First Amendment Coalition Lawsuit to Tackle Growing Use of 'Reverse CPRA' Suits

Special to EGN from First Amendment Coalition |  May 31, 2017

FAC sues Milpitas for access to information about alleged misconduct by city officials

A new lawsuit filed by the First Amendment Coalition against the city of Milpitas, Calif. highlights the growing use of so-called “reverse California Public Records Act” suits to pre-empt the public’s right of access to information about their government.  
FAC’s lawsuit, filed Friday in Santa Clara County Superior Court, seeks to force Milpitas to release information about alleged misconduct by city officials.  FAC requested records relating to accusations of poor performance and misconduct by the city manager, as well as records relating to accusations that the city’s mayor has engaged in age discrimination against the city manager.  (Both city officials have denied these charges.)
Milpitas has refused to release the records, citing a court order resulting from an earlier “reverse CPRA” lawsuit filed by the city manager.  That order, Milpitas argues, prevents it from releasing the records FAC seeks.
Under a “reverse CPRA” action, any individual claiming to have an interest in government records sought by a CPRA request can preemptively seek to prevent the release of those records–sometimes before the person who originally requested the records even knows about the “reverse CPRA” action.
“The law could not be more clear: All Californians are presumed to have access to records by and about their government,” said FAC’s Executive Director David Snyder.   “Reverse CPRA’s effectively turn this presumption on its head, allowing proponents of secrecy to short circuit the California Public Records Act.  Reverse CPRA’s are anathema to transparency, bad for democracy, and should be disallowed — by the Legislature, if the courts won’t do it.”
By using a “reverse CPRA,” the Milpitas city manager was able to get a court order barring disclosure of records about his own alleged misconduct–without any argument by proponents of disclosure.  Two newspapers had sought records similar to those now sought by FAC.  Shortly after learning of the newspapers’ requests, the city manager rushed into court to prevent the release of any records.
Nothing in the California Public Records Act explicitly allows “reverse CPRA” lawsuits.  Until 2012, FAC and many others maintained they were prohibited.  However, that year the California Court of Appeal decided that such lawsuits are permissible. As a result, journalists and others who request records under the CPRA increasingly find their efforts thwarted by third parties — often before the original requester of the records even has a chance to show up in court and argue for access.
In addition to its own lawsuit, FAC will seek to argue for public access in the pending “reverse CPRA” lawsuit, where nobody has yet argued in favor of government transparency.
FAC is represented in the case by James Chadwick and his colleagues at the Sheppard Mullin law firm.
Elk Grove News is a dues paying member of the First Amendment Coalition.

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