California Court of Appeals, Third District, Glenn
APPEAL from a judgment of the Superior Court of Glenn County No. 09CV00697, Peter Twede, Judge.
RAM, OLSON, CEREGHINO & KOPCZYNSKI and Karl Olson for Plaintiff and Appellant.
JOSEPH T. FRANCKE for William T. Bagley, Leland Yee and Californians Aware; DAVIS WRIGHT TREMAINE, Duffy Carolan and Dan Laidman for First Amendment Coalition, California Newspaper Publishers Association, Los Angeles Times Communications, McClatchy Company, California Newspapers Partnership, The Orange County Register, Hearst Corporation and The Press-Enterprise as Amici Curiae on behalf of Plaintiff and Appellant.
BURKE WILLIAMS & SORENSEN, Donald A. Velez and Amy E. Hoyt; MATT JUHL DARLINGTON & ASSOCIATES and Matthew P. Juhl-Darlington for Defendants and Respondents.
ATKINSON, ANDELSON, LOYA, RUUD & ROME, A. Christopher Duran, Elizabeth P. Lind and Paul M. Loya for California School Boards Association’s Education Legal Alliance as Amicus Curiae on behalf of Willows Unified School District et al.
This appeal arises out of an order for payment of attorney fees and costs by a newspaper publisher to a public agency that complied with a burdensome request for documents under the California Public Records Act (PRA) (Gov. Code, § 6250 et seq.). Section 6259, subdivision (d), provides for an award of attorney fees and costs to the public agency in the event of a “clearly frivolous” PRA case. The trial court in this case found Tim Crews, the publisher of a newspaper with a small circulation in Glenn County, pursued a frivolous PRA petition against the Willows Unified School District (District). Crews made the PRA request as part of his investigation into whether District Superintendent Steve Olmos used public resources for such improper purposes as supporting the recall of the Glenn County Superintendent of Schools. Crews asked for a one-year period of e-mails to and from Olmos. The District responded that it would comply with the request but noted it would have to withhold some documents as required by the Education Code and other statutes that impose confidentiality protections. The District also requested that Crews narrow his request, a request Crews declined. Over the ensuing weeks, the District and Crews also discussed the format in which the e-mails would be delivered, eventually settling on scanned copies of the printed and redacted e-mails.
On the day the District had previously indicated it would begin turning over the requested documents, Crews filed a PRA petition in the superior court to compel production of the promised documents. Although Crews had not received any documents when he filed his PRA petition, he did not serve his petition on the District until after he started receiving the scanned copies of the e-mails. District employees ultimately spent 198 hours in reviewing, printing, scanning, and turning over approximately 60, 000 e-mails in portable document format (PDF). The District withheld approximately 3, 200 pages under a claim the documents were exempt from disclosure under the PRA. The trial court eventually spent “an inordinate amount of time in reviewing the documents” in camera before finding the District did not improperly withhold any documents. The District’s omission of 91 pages of attachments appears to have been inadvertent and cured when the District realized its error. The trial court denied Crews’s PRA petition on the merits and also found the PRA petition to be frivolous. Based on having to defend the frivolous PRA petition, the court awarded fees and costs to the District. Crews then petitioned this court for a writ of mandate to reverse the denial of his PRA petition by the trial court. (See § 6259, subd. (c) [limiting appellate challenge to the denial of PRA petition to writ review].) This court summarily denied the petition.
Crews also appealed from (1) the judgment denying his PRA petition and ordering attorney fees and costs to the District for defending against a frivolous PRA petition; and (2) the post-judgment order determining the amount of attorney fees and costs. On appeal, Crews contends we must reverse the award of attorney fees and costs because his petition was not frivolous, he was really the prevailing party in this action, and the punitive nature of the award would have an impermissible chilling effect on journalists seeking to investigate governmental wrongdoing. The District asserts the petition was clearly frivolous because it did not result in the production of any documents requested under the PRA. Thus, the District requests that this court affirm the attorney fees and costs award.
Our previous denial of Crews’s request for an appellate writ of mandate conclusively resolves that the trial court properly denied the PRA petition. (Butt v. City of Richmond (1996) 44 Cal.App.4th 925, 929 (Butt); Powers v. City of Richmond (1995) 10 Cal.4th 85, 90-91.) Nonetheless, Crews’s appeal from the judgment properly challenges the award of attorney fees and costs to the District for defending against a frivolous PRA petition. (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1344, fn. 2 (Motorola).)
We conclude the PRA petition lacked merit but was not frivolous. Crews filed the petition before he received any documents from the District. After rolling production of documents began, Crews relied on the PRA petition to challenge (1) the District’s withholding of documents claimed to be exempt from disclosure and (2) the District’s compliance with a conditional agreement to produce e-mails in PDF format by a reasonable date. Although Crews did not succeed in securing the withheld documents, his arguments on the matter were sufficiently meritorious to cause the trial court to examine the documents in camera. As to Crews’s pursuit of e-mails in native format instead of PDF format, it remained uncertain whether the scanned e-mails were received in a timely manner and permissible PDF format until the trial court resolved the issue in the District’s favor. Thus, while Crews was unsuccessful in obtaining withheld documents or e-mails in native format, his PRA petition was not frivolous. Consequently, we reverse the award of attorney fees and costs to the District.
FACTUAL AND PROCEDURAL HISTORY
Crews’s Request for Records from the District
The District serves 1, 700 students in four schools but employs only five administrators. The low level of staffing requires Olmos, the District’s superintendent, to carry out duties that include: interacting with the school board, serving as the human resources administrator, serving as principal of one of the schools, handling student expulsions and discipline, engaging in staff and curriculum development, handling special education considerations, and attending extracurricular events at the schools.
On March 5, 2009, Crews requested that the District produce all e-mails to and from Olmos for the preceding year. On March 15, 2009, the District responded that it would comply with the request with the exception of those documents exempt from disclosure. Fifteen days later, the District stated it could begin producing documents on April 28, 2009. The District estimated Crews’s request encompassed approximately 60, 000 e-mails that would result in approximately 30, 000 printed pages. On April 10, 2009, the District asked Crews to narrow his request in order to make compliance easier and less burdensome. Crews declined.
Olmos undertook the task of reviewing the e-mails subject to the request and sought technical assistance in determining the optimum way to provide the materials to Crews. As the trial court noted, the records request “required Dr. Olmos to personally review his e-mails and then to submit them to the districts [sic] legal staff to insure the protections he is required to provide to the school district, his staff and particularly the students in the district were strictly complied with.” The District’s director of technology services informed Olmos it did not have the software capable of redacting e-mails that contained exempt or privileged information. Thus, the District was required to print, redact, and scan the e-mails to ensure safeguarding confidential information.
The District’s legal counsel informed Crews of the procedure it planned to use to comply with his records request. On May 6, 2009, Crews’s legal counsel informed the District an agreement had been reached to provide the requested materials on compact discs (CDs). The transmission of the requested materials remained a contentious issue. Eventually, Crews’s attorney informed the District: “We can agree to disagree over whether or not producing the e-mails in the precise pdf format that [the District is] using is sufficient compliance with the [PRA]. If you commit to produce all remaining e-mails by a reasonable date of your choosing, then the electronic format won’t be an issue.”
On April 29, 2009, the District delivered the first CD of e-mails in PDF format to Crews. The rolling production continued with the last CD of e-mails in PDF format delivered on December 3, 2009. The District withheld documents it claimed were exempt from disclosure: drafts, notes, or intra-agency memoranda; pending litigation; student ...