Close legal loophole that denies public access to government records

There’s an insidious technique that some elected officials and government employees have used to subvert the public’s right to know what they’ve been up to. It’s known as a “reverse California Public Records Act” lawsuit.

Now, on the theory that it takes a good lawsuit to stop a bunch of bad lawsuits, the First Amendment Coalition has filed suit to challenge one such reverse lawsuit filed by the city manager of Milpitas.

Fans of the public’s right to know should hope that the First Amendment Coalition’s suit not only prevails in this case, but sets enough of a legal precedent to put an end to these “reverse” suits.

In a “reverse CPRA” lawsuit, an individual claiming to have an interest in government records sought by a Public Records Act request seeks to prevent the release of those records, perhaps even before such a request has been made. That’s what happened in the Santa Clara County city of Milpitas, prompting the FAC’s challenge.

The coalition filed Public Records Act requests for any city records related to accusations of poor performance and misconduct by the city manager or related to accusations that the mayor was guilty of age discrimination against that city manager. City Manager Thomas C. Williams and Mayor Richard Tran both have denied those allegations against them.

Milpitas refused to release the records sought by FAC, claiming it could not do so because of a court order that came out of an earlier “reverse CPRA” lawsuit filed by Williams. The court order barred disclosure of records related to his own alleged misconduct, and was granted without anyone present to argue for disclosure of the records.

“The law could not be more clear: All Californians are presumed to have access to records by and about their government,” said David Snyder, FAC’s executive director, in a statement. “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.”

Ideally, the courts will do it. But that will require a reversal — unfortunately, the California Court of Appeal decided in a 2012 case that reverse CPRA lawsuits were permissible, even though there is no provision allowing them in the Public Records Act that governs public records.

That 2012 decision, which we and other advocates of the public’s right to government information see as misguided, needs to be reversed, and perhaps this FAC lawsuit will get that ball rolling.

If not, as Snyder suggests, it will be up to the state Legislature and the governor to approve an addendum to the Public Records Act that clearly outlaws reverse CPRA lawsuits.

So long as a government official can preemptively deny the public’s access to what should be public information about that official, the California Public Records Act will not be as strong or as illuminating as the people and the Legislature intended it to be.