Friday, July 19, 2013

Tim Crews wins in California Court of Appeal; trial court may not punish him for filing suit to get public records from school district

The California School Boards Association (CSBA) supported Willows School District's use of taxpayer dollars to sue a citizen for demanding transparency.

See previous post on this story HERE.

Victory for publisher Tim Crews and CPRA in Appeals Court decision
First Amendment Coalition
July 19, 2013

Tim Crews, Editor & Publisher Willows Valley Mirror

A state Court of Appeal has ruled that small-town California newspaper publisher Tim Crews does not have to pay legal fees to a school board he sued over his public records request. The unanimous decision (read the Court of Appeal's decision) represents a crucial victory for government transparency and a welcome success for the First Amendment Coalition, which was instrumental in organizing and underwriting Crews’ successful defense.

“The appeals court’s decision makes clear that, in deciding whether to go to court to contest an agency’s denial of your request for public records, you will not have to fear a crushing penalty,” said Peter Scheer, FAC’s executive director. “If the court had decided differently, no journalist or ordinary citizen would ever again file suit to enforce the PRA, for fear of being bankrupted by a court order to pay a penalty of tens of thousands of dollars.”

Scheer added: “That would have been a disaster, not just for Tim Crews of course, but for government transparency in general.”

The case grows out of a public records request filed by Crews, publisher of the Sacramento Valley Mirror in Glenn County, an agricultural community in Northern California. The request sought emails of the superintendent for the Willows Unified School District. Crews was investigating whether the district was using school resources to influence a political campaign (a line of inquiry that ultimately did not pan out).

The school district began delivering copies of the emails the day after Crews filed suit. It also withheld several thousand emails on various grounds. A Superior Court judge ruled in the district’s favor after reviewing the withheld emails. The court not only dismissed Crews’ PRA suit, but then took the highly unusual step of ruling that Crews’ case was frivolous and on that basis ordering him to pay the district’s legal fees--an amount that was ultimately set at $56,000.

The Appeals Court, while agreeing with the dismissal of Crews’ PRA suit, squarely rejected both the finding that the case was frivolous and the resulting order to pay the district’s legal fees.

The Court emphasized that a fee award is a form of “punishment [that] should be used most sparingly to deter only the most egregious conduct.” Failing to prevail in a PRA lawsuit, by itself, is never enough to justify a fee award. The Court said a suit could be found “frivolous” only if filed in bad faith--for example, “to harass” an agency rather than to obtain information--or if the suit’s legal basis is so implausible that “any reasonable attorney would agree” it is “totally without merit.

Under the appeals court’s interpretation of the PRA, a plaintiff and her lawyer, when deciding to sue to gain access to records, don’t have to be confident that they will prevail. Even if they expect to lose, they can file a suit without fearing a crushing penalty in the form of an award of legal fees.

The court said: “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win.”

FAC became involved in Crews’ defense after he was ordered to pay the district’s legal fees. FAC helped Crews in lining up legal representation--his attorney for the appeal was Karl Olson (of Ram, Olson, Cereghino & Kopczynski in San Francisco). Also for the appeal, FAC took the lead in organizing amicus brief support for Crews. Two amicus briefs were filed, one brief on behalf of media companies (prepared by Duffy Carolan and her colleagues at Davis Wright Tremaine) and another on behalf of pro-access government officials (prepared by Terry Francke of Californians Aware).

“For us, Tim’s case was absolutely make or break,” said Scheer. “The only means of enforcing the PRA is through civil suits that challenge agencies’ withholding of requested records,” he said. “If Tim’s penalty had been affirmed, that would have been the end of PRA enforcement.”

The cost of Crews’ representation was substantially underwritten by FAC’s Rebele Legal Fund, a special fund for open-government litigation named for FAC Board member Roland (“Reb”) Rebele, the founding (and biggest) contributor to the fund. (Other major contributions were made by Raymond Pryke, Susan McClatchy and Allen McCombs, among others.)

The Rebele Legal Fund provides funding support for important open-government and first amendment cases in which, for a variety of reasons, pro bono (i.e., free) legal representation may not be available. Normally the fund is for cases in which FAC, by action of its Board of Directors, has decided to participate as a party.

Judge Byrd dismisses GCBE actions v. Mirror
By Tim Crews
Sacramento Valley Mirror
March 3, 2007

Willows—A decidedly grumpy Superior Court Judge Don Byrd yesterday dismissed the counter actions against this newspaper. In the complex aftermath of the Sacramento lawsuit against the Glenn County Office of Education, the Glenn County Board of Education refused to join in a settlement, a victory for the newspaper — and for access to public information.

The board, a somnambulating beast awakened when Arturo Barrera took office as the new Glenn County Schools Superintendent, tried to drag to unresolved matters. They mumbled about “enforcing a temporary restraining order” when none was issued. (One of the several judges involved, Judge Golden said that GCOE attorneys needed to describe the behavior they wanted prevented. And that would all boil down to prior restraint.) The board seemed to want the MIRROR punished for revealing embarrassing things about GCOE, misspending, destruction of records and the like.

In the end Judge Byrd told the new GCOE attorneys that if GCOE wanted an injunction, they’d have to file it. And that way lies a great peril: Prior restraint.

The board seemed crestfallen.

MIRROR attorney Paul Boylan observes, "I have been working with the California Public Records Act for years advising public agencies on how to respond to requests for public records. When I agreed to represent the MIRROR, I really believed that I could negotiate an agreement where the MIRROR received the information it asked for and the GCOE privacy and confidentiality interests could be met. That is the way 99.9 percent of public records disputes are resolved. But not this one. After six months of the nastiest litigation I have ever been part of, I still don't understand why the GCOE fought so hard to keep these records secret. Why pay four different law firms so much money to keep so little secret? It just doesn't make any sense.

"This should have been an uncomplicated, straight forward court proceeding. The court was going to decide a very simple question:

Did the GCOE reasons for keeping documents secret outweigh the public's interest in that same information and the public's right to know? If yes, then the GCOE would have won. If no, then the MIRROR would have won. Simple. But the case got complicated when the GCOE attorneys — the ones hired to handle all of the MIRROR's requests — gave the MIRROR huge amounts of student and personnel information that the MIRROR didn't ask for.

“How on earth did such an incredible mistake happen? These were the experts hired to stop exactly the sort of thing that they ended up doing. It makes no sense. But then the case got even more complicated when the GCOE tried to get that information back — as if that was even possible — and wanted the court to order the MIRROR not to report on the information the GCOE attorneys gave the MIRROR.

“They knew or should have known that the MIRROR would not cooperate with any attempt to compromise its First Amendment rights to get the news and report the news," Mr. Boylan points out. Last year, then-Superintendent Joni Samples appointed a Sacramento attorney as a public records chief, and an expensive one at that. Mark Ellis released a disc to the MIRROR that continued seven years with of special education e-mails.

The e-mails were supposed to have been swept clean of confidential information. They weren’t. We later learned that the attorneys couldn’t f figure out how to open them. So they were tossed in a box with spending records.

And even later GCOE lawyers were supposed to have gone back and produced “clean” versions for us.

They never did.

The MIRROR reported that instead of protecting confidential information, the lawyer had negligently released it.

And then we did a story on the failure of special education management to report suspected child abuse, a story with fictionalized names and the special education children protected, Mr. Ellis sought to have us punished. For his error.

We had earlier turned over the discs, in a stipulated agreement we entered into most reluctantly. We did not agree to turn over our hard drives.

Friday, Judge Byrd scolded both sides and complained about the complex litigation but congratulated both sides for an agreement. With Mr. Ellis appearing by telephone, Judge Byrd reviewed matters, noted that Mr. Ellis had filed for a TRO and “I denied that request.” He asked what GCBE wanted and Donald Anthony Velez Jr ., of Miller Brown & Dannis suggested that the information be eliminated from the MIRROR’s computers, perhaps by the appointment of a “tech savvy” referee.

Judge Byrd waved that off, grumbled a bit more and said he was returning the cart load of records and discs to GCOE.

The Mirror obtained the information legally. We retain it.

Mr. Boylan notes, "We tried to end this nonsense - this huge waste of time and money. The MIRROR offered to settle many times. It didn't do any good. But then Superintendent Barrera fired his attorneys and negotiated an agreement that gave the MIRROR the records the MIRROR asked for in exchange for dismissing the Brown Act and the public records claims against the GCOE and the Board. We thought it was over. The issue of those confidential records - the ones the GCOE's attorney's gave to the MIRROR - was still out there. And no one seemed to know what to do about it.

"Judge Byrd solved that problem. He is an excellent judge. He did for the parties what the parties could not do for themselves — he ended the case by dismissing the actions against the MIRROR. I am grateful."

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