Metropolitan News-Enterprise


Thursday, October 8, 2020


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Public Records Act Request Not Exempt From Bond Requirement, C.A. Holds


By SANDRA HONG Staff Writer


Body:Private citizens seeking to block a public entity from destroying government records requested under California’s open-access public records law are not exempt from a statute requiring parties to post bond in an amount determined by the court when issuing a preliminary injunction, the Third District Court of Appeal has held.

The opinion by Acting Presiding Justice Coleman Blease, filed Tuesday, affirms an order by Sacramento Superior Court Judge Shelleyanne W.L. Chang. Chang’s order requires that two Sacramento residents post a bond, initially set at $80,000 but reduced to $2,349.50, in connection with a preliminary injunction blocking the city of Sacramento from destroying about 15 million old emails.

Plaintiffs Richard Stevenson and Katy Grimes argued California’s Public Records Act (“PRA”) conflicts with the protections of Code of Civil Procedure §529, which requires parties seeking an injunction to pay an amount intended to compensate for harm suffered if the injunction is determined to be wrongly issued.

“[W]e find no conflict at all between the two mentioned statutes, let alone an irreconcilable one,” Blease said in his opinion, joined by Justices William J. Murray Jr. and M. Kathleen Butz.

Public Records Requests

In June 2015, a week before the city of Sacramento was to begin deleting old emails under a records retention policy adopted five years earlier, Stevenson and Grimes each submitted public records requests for the emails scheduled to be destroyed.

The city estimated their requests covered 117 million emails and required 20,000 of staff time to fulfill. The city asked them to narrow their requests.

Stevenson and Grimes sued the city, alleging it refused to provide access to the requested records and asking the court for a temporary restraining order.

Chang issued the order and directed both to narrow the scope of their requests. The city identified 15 million emails to be “potentially responsive” to the requests. It initially estimated it would cost $80,000 a year to retain the emails but then reduced the amount.

Amicus Brief

Various media outlets and First Amendment groups have asserted that the undertaking requirement restricts free access to public information protected under Article I of the California Constitution.

 “If citizens of modest means can be required to post a bond to prevent government agencies from destroying records requested under the PRA, the public’s ability to enforce the Public Records Act will be gravely compromised,” San Francisco-based attorney Karl Olson wrote in the introductory letter to the amici brief filed to the court.

Amicus curiae parties included the Sacramento Bee, the Sacramento Valley Mirror, First Amendment Coalition, Californians Aware, Reporters Committee for Freedom of the Press, and other news outlets.

Stevenson and Grimes contended the city, when enjoined under the PRA, contained in Government Code §6250 et seq., is not entitled to the protections of §529. They also argued that the requirement of posting a bond under the public records act is a form of unlawful prior restraint under the First Amendment.

Blease rejected the arguments based on a strict reading of both statutes. He said Chang’s order was not a restriction on speech but a straightforward application of law.

The jurist wrote:

“[T]he trial court here did not forbid appellants from engaging in any communications. It simply asked them to post an undertaking per section 529. And requirements of this sort, which are not concerned with speech at all, are not prior restraints within the meaning of the First Amendment simply because they may incidentally affect expression.”

§529 Undertaking

Section 529 states:

“On granting an injunction, the court of judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.”

Blease noted compliance with §529 “is typically a necessary condition to obtain a valid preliminary injunction” and that certain statutory exemptions exist.

“The PRA, however, is not one of those statutory schemes that specifically bars application of section 529. Although it expressly allows parties to obtain an injunction (Gov. Code § 6258), it says nothing at all on the topic of undertaking,” Blease wrote, adding:

“Had the Legislature in fact intended to remove from PRA cases any undertaking requirement – a fundamental feature of injunction procedure – we could expect the Legislature to have spoken far more clearly.”

Protections Under §6259(d)

Stevenson and Grimes, along with amicus curiae parties, argued the specific protections against “clearly frivolous” records under Government Code §6259(d) of the PRA override the broad undertaking requirement of §529.

Section 6259(d) provides:

“The court shall award court costs and reasonable attorney’s fees to the requester should the requester 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 of employee and shall not become a personal liability of the public official. If the court finds that the requester’s case is clearly frivolous, it shall award court costs and reasonable attorney’s fees to the public agency.”

Blease rejected the argument on the basis of the statutory rule of construction applying only in cases of “irreconcilable conflict,” explaining:

“[W]e find no conflict at all between the two mentioned statutes, let alone an irreconcilable one. That public agencies are entitled to court costs and attorney fees in frivolous PRA cases, per Government Code section 6259, does not somehow conflict with the right of public agencies to demand an undertaking under section 529.”

However, amicus counsel Olson described the bond requirement under §529 as imposing “precisely the sort of monetary burden that Government Code section 6259(d) expressly prohibits” in cases of public records requests.

“This would create an unreasonable result which would be wholly inconsistent with the California Constitution’s pro-access provision, article I, section 3(b)(1),” he wrote.

The case is Stevenson v. City of Sacramento, 2020 S.O.S. 4689.


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