FAC to California Court of Appeal: The Public Can’t See What No Longer Exists

FAC recently filed a “friend of court” brief in a California Court of Appeal case addressing an issue of critical importance to the public’s ability to obtain records under the California Public Records Act: should a CPRA requester be required to get a court order—an injunction—to prevent the government from destroying records?

The clear answer is “no.”  If the CPRA stands for anything, it is the idea that the government has a duty, at an absolute minimum, to retain records sought under the CPRA.  That obligation stems from the government’s legal duty to provide records under the CPRA.  As FAC’s amicus brief puts it, “the public can’t access records that no longer exist.” Thus, no CPRA requester should have to get a separate court order to prevent the destruction of those records.  

But in the case of Stevenson v. City of Sacramento, not only did Richard Stevenson and Katy Grimes have to obtain an injunction to prevent the wholesale destruction of million of emails they sought, but they had to post a bond—i.e., make a payment—in order to prevent that destruction.

Grimes and Stevenson have appealed the order requiring them to post a bond in order to prevent the destruction of records.

FAC’s amicus brief supports the argument that no records requester should have to put up thousands of dollars in bond money to prevent the destruction of public records.  But FAC also makes a larger, more fundamental point: no injunction should be required in the first place.  As FAC explained in its amicus brief:

Requiring PRA requesters to obtain an injunction to prevent the destruction of records at issue in PRA litigation runs directly counter to the purpose of the California Public Records Act and the clear mandate of the California Constitution, both of which require that records relating to the people’s business be made available to the public. That which does not exist plainly is not “available,” and nothing in the CPRA or any other law requires the public to obtain a specific order requiring agencies to preserve records to which they are entitled under California law—and that which California law requires all litigants to preserve in any event.

Karl Olson of the law firm Cannata, O’Toole, Fickes and Almazan in San Francisco prepared FAC’s amicus brief, which was joined by the Sacramento Bee, The Reporters Committee for Freedom of the Press, The Sacramento Valley Mirror, The North Coast Journal, The Ferndale Enterprise, The Lake County News, The Davis Vanguard, The Woodland Record, and Californians Aware.

The case is Richard Stevenson and Katy Grimes v. City of Sacramento, Sacramento County Case No. 34-2015-8000215, California Court of Appeal No. C080685.


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