Opinion
E066325
01-13-2017
DEBORAH CAMOU, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CITY OF MONTCLAIR, Real Party in Interest.
Dammeier Law Firm and Dieter C. Dammeier for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1506776) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate. Gilbert G. Ochoa, Judge. Petition granted. Dammeier Law Firm and Dieter C. Dammeier for Petitioner. No appearance for Respondent.
Best, Best & Krieger, Howard B. Golds and Elizabeth A. Han for Real Party in Interest.
Having read and considered the petition, the informal response, petitioner's reply, and the record provided by both parties, we find merit in the petition. Our order requesting an informal response notified real party in interest that a peremptory writ might issue unless it showed good cause to the contrary. We now issue a peremptory writ in the first instance because real party in interest received "due notice" (Code Civ. Proc., § 1088) and "it appears that the petition and opposing papers on file adequately address the issues raised by the petition, that no factual dispute exists, and that the additional briefing that would follow issuance of an alternative writ is unnecessary to disposition of the petition." (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
We also note real party in interest filed a preliminary opposition arguing the petition failed because it based its arguments on the minute order the trial court issued on June 10, 2016, rather than the judgment the court entered on June 23, 2016. Real party in interest cites no authority for this request, and it points to no difference between the minute order and the judgment that might affect our analysis. Moreover, real party in interest provided the judgment that was omitted from the record filed with the petition, such that we have been able to review it to verify that there is no material difference between the two versions of the trial court's written orders from June 10, 2016. For this reason, we find it of no import that this petition included the minute order but not the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2015, petitioner Deborah Camou requested eight categories of documents from real party in interest City of Montclair (real party) under the Public Records Act (PRA) (Gov. Code, § 6250 et seq.). Each of the categories sought records related to a former city manager named Ed Starr.
Real party responded to petitioner's PRA request by letter on April 21, 2015. It offered to produce documents responsive to several categories of documents, including the three that are at issue in this petition. On May 4, 2015, real party wrote a letter to petitioner's counsel indicating that documents were available for pickup upon receipt of the copying fee, and that a new "communication" responsive to a category in the PRA request had been discovered and was being produced for the first time.
Petitioner filed a petition under the PRA in the trial court on May 12, 2015, and a first amended petition on June 9, 2015. The first amended petition alleged real party had failed to disclose documents in response to the categories numbered 2 through 5, and 8 of her PRA request.
We discuss specifics of these categories and of the first category, which we mention next, post.
On January 21, 2016, the trial court granted a motion by petitioner for leave to file a second amended writ petition. That pleading, which petitioner filed the same day, added an allegation that respondent had failed to disclose documents that were responsive to the first category of the PRA request. Petitioner asserts the amendment was necessary because real party, in response to discovery, had produced, as a courtesy and with reservation of the right to say the document was nonresponsive, a previously undisclosed document that was allegedly responsive to category 1. In the second amended petition, petitioner also requested attorney fees and costs.
The trial court held a hearing on the merits of the second amended petition on June 10, 2016. Petitioner indicated only three categories of her PRA request were still at issue (1, 3 and 5). After hearing argument from petitioner and real party, the trial court took the matter under submission and then denied the petition by minute order.
That minute order gave the following explanation for the court's ruling: "Camou filed her petition on May 12, 2015, without attempting to communicate with City regarding any documents Camou believed were being incorrectly or improperly withheld. City produced additional documents on August 19, 2015, as a courtesy, even though City did not agree with Camou's interpretation of the documents as being agreements between City and Mr. Starr. Thus the City was entirely unaware that Petitioner was dissatisfied until the filing of this action. Had Camou communicated with City regarding any documents Camou believed were being incorrectly withheld, this writ petition may not have been necessary. There is no evidence of any intentional and or willful withholding of any documents that were subject to disclosure. Rather, any withholding was the result of vague and unclear described categories in the PRA requests by Petitioner. The request for Camou's attorney fees is also denied."
This petition followed on July 1, 2016. Petitioner acknowledges that the denial of her request for attorney fees and costs is appealable (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1388-1389 (Los Angeles Times)), while the only mechanism for review of the denial of a PRA petition is an extraordinary writ (Gov. Code, § 6259, subd. (c)). She has now filed a separate appeal from the denial of her request for attorney fees and costs (case No. E066636) and moved to consolidate the two proceedings. As we explain in this opinion, we agree with petitioner that the trial court erred when it denied her PRA petition, and we grant the writ petition accordingly. In the course of explaining our reasons for doing so, we also explain why petitioner is the prevailing party for purposes of entitlement to attorney fees and costs. (Gov. Code, § 6259, subd. (d).) We therefore remand this matter for reconsideration of petitioner's request for attorney fees and costs. (Los Angeles Times, supra, 88 Cal.App.4th at p. 1393). We also deny the motion to consolidate as the appeal in case No. E066636 appears moot.
DISCUSSION
"Our review of a trial court's rulings on questions arising under the PRA or the First Amendment is de novo; the trial court's factual determinations will be upheld if supported by substantial evidence." (American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 66.) While we generally review a determination regarding entitlement to attorney fees under the deferential abuse of discretion standard, "de novo review of an award is appropriate where the determination of whether the criteria for an award of attorney fees and costs has been satisfied amounts to statutory construction and a question of law." (Law Offices of Marc Grossman v. Victor Elementary School Dist. (2015) 238 Cal.App.4th 1010, 1013-1014.)
Much of the briefing the parties filed in this court asks us to decide under what standard of review a trial court should view allegations that a governmental agency has failed to comply with the PRA. Real party contends the abuse of discretion standard employed in traditional mandamus actions under Code of Civil Procedure section 1085 should apply, while petitioner argues in favor of something much less deferential to real party's refusal to disclose all documents requested. We need not decide this question because, even when trial courts employ the agency deference implicit in traditional mandamus review, they still find error if " ' "the decision of the agency was arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or procedurally unfair." ' " (Schwartz v. Poizner (2010) 187 Cal.App.4th 592, 598.) The task of a trial court in a traditional mandamus action is to verify that there was consideration of relevant variables by the agency before the challenged decision was made, and that the agency's decision is consistent with the purposes of the relevant statutory scheme. (Ibid.; see Citizens to Save California v. California Fair Political Practices Com. (2006) 145 Cal.App.4th 736, 754 [regulation promulgated by agency was arbitrary because it did not "effectuate the purpose of" the Political Reform Act of 1974].)
The PRA " 'was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies. [Citation.] The Legislature has declared that such "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." [Citation.]' [Citation.] Thus, ' "[t]he CPRA embodies a strong policy in favor of disclosure of public records. . . ." ' " (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1392-1393.) Disclosure of public records is the default, nondisclosure is defensible only if the records "come within a specific disclosure exemption," and these exemptions "are construed narrowly." (Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1275.) In other words, " '[A]ll public records are subject to disclosure unless the Legislature has expressly provided to the contrary.' " (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1418 (CYAC).)
In this case, the trial court identified three apparent reasons for its denial of the PRA petition, including that petitioner filed suit without communicating to real party that she thought it had not disclosed all responsive documents, that there was no evidence of willful or intentional withholding of documents, and that the categories in petitioner's PRA were "vague and unclear." Real party, either expressly or impliedly, relies on these same reasons in its opposition to the writ petition. We have found authority for the proposition that a PRA request "must itself be focused and specific" (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 481), and we address petitioner's compliance with this rule for most of the remainder of this opinion.
However, neither the trial court nor real party has provided authority for the propositions that petitioner was required to "communicate[] with the City that her interpretation of the PRA Request differed from that of the City's [sic]" before filing suit or that she needed to show proof that the withholding of documents was willful or intentional. In fact, our search for authority discloses that the law is other than as real party suggests and the trial court appears to have concluded. First, and as we discuss in more detail post, the agency, not the PRA petitioner, bears the burden of clarifying an unclear request. (Gov. Code, § 6253.1, subd. (a).) Second, "No bad faith finding [i]s required to support [a] finding there was a PRA violation." (CYAC, supra, 220 Cal.App.4th at p. 1428.) Because we see no " ' " 'rational connection between those factors, the choice made, and the purposes of the enabling statute' " ' " (Schwartz v. Poizner, supra, 187 Cal.App.4th at p. 598), we find that neither the extent to which petitioner communicated her dissatisfaction with real party's document production before initiating the lawsuit nor real party's intent when responding to the PRA request was relevant to the merits of the petition in the trial court, and we therefore do not discuss these issues further.
"In this case, we are presented not with a traditional claim of exemption of records, but rather with a question of the reasonableness of a given set of requests and responses." (CYAC, supra, 220 Cal.App.4th at p. 1419.) Before discussing the reasonableness of the items of petitioner's PRA request that are still at issue, we pause to dispel the notion that petitioner somehow bore the burden of clarifying her PRA requests.
Government Code section 6253, subdivision (b), requires an agency to respond to "a request for a copy of records that reasonably describes an identifiable record or records . . . ." "An agency may legitimately raise an objection that a request is overbroad or unduly burdensome. [Citation.] However, the courts need not take literally a request's language to deem it clearly excessive, but instead should construe the request reasonably, in light of its clear purposes." (CYAC, supra, 220 Cal.App.4th at p. 1425.)
Perhaps even more significant to this case is Government Code section 6253.1. The petition relies heavily on this statute, but the informal response we requested fails to cite it at all. Since the statutory language itself resolves the issue of who bore the burden of clarifying what with whom, we now quote it in full as relevant, with italics added for emphasis:
We omit subdivision (d), which no party has cited.
"(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
"(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
"(2) Describe the information technology and physical location in which the records exist.
"(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
"(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.
"(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253." (Gov. Code, § 6253.1, italics added.)
Having determined that real party was obligated to help petitioner clarify any requests that were uncertain, we now turn to whether any of the PRA requests were so vague as to justify real party's failure to respond. We discuss only those details of the history of categories 1, 3 and 5, and only those of the parties' contentions that are necessary to explain our holding.
Category 1 requested "[a]ll contracts or other agreements between the City of Montclair and Ed Starr." After producing Starr's employment agreement on May 5, 2015, real party provided another document as a "courtesy" when responding to discovery on August 19, 2015. The top of the document reads: "AGREEMENT [¶] CITY OF MONTCLAIR [¶] EMPLOYEE PURCHASE PROGRAM." The second amended petition alleged real party violated the PRA by not disclosing this document in response to category 1, and real party responded that the document is responsive to category 1 because it is nothing but an acknowledgment that Starr read a personnel policy. Inasmuch as Starr's signature on the document appears to have bound him to participate in a program by which employees could purchase computer systems and "to reimburse [real party] in full for the purchase price of the computer components as specified above under Payroll Deduction Schedule," we fail to see why the document labeled "agreement" is not a "contract[] or other agreement" between Starr and real party. The trial court wrongly found that the employee purchase program agreement was not responsive to category 1.
In category 3, petitioner demanded: "All Council Agenda and Minutes in which increases to Ed Starr's Compensation (salary, benefits or any other form of remuneration) was [sic] proposed, denied or approved while he has been City Manager." Real party provided the city council meeting agendas and minutes reflecting approval of the employment agreement it had produced in response to category 1. Petitioner complains real party did not also produce minutes and agendas showing approval of collective increases to compensation for members of the executive management employees, of which Starr is a member. Real party responds that it had no obligation to produce anything related to the executive management employees as a group, because petitioner's counsel had received collective bargaining agreements regarding that group in conjunction with previous PRA requests for other clients and therefore would have specifically asked for information about the executive management employees, collectively, if that is what he wanted to obtain.
We cannot draw the same conclusion as real party. Simple logic tells us that, by necessity, any council agenda or minutes that showed an increase in compensation to the executive management employees would, by necessity, show an increase to Starr and therefore be responsive to category 3. Even if everything real party has to say about counsel's receipt of documents is true, when we keep in mind real party's duty to clarify (Gov. Code, § 6253.1, subds. (a), (b)) and the policy favoring disclosure of public records (Bernardi v. County of Monterey, supra, 167 Cal.App.4th at pp. 1392-1393), we cannot say that real party's decision to interpret category 3 more narrowly than necessary was in compliance with the PRA. Finally, we see no reason why real party's counsel knowing that petitioner's counsel knew that Starr was a member of the executive management employees has to support the conclusion real party wants us to draw, when it seems equally likely that counsel could have assumed real party would produce every responsive document related to Starr's compensation, even if the source of that compensation was membership in the executive management employees. Council agenda and minutes reflecting changes to the compensation of the executive management employees are responsive to category 3.
Real party complains in its brief that petitioner's counsel may already have possession of some of the documents that are responsive to the PRA demand at issue in this case. Even if true, "possession of copies is not a basis to withhold" production of documents that are responsive to a PRA request. (Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 220.) Moreover, the record does not disclose that counsel already had all of the documents that are responsive to petitioner's PRA request, or that documents in addition to the ones he already possesses would not have been responsive to petitioner's requests as written.
Petitioner also argues real party violated the PRA by failing to produce documents regarding two stipends of $2,000 and a $500 "service award" that Starr is known to have received. According to real party in interest, records regarding these items were not responsive because they were one-time payments and therefore "were not wage increases." The inclusion of the language "salary, benefits or any other form of remuneration," as definition of "compensation" in PRA request 3 easily defeats this assertion and demonstrates why council agendas and minutes regarding the stipends and service award are also responsive to category 3.
Finally, category 5 requested, "Documents identifying credit/debit card payments by the City or reimbursements paid by the City to Ed Starr for expenses incurred by Ed Starr. These include but are not limited to, expenses for gas, food, lodging and other travel, home office expenses and training expenses while Ed Starr has been City Manager." Real party produced seven reimbursement claim forms, but petitioner alleged it violated the PRA by not also disclosing credit card statements for cards that were paid by real party in interest but used by Starr. Real party asserts it need not produce credit card statements because, "Mr. Starr was never reimbursed for these expenses by the City—the City directly paid the charges that were made on the City-issued credit card." In other words, real party insists the words "paid by the City to Ed Starr" must modify both "credit/debit card payments" and "reimbursements," instead of only modifying "reimbursements." Given that petitioner took time to explain that she was inquiring about Starr's travel, home office and training expenses, and also that we are not sure how anyone would make credit or debit card payments to Starr rather than on his behalf, we remind real party in interest that, " 'Feigned confusion based on a literal interpretation of [a] request is not grounds for denial.' " (CYAC, supra, 220 Cal.App.4th at p. 1425; see Gov. Code. § 6253, subd. (d) ["Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records."].) Credit and debit card statements for cards used by Starr are responsive to category 5, and real party violated the PRA by refusing to disclose them.
For the foregoing reasons, real party in interest failed to comply with the PRA when it failed to release all discoverable documents on request in the ways we have described. The trial court therefore erred in denying the PRA petition.
In addition, the trial court erred in declining to award attorney fees to petitioner, at least if its decision not to do so was because it found petitioner was not the prevailing party on the petition filed in the trial court. " '[T]he standard test for determining if a plaintiff has prevailed under the Public Records Act is whether or not the litigation caused a previously withheld document to be released.' " (CYAC, supra, 220 Cal.App.4th at p. 1446.) Here, petitioner meets this standard because, at the very least, this litigation caused real party in interest to produce the employee purchase program agreement, which we find to be responsive to petitioner's PRA demand, when it provided it in conjunction with discovery responses. In addition, it appears real party may need to produce additional documents once the trial court enters a new judgment in accordance with this opinion. We therefore find petitioner to be the prevailing party for purposes of entitlement to attorney fees. (Gov. Code, § 6259, subd. (d).)
The informal response argues petitioner cannot receive an award of attorney fees because the motion she filed to request them was procedurally defective. Because the trial court stated no reason for its denial of petitioner's request for attorney fees, we cannot discern if real party's procedural objection played any role in the court's decision, and we will not rule on this issue in the first instance. --------
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to enter judgment in petitioner's favor in accordance with this opinion. Respondent is to reconsider petitioner's request for attorney fees and costs in light of this opinion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner shall recover her costs on appeal.
The motion to consolidate is denied as moot.
The appeal in case No. E066636 appears to be moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: CODRINGTON
J. McKINSTER
J.