Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09CV00683
SIMS, J.Appellant Tim Crews doing business as The Sacramento Valley Mirror appeals from a trial court order denying his motion for attorney fees and costs against the City of Willows and city clerk Natalie Butler (collectively the City) under the California Public Records Act (CPRA), Government Code section 6259. Plaintiff contends that, because section 6259 mandates attorney fees to a prevailing petitioner, the trial court erred in applying equitable considerations devised for discretionary attorney fees statutes. Plaintiff also contends the trial court erred in holding that the City’s reimbursement of allegedly excessive copy costs did not make plaintiff a prevailing party under section 6259. We shall affirm.
Undesignated statutory references are to the Government Code. Section 6259 provides in part: “(a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. [¶]... [¶] (d) 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.”
We allowed an amicus curiae brief to be filed in support of appellant by California Newspapers Publishers Association, Californians Aware, Los Angeles Times Communications LLP, Champion Newspapers, The Record, Antelope Valley Press, The Mountain Democrat, The Associated Press, The Ferndale Enterprise, The Sacramento Bee, The Modesto Bee, Merced Sun-Star, The Press-Enterprise, The Orange County Register, and The Union.
FACTUAL AND PROCEDURAL BACKGROUND
On March 3, 2009, appellant filed a verified petition for a writ of mandate (§ 6258; Code Civ. Proc., § 1085) against the City and the city clerk in her official capacity, to obtain access to public records under the CPRA (§ 6250 et seq.). The verified petition alleged appellant is a newspaper owner, publisher, reporter and writer, who requested public records -- applications by citizens seeking to fill vacancies on the City’s Planning Commission -- from the city clerk, who first said she had to check with city counsel, then “[e]ventually” produced them, but after redacting the candidates’ phone numbers and addresses (residential, mailing, and e-mail). Appellant also alleged he requested copies of abatement notices from the City’s police department, which required him first to pay $3 per report, which he paid, and which allegedly exceeded the “direct costs of duplication” allowed by section 6253.
Section 6258 says, “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.”
The requested relief was a writ compelling the City and its clerk (1) to promptly respond to CPRA requests; (2) to promptly provide each record requested; (3) to revise city policies, procedures and practices to meet or exceed the CPRA; and (4) to train city employees to better assure compliance with the new policies and procedures. The petition also asked for attorney fees under section 6259 and Code of Civil Procedure section 1021.5.
Appellant does not show that his lawsuit resulted in the requested revision of City policies and procedures.
The parties engaged in settlement negotiations. The record contains a March 23, 2009, letter from appellant’s lawyer to city counsel, stating appellant had not yet received reimbursement of the copy costs, which was supposed to be part of the parties’ settlement of the litigation. City counsel responded in an e-mail, “If your proposal for resolving this case is a reimbursement of $258 [the copy costs] for a dismissal, that will be acceptable. You are correct. The overpayment check was not yet sent out.” On March 29, 2009, appellant’s lawyer responded with conditions for dismissal of the lawsuit. First, the City had to produce unredacted applications. Second, the City had to pay $12,590 for appellant’s attorney fees. Third, the City had to agree to let a public interest group train its employees in CPRA compliance. Fourth, the City had to reimburse the copy costs.
The parties did not reach a settlement, but on April 1, 2009 (almost a month after the March 3 filing of the writ petition), the City gave appellant the unredacted applications and refunded the entire $258 (without conceding liability).
On April 29, 2009, appellant filed a motion for attorney fees and costs under section 6259, footnote 1, ante, which requires the trial court to award attorney fees if a CPRA petitioner “prevails, ” which is construed by case law to mean either a judicial resolution or a causal connection between the filing of the petition and disclosure of the records. Appellant’s lawyer submitted a declaration concluding “my client’s goals were achieved. He received the exact documents, unredacted, that [the City] was withholding. Additionally, [the City] agreed to reimburse copy costs. If not for my client’s Petition for Writ of Mandate, [appellant] would not have received unredacted public records; nor would he have been reimbursed for the unreasonable copy costs [the City] charged for copies.”
On May 21, 2009, the City filed an answer to the writ petition and an opposition to the motion for attorney fees. The city clerk submitted a declaration attesting as follows: On February 19, 2009 (a Thursday), appellant requested copies of the three applications for the Planning Commission vacancy. The clerk immediately attempted to contact the (part-time) city attorney, but he was unavailable. Appellant “aggressively badgered me for the documents because of a newspaper deadline. I felt extreme pressure to produce the documents.” The city clerk decided to provide the documents “but in consideration of the privacy rights of the applicants, I redacted their home addresses, phone numbers, and email addresses. These redacted applications were submitted to [appellant] the next day on February 20, 2009 without the advi[c]e and counsel of the City Attorney that I wanted. But for the badgering, I would have waited until the next week to obtain the assistance of Counsel Krup in responding to [appellant].” The clerk attested appellant “never requested a set of unredacted applications at any time prior to the filing of the Petition for Writ of Mandate, ” and the petition for the redacted applications “was a surprise to me because [appellant] had not complained and had not requested unredacted copies of the applications. I believed that matter was concluded satisfactorily.”
City attorney Leonard Krup attested he was unavailable at the time of the document request but was available the following week. “After the Petition was filed, I was asked to review the matter. I concluded the applications were public records and requested the City Manager to provide the unredacted applications to [appellant]. It is my opinion that this would have happened originally, if the time for a determination under [section] 6253 had been utilized. At or about the same time, the reimbursement of the police report fees was made in an unsuccessful attempt to resolve this case at the outset at the least cost and expense to the City.”
Section 6253, subdivision (c), states, “Each agency, upon a request for a copy of records shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records....” (Italics added.)
The City Manager attested, “After the Petition was filed, at the request of City Attorney Leonard G. Krup, the unredacted applications were provided to [appellant] as public records. I also authorized the reimbursement to [appellant] of the police report fees in an attempt to resolve the case at the outset at the least cost to the City. This attempt was unsuccessful due to the very high attorney fees demanded by [appellant] and his attorney. [¶] [] The flat rate of $3.00 per copy for a City of Willows police report with unlimited pages is reasonable and permits faster, more efficient, and greater access to records by the public.”
On June 4, 2009, the trial court struck appellant’s request to disqualify the judge and the court.
After a hearing on the motion for attorney fees, the trial court on July 9, 2009, issued a written “RULING ON REQUEST FOR ATTORNEY FEES, ” denying the motion. The trial court said, “In a case where, as here, no judgment has been entered, no settlement has been reached, and thus statutory attorney fees are claimed under a catalyst theory, the court must determine whether the petitioner has obtained the primary relief sought in the litigation and whether the litigation has served as a catalyst for the relief obtained, i.e., caused or contributed to the respondent’s voluntary behavioral change providing relief. [Citation.] In addition, the court must determine whether the petitioner has met two requirements designed to discourage the filing of meritless suits in the hope of securing a fee award: the court must determine that the petitioner made a reasonable effort to settle the matter before filing the litigation and that the litigation is not frivolous, unreasonable or groundless. [Citations.]” The trial court cited case law concerning the private attorney general doctrine of Code of Civil Procedure section 1021.5.
The trial court found: “On February 20, 2009, [the city clerk] provided copies of the applications to petitioner after redacting the names, addresses and phone numbers of the applicants on the basis of her belief that the information was private and exempt from disclosure under the [CPRA].... [The clerk] provided the redacted applications to petitioner within a day of his request (rather than within the 10-day period permitted by [section 6253, subd. (c)]) because she felt pressured by [appellant]’s comments about needing the records for a newspaper deadline and was unable to immediately reach respondent’s attorney to review [appellant]’s request.... The redacted information was disclosed to petitioner... on April 1, 2009, approximately a month after he had initiated the lawsuit.”
The trial court said the evidence as to whether the lawsuit caused or contributed to disclosure “is less clear-cut but reasonably supports an inference that respondent’s disclosure was motivated, not by the lawsuit, but by the delayed review of the matter by respondent’s attorney.” The court said this inference was supported by the bills submitted by appellant’s lawyer (to justify the amount of attorney fees), which showed the communications between the attorneys primarily involved the refund of copy costs and the amount of attorney fees claimed. The trial court concluded the City would have disclosed the unredacted records on advice of city counsel “if, instead of the lawsuit, appellant had simply filed objections to the redacted applications with respondent’s City Clerk.”
The trial court continued, “Nonetheless, whether or not the evidence clearly establishes that [appellant]’s lawsuit motivated respondent to provide [appellant] with unredacted copies of the applications he had requested under the [CPRA], an award of attorney fees to [appellant] is precluded by [appellant]’s failure to make any effort to settle the matter before filing the lawsuit, a requirement for an award of statutory attorney fees sought under a catalyst theory.... There is no evidence presented by [appellant] that he contacted respondent and demanded unredacted copies of the applications before filing this proceeding. Rather, without contradiction by [appellant], respondent’s City Clerk indicates that [appellant] never requested a set of unredacted applications at any time prior to his filing the proceeding.... Given respondent’s agreement to disclose unredacted copies of the applications once its attorney had reviewed the matter shortly after the proceeding was filed, it is likely that respondent would have disclosed the unredacted copies if [appellant] had notified respondent of his objections and demanded unredacted copies before filing the lawsuit. [¶] Having failed to make any settlement demand prior to filing this lawsuit, [appellant] is prevented from claiming an award of attorney fees pursuant to [section 6259].”
In a footnote, the trial court rejected appellant’s argument that the City’s refund of the copy costs warranted an attorney fee award. The CPRA authorizes attorney fees only for prevailing in obtaining disclosure of public records.
Appellant filed a notice of appeal.
DISCUSSION
I. Appealability
The City contends in its respondent’s brief that there is no appealable order or judgment, because there is no order executed by the court, no judgment, and the trial court holds in abeyance (pending this appeal) appellant’s request for judicial resolution of the propriety of the copy fees (which is moot according to the City’s position in the trial court). We conclude the order denying attorney fees is an appealable order.
First, there is a written order signed by the judge constituting a final disposition on the attorney fee matter. That the order is labeled “RULING” is without consequence. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698 [substance controls over form].)
Second, the absence of a final judgment in the underlying litigation does not render nonappealable the order denying attorney fees. Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1388 (Los Angeles Times), held an order denying attorney fees under section 6259 was appealable as a final judgment under Code of Civil Procedure, section 904.1, subdivision (a)(1), even though the underlying disclosure order was not appealable and the time for writ review of the underlying order had passed. (§ 6259, subd. (c) [writ review is sole means of review of CPRA judgment]; but see Butt v. City of Richmond (1996) 44 Cal.App.4th 925, 929-931 [writ review is not sole means of review of an order contained in a CPRA judgment, ordering the person who filed a frivolous CPRA petition to pay the city’s attorney fees].) “[A]n order denying attorney fees may be appealable as a final judgment, even when the underlying order or judgment is not appealable, ” and “even though no final judgment was entered in [an] action.” (Los Angeles Times, supra, 88 Cal.App.4th at p. 1388.) An order denying an award of attorney fees is appealable where it has “‘all the earmarks of a final judgment.’ Nothing remains for future consideration, and no other opportunity exists for appellate review.” (Id. at pp. 1388-1389.)
A judgment is not a prerequisite to a section 6259 attorney fee award. Such fees may be awarded upon a finding that a public agency voluntarily disclosed a public record only because a CPRA petition was filed. (Los Angeles Times, supra, 88 Cal.App.4th at p. 1391.)
Here, although appellant refused to dismiss his writ petition despite receiving the records and a refund of copy costs, there is nothing more for the trial court to do (except dismiss the case). The City argues there is something more for the trial court to do, because after the ruling on the attorney fee award, appellant claimed that the trial court still had to litigate his challenge to the copy charges. However, the City provides no supporting citation to the record. The record merely shows court minutes of an August 21, 2009, case management conference, stating counsel was heard regarding “issues before the Court, ” and the conference was continued. Appellant then filed the notice of appeal on September 10, 2009. The City submitted a case management statement on November 6, 2009, arguing the case was moot, and an appeal was pending. Accordingly, the trial court ordered the case off calendar on November 13, 2009.
We conclude the order denying attorney fees is appealable.
II. Claim of Judicial Bias
Appellant contends judicial bias requires reversal. We disagree.
Appellant tried to disqualify the judge and the court on the ground that appellant was simultaneously prosecuting “an action for records” against them, and therefore they were “likely biased.” The trial court struck the disqualification request. However, the exclusive means for review of an unsuccessful attempt to disqualify a judge or court is by means of a writ petition filed within 10 days of the trial court’s decision. (Code Civ. Proc., § 170.3, subd. (d); Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 487.) Thus, appellant cannot obtain review of the disqualification matter in this appeal.
Appellant cites case law that a judgment is reversible per se when the record shows the trial court proceeding was so tainted by judicial bias or unfairness that the appellant could not have received a fair trial. (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1008; In re Enrique G. (2006) 140 Cal.App.4th 676, 685.) However, appellant cites no evidence of bias or unfairness. He merely complains the trial court struck his disqualification motion and made every inference in favor of the City, assertedly ignoring what appellant perceives as city counsel’s reluctance to turn over the redacted information without obtaining a settlement. Appellant notes city counsel has been president of the Glenn County Bar Association for years.
None of this shows a proceeding tainted by judicial bias or unfairness.
III. Standard of Review
On review, a trial court’s decision denying attorney fees under the CPRA will be upheld if the factual finding that the plaintiff did not prevail is supported by substantial evidence. (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063 (Galbiso).) We review questions of law de novo. (Id. at pp. 1087-1088.)
IV. Prevailing Party
We explain post that appellant’s recovery of the copy costs does not make him a prevailing party entitled to attorney fees.
Appellant contends the trial court erred in applying to a CPRA case the “settlement attempt doctrine” (SAD), which limits recovery of Code of Civil Procedure section 1021.5 attorney fees under a “catalyst theory” (litigation does not result in a judicial resolution but the defendant changes its behavior because of, and in the manner sought by, the litigation). (Vasquez v. State of California (2008) 45 Cal.4th 243, 251-259.) SAD requires the claimant to show he or she attempted to settle the dispute before filing the lawsuit. (Ibid. [discussing Code Civ. Proc., § 1021.5]; Belth v. Garamendi (1991) 232 Cal.App.3d 896, 901 [adopted Code Civ. Proc., § 1021.5 standard of “prevail” in holding that CPRA appellant was entitled to attorney fees where litigation caused Insurance Commissioner to ask for and obtain consent of insurance company to disclosure of the documents relating to that company].) Appellant and amici curiae argue SAD is an equitable limitation on discretionary fee awards and therefore has no application to CPRA attorney fees, which are mandatory. Appellant also argues the trial court misapplied SAD by failing to weigh exigent circumstances. We see no basis for reversal.
Code of Civil Procedure section 1021.5 provides in part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
Application of the catalyst theory to the CPRA works to appellant’s advantage, because it allows him the possibility of an attorney fee award without obtaining a judgment. SAD is a limitation on the catalyst theory, i.e., in addition to showing he or she prevailed in the litigation, the plaintiff must also show he or she first attempted to settle the dispute short of litigation. (Vasquez, supra, 45 Cal.4th at p. 259.) We need not decide whether SAD must be limited to discretionary attorney fee statutes, because we shall affirm on the alternative ground given by the trial court, i.e., that the lawsuit was unnecessary, and the City would have disclosed the unredacted records without a lawsuit had appellant simply let the City know that the redacted records did not satisfy his request. This is not the same as requiring a petitioner to attempt to settle a dispute short of litigation, though it implicates concerns similar to those raised by appellant. Accordingly, our focus is on what happened before the lawsuit was filed, and it does not matter that the City defended itself or delayed production of the redacted information during settlement talks after the lawsuit was filed.
Thus, section 6259, footnote 1, ante, requires the trial court to award attorney fees if a CPRA petitioner “prevail[s].” A petitioner “prevails” when he or she obtains a favorable judgment or when the litigation is a “catalyst” to disclosure of the records, i.e., “‘when he or she files an action which results in defendant releasing a copy of a previously withheld document.’ [Citation.] [¶] An action results in the release of previously withheld documents ‘if the lawsuit motivated the defendants to produce the documents.’ [Citations.] Cases denying attorney fees to a plaintiff under the act have done so because substantial evidence supported a finding that the ‘litigation did not cause the agency to disclose any of the documents ultimately made available....’ [Citations.] [¶] In short, if a public record is disclosed only because a plaintiff filed a suit to obtain it, the plaintiff has prevailed.” (Los Angeles Times, supra, 88 Cal.App.4th at p. 1391 [newspaper was prevailing party even though it obtained only one of two contested documents].) “Circumstances could arise under which a plaintiff obtains documents, as a result of a lawsuit, that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.” (Id. at pp. 1391-1392.)
The standard test for determining whether someone has prevailed under the CPRA for purposes of recovering attorney fees is whether or not the litigation caused a previously withheld document to be released. (Galbiso, supra, 167 Cal.App.4th at p. 1085.) The critical question is whether the requesting party was required to follow through with the implicit threat of a suit in order to obtain the documents. (Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1350-1351 (Motorola).) Galbiso held that under unique circumstances of an unjustified denial of access to all public records by means of making the person leave the premises when she sought to inspect documents, the person’s success in the lawsuit was adequately demonstrated by her vindication of her right of access under the CPRA. (Id. at pp. 1087-1088.) A petitioner is considered the prevailing party if his or her lawsuit motivated the defendants to provide the primary relief sought or activated them to modify their behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393.)
In Motorola, supra, 55 Cal.App.4th 1340, in upholding denial of a CPRA attorney fee award, we held that a public agency’s good faith was a material consideration. There, the Department produced records pursuant to a request. Motorola indicated the production was incomplete. (Motorola, supra, at pp. 1349-1350.) The Department produced further documents responsive to the request, except for three documents, which were not discovered until after suit was filed, and one “proprietary” document. (Id. at p. 1350.) These documents were produced after the trial court issued an alternative writ. (Ibid.) At no time did the Department refuse to produce requested documents. (Ibid.) The evidence of the parties’ discussions suggested a misunderstanding existed over the breadth of the request for all documents “concerning or relating to” “any contract” between the State and a third party. The Department was left to guess whether “any contract” meant any contract currently in force or all contracts ever entered, and the request gave no guidance as to how attenuated a document’s relationship to the referenced topics must be to escape disclosure. (Ibid.) The Department told Motorola that the attorney responsible for responding to the records request was on vacation. (Ibid.) We said the fact that three documents concerning or relating to current contracts were produced after issuance of the alternative writ “did not establish the Department was not forthcoming.” (Ibid.) Even assuming the documents were within the scope of the request, “perfection in responding to a public records request is not the standard, ” especially where the request was vague and did not seek specific documents. (Ibid.) That the Department did not object to the request as vague was without consequence. “The Department apparently thought it understood the scope of the requests and proceeded accordingly. It had no basis to object. Only later did the Department learn Motorola wanted documents relating to contracts other than those currently in force. Motorola’s requests are susceptible to the interpretation given them by the Department. [¶] As to the single, ‘proprietary’ document excluded from production, the record indicates Motorola was alerted to its existence after a lawsuit was threatened but before it was filed. Motorola argues this chronology suggests the lawsuit was the motivating factor for the disclosure. This may be true. However, entitlement to costs and attorney fees does not turn on whether disclosure occurred because of a threatened lawsuit. In one sense, all public record disclosures are made because otherwise a lawsuit might be filed. The critical question is whether the requesting party was required to follow through with the implicit threat of a suit in order to obtain the documents. Here, as the record amply demonstrates, Motorola was not required to do so.” (Motorola, supra, 55 Cal.App.4th 1340, 1350-1351.) “Based on the uncertainties inherent in Motorola’s public records requests, and the timely efforts by the Department to respond, we conclude substantial evidence supports the superior court’s implicit finding this litigation did not cause the Department to disclose any of the documents ultimately made available to Motorola. Hence, Motorola was not a prevailing party within the meaning of section 6259....” (Id. at p. 1351.) Furthermore, the fact that the department’s delay in production was slight and due in part to unavailability of critical personnel was relevant to show that the delay was not due to agency intransigence. (Ibid.)
We said in Motorola, supra, 55 Cal.App.4th 1340, that the only indication the disclosure was prompted by the litigation was the fact that the disclosure occurred after the Department was notified suit was being filed. (Id. at p. 1345.) We said: “More than post hoc, ergo propter hoc [after this, therefore because of this] must be demonstrated.” (Ibid.) In the absence of other evidence, timing alone may be sufficient to prove causation, but that was not the case in Motorola. (Ibid.)
Motorola argued the trial court improperly considered the public agency’s good faith, which is not an appropriate consideration under section 6259. (Motorola, supra, 55 Cal.App.4th 1340, 1345.) We disagreed: “The fact a delay in production was slight and was due in part to unavailability of critical personnel is relevant to show the delay was due to administrative problems rather than agency intransigence. This in turn suggests production would ultimately have occurred whether or not suit was filed.” (Id. at p. 1346.)
Particularly given the materiality of a public agency’s good faith (Motorola, supra, 55 Cal.App.4th 1340), it seems clear to us that the catalyst theory necessarily presupposes that the public agency knew there was a pending request for records before the lawsuit was filed. Here, the disclosure of the redacted information came after the filing of the lawsuit, but only because the lawsuit was the City’s only notice that there was a request pending. Under the unique circumstances of this case, where the undisputed evidence shows the City reasonably believed the redacted documents satisfied the request and did not know of any pending request for unredacted documents at the time the lawsuit was filed, appellant cannot claim a litigation success. Although it would have been nice had the city clerk double-checked her redaction with the part-time city counsel, the City cannot be penalized for her failure to do so, where appellant himself contributed to the clerk’s reasonable belief that the matter was over.
Appellant ignores Motorola in his opening brief, even though the City cited it in the trial court. Appellant’s reply brief characterizes the case as “the Motorola exception” and argues it does not apply here. Appellant disagrees with Motorola that attorney unavailability is a factor that might excuse a good faith delay. However, the good faith in this case is not attorney unavailability. City counsel was available within the 10-day period the CPRA gave the city to review the request. The good faith here was the clerk’s failure to follow up with city counsel after appellant badgered her into foregoing the 10-day period and left with the redacted documents without giving any hint that he wanted the redacted addresses and phone numbers.
Appellant points out factual distinctions between this case and Motorola, but the lesson from Motorola is that a public agency’s good faith is a proper consideration in determining whether a CPRA petition caused disclosure of records.
The consideration of good faith in determining whether a CPRA petitioner “prevailed” does not improperly inject into a mandatory fee statute equitable considerations which should be limited to discretionary fee statutes.
Thus, the CPRA was modeled on the federal Freedom of Information Act (5 U.S.C. § 552 (FOIA); Motorola, supra, 55 Cal.App.4th at p. 1346, fn. 5.) Judicial construction of the latter is instructive on our interpretation of its California counterpart (ibid.), though the CPRA cannot be construed to read into it FOIA language which the CPRA itself does not contain. (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1417, fn. 6.)
Unlike the CPRA, the FOIA makes an award of attorney fees discretionary. (5 U.S.C. § 552(a)(4)(E) [“The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed”].)
In assessing an FOIA request for attorney fees, the federal court “must conduct a two-step inquiry. First, did plaintiff ‘substantially prevail’? Second, if so, is plaintiff entitled to an award based on a balancing of equitable factors?” (Maynard v. C.I.A. (1st Cir. 1993) 986 F.2d 547, 568.) Equitable factors include benefit to the public, commercial benefit to the individual, the nature of the individual’s interest in the withheld records, and whether the government’s withholding had a reasonable basis in law. (Ibid.) Before reaching the equitable, discretionary factors, the first inquiry -- whether the plaintiff prevailed -- asks whether the filing of the lawsuit was necessary and had a causative effect on disclosure. (Ibid.; Weisberg v. U.S. Dept. of Justice (D.C. Cir. 1984) 745 F.2d 1476, 1498; see also, Los Angeles Times, supra, 88 Cal.App.4th at pp. 1391-1392, fn. 9 [even if FOIA plaintiff prevails and is therefore eligible for fees, he or she will receive an award only after the court balances equitable factors].) Thus, to ask whether a lawsuit was necessary in order to determine whether the plaintiff prevailed is not an equitable consideration going to the discretionary aspect of an attorney fee award. Rather, it is simply part of the definition of “prevail.”
We recognize the FOIA requires the plaintiff to “substantially prevail, ” while the CPRA says only “prevail.” Nevertheless, the inquiry whether the litigation was necessary is an appropriate question under both statutes for determining whether the party “prevailed, ” and we therefore applied it in the CPRA case of Motorola, supra, 55 Cal.App.4th at pages 1346-1347, footnote 5.
Thus, in order for a CPRA petitioner to “prevail” for purposes of an attorney fee award, the lawsuit must have been necessary.
Here, substantial evidence supports the trial court’s finding that the City would have disclosed the addresses and phone numbers had appellant simply told the City they were a focus of his request.
A request for records under the CPRA must be specific and focused. (§ 6253.1 [public agency shall assist member of public in making a focused and effective request for records]; Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 481 [“The request to the agency must itself be focused and specific”].) In Rogers, a journalist requested phone records of city council members. The city produced copies of the phone bills but deleted the phone numbers. (Id. at p. 474.) The appellate court upheld redaction of the phone numbers as exempt from disclosure because the public interest in nondisclosure outweighed the public interest in disclosure. (Id. at pp. 477, 482; § 6253, subd. (a) [“Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law”]; § 6255 [agency shall justify withholding information where statutorily exempt from disclosure or where public interest in nondisclosure outweighs public interest in disclosure].)
Of interest to us in this appeal, the Rogers court, supra, 19 Cal.App.4th 469, rejected the journalist’s argument that the trial court should have accepted his offer to disclose the focus of his request to the trial court for an in camera review of the records. His “proprietary interest in his news story” did not obviate the need for a specific, focused request to the public agency. (Id. at p. 481, fn. 9.) “Petitioner should have presented a specific and focused request to the City, with which it then would have an opportunity to comply.” (Id. at p. 481.)
Here, appellant did make a specific request for specific applications, and he got the applications. Nothing in the record indicates that appellants disclosed to the city clerk that the addresses and phone numbers were a focus of his request. Thus, when he said nothing after receiving the applications, there was no reason for the clerk to pursue the matter with city counsel.
Amici curiae argue the City, not appellant, carried the burden to justify an exemption, and therefore appellant was not required to make any further demands after the City produced redacted records. We recognize the CPRA “was intended to safeguard the accountability of government to the public. [Citation.]” (Rogers, supra, 19 Cal.App.4th at pp. 475-476.) Because of the strong policy favoring disclosure, public records must be disclosed unless they come within an exemption protecting the “narrower but no less important interest” in personal privacy. (Ibid.) Exemptions are narrowly construed, and the agency bears the burden of justifying an exemption. (Ibid.) Here, however, the justification of the redaction is not at issue. The government cannot be accountable to disclose information to the public unless the government is informed that the public wants that information.
Amici further argue that, because the CPRA is based on the FOIA, and because the FOIA expressly requires an administrative appeal as a precursor to a lawsuit while the CPRA does not, the trial court erred by importing such a requirement under the guise of equity. However, we do not require an administrative appeal but merely that the public agency be made aware that there is a request pending.
We conclude the disclosure of the redacted information did not make appellant a prevailing party entitled to attorney fees under section 6259.
V. Copy Costs
Appellant contends he is entitled to attorney fees as the prevailing party under section 6259, subdivision (d), because the City refunded to him the $258 it had charged him for copies of the police reports. Appellant claims the $258 exceeded the “direct costs of duplication” authorized by section 6253, and the City’s refund of his money (despite declarations that the City thought the costs were justified) means he is the prevailing party. However, we shall conclude that, even assuming the litigation motivated the refund, the refund does not afford a basis for attorney fees under the CPRA.
Section 6253, subdivision (b), states that public agencies shall make records promptly available “upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.”
As noted by the trial court, section 6259 provides for an award of attorney fees only with respect to litigation concerning the improper withholding of public records, not with respect to an alleged overcharge for copying costs. Appellant could certainly pursue another form of action to claim a refund, but a CPRA petition -- which is the only pleading at issue here -- is not it.
Thus, section 6259, subdivision (d), authorizes attorney fees only “in litigation filed pursuant to this section, ” and the only litigation authorized by the section is a petition for disclosure of records (§ 6259 [“(a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so”]). “The sole purpose of such an action is to permit the expeditious ‘determination of the obligation to disclose records requested from a public agency....’” (County of Santa Clara v. Superior Court (Naymark) (2009) 171 Cal.App.4th 119, 128 (Naymark), citing Filarsky v. Superior Court (2002) 28 Cal.4th 419.)
Filarsky, supra, 28 Cal.4th 419, held a public entity may not file a CPRA petition to determine its rights/obligations, because the CPRA explicitly limits such a proceeding to the person seeking disclosure. (Id. 28 Cal.4th 419.) Filarsky observed four ways in which CPRA proceedings differ from ordinary declaratory relief actions: (1) only the person seeking disclosure, not the public agency in possession of the records, may seek a judicial determination regarding disclosure (§ 6258); (2) the CPRA requires the trial court to expedite the proceedings (§ 6258 [judge shall set time for responsive pleadings and hearing with the object of securing a decision at the earliest possible time]; (3) a prevailing public agency can recover attorney fees under the CPRA only if the court finds the petition frivolous (§ 6259, subd. (d)); and (4) appellate review of a CPRA ruling must be by petition for writ of mandate filed within 20 days of the ruling (subject to a 20-day extension for good cause; § 6259, subd. (c)). (Filarsky, supra, 28 Cal.4th at pp. 428-429.)
Naymark, supra, 171 Cal.App.4th 119, held that, because a CPRA petition is limited to obtaining withheld records, the CPRA did not preclude taxpayers from filing a taxpayers’ suit under Code of Civil Procedure section 526a, alleging an unlawful expenditure of public funds to implement public entities’ allegedly unlawful policies regarding records requests. “The CPRA was enacted to further ‘the fundamental right of every person in this state to have prompt access to information in the possession of public agencies.’ [Citation.]... The CPRA’s judicial remedy is limited to a requestor’s action to determine whether a particular record or class of records must be disclosed.” (Id. at p. 130.)
Thus, as the trial court correctly concluded, a CPRA petition is a special, expedited proceeding to obtain disclosure of documents, not refund of allegedly excessive copy costs.
Appellant claims North County Parents Organization v. Dept. of Education (1994) 23 Cal.App.4th 144 (NCPO), authorizes a claim for refund of copy costs to be litigated in a CPRA petition. The City responds NCPO is inapposite because here the pleading did not ask for a refund. The pleading did challenge the copy costs as excessive but did not expressly include a prayer for a refund. Assuming the pleading (liberally construed) sought a refund, we conclude NCPO is not authority for including a refund claim in a CPRA petition.
Thus, in NCPO, supra, 23 Cal.App.4th 144, a public agency (1) charged 25 cents per page for copies of records furnished under the CPRA (to cover duplication costs plus staff time in searching and compiling the records) and (2) refused NCPO’s request to waive the charge, because the agency believed it had no authority to waive the charge. NCPO brought an “action seeking miscellaneous relief.” (NCPO, supra, at p. 146.) The trial court found the charge permissible, but the appellate court reversed under former section 6257 (now § 6253), allowing a public agency to charge “fees covering direct costs of duplication.” (Stats. 1981, ch. 968, § 3.5, p. 3683, repealed by Stats. 1998, ch. 620, § 10.) The only issues decided by the NCPO court were (1) the meaning of “direct costs” in the CPRA, and (2) whether the trial court erred in finding no actionable wrong in the agency’s mistaken belief that it lacked authority to waive the charge. (NCPO, supra, 23 Cal.App.4th at p. 146.) NCPO held (1) “direct costs” means only the cost of duplication, not staff time in searching the records, and (2) had the agency realized it had discretion to waive the charge, it may have done so. (Id. at pp. 147-148.) The appellate court did not order a refund but merely ordered the case returned to the agency to consider (but not necessarily to grant) the request for a fee waiver, with any further questions of refund or costs to be determined by the trial court. (Id. at pp. 148-149.) In dictum, NCPO said: “Section 6258 provides: ‘Any person may institute proceedings for injunctive or declaratory relief or writ of mandate... to enforce his or her right to inspect or to receive a copy of any public record....’ This lawsuit clearly comes within this provision, and hence appellant’s requests for writs, orders and declarations are proper. We decline, however, to grant such specific relief. As indicated by the general counsel, the Department will surely follow the law once it is advised of it. Appellant is entitled to a declaration of its right to obtain copies at a cost of only the expense of copying, and it is also entitled to our advice that the Department could waive this fee if it chose to do so. By this opinion we have granted these declarations. Appellant is also entitled to a refund of some portion of the fee it has already paid, and also to costs both at trial and appellate level. The statute (§ 6259, subd. (d)) contains authority for an award of attorney fees to appellant. All these matters are best determined by the trial court, assuming (which we would expect is a false assumption) that the parties cannot now resolve their dispute by stipulation.” (Id. at p. 148.)
In NCPO, the court’s comment that the litigation came within the CPRA’s provision for a writ petition was unnecessary to the decision. There was no contention, analysis, or discussion of the matter, and it therefore does not constitute precedential authority for the proposition that the expedited process of a CPRA petition is an appropriate avenue to claim a refund. “‘“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.” [Citations.]’” (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1029.)
Though not cited by appellant, we recognize Galbiso, supra, 167 Cal.App.4th 1063, held section 6259 attorney fees were available in a CPRA suit which did not seek disclosure of particular documents. However, Galbiso said that under the unique circumstances, where the agency barred access to all documents, and the CPRA suit gained access, the CPRA was satisfied.
Accordingly, we conclude the City’s reimbursement of copy costs to appellant did not make appellant a prevailing party entitled to attorney fees under section 6259.
Appellant is not entitled to section 6259 attorney fees.
DISPOSITION
The judgment (order) is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: BLEASE, Acting P. J., RAYE, J.