Paper Loses Public Records Dispute With Mayor

(CN) – A Sacramento newspaper was not entitled to attorney fees in a public records dispute involving emails from former mayor Kevin Johnson’s office involving his work with the National Conference of Black Mayors, according to a California appellate court ruling Wednesday.

Johnson sued the city in July 2015, claiming the emails between the mayor and his attorney were protected from public records disclosure.

The Sacramento News & Review newspaper had been investigating how Johnson and his office used city time and resources as part of his role in the National Conference of Black Mayors, which joined him in the lawsuit.

Johnson, also the first black mayor of Sacramento, was president of that organization until it filed for bankruptcy in 2014.

In an article from April 2015, author Cosmo Garvin wrote in the News & Review that Johnson was “exploiting a legal gray area,” and that the mayor and his staff “created a sort of parallel email system, not connected to city servers at all.”

The newspaper sought emails sent from private accounts associated with Johnson’s office, and the city disclosed around 900 pages of records.

But there was a dispute about emails sent between Johnson’s office and Ballard Spahr, the law firm that represented him and the mayors’ organization.

The firm reviewed the disputed records, and created a log of documents that it claimed were protected by attorney-client privilege. Ultimately, the court ordered the city to disclose 58 full emails, and 17 with redactions.

In response, the newspaper sought attorney fees from Johnson, arguing that he had used his status as mayor to oppose its requests for documents. The court denied its motion, and the newspaper appealed.

This week, a panel of the California Court of Appeals’ Third District affirmed, finding again that the paper wasn’t entitled to attorney fees.

The fact that Johnson, as a public figure, started the legal proceedings, was not material to the issue of attorney fees, Associate Justice Ronald Robie found.

“Johnson did not abandon his right to privacy or his right to assert the attorney-client privilege when he was elected mayor,” Robie wrote in the 19-page opinion.

And Sacramento did not have a legal obligation to oppose the mayor’s petition or advocate for the disclosure of the emails, the panel found.

“The City’s determination that it must disclose the requested emails was a determination of its own responsibilities under the Act, not a determination of an interested party’s ability to keep the records from disclosure,” Robie wrote.

“This is especially true given the exemption at issue – attorney-client privilege – which can only be asserted by the holder of the privilege, which is this case was not the public agency.”

Robie’s opinion was joined by Associate Justices Harry Hull and Andrea Lynn Hoch.

The News & Review’s president Jeff von Kaenel wrote an editorial about the case earlier this month, defending his organization’s decision to litigate the matter.

“Even though the cost of this lawsuit was a considerable financial hardship for our newspaper, I believe that backing away from a legitimate public information request because of the threat of a lawsuit would encourage public officials like Mayor Johnson to squash public information requests,” von Kaenel wrote.

“It’s a little like turning over your lunch money to a bully. Once you start, it’s hard to go back.”



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