BY PETER SCHEER–Despite the dysfunction in Washington, Congress occasionally surprises with a modest piece of legislation that points the way for California and many other states. So it is with a 2014 Federal Records Act amendment which addresses this question: Suppose a federal employee, using his own personal text or email account, sends a message that is clearly about government business?
The Federal Records Act amendment, at section 2911, says that the employee is now required either to copy “an official electronic messaging account . . . . in the original . . . transmission of the record” or, within 20 days, to forward “a complete copy of the record to an official electronic messaging account.”
Such a simple, elegant solution to an issue that for years has vexed the California courts—and is even now before the state Supreme Court in a case involving San Jose city officials who use private email for city business. On this issue, California should take its cue from the feds.
Goodby Kusar
For years it has been almost impossible to conduct historical research using law enforcement records in California. Not only are many such records exempt under the CPRA, but police could withhold non-exempt records if they were more than 60 days old. That was the gist of the holding in a 1993 appellate decision, Los Angeles v. Kusar.
But a new Court of Appeal decision has rejected Kusar. In Fredericks v. Superior Court of San Diego, The appeals court found that the language of the CPRA does not support the temporal limitation that the Kusar decision had engrafted on a police department’s obligation to make available public records on request.
Kudos to Davis Wright Tremaine attorney Kelli Sager, who wrote a key amicus brief in the Fredericks case for the Reporters Commitee for Freedom of the Press, for FAC and other amici.
No more fee awards for government agencies
Another new court decision puts nails in the coffin of a local government legal strategy to deter CPRA requests. The strategy called for government lawyers, in cases where they prevailed against PRA requesters, to demand that requesters pay the government’s legal fees—a sanction that can easily reach six-figures.
This strategy was roundly defeated in a 2012 decision involving journalist and publisher Tim Crews. Crews v. Willows Unified School District. Now comes a new decision, Bertoli v. Santa Rosa, which puts to rest any remaining hope among government lawyers for obtaining fee awards in CPRA cases.
The court in Bertoli held that, to justify a fee award in favor of the government, it must be shown that a CPRA requester acted with an improper purpose (e.g., to harass rather than to obtain records), or that her lawsuit is totally without merit. The court also clarified that an unduly burdensome PRA request, while grounds for denying access to records, is never a sufficient basis for an award of fees against a requester.
Kudos to San Francsco attorney Karl Olson, who wrote an amicus brief for FAC in the Bertoli case and also participated in oral argument.
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