I wrote a couple of months ago about Senator Bob Wieckowski‘s SB 518, which would make a fairly technical albeit quite important improvement to the California Public Records Act. In short this bill would disallow the use of Code of Civil Procedure §998 in CPRA lawsuits. As I said, it’s a fairly technical matter, but it’s well-explained here on Wieckowski’s fact sheet:
The purpose of a §998 offer is to encourage settlement by providing a strong financial
disincentive to a party, whether it be a plaintiff or defendant, who fails to achieve a better result than that party could have achieved by accepting the opponent’s settlement offer. For example, if a defendant makes a §998 offer that is rejected and the
plaintiff fails to obtain a judgment that is more favorable than the offer amount, then the plaintiff is not entitled to post-offer costs and must pay the defendant’s post-offer costs.
But this kind of hardball negotiating tactic can have really negative public policy consequences in CPRA cases. Government agencies sometimes make 998 offers that would require requesters to settle for fewer than all the records they’re entitled to where refusing the offer puts the requester in jeopardy of having to pay significant costs.
As you probably know, though, there are an awful lot of government agencies who just really do not want to comply with the public records act. In my experience these include BIDs, Charter Schools, the City of Los Angeles, and various state agencies. Not all of these have actually made 998 offers to me, but certainly some of them have. And the problem is only going to get worse as the word spreads amongst the agencies.
That’s why it’s not surprising to find that the most significant opposition to Wieckowski’s bill comes from a coalition of lobbying groups representing BIDs, rural jurisdictions, and other small-scale public agencies, surprisingly led by our old friend Andrew Thomas of the Westwood Village BID. Their letter is absolutely full of lies, although I suppose it’s worth reading if you want to see what these people are paying their lobbyists to write.
The main point seems to be that they’re getting sued all the time because the CPRA currently makes it too easy to sue them and SB 518 would only make things worse. Obviously, though, and unmentioned by them in this letter, is the fact that if they would just comply with the law rather than spending many thousands of dollars learning how to evade it, they would never get sued at all. That, though, is clearly not the solution they’re looking for.
There is some significant support for the bill as well. Here’s a letter from the National Lawyers’ Guild Los Angeles, and another letter from Jeffer, Mangels, Butler, & Mitchell. Also worth reading, and there’s a transcription of the NLG-LA one after the break. The bill is coming before the Senate Judiciary Committee on Tuesday, April 23. I’ll let you know what happens!
Transcription of NLG-LA letter in support of SB 518:
Re: Letter of Support for SB 518 (Wieckowski)
State Senator Bob Wieckowski
Senate District 10
State Capitol, Room 4085
Sacramento, CA 95814
Dear Senator Wieckowski:
Our organization submits this letter in support of SB 518, a bill introduced by your office that would prevent settlement offers issued under Section 998 of the California Code of Civil Procedure from applying to cases brought under the California Public Records Act (“CPRA”). Such offers encourage settlements in civil cases involving money damages by allowing the offering party to recover litigation costs if the rejecting party fails to obtain a better result at trial.
The CPRA ensures the fundamental right of every person to inspect and to obtain copies of any public record. The right to have state and local agencies comply with the CPRA is so important that it is also guaranteed by the State Constitution at Article I, Section 3. Civil litigation is the only mechanism available to persons seeking to enforce their rights under the CPRA. Therefore public policy, which favors compliance with the CPRA, favors such litigation.
In order to make litigation available to as many people as possible, the legislature has directed that prevailing requesters shall recover their costs and attorney’s fees. Without this guarantee it would become far, far more difficult for people seeking to enforce their rights under the CPRA to fund the necessary suits. But the use of 998 offers by public agencies in CPRA litigation tends to undermine this mechanism by potentially frightening petitioners into accepting settlements that include very limited record production out of concern that they will otherwise be liable for respondents’ attorney’s fees.
Additionally, because CPRA petitions are filed by people seeking to enforce their fundamental right to access records, the courts and the legislature have carefully and thoroughly restricted the circumstances under which respondents can recover their fees and costs from requesters. The law as it now stands disallows fee recovery by a prevailing agency unless the litigation is “clearly frivolous.” The use of 998 offers in CPRA petitions potentially overrides this essential element of the law by conceivably allowing public agencies to recover fees from requesters even if the requester is the prevailing party.
Furthermore, in making a 998 offer, the offering public agency is in effect admitting that it is unlawfully withholding records. If the offered settlement is accepted the court will enter judgment to this effect. Public agencies have a duty to release records rather than to withhold them unlawfully. Thus in any case where a respondent would consider making a 998 offer they ought instead to release the records withheld immediately rather than using them as a bargaining chip.
For these reasons and many similar reasons not discussed, 998 offers should not be allowed in CPRA petitions. This bill will clarify the law in this respect and will also promote good public policy by making it less likely that CPRA requesters will be discouraged or prevented from pursuing their fundamental right to access public records in the State of California.
National Lawyers Guild Los Angeles
Image of Andrew Thomas, Ick-Stick Westwood BID Director, is ©2019 MichaelKohlhaas.Org and take a look at Thomas here in happier times.