On July 25, 2018, the Third District Court of Appeal published Nat’l Conference of Black Mayors v. Chico Community Publishing, Inc. , __ Cal.App.5th __ (2018) (Case No. C083956), a case of first impression addressing whether the Public Records Act allows an award of attorney fees to a requester who litigates against an officer of a public agency in a mandamus action the officer initiated to prevent the public agency from disclosing records the agency agreed to disclose.

The case arose in connection with a Public Records Act request the Sacramento News and Review filed to obtain email records in the City’s possession that were sent from private email accounts associated with the office of Sacramento’s then Mayor Kevin Johnson. The request followed the newspaper’s investigation into Johnson and his staff’s use of city resources in the take over and eventual bankruptcy of the National Conference of Black Mayors.

The City initially disclosed approximately 900 pages of records responsive to the request. In the City’s review of the records on its servers, however, it identified communications between Johnson’s office and the law firm that represented the National Conference in its bankruptcy proceedings and Johnson in litigation connected with his contested election as the National Conference’s president. The City flagged these emails as potentially containing attorney-client privileged information and contacted the law firm to notify it that the City would be required to release those emails absent a court order stating otherwise because the City had no authority to assert attorney-client privilege over the records on behalf of outside counsel.

Following the newspaper’s refusal to allow the City to withhold emails containing attorney-client communications, the National Conference, and Johnson in his official capacity as the former president of the National Conference, filed a verified petition for peremptory writ of mandate against the City pursuant to Code of Civil Procedure section 1085 to prevent disclosure of records to the newspaper. The petitioners sought to keep emails between Johnson’s office and the law firm from disclosure arguing the emails constituted privileged attorney-client communications and attorney work product. Although the City did not oppose petitioners’ writ petition, the newspaper did.

After reviewing the records, the law firm determined several hundred of the records were not privileged and the City produced those records to the newspaper. The law firm also created a privilege log identifying various records as being privileged. Following an in camera review, the trial court ordered disclosure of additional emails but ruled that other emails were privileged and did not need to be disclosed. Based on those findings, the newspaper moved for attorney fees under the PRA from Johnson for using his status as a public official to oppose the newspaper’s request for public documents. The newspaper also moved for attorney fees under the private Attorney General statute (Code Civ. Proc. § 1021.5) from each of the petitioners because it successfully secured important public rights. The trial court denied both motions.

The Court of Appeal affirmed the trial court order denying attorney fees. The Court noted that California follows what is commonly referred to as the “American rule,” which provides that each party to a lawsuit must ordinarily pay his own attorney fees. However, attorney fees are recoverable as costs by a prevailing party when authorized by contract, statute, or law. The PRA contains one such fee-shifting statute, in Government Code section 6259(d), which provides:

“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. 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.”

The language of the attorney fee provision in the PRA explicitly limits an attorney fee award to a plaintiff who “prevail[s] “in litigation filed pursuant to [the exclusive procedure for bringing an action under the Act].” Ignoring that language, the newspaper essentially asked the Court to conclude it is entitled to attorney fees under the PRA because it prevailed in achieving the purpose of the Act—disclosure of public records following litigation against a public official seeking to keep the records from disclosure.

The Court rejected the newspaper’s argument, reasoning that the PRA is only implicated once a public agency denies a public records request, and only then may that requester bring an action under the Act. Here, however the City did not withhold public records from the newspaper, thus the newspaper could not initiate litigation under the exclusive procedure provided in the PRA. Because the newspaper did not bring an action under the PRA against the City to compel disclosure of public records, the Court held that the newspaper is not entitled to attorney fees under the Act.