. Proc., § 1033.5, subd. (a)(10).) The Act contains one such fee-shifting statute. It provides: "The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency." (§ 6259, subd. (d).) As explained, litigation pursuant to the Act seeks "a judicial determination of a public agency's obligation to disclose records in the event the agency denied a request by a member of the public." ( Filarsky , supra , 28 Cal.4th at p. 426, 121 Cal.Rptr.2d 844 , 49 P.3d 194 ; § 6259.)

"The very purpose of the attorney fees provision [in the Act] is to provide protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure." (

being a plaintiff and not initiating litigation under the Act. In that case, the public agency filed for a protective order to keep records from disclosure after the requester expressed the intent to initiate litigation. ( Fontana Police Dept. v. Villegas-Banuelos , supra , 74 Cal.App.4th at p. 1251, 88 Cal.Rptr.2d 641 .) The trial court found the records did not contain privileged information and were subject to disclosure but denied the requester attorney fees. ( Ibid. ) In reversing, the appellate court held that "[b]ecause the proceeding in this case was the functional equivalent of a proceeding to compel production of the [records] under the [Act] and [the requester] was the prevailing party in the proceeding, he is entitled to recover attorney's fees despite the fact that he was not denominated 'plaintiff' in the action." ( Id . at p. 1253, 88 Cal.Rptr.2d 641 .) In so holding, the court reasoned that if "only the party who initiates the proceeding with respect to disclosure may recover attorney's fees and costs, then public agencies could defeat recovery of fees in every instance by doing exactly what [the public agency] did in this case-beating the party seeking disclosure to the courthouse and filing a petition for a protective order." ( Ibid. )

The newspaper argues Fontana is binding authority, and we must apply the " 'functional equivalent' " test to this case. Not so. Our Supreme Court's subsequent decision in Filarsky eroded the holding of Fontana and clarified when a cause of action under the Act arises and who could bring that action.

In Filarsky , an attorney sought records related to a public agency's hiring of a police captain. The public agency initially denied the attorney's request and then, in response to a letter threatening litigation pursuant to the Act, disclosed a small portion of the records requested and on the same day filed a complaint for declaratory relief pursuant to Code of Civil Procedure section 1600 to obtain " 'a judicial determination of its rights and duties under [the Act].' " ( Filarsky , supra , 28 Cal.4th at p. 424, 121 Cal.Rptr.2d 844 , 49 P.3d 194 .) Our Supreme Court held that a public agency may not do this. Citing the Act, the Filarsky court noted that " 'every person' " has the right to inspect public records. ( Id. at p. 426, 121 Cal.Rptr.2d 844 , 49 P.3d 194 , citing § 6250.) If the agency in possession of the records determines the records fall under a disclosure exemption, then the agency must tell the requester of that determination. ( Filarsky , at p. 426, 121 Cal.Rptr.2d 844 , 49 P.3d 194 ; § 6253, subd. (c).) Only then can an action under the Act be brought. "The Act sets forth specific procedures for seeking a judicial determination of a public agency's obligation to disclose records in the event the agency

This type of action, like an action brought by a requester under the Act, "seeks judicial review of an agency decision under the [Act]." ( Marken , supra , 202 Cal.App.4th at p. 1265, 136 Cal.Rptr.3d 395 .) The only difference is that in the case of a mandamus proceeding initiated by an interested party, the public agency decided to disclose the records. Without mandamus, an interested party would have no avenue to review an agency's decision to disclose a record that may