California police unions, agencies should pay attorneys’ fees in fight over misconduct records

Update: On May 18, an appellate court panel reversed the trial court’s order requiring the ACLU and media intervenors to strike their requests for attorneys’ fees and remanded the case to permit the intervenors to seek fees. The appellate court held that the condition imposed by the trial court was “unreasonable and amounted to an abuse of discretion.”

The Reporters Committee for Freedom of the Press is supporting a group of San Diego news outlets in their fight for attorneys’ fees after they intervened in a police union lawsuit that sought to block officer misconduct records from being released under the California Public Records Act.

After California passed legislation in 2018 mandating the disclosure of certain police misconduct records, Scripps Media and five other San Diego news organizations, along with the American Civil Liberties Union, filed state records requests with multiple agencies seeking records of officers investigated for police shootings, sexual assault and other misconduct. They specifically asked for records generated before the new law, SB 1421, went into effect in January 2019.

Led by the Carlsbad Police Officers Association, a group of police unions responded by filing a lawsuit against the agencies to keep the records from being released retroactively, prompting the news organizations and the ACLU to intervene.

While a judge ruled in March that the agencies must release the requested records, there remains a dispute over whether the organizations fighting for the records are entitled to attorneys’ fees.

In a friend-of-the-court brief filed on Dec. 20, attorneys for the Reporters Committee argue that California’s Fourth District Court of Appeal, Division One, should reverse a lower court ruling that the prevailing news organizations cannot recover attorneys’ fees in a “reverse-CPRA” case, in which a third party is trying to prevent the release of requested documents.

The brief states that the agencies subject to the records requests should pay the news organizations’ fees under the California Public Records Act, while the unions trying to block the release of the records should pay fees for the news outlets and the ACLU under the state’s private attorneys general statute, which allows parties to recover attorneys’ fees if they prevail in litigation that results “in the enforcement of an important right affecting the public interest.”

“Without certainty that those fees will be recovered in successful actions,” Reporters Committee attorneys argue, “the press and the public will be disincentivized from pursuing public records that have been wrongfully withheld.”

The California Public Records Act includes what’s known as a “fee-shifting” provision, which allows requesters who prevail in public records lawsuits to recover attorneys’ fees and costs. Reporters Committee attorneys argue that mandatory fee shifting is critical to ensuring that the public’s right of access to government records is properly enforced.

The brief notes that agencies in states with fee-shifting provisions “tend to demonstrate better compliance with public records laws.”

It also stresses the importance of such provisions in reverse-CPRA litigation. Reporters Committee attorneys argue that financially strapped news organizations would be less likely to intervene in such cases to fight for the public’s right to access records knowing they will be on the hook for costly attorneys’ fees — even if they win.

Moreover, because most reverse-CPRA lawsuits are intended to delay or deny public access to government information, awarding attorneys’ fees discourages third-party plaintiffs from filing frivolous cases in the first place.

“Affirming the trial court’s order would put public records further out of reach for journalists and, accordingly, limit the public’s ability to better understand, analyze, and critique actions of government, contrary to the purpose of CPRA,” the Reporters Committee’s brief states.

Read the full Reporters Committee brief.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.