California government agencies avoid public-records legal fees when allies sue

By Scott Thomas Anderson

A new tactic to dilute the California Public Records Act met fierce resistance in court last week, as organizations supporting press freedom joined a legal battle to support the Los Angeles Times. The case draws similarities to ongoing litigation between the Sacramento News & Review and former Mayor Kevin Johnson—another courtroom showdown that hinges on the integrity of the state’s transparency laws.

Both the LA Times and SN&R cases involve an emerging legal phenomenon known as “reverse-CPRA actions.” When reporters and residents request public documents from a government agency, California law leaves little room for withholding the information on privacy grounds.

That means if a government body fails to produce the documents, and then is found in violation of the state’s law, it’s obligated to pay all legal fees. Reverse-CPRA actions have been described as a legal loophole wherein third parties connected to the government come forward as private citizens and file injunctions to block the information from being released.

In the LA Times case, its reporters requested documents from the Pasadena Police Department linked to the fatal officer-involved shooting of an unarmed 19-year-old. The city of Pasadena wasn’t in a good legal position to avoid the disclosure, but reportedly notified the Pasadena police officers’ union, which filed a third-party injunction to block the release.

Such communications between government entities and interested parties are increasingly common, says Tom Burke, the attorney representing SN&R in its own litigation against former Mayor Johnson and the city of Sacramento.

“Just because [the involved government] can’t get out of releasing the information, it doesn’t mean they don’t get the word down to others involved and tip people off,” Burke noted. “Who then file these injunctions.”

After several years, a judge ruled the LA Times was entitled to the information it sought. Yet, since it was technically the police union that blocked the release rather than Pasadena officials, the LA Times is struggling to recoup its legal fees.

Last week, the California News Publishers Association and the Reporters Committee for Freedom of the Press filed an amicus brief in the second appellate court supporting the LA Times. SN&R and the Sacramento Bee were among 14 media organizations that joined the brief.

Meanwhile, in Sacramento, SN&R remains locked in a similar legal conundrum. In 2015, former SN&R contributing editor Cosmo Garvin filed an official request to obtain a glut of emails involving city business Johnson was conducting through a private email server. Garvin was trying to identify the scope of city staff and public resources Johnson had used to get himself installed as the head of the National Conference of Black Mayors.

Burke says Sacramento city attorneys didn’t block Garvin’s request, but they passively watched as Johnson came forward as a third party via the mayors’ conference and filed his own injunction. A Sacramento Superior Court judge later ruled that SN&R was legally entitled to some 80 percent of the documents Garvin requested, but since Johnson sued as a third party, the judge didn’t order him, the NCBM or the city to pay the newspaper’s mounting legal expenses.

SN&R has an appeal pending in the Third District Court of Appeals in Sacramento. Burke says it will likely be another year before SN&R and Johnson’s counsel appear before a judge again.

The whole ordeal, and the LA Times case, remain disturbing to SN&R CEO and majority owner Jeff vonKaenel.

“We can’t spend $120,000 on a request like that, and both sides know we can’t afford it,” vonKaenel acknowledged. “So, it changes the balance of power there and means the request will get refused. It becomes a game of poker where the side with the most money makes the other fold.”