bagley-yee amicus brief for crews

1

COURT OF APPEAL

OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

____________________________ ) Third District Civ. No.: C066633 TIM CREWS, )

Plaintiff and Appellant, ) ) vs. ) Glenn County Superior Court,

) Case No. 09CV00697 ) (Hon. Peter Twede)

WILLOWS UNIFIED SCHOOL ) DISTRICT ET AL., )

Defendants and Respondents ) ) ____________________________) ____________________________________________________________

APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE

AND CALIFORNIANS AWARE IN SUPPORT OF APPELLANT TIM CREWS

____________________________________________________________

JOSEPH T. FRANCKE (SBN 88654) 2218 Homewood Way Carmichael, CA 95608

[email protected]

Attorney for Amici Curiae William T. Bagley, Leland Yee and Californians Aware

2

COURT OF APPEAL







Defendants and Respondents ) ) ____________________________) ___________________________________________ APPLICATION TO FILE BRIEF AMICUS CURIAE OF WILLIAM

T. BAGLEY, LELAND YEE AND CALIFORNIANS AWARE IN SUPPORT OF APPELLANT TIM CREWS

____________________________________________________________


[email protected]


3

October 1, 2012

RE: Crews v. Willows Unified School District et al., Third District Civ. No. C066633

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE THIRD APPELLATE DISTRICT FOR THE STATE OF CALIFORNIA: Amici curiae William T. Bagley, Leland Yee and Californians Aware request permission to file the attached brief in support of Plaintiff and Appellant Tim Crews in the captioned case. Interests of Amici Amici are current and former public officials, recognized for their strong and principled support of government transparency and accountability, as well as a nonprofit advocacy organization dedicated to the people's right to know about, and to participate in, their government. • Amicus William T. Bagley, a lawyer, was a Member of the California Assembly from 1961 to 1974, representing Marin and Sonoma counties. In 1968 he was the author of Assembly Bill 1381 (Ch. 1473, Stats. 1968), which enacted the California Public Records Act (CPRA). He also was the author of the open meetings law that bears his name, the Bagley-Keene Act, Government Code sections 11120-11132, enacted in 1967. The prelude to the latter states: " The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, . . . insist on remaining informed so that they may retain control over the instruments they have created." Section 11120. • Amicus Leland Yee, a Member of the California Senate, is the legislator currently mostactive in attempting to strengthen access to public information and proceedings, exemplified in this session’s Senate Bills (SBs): • 8 (Ch. 247, Stats. 2011), making records held by public higher education auxiliary organizations presumptively subject to public scrutiny, available at http://info.sen.ca.gov/pub/1112/bill/sen/sb_00010050/sb_8_bill_20110906_chaptered.html • 1000 (failed passage), making safety-related records provided by regulated utilities to the California Public Utilities Commission

4

presumptively public consistent with the CPRA, available at http://info.sen.ca.gov/pub/11-12/bill/sen/sb_0951¬1000/sb_1000_bill_20120614_amended_asm_v95.html • 1001 (Ch. 506, Stats 2012), increasing lobbying fees to support improvements to Secretary of State’s online campaign spending information site, Cal-Access, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1001 • 1002, (vetoed), requiring a study and recommendations on the use of an open data format, including searchability, for state and local records subject to the CPRA, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1002 • 1003, (signed by the Governor Sept. 28), creating a citizen’s “cease and desist” nonjudicial enforcement procedure for challenging practices suspected of violating the Ralph M. Brown Act, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1003and • 1336 (failed passage), requiring State Auditor and local government auditors to release information on dispositions of investigations of whistleblower-reported improper governmental activity, available at http://info.sen.ca.gov/pub/11-12/bill/sen/sb_1301¬1350/sb_1336_bill_20120508_amended_sen_v97.html • Amicus Californians Aware is a nonpartisan, non-profit advocacy group established as a public benefit corporation under California law and an Internal Revenue Code Section 501(c)(3) public charity. Its mission is declared as being “To foster the improvement of, compliance with and public understanding and use of, public forum law, which deals with people’s rights to find out what citizens need to know to be truly self-governing, and to share what they know and believe without fear or loss.” With that focus it tracks and sponsors selected legislation, occasionally litigates to enforce the open government laws, publishes guides to those laws and to the rights and risks of journalists, and offers training to public agencies and public employee organizations, news organizations and citizens in general statewide. Disclosure: Plaintiff/Appellant Tim Crews is secretary-treasurer of Californians Aware but has not requested its participation in this brief and has not commented or been consulted on its content.

5

COURT OF APPEAL







Defendants and Respondents ) ) ____________________________) ____________________________________________________________

BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE


____________________________________________________________


[email protected]


6

CONTENTS

I. INTRODUCTION Page

A. Plaintiff/Petitioner May Be the CPRA’s Most Experienced Litigant…………………………………… 10 B. The Litigation Sought to Shed Light on the Conduct of a Public Official ……………………………... 12

II. SEQUENCE OF EVENTS……………………………………… 13

III. LEGAL ANALYSIS

A. The Court Creates an Unsupported Hybrid Theory of Fee Recovery 1. Prevailing Law: Requester Is Due Fees When It—

a. Got All It Sought, After and Because It Sued…………. 19

b. Got Some of What It Sought,

after and Because It Sued………………………………… 20

2. Prevailing Law: Neither Side Is Due Fees When Requester—

a. Got None of What It Sought in an

Arguable but Unsuccessful Suit…………………………… 20

b. Got Some or All of What It Sought After,

but Not Because, It Sued………………………………….. 21

3. Prevailing Law: Agency Is Due Fees When Requester—

Got None of What It Sought in a Case

Not Even Arguably Meritorious…………………………… 22

4. Trial Court’s Hybrid Theory: Agency Is Due Fees When Requester—

Got Very Little of What It Sought in an

Arguable Case That Might Have Been Unnecessary............ 22

7

B. Lack of “Benefit” to the Plaintiff Does Not Render the Litigation Frivolous………….…………. 23

C. Crews’ Going to Court Was Neither Premature Nor Unnecessary to Obtain Records…………….... 23

IV. CONCLUSION…………………………………………………. 25

8

AUTHORITIES

Cases

Alyeska Pipeline Service Co. v. Wilderness Society

(1975) 421 U.S. 240…………………………………………….. 20

Belth v. Garamendi

(1991) 232 Cal.App.3d 896…………………………………..…. 19, 21

Bernardi v. County of Monterey

(2008) 167 Cal.App.4th 1379……………………………………. 20

Butt v. City of Richmond

(1996) 44 Cal.App.4th 925………………………………………. 22

City of Hemet v. Superior Court

(1995) 37 Cal.App.4th 1411…………………………………..… 13

Fairley v. Superior Court

(1998) 66 Cal.App.4th 1414…………………………………….. 19

Fontana Police Dept. v. Villegas-Banuelos

(1999) 74 Cal.App.4th 1249……………………………………... 21

Los Angeles Times v. Alameda Corridor Transportation Authority

(2001) 88 Cal.App.4th1381……………………………………... 20, 23

Motorola Communication & Electronics, Inc. v. Dept. of General Services

(1997) 155 Cal.App.4th 1340…………………………………… 22

People v. Battin

(1978) 77 Cal.App.3d 635…………………………………….... 12

Rogers v. Superior Court

(1993) 19 Cal.App.4th 469……………………………………… 22

Stanson v. Mott

(1976) 17 Cal. 3d 206………………………………………….... 12

Tracy Press v. Superior Court

(2008) 164 Cal.App.4th 1290………………………………...…. 21

9

Statutes

Govt. Code § 6253 (c).……………………………………………… 24

Govt. Code § 6253.9………………………………………………… 13

Govt. Code § 6254 (b).……………………………………………… 19

Govt. Code § 6257.5………………………………………………… 12

Govt. Code § 6259 (d).…………………………………………….… 19, 20

Pen. Code § 424 (a) (2) ……………………………………………... 12

10

I. INTRODUCTION

A. Plaintiff/Petitioner May Be the CPRA’s Most Experienced Litigant

Tim Crews, editor and publisher of the twice-weekly Sacramento

Valley Mirror, a newspaper serving Glenn County, is well known—

respected by his professional peers statewide and beyond and notorious to

local public officials and business competitors—as a uniquely dogged

investigative journalist and litigant for open government. As noted in a

front page story two years ago in California Lawyer magazine, there had

been “more than two dozen cases over the past five years when (Crews) has

either sought government records under the California Public Records Act

or pursued violations of the state's open meetings law.” See “The Sunshine

Boys,” August 2010, available at

http://www.callawyer.com/clstory.cfm?pubdt=201008&eid=910837&evid=

1. By contrast, even California’s very largest news organizations may bring

two or three such cases a year, in an era when evaporating advertising

revenues have markedly reduced news media budgets for public

information litigation nationwide. See CT 1676-77, 1683.

Mr. Crews’ readiness to go to court to keep government visible is of

a piece with the substance and success of his reporting, winning him the

Freedom of Information Award in three annual contests conducted by the

California Newspaper Publishers Association. And his readiness to

confront what he sees as overreaching or misguided official power shows

up in his defensive as well as offensive game. Nearing 70, he is the only

living journalist in the state known to have served jail time for refusing to

name a source of published information subpoenaed in connection with a

criminal prosecution. For this act of principled refusal, coupled with his

activism for governmental transparency generally, he has received:

11

• the Bill Farr Award of the California Society of Newspaper Editors

in 2000. See “Editors Honor Publisher Who Went to Jail to Protect

Sources,” La Prensa San Diego, available at http://laprensa-

sandiego.org/archieve/april07/editors.htm

• Hofstra University’s Francis Frost Wood Courage in Journalism

Award in 2004. See Maya Dollarhyde, “Publisher of biweekly newspaper

receives award for journalistic courage,” Freedom Forum Online, available

at

http://www.freedomforum.org/templates/document.asp?documentID=1232

8;

• the California Press Association’s Newspaper Executive of the

Year Award in 2009, See Terry Francke, “California’s Most Courageous

Newspaperman,” Californians Aware, available at

http://calaware.org/freedom-of-the-press/californias-most-courageous-

newspaperman; and

• the Norwin Yoffie Lifetime Achievement Award of the Northern

California Chapter of the Society of Professional Journalists in 2011. See

Rebecca Bowe, “Sunshine Superheroes,” San Francisco Bay Guardian,

available at http://www.sfbg.com/2011/03/15/sunshine-superheroes.

Also in recognition of his work, apparently, Mr. Crews has had his

office burgled, his building set afire, his car’s brakes and wheels weakened

to the point of failure and his dog poisoned. “Apparently,” because none of

these events has been investigated to the point of an arrest.

All that notwithstanding, even the most professionally laudable

journalist, whose record of serious public service reporting could not be

called “frivolous” except by a frivolous accuser, may of course be judicially

deemed frivolous for filing an exceptional case with no arguable merit that

no reasonable attorney would ever consider bringing. But that record is not

12

irrelevant in considering whether simple persistence in prosecuting a

disclosure action under the California Public Records Act (CPRA) for

records persistently withheld—without justification or explanation—comes

even close to what the law means by frivolous litigation.

B. The Litigation Sought to Shed Light on the Conduct of a Public Official

While a CPRA plaintiff’s purpose is not necessarily determinative of

whether the litigation is frivolous, and indeed under Government Code

section 6257.5 should not be considered, in this case the purpose was no

different from that of those regularly filed over the preceding years—to

obtain information withheld by government officials and agencies about

their conduct of the public’s business. In this instance the particular focus

was on whether, as suggested by a source, the superintendent of the

Willows Unified School District was using his office and District resources

to support campaigns for the passage of a ballot measure and the recall of

the Glenn County Superintendent of Schools. Such conduct, if confirmed,

would violate the constitutional prohibition against the use of public funds

to influence an election, including a ballot measure. Stanson v. Mott (1976)

17 Cal. 3d 206. It could also be prosecuted as an unlawful use of public

funds, a felony violation of Penal Code Section 424 (a) (2). People v. Battin

(1978) 77 Cal. App. 3d 635. Thus Mr. Crews’ request for a year’s worth of

the superintendent’s email messages was not simply a use of the CPRA to

obtain information held by government concerning private persons or

institutions, but rather to acquire information held by government about

government, focusing on the central concern of official integrity.

We must give due regard to the primary purpose of CPRA, or what the

United States Supreme Court has described as the "core purpose" of the

analogous federal act: to " 'contribute significantly to public understanding

13

of the operations or activities of the government' " and to let citizens know

" 'what their government is up to.' "

City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1417.

Consistent with this core purpose, the trial court conceded that Crews’ case as

filed was not frivolous. CT 1798.

II. SEQUENCE OF EVENTS

To summarize, based on undisputed facts itemized in the Appellant’s

Opening Brief, the sequence of significant events in the case is as follows:

2009

March 5 Crews requests copies of all the Superintendent’s emails for the

past year, in electronic form.

March 15 District elects to extend 10-day period for response, stating more

time needed.

March 30 District responds that no emails prior to April 28, 2009, can be

produced, and produces none at that point.

April 28 Crews petitions court to order District to produce records

requested.

May 5 Crews serves District.

May 11 District begins producing records, but in unsearchable PDF

copies of email pages rather than in native format, maintaining

that it has the right to choose the format for release.

[Note: the CPRA in Government Code section 6253.9, subd. (a) states, in

pertinent part:]

14

Unless otherwise prohibited by law, any agency that has

information that constitutes an identifiable public record not

exempt from disclosure pursuant to this chapter that is in an

electronic format shall make that information available in an

electronic format when requested by any person and, when

applicable, shall comply with the following: (1) The agency

shall make the information available in any electronic format

in which it holds the information.

In responsive negotiation Crews offers not to challenge the

PDF format if District will expedite production, but District

does not agree to this compromise.

July 31 Crews amends petition to allege that District failed to

produce records in the searchable electronic format he has

requested, and needlessly delayed production.

December 3 District ends production, but Crews finds that thousands of

records are still being withheld, many produced have been

redacted and many make reference to “attachments” that are

not produced.

2010

April 28 Crews files opening brief seeking access to withheld emails

in native format (not PDFs), as originally requested,

supported by expert declarations as to the difference, the

already produced PDFs’ lack of header (To and From)

information showing the origin and distribution of the

messages, and other advantages of native format versions,

including but not limited to searchability.

District opposes, contending that Crews’ offer of

15

compromise a year earlier (PDFs acceptable if production

expedited) waived his right to object to PDFs now.

Crews replies that his offer was not a waiver; that evidence

of the offer was inadmissible; that at least the emails not

considered exempt from disclosure; and/or their metadata,

should be released in native format; that production cost

would be minimal; and that the court should review all

withheld records in camera to decide if secrecy should

continue.

March 15 Court issues tentative decision finding, inter alia:

• District was unable to produce emails in native format, but

did its best to provide exact copies;

• Since email is defined as a message, District complied

with Crews request by providing the body text of emails,

but should also be required to produce any attachments

Crews can specify, if not exempt from disclosure;

• Crews’ counsel “not only agreed to the PDF format, but insisted

upon it”;

• No violation of the CPRA has occurred because District offered

to submit withheld records to in camera review;

• Petition is dismissed;

• Crews did not prevail and is not entitled to attorney fees.

August 5 Crews objects to tentative decision, arguing, inter alia:

• District knows how to provide native format emails,

electronically redacted as needed;

16

• Neither Crews nor his attorney unconditionally consented to

accept PDFs of emails, and District had no reason to believe they

had, after his July 31, 2009 amended petition;

• Uncontested emails should be provided in native format, or if

waiver is found, metadata should be provided in hard copy;

• Despite tentative decision, District is still unwilling to produce

missing attachments.

June 8 Trial court sets in camera hearing date.

August 2 Pursuant to court’s order Crews files pre-hearing brief, including:

• specification of all possible exemptions applicable to requested

records;

• argument as to why each would not apply;

• emphasis on District’s burden to justify exemptions;

• description of court’s role in conducting in camera review;

• exhibits of emails showing:

•• missing attachments;

•• improperly redacted messages; and

•• illegible messages; and

• request for recording of hearing and deliberation for potential

appellate review (repeated in subsequent pre-hearing request).

In opposition, District says it will provide court with three CDs

containing uncontested emails and attachments; those argued to

be exempt as preliminary drafts, notes and intra-agency

memoranda (Government Code Section 6254, subdivision (a));

and those argued to be otherwise exempt.

17

September 1 Court conducts in camera review, with no testimony or

evidence, of some 3,200 hard copy pages. Minutes show hearing

lasted 45 minutes, with District counsel only present.

September 9 Crews’ supplemental brief reports that District has, after 18

months, produced some but not all requested attachments, but is

still withholding others that do not print out and show up only

when viewed on computer.

October 8 Court issues statement of decision adopting the tentative ruling

but adding (for the first time) a finding that Crews’ action was

frivolous, and awarding fees and costs to District.

October 20-21 Crews files objection and amended objection, repeating all prior

requests for findings of law and fact.

November 1 Court issues final judgment denying petition and finding Crews’

serving the writ petition “premature and unnecessary”; that it

“did not result in any benefit whatsoever to the petitioner and

was therefore frivolous.”

Crews files notice of appeal on the frivolousness finding; District

files motion for more than $100,000 in attorney fees; Crews

submits declaration stating his personal annual income of

$20,000, and stressing Valley Mirror’s chronic flirtation with

insolvency.

2011

April 11 Court orders additional briefing on whether District is claiming

fees not just for defending the litigation but for reviewing Crews’

record requests.

May 13 Crews submits declaration reiterating his assertion of

18

approximately $20,000 personal income, and to debts including

back taxes due to IRS, denying that, as asserted by District, he

had kept for his own use a previous CPRA attorney fee award of

$100,000.

June 2 Court holds hearing on fee motion.

August 17 Court rules on District’s fee request, reducing it to almost

$54,000, but finding that while Crews’ petition was not frivolous

per se, serving it “after the first of many appropriate responses to

the petitioner’s request for production” was frivolous. (Emphasis

added)

Conceding that District has withheld some 3,200 pages of

documents, the Court suggests that “the parties should have hired

a neutral to resolve any issue before application was made to the

court through the formal writ proceeding.” (Emphasis added)

[Under a motion to augment the record, Crews’ attorney now

declares—in response to this judicial afterthought—that Crews

had offered to hire and pay for a neutral intermediary, which

offer the District refused.]

Court chooses to disbelieve Crews’ statements as to his ability to

pay, specifically rejecting both his and his attorney’s

uncontradicted denials that he had pocketed the attorney fee

award from the previous case.

Court awards more than $56,000 in attorney fees and costs to the

District.

19

III. LEGAL ANALYSIS

A. The Court Creates an Unsupported Hybrid Theory of Fee Recovery

The CPRA statutory and case law recognize five instances that

determine how and to whom attorney fee and cost awards—if any—are due.

The court here creates a sixth hybrid category without reference to any

authority and which is impossible to apply in any principled fashion.

1. Prevailing Law: Requester Is Due Fees When It—

a. Got All It Sought, After and Because It Sued

The standard rule is in Government Code Section 6259, subdiv. (d):

“The court shall award court costs and reasonable attorney fees to the plaintiff

should the plaintiff prevail in litigation filed pursuant to this section.” A fee

award to plaintiff is mandatory in such circumstances. Belth v. Garamendi

(1991), 232 Cal.App.3d 896, 900). The plaintiff prevails for fee purposes, even

if the case does not reach adjudication, “when he or she files an action which

results in defendant releasing a copy of a previously withheld document.” Id. at

898. Moreover, when a defendant public agency released a previously

contested document after a petition has been filed because the exemption under

which it has been withheld—e.g. records “pertaining to pending litigation” in

Government Code Section 6254, subd. (b) has circumstantially expired since

the litigation is no longer pending, that release does not moot the fee

entitlement issue. The trial court must decide whether the exemption asserted

(and any others never ruled upon) were properly claimed in the first instance,

and if not, the plaintiff has prevailed in establishing its access right on the

merits and is entitled to fees. Fairley v. Superior Court (1998) 66 Cal.App.4th

1414, 1422.

20

b. Got Some of What It Sought, After and Because It Sued

Circumstances could arise under which a plaintiff obtains

documents, as a result of a lawsuit, that are so minimal or

insignificant as to justify a finding that the plaintiff did not prevail.

But there is no support for such a finding in (a) case . . .where (a)

court ordered disclosure of one of two contested documents, and

where the claim for the other was not frivolous.

Los Angeles Times v. Alameda Corridor Transportation Authority

(2001) 88 Cal.App.4th 1381, 1391. Furthermore,

(W)hile the degree of the plaintiff's success in obtaining the

objectives of the litigation is a factor that the trial court may consider

in determining an award of reasonable attorney fees under a fee

statute . . . including the CPRA fee statute (§ 6259, subd. (d)), we

determine that there is no requirement that the trial court make an

award of attorney fees in an amount that is commensurate with or in

proportion to the degree of success in the CPRA litigation.

Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1398.

2. Prevailing Law: Neither Side Is Due Fees When Requester—

a. Got None of What It Sought in an Arguable but Unsuccessful Suit

Here the “American Rule” that the parties will bear their own attorney

fees irrespective of the outcome of the case (See Alyeska Pipeline Service Co.

v. Wilderness Society (1975) 421 U.S. 240, 247) is the default because the

CPRA’s fee-shifting provision does not apply when the plaintiff ‘s case is

neither successful nor frivolous. One example involved a newspaper’s action

against a city for disclosure of emails concerning public business sent and

received through the personal account of a member of a city council, where the

21

trial court ruled the records unavailable under the CPRA but this court

dismissed without reaching the merits, due to the plaintiff’s failure to join the

council member as a necessary party at the appellate stage. This court ruled

that this procedural defect which “doomed” the case did not render it frivolous,

however, since

the petition attempted to raise an important and novel issue

concerning whether writings in the sole possession of a city council

member are "prepared, owned, used, or retained by any state or local

agency" (Gov. Code, § 6252, subd. (e)) and are therefore subject to a

public records request under the Public Records Act and the

California Constitution. The participation of amici curiae attests to

the importance of the issue. We therefore conclude that this

proceeding is not clearly frivolous.

Tracy Press v. Superior Court (2008) 164 Cal.App.4th 1290, 1302.

b. Got Some or All of What It Sought After, but Not Because, It Sued

The “catalyst” rule of Belth v. Garamendi, supra does not come into

play if the defendant’s production of requested documents was not caused by

the plaintiff’s filing of the action, i.e., where delay in the eventual production

of records resulted from factors other than deliberate denial of access, or

improperly conditioning access on a stipulation that certain “embarrassing

information” could be redacted and that the information released would not be

circulated to others. Fontana Police Dept. v. Villegas-Banuelos (1999) 74

Cal.App.4th 1249, 1251.

For example, where the agency commences its search for requested

records before the action is filed and produces most of the documents

responsive to the request, its later post-filing discovery and production of other

responsive but overlooked documents is a result of its continuing due diligence

22

and not of the filing of the action. Rogers v. Superior Court (1993) 19

Cal.App.4th 469, 483. In short, delayed production of documents until after

the action is filed will justify a catalyst fee if the delay resulted from “agency

intransigence,” but not if it was attributable only to inadvertent bureaucratic

processing lags due to “administrative problems.” Motorola Communication &

Electronics, Inc. v. Department of General Services (1997) 155 Cal.App.4th

1340, 1346.

3. Prevailing Law: Agency Is Due Fees When Requester—

Got None of What It Sought in a Case Not Even Arguably Meritorious

This is the other side of the fee-shifting rule in Government Code

Section 6259, subdivision (d): “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.” There are no published cases finding such an award

applicable for utter lack of merit. In Butt v. City of Richmond (1996) 44

Cal.App.4th 925, the only appellate case affirming the award of fees to a

defendant public agency, a discussion of the merits of the case was ordered

unpublished.

4. Trial Court’s Hybrid Theory: Agency Is Due Fees When Requester—

Got Very Little of What It Sought in an Arguable Case That Might Have Been

Unnecessary

This is the hybrid category created by the trial court, without precedent

or consistency with either the law or the facts. The error began with its March

15, 2010 tentative decision with the contradictory findings that on the one hand

Crews was entitled to any email attachments he could identify, if not exempt

from disclosure (and he reported receiving 91 pages of them thereafter), but

that on the other hand Crews did not prevail in the litigation and was not

entitled to attorney fees.

23

Los Angeles Times v. Alameda Corridor Transportation Authority,

supra, 88 Cal.App.4th at 1391-92, teaches that a plaintiff obtaining more than a

“minimal or insignificant” portion of the records requested can be said to have

prevailed, even if not completely successful. The court here did not find, nor

could it have found at that point, that the attachments were quantitatively

“minimal” or qualitatively “insignificant,” since they had yet to be produced.

For all the court knew, one or more attachments might contain key evidence as

to the involvement of the superintendent in prohibited activity.

B. Lack of “Benefit” to the Plaintiff Does Not Render the Litigation Frivolous

The trial court’s conclusion in its November 1 judgment that the

litigation “did not result in any benefit whatsoever to the petitioner and was

therefore frivolous” (emphases added) is the non sequitur crystallizing the

court’s fundamental conflation of the fee entitlement standards. A case

without “any benefit whatsoever” to the plaintiff—decisively less success than

the “minimal or insignificant” harvest described in Los Angeles Times—

disentitles him to attorney fees simply because it means he did not prevail. But

it does not render the case “therefore frivolous” because if it did, every

unproductive CPRA case, however well-meant and ably waged, would be

frivolous; the price of losing would be approximately twice as high as it now

is; and the incentive to use the courts to enforce public information law would

be reversed.

C. Crews’ Going to Court Was Neither Premature nor Unnecessary to Obtain

Records

The filing of a CPRA action can be said to be both “premature and

unnecessary” when done before the government has been given its due

opportunity to respond, i.e., before expiration of its 10-day period for making

and informing the requester of its determination.

24

Here, by contrast, Crews filed and served his action on April 28 and

May 5, respectively, approximately two months after making his March 5

request, and one month after the District’s extended time for a determination

response had expired, with no word on what kind of email content would be

withheld as exempt from disclosure. Government Code Section 6253,

subdivision (c) provides, in pertinent part:

Each agency, upon a request for a copy of records, shall,

within 10 days from receipt of the request, determine whether

the request, in whole or in part, seeks copies of disclosable

public records in the possession of the agency and shall

promptly notify the person making the request of the

determination and the reasons therefor. In unusual

circumstances, the time limit prescribed in this section may

be extended by written notice by the head of the agency or his

or her designee to the person making the request, setting forth

the reasons for the extension and the date on which a

determination is expected to be dispatched. No notice shall

specify a date that would result in an extension for more than

14 days.

Indeed if the District ever articulated its exemption positions (instead of

simply redacting information it did not wish disclosed), it could only have been

to the court in the in camera hearing of September 1—some 16 months after

the action was filed—unattended by Crews’ counsel. None of the 3,200

records said to have been reviewed in that session was ordered released to

Crews, nor did the court identify any exemptions applicable to particular

documents, despite Crews’ pre-hearing motion, diligently arguing the

inapplicability of a number of exemptions that it anticipated the District might

be asserting.

25

The District, in short, never provided a “determination and the reasons

therefor” that would govern the extent of its email disclosure. That, and the

fact that from the very beginning it refused to provide emails in native format

despite undisputed expert testimony that doing so was not difficult, and a

CPRA mandate to provide records in any format used by the agency, should

remove any doubt that the litigation was neither “premature” nor

“unnecessary.” Why the 3,200 records were not ordered released is not known,

but it cannot be denied that the District would never have been forced to

consider releasing them had no action been filed. Even if “premature and

unnecessary” litigation was enough to make an action “clearly frivolous” – and

it isn’t – there is no support for such a finding here.

III. Conclusion

Plaintiff/Petitioner Tim Crews, likely the state’s most experienced

journalist litigant under the CPRA, used a request under that statute in

seeking to verify an informant’s tip that a school district superintendent had

made unlawful use of public funds to influence an election. His request to

the District sought the prior year’s worth of messages to and from the

superintendent in electronic format. Approximately two months later,

having received neither any records nor even a letter of determination as to

which if any exemptions from disclosure would be applicable, Crews filed

an action seeking an order for disclosure, and only then began receiving

email messages—in an unsearchable PDF format. He continued to protest

this unresponsive production after his offer to accept PDFs in return for

expedited production was rejected. His compromise offer was argued by

the district to be a waiver, and the trial court, despite evidence to the

contrary, even found that he had insisted on PDFs.

Production of all that Crews would get ended almost eight months

after his request, leaving thousands of responsive messages and all

26

attachments unreleased. The court reviewed 3,200 of the messages in

camera but neither ordered any of them released nor announced any reason

to excuse their disclosure. The court then entered a tentative statement of

decision finding Crews not to have prevailed and not entitled to an award of

attorney’s fees. The court later adopted that decision in a final statement,

but for the first time adding an attorney fee award to the District, finding

Crews’ resort to and persistence in the litigation:

• entirely without benefit to him—despite the release of email

messages that began only after he sued, and the production of attachments

only months later, on order of the court;

• premature, despite the District’s utter failure to specify either

within the provided statutory response period or even later which if any

messages would be withheld under which exemptions; and

• unnecessary, for failing to use “a neutral to resolve any issue

presented before application was made to the court,” despite Crews’ having

offered to hire and pay just such an arbiter, which offer the District had

rejected.

All three findings are contrary to fact, and even if true, insufficient

to show frivolousness. A CPRA lawsuit that results in no benefit to the

plaintiff is not for that fact frivolous; it simply disqualifies the plaintiff

from an attorney fee award. A CPRA lawsuit is premature to the point of

frivolousness only if it is filed before the government has had due

opportunity to make a determination of exemption. A CPRA lawsuit that

could have been avoided by recourse to an extrajudicial third party arbiter

is not frivolous, because no such mechanism is contemplated in the statute

as an even reasonable, much less required, dispute resolution alternative. A

27

march to the courthouse on the schedule allowed in the law is not a race to

the courthouse depriving the government of due deliberation.

For these reasons, not only should the judgment against Crews be

reversed, but he should be awarded his own attorney’s fees for securing the

release of withheld attachments.

Dated: 1st day of October, 2012.

JOSEPH T. FRANCKE

By:

_________________________________

Joseph T. Francke

Attorney for Amici Curiae WILLIAM T.

BAGLEY, LELAND YEE and

CALIFORNIANS AWARE

28

CERTIFICATE OF COMPLIANCE

I, Joseph T. Francke, counsel for Amici Curiae WILLIAM T.

BAGLEY, LELAND YEE AND CALIFORNIANS AWARE in the instant

matter, Tim Crews v. Willows Unified School District et al., Case No.

C066633, hereby certify that the foregoing document was prepared

pursuant to and in compliance with California Rule of Court Section

8.204(c)(1). This brief contains a total of 5,810 words and was formatted in

Times New Roman, 13-point typeface.

I declare under penalty of perjury that the foregoing is true and

correct.

Dated: October 1, 2012 Respectfully submitted,

________________________________

Joseph T. Francke

Attorney for Amici Curiae

________________________________

29

PROOF OF SERVICE

Tim Crews v. Willows Unified School District No. C066633

I, Joseph T. Francke, state:

I am a citizen of the United States. My business address is 2218

Homewood Way, Carmichael, CA 95608. I am employed in the County of

Sacramento where this mailing occurs. I am over the age of eighteen years

and not a party to this action. On the date set forth below, I served the

foregoing documents described as:

APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE


on the following person(s) in this action addressed as follows: Matthew P. Juhl-Darlington MATT JUHL-DARLINGTON & ASSOCIATES 555 Main Street, Suite 210 Chico, CA 95928 Tel: 530-343-3334 Fax: 530-924-4784 Email: [email protected] Attorneys for Defendant and Respondent

Clerk Superior Court of California County of Glenn Willows Branch - Main Courthouse 526 West Sycamore Street Willows, CA 95988

Donald A. Velez BURKE, WILLIAMS & SORENSEN, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612-3501 Tel: (510) 273.8780 Fax: (510) 839.9104 Email: [email protected] Attorneys for Respondent Willows Unified School District

Office of the Clerk Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 (4 copies)

30

Karl Olson RAM, OLSON, CEREGHINO & KOPCZYNSKI LLP 555 Montgomery Street, Suite 820 San Francisco, CA 94111 Tel: 414-433-4949 Fax: 415-433-7311 Email: [email protected] Attorneys for Plaintiff and Appellant Tim Crews X BY FIRST CLASS MAIL - I am readily familiar with my firm’s

practices for collection and processing of correspondence for mailing with the United States Postal Service, to-wit, that correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business. I sealed said envelopes and placed them for collection and mailing this date, following ordinary business practices.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct and that this declaration

was executed on October 3, 2012 at Carmichael, California.

_______________________________

bagley-yee amicus brief for crews

Documents

willows unified

unsupported

ca 95608 terrycalaware

los angeles

c066633 tim

open meetings

amici curiae

appellate