The California Public Records Act provides for public inspection of records maintained by state and local agencies and declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” To effectuate the public’s right to see public records subject to disclosure, the PRA allows any person to institute proceedings for injunctive or declarative relief or writ of mandate. Moreover, the “prevailing party” in PRA litigation is entitled to attorney fees. The fee award “is mandatory if the plaintiff prevails.”
As the Court of Appeal for the Fourth Appellate District wrote on August 15, 2017 in Sukumar v. City of San Diego, __ Cal.App.5th __ (Case No. D071527), the “losing party may still be deemed a prevailing party entitled to an attorney fee award.” The rationale is that the plaintiff has prevailed under the PRA when he or she files an action that results in the defendant public agency releasing a copy of a previously withheld document. Thus, a plaintiff need not achieve a favorable final judgment to be a prevailing party in PRA litigation. A defendant’s voluntary action in providing public records that is induced by a plaintiff’s lawsuit will still support an attorney fee award if the lawsuit “spurred defendant to act or was a catalyst speeding defendant’s response.”
In Sukumar, the City of San Diego initiated code enforcement proceedings in response to neighbor complaints about Sukumar’s use of his property. Sukumar’s attorney filed a Public Records Act request seeking documents to assist in his defense of the proceedings. The City designated one of its employees to be responsible for providing a written response to the request and coordinating the production of responsive documents. The City then responded to the request and made various responsive, non-exempt records available for Sukumar’s review. The City later affirmed that it had “searched as broadly and thoroughly as possible to locate documents requested.”
Sukumar filed PRA litigation alleging that some of the documents the City produced demonstrated that other responsive records had not been produced. At trial, the City’s attorney represented that the City had produced everything. Following the trial court’s order of depositions of “persons most knowledgeable,” however, the City produced additional documents. The trial court considered the City’s delay in producing responsive documents reasonable and the result of mere oversight. The court thus denied Sukumar’s motion for approximately $94,000 in attorney fees plus $5,400 to prepare the fee motion.
On appeal, the Court noted that California’s courts take a pragmatic approach in defining a “prevailing party.” To justify a fee award under the catalyst theory there must be a causal connection between the lawsuit and the relief obtained. In other words, the litigation must have been the “motivating factor” for the production of documents that otherwise would not have been produced. The Court thus held that “[i]n the face of the City’s unequivocal assertion . . . that it had already produced everything, the conclusion seems inescapable that but for Sukumar’s persistent demand for discovery and the court-ordered depositions that resulted from those efforts, the City would not have produced any [additional] responsive documents.” Moreover, the Court declared that
“The effect of the City’s inability or unwillingness to locate and produce these documents until court-ordered discovery ensued . . . is tantamount to withholding requested information from a PRA request.” (Emphasis in original).
Sukumar underscores the power of the remedies available to enforce the public’s right to inspect non-exempt public records. This is true even if there is no evidence an agency has intentionally withheld public records, because bad faith is not the test. Rather, a plaintiff prevails in PRA litigation when he or she files an action that results in the defendant public agency releasing a copy of a document that was previously withheld, regardless of the reason.