Public records act ruling contains good news and bad news for cities

By Kurt Wendlenner, assistant general counsel

What started as a series of California Public Records Act (CPRA) requests in 2018 and 2019 recently culminated in a California Supreme Court decision that both limits and expands municipal responsibilities under the CPRA.

The case, centered around a series of police bodycam recordings, addresses the importance of a city's retention schedule, as well as the fact that plaintiffs may seek recourse - even when a city has produced all records responsive to a request.

Case background

The nonprofit Law Foundation of Silicon Valley sent several public records requests to Gilroy in 2018. Three of the requests referenced enforcement actions taken by the city's police department at homeless encampments. The city released some records and withheld others. The city also asked the Law Foundation to notify the city if other records were being requested.

In May 2019, the Law Foundation submitted another public records request, this time focusing on the department's bodycam recordings. The city again provided some records but denied the request for the footage, saying they were exempt from disclosure. After the Law Foundation stated it intended to file a legal challenge, Gilroy voluntarily placed a "litigation hold" on the footage, preserving it beyond the city's normal one-year retention policy.

Still contending that the videos were exempt from disclosure, the city released footage that did not relate to citations or arrests. The city informed the Law Foundation that it had no other nonexempt records to disclose: Per the city's records retention policy, it had destroyed all bodycam footage taken before early 2018.

In late 2020, the Law Foundation filed a lawsuit, alleging that the city violated the CPRA in handling its 2018 and 2019 requests. It alleged that Gilroy failed to search for responsive records, delayed searching, improperly withheld records, and destroyed records while the Law Foundation's requests were pending.

The trial court held that the city violated the CPRA by conducting an inadequate search for the Law Foundation's 2018 requests. In particular, the trial court determined that the city did not watch all of the footage before asserting a blanket exemption, even though it had a duty to do so. Furthermore, the court held that the city's response to one of the 2018 requests was untimely. However, the court found the city did not violate the CPRA during its handling of the 2019 request.

Both parties appealed, with Cal Cities offering amicus support for the city. Ultimately, the contest made its way to the California Supreme Court, which issued its opinion last Thursday.

What did the Supreme Court rule?

The state Supreme Court's ruling contains two notable findings. First, it clarified that the CPRA does not require agencies to keep records beyond their retention schedule, even if those records may be subject to a request. Second, in certain circumstances, courts may issue declaratory relief against agencies, even when it is uncontested that there are no nonexempt records to disclose.

Declaratory relief is a type of judgment that clarifies rights, duties, and obligations, with the goal of providing guidance to the parties regarding ongoing and potential future disputes.

The city argued that the CPRA already requires a public agency to pay court costs and attorneys' fees if a requester prevails in litigation. Therefore, allowing claims for declaratory relief based on alleged technical violations of the CPRA (such as a delayed initial response), even when an agency has otherwise fully complied with a request, would generate frivolous lawsuits solely designed to generate attorneys' fees.

Despite this, the Supreme Court opined that, at a minimum, declaratory relief is appropriate when an agency is "reasonably likely" to repeat past conduct that allegedly violates the CPRA in response to future requests.

The Supreme Court did not directly address the trial court's determination that Gilroy did not watch the dozens of hours of bodycam footage before asserting the investigative exemption. The Supreme Court remanded the case to the Court of Appeal, which will likely deal with the issues of the propriety of the trial court's issuance of declaratory relief in this case.

Final thoughts

Despite clarifying that cities need not retain potentially responsive records beyond their own retention schedules, the Supreme Court's apparent expansion of declaratory relief may lead to further CPRA litigation.

For information about how this ruling could impact your city, please consult your city attorney.