Filed 7/25/18

                              CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                                ----




 NATIONAL CONFERENCE OF BLACK MAYORS                           C083956
 et al.,
                                                            (Super. Ct. No.
                  Plaintiffs and Respondents,              34201580002124)

          v.

 CHICO COMMUNITY PUBLISHING, INC.,

                  Defendant and Appellant;

 CITY OF SACRAMENTO et al.,

                  Defendants and Respondents.


       APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Affirmed.

     Davis Wright Tremaine LLP, Thomas R. Burke, Rochelle L. Wilcox, and Dan
Laidman for Defendant and Appellant Chico Community Publishing, Inc.




                                                 1
      Katie Townsend, Bruce D. Brown, Caitlin Vogus and Michael Shapiro for
Reporters Committee for Freedom of the Press as Amicus Curiae on behalf of Defendant
and Appellant Chico Community Publishing, Inc.

      Ballard Spahr LLP, Peter L. Haviland and Scott S. Humphreys for Plaintiffs and
Respondents National Conference of Black Mayors et al.

       Matthew Ruyak and Andrea M. Velasquez for Defendants and Respondents City
of Sacramento.

        Patrick Whitnell, Corrine L. Manning, Alison E. Leary for League of California
Cities, California State Association of Counties, and California Special Districts
Association as Amici Curiae on behalf of Defendants and Respondents City of
Sacramento.


       A requester of public records who successfully litigates against a public agency for
disclosure of those records is entitled to reasonable attorney fees under the California
Public Records Act1 (the Act). This case asks us to determine whether the Act also
allows for an award of attorney fees to a requester when the requester litigates against an
officer of a public agency in a mandamus action the officer initiated to keep the public
agency from disclosing records it agreed to disclose.2 We conclude the answer is no.
The Act limits the award of attorney fees to plaintiffs who prevail after “seeking a
judicial determination of a public agency’s obligation to disclose records in the event the
agency denies a request by a member of the public.” (Filarsky v. Superior Court (2002)
28 Cal.4th 419, 423, 426 (Filarsky); § 6259.) A mandamus action seeking to prevent
disclosure of public records does not arise under the Act nor does it seek to achieve the




1     Government Code section 6250 et seq. Further section references are to the
Government Code unless otherwise indicated.
2      A mandamus action initiated by an interested party designed to prevent disclosure
of public records falling under an exemption to the disclosure requirements provided in
the Act is commonly referred to as a reverse-CPRA action. (Marken v. Santa Monica-
Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1264-1265 (Marken).)

                                             2
purposes of the Act -- to compel a public agency to disclose records it refuses but is
obligated to disclose. Accordingly, a requester of public records is not entitled to
attorney fees under the Act after successfully litigating against a party attempting to
prevent a public agency from disclosing the public records requested.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In 2015, the Sacramento News and Review (the newspaper), published by
appellant Chico Community Publishing, Inc., investigated Sacramento’s then Mayor
Kevin Johnson and his staff’s use of city resources in the take over and eventual
bankruptcy of the National Conference of Black Mayors (the National Conference). As
part of that investigation, the newspaper made a request to the City of Sacramento (the
City) pursuant to the Act for e-mails in the City’s possession that were sent from private
e-mail accounts associated with Johnson’s office. The City disclosed approximately 900
pages of records responsive to the request. In the City’s review of the records on its
servers, however, it identified communications between Johnson’s office and the law
firm Ballard Spahr LLP (the law firm), which represented the National Conference in its
bankruptcy proceedings and Johnson, along with the National Conference, in litigation
connected with Johnson’s contested election as the National Conference’s president. The
City flagged these e-mails as potentially containing attorney-client privileged
information. It then contacted the law firm to notify it that the City would “have no
choice but to release these emails absent a court order stating otherwise” because the City
had no authority to assert attorney-client privilege over the records on behalf of outside
counsel.
       The law firm then contacted the newspaper and asked it to agree the City could
withhold any records it determined included attorney-client communications. The
newspaper refused and contacted the City, which admitted telling the law firm “that some
of the emails the City Attorney planned to release to [the newspaper] included attorney-
client communication between the Mayor’s office and [the law firm].” The City also

                                              3
confirmed to the newspaper that it “suggested” the law firm contact the newspaper to see
if the newspaper would “agree the emails should be withheld.” The City further told the
newspaper it had “identified ‘about 96’ emails that contained information that -- if it had
been communication between City Attorney staff and mayor’s staff -- [it] would have
withheld because of attorney-client privilege. But since it didn’t involve the City
Attorney, . . . the [C]ity couldn’t withhold the emails. ‘As far as [it was] concerned, they
are public records’ ” the City told the newspaper.
       Following the newspaper’s refusal to allow the City to withhold e-mails
containing attorney-client communications, the National Conference, Johnson in his
official capacity as the former president of the National Conference, and Edwin K.
Palmer in his official capacity as Chapter 7 Trustee for the National Conference
(collectively petitioners) filed a verified petition for peremptory writ of mandate against
the City and its City Attorney’s Office pursuant to Code of Civil Procedure section 1085
to prevent disclosure of records to the newspaper. Petitioners also named the newspaper
as a respondent in the action. Petitioners sought to keep e-mails between Johnson’s
office and the law firm from disclosure arguing the e-mails constituted privileged
attorney-client communications and attorney work product; however, petitioners had not
seen any of the records the City planned to disclose before initiating their action. The
City did not oppose petitioners’ writ petition; however, the newspaper did.
       The parties stipulated that the City would give the law firm copies of the records it
identified as potentially privileged so that the law firm could create a privilege log. After
reviewing the records, the law firm determined “several hundred” of the records were not
privileged and the City produced those records to the newspaper. The law firm also
created a privilege log identifying 158 records as being privileged. Following a meet and
confer period, the law firm agreed to produce 13 of the challenged records, and the
newspaper agreed to withdraw its challenge to 32 of them -- leaving 113 records, which



                                              4
petitioners requested be reviewed in camera after failing to make a prima facie showing
of privilege. Following an in camera review, the trial court ordered disclosure of 58
e-mails in full and 17 with redaction. It also ruled that 38 e-mails were privileged and did
not need to be disclosed.
       Based on these findings, the newspaper moved for attorney fees under the Act (§
6259, subd. (d)) from Johnson for using his status as a public official to oppose the
newspaper’s request for public documents. The newspaper also moved for attorney fees
under the private Attorney General statute (Code Civ. Proc. § 1021.5) from “each of the
[p]etitioners” because it successfully secured important public rights. The trial court
denied both of those motions.
       As is relevant to the newspaper’s motion pursuant to the Act, the trial court
doubted but assumed the newspaper could recover attorney fees if it showed it was the
functional equivalent of a prevailing plaintiff in an action brought pursuant to the Act
under the reasoning of Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th
1249, 1252-1253. The trial court found the newspaper could not make this showing
because it was not a prevailing plaintiff, the legal proceeding was not the functional
equivalent of an action under the Act, and the newspaper was not seeking attorney fees
from a public agency. The court explained that the Act provides requesters of public
records with a cause of action to compel a public agency to disclose those public records.
Here, although the newspaper advocated for disclosure because the City did not oppose
petitioners’ writ petition, the City was prepared to disclose the requested records before
litigation commenced. Because the City intended to disclose the requested records, the
newspaper did not act like the type of plaintiff contemplated by the Act (i.e. one seeking
disclosure of public records the public agency refuses to disclose) and was not entitled to
attorney fees.
       Further, the newspaper did not request attorney fees from a public agency and
instead requested attorney fees from Johnson under the theory that he acted as a public

                                             5
official of the public agency when he petitioned to prevent disclosure of the requested
public records. The court found this contention without merit for two reasons:
(1) Johnson could have only brought his petition as the president of the National
Conference because his argument that the records should not be disclosed rested on the
privilege he, as the president of the National Conference, claimed to have over the
records, whereas Johnson as the Mayor of the City had no claim of privilege over the
records; and (2) the newspaper presented no evidence showing Johnson acted in his
capacity as a public official when attempting to prevent disclosure of the requested
records. The newspaper appeals this decision. 3
                                       DISCUSSION
                                               I
                                     Legal Background
       “The California Legislature in 1968, recognizing that ‘access to information
concerning the conduct of the people’s business is a fundamental and necessary right of
every person in this state’ [citation], enacted the California Public Records Act, which
grants access to public records held by state and local agencies.” (Long Beach Police
Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 66-67.) “As the result of an
initiative adopted by the voters in 2004, this principle is now enshrined in the state
Constitution: ‘The people have the right of access to information concerning the conduct
of the people’s business, and therefore, . . . the writings of public officials and agencies
shall be open to public scrutiny.’ (Cal. Const., art. I, § 3, subd. (b)(1).)” (International
Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court
(2007) 42 Cal.4th 319, 329.)



3     We emphasize that the newspaper does not appeal the trial court’s denial of its
motion for attorney fees under the private Attorney General statute. (Code Civ. Proc.,
§ 1021.5.)

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       The Act’s purpose is to increase freedom of information by providing public
access to information in the possession of public agencies. (Filarsky, supra, 28 Cal.4th at
p. 425; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370; County of Los Angeles v.
Superior Court (2012) 211 Cal.App.4th 57, 63.) To implement this policy, section 6253,
subdivision (a) provides all persons with the right to inspect any public record maintained
by state or local agencies, subject to various enumerated exemptions. (Long Beach
Police Officers Assn. v. City of Long Beach, supra, 59 Cal.4th at pp. 66-67; County of Los
Angeles, at p. 63.) The Act “broadly defines ‘ “[p]ublic records” ’ as including ‘any
writing containing information relating to the conduct of the public’s business prepared,
owned, used, or retained by any state or local agency. . . .’ (Gov. Code, § 6252, subd.
(e).)” (Long Beach Police Officers Assn., at p. 67.)
       The Act embodies a strong policy in favor of disclosure. (Bakersfield City School
Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1045.) Our state Constitution
mandates the Act be construed broadly in favor of the people’s right of access. (Cal.
Const., art. I, § 3, subd. (b)(2); County of Los Angeles v. Superior Court, supra, 211
Cal.App.4th at p. 63.) The people’s right of access, however, is not absolute. (Humane
Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1254.) The Act contains
over two dozen express exemptions. (§ 6254; International Federation of Professional &
Technical Engineers, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th at p. 329.)
Subdivision (k) of section 6254 provides an exemption for “[r]ecords, the disclosure of
which is exempted or prohibited pursuant to federal or state law, including, but not
limited to, provisions of the Evidence Code relating to privilege.” Pursuant to this
subdivision, documents protected by the attorney-client privilege are not subject to
disclosure. (County of Los Angeles, supra, at p. 64; Roberts v. City of Palmdale, supra, 5
Cal.4th at p. 370 [“[b]y its reference to the privileges contained in the Evidence Code . . .
the Public Records Act has made the attorney-client privilege applicable to public
records”]; Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 527 [“[t]he

                                              7
Public Records Act does not require the disclosure of a document that is subject to the
attorney-client privilege”].)
       These statutory exemptions from mandatory disclosure under the Act must be
narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(2).) Moreover, the exemptions are
permissive, not mandatory -- they allow nondisclosure but do not prohibit disclosure.
(CBS, Inc. v. Block (1986) 42 Cal.3d 646, 652; Register Div. of Freedom Newspapers,
Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905.) Indeed, after listing the
exemptions, section 6254 provides: “This section does not prevent any agency from
opening its records concerning the administration of the agency to public inspection,
unless disclosure is otherwise prohibited by law.” (See also § 6253, subd. (e) [“[e]xcept
as otherwise prohibited by law, a state or local agency may adopt requirements for itself
that allow for faster, more efficient, or greater access to records than prescribed by the
minimum standards set forth in this chapter”].)
       When the public agency that holds the records refuses to disclose a requested
public document, the Act provides that “[a]ny person may institute proceedings for
injunctive or declarative relief or writ of mandate in any court of competent jurisdiction
to enforce his or her right to inspect or to receive a copy of any public record or class of
public records under this chapter.” (§ 6258; Filarsky, supra, 28 Cal.4th at p. 426.)
Section 6259 provides the superior court with the procedure for determining whether the
public agency is unlawfully withholding public records. (Filarsky, at p. 426.) If, at the
end of this process, the superior court determines the public agency or public official
should have disclosed the requested documents “[t]he court shall award court costs and
reasonable attorney fees to the plaintiff . . . .” (§ 6259, subd. (d).)
       If, on the other hand, the public agency intends to disclose a public record that
could infringe upon an interested party’s rights, the Act provides no mechanism for that
third-party to prevent the public agency from disclosing those records. Recognizing this
omission in the Act, the court in Marken, supra, 202 Cal.App.4th at pages 1266-1267,

                                               8
identified the mechanism for an interested party to prevent a public agency from
disclosing records that fall within an exemption to the disclosure requirements. In
Marken, a teacher filed a petition for writ of mandate against a school district seeking to
prevent the district from disclosing records from his personnel file in response to a
parent’s request under the Act. (Marken, at pp. 1256-1257.) The teacher alleged by
verified complaint that the district’s decision to disclose the records was not authorized
by the Act because disclosure would violate his (the teacher’s) right to privacy. (Id. at
p. 1257; see § 6254, subd. (c).) In concluding this was the proper procedure for an
interested party to enjoin a public agency from disclosing records, the Marken court also
acknowledged that the requester of the records has an interest in the outcome of the
litigation and is properly joined as a real party in interest. (Marken, at p. 1268.)
       With these principles in mind, we now turn to the question of whether a requester
of public documents who, in the absence of public agency opposition, opposed the writ
petition of a person seeking to enjoin the public agency from disclosing public records is
entitled to attorney fees under the Act. While we usually review an award of attorney
fees and costs for abuse of discretion (Crews v. Willows Unified School Dist. (2013) 217
Cal.App.4th 1368, 1379), we review de novo questions of statutory construction that
define the criteria for an award of attorney fees (ibid.; Bertoli v. City of Sebastopol (2015)
233 Cal.App.4th 353, 365).
                                              II
                The Attorney Fee Provision In The Act Does Not Apply To
       Mandamus Proceedings Seeking To Prevent Disclosure Of Public Records
       As it pertains to attorney fees, “California follows what is commonly referred to as
the American rule, which provides that each party to a lawsuit must ordinarily pay his
own attorney fees.” (Trope v. Katz (1995) 11 Cal.4th 274, 278.) However, attorney fees
are recoverable as costs by a prevailing party when authorized by contract, statute, or
law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) The Act contains one such fee-shifting

                                              9
statute. It provides: “The court shall award court costs and reasonable attorney fees to
the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The
costs and fees shall be paid by the public agency of which the public official is a member
or employee and shall not become a personal liability of the public official. If the court
finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable
attorney fees to the public agency.” (§ 6259, subd. (d).) As explained, litigation pursuant
to the Act seeks “a judicial determination of a public agency’s obligation to disclose
records in the event the agency denied a request by a member of the public.” (Filarsky,
supra, 28 Cal.4th at p. 426; § 6259.)
       “The very purpose of the attorney fees provision [in the Act] is to provide
protections and incentives for members of the public to seek judicial enforcement of their
right to inspect public records subject to disclosure.” (Law Offices of Marc Grossman v.
Victor Elementary School Dist. (2015) 238 Cal.App.4th 1010, 1013.) The incentive is
that a plaintiff will receive an award of costs and reasonable attorney fees from a public
agency upon prevailing and will not be liable for the public agency’s costs and reasonable
attorney fees unless the action is frivolous. (Filarsky, supra, 28 Cal.4th at p. 427.)
       The language of the attorney fee provision in the Act explicitly limits an attorney
fee award to a plaintiff who prevails “in litigation filed pursuant to [section 6259].”
(§ 6259, subd. (d).) Relying on Fontana, the newspaper would have us ignore this
explicit language and instead conclude it is entitled to attorney fees under the Act because
it prevailed in achieving the purpose of the Act -- disclosure of public records following
litigation against a public official seeking to keep the records from disclosure. We
disagree.
       In Fontana, the court interpreted the attorney fee provision in the Act to find a
requester of public documents entitled to attorney fees despite not being a plaintiff and




                                              10
not initiating litigation under the Act. In that case, the public agency filed for a protective
order to keep records from disclosure after the requester expressed the intent to initiate
litigation. (Fontana Police Dept. v. Villegas-Banuelos, supra, 74 Cal.App.4th at
p. 1251.) The trial court found the records did not contain privileged information and
were subject to disclosure but denied the requester attorney fees. (Ibid.) In reversing, the
appellate court held that “[b]ecause the proceeding in this case was the functional
equivalent of a proceeding to compel production of the [records] under the [Act] and [the
requester] was the prevailing party in the proceeding, he is entitled to recover attorney’s
fees despite the fact that he was not denominated ‘plaintiff’ in the action.” (Id. at
p. 1253.) In so holding, the court reasoned that if “only the party who initiates the
proceeding with respect to disclosure may recover attorney’s fees and costs, then public
agencies could defeat recovery of fees in every instance by doing exactly what [the public
agency] did in this case -- beating the party seeking disclosure to the courthouse and
filing a petition for a protective order.” (Ibid.)
       The newspaper argues Fontana is binding authority, and we must apply the
“ ‘functional equivalent’ ” test to this case. Not so. Our Supreme Court’s subsequent
decision in Filarsky eroded the holding of Fontana and clarified when a cause of action
under the Act arises and who could bring that action.
       In Filarsky, an attorney sought records related to a public agency’s hiring of a
police captain. The public agency initially denied the attorney’s request and then, in
response to a letter threatening litigation pursuant to the Act, disclosed a small portion of
the records requested and on the same day filed a complaint for declaratory relief
pursuant to Code of Civil Procedure section 1600 to obtain “ ‘a judicial determination of
its rights and duties under [the Act].’ ” (Filarsky, supra, 28 Cal.4th at p. 424.) Our




                                               11
Supreme Court held that a public agency may not do this. Citing the Act, the Filarsky
court noted that “ ‘every person’ ” has the right to inspect public records. (Id. at p. 426,
citing § 6250.) If the agency in possession of the records determines the records fall
under a disclosure exemption, then the agency must tell the requester of that
determination. (Filarsky, at p. 426; § 6253, subd. (c).) Only then can an action under the
Act be brought. “The Act sets forth specific procedures for seeking a judicial
determination of a public agency’s obligation to disclose records in the event the agency
denies a request by a member of the public.” (Filarsky, at p. 426, italics added.) The Act
provides the “exclusive procedure” for determining whether a document must be
disclosed as between a requester of public records and the public agency in possession of
those records. That procedure is for the person seeking disclosure to commence a
declaratory relief proceeding pursuant to sections 6258 and 6259. (Filarsky, at pp. 423,
426-427.)
       Nothing about the “functional equivalent” rule announced in Fontana survived the
holding in Filarsky. By clarifying sections 6258 and 6259 provide the “exclusive
procedure” for bringing an action under the Act, the Filarsky court held that no
“functional equivalent” of an action under the Act could exist, let alone a fee award from
such an action.4 The Act is only implicated once a public agency denies a public records
request and only then may that requester bring an action under the Act. (Filarsky, supra,




4       Indeed, when recognizing mandamus proceedings as an appropriate avenue for
interested parties to prevent disclosure of public documents, the Marken court assumed
the requester, although an interested party, would not be entitled to attorney fees for
efforts spent in opposing the mandamus petition. (Marken, supra, 202 Cal.App.4th at
p. 1268; accord Pasadena Police Officers Assn. et al. v. City of Pasadena (2018) 22
Cal.App.4th 147, 155, fn. 7.)

                                             12
28 Cal.4th at p. 426.) Here, the City did not withhold public records from the newspaper,
thus the newspaper could not initiate litigation under the exclusive procedure provided in
the Act. (§§ 6258, 6259.) Because the newspaper did not bring an action under sections
6258 and 6259 against the City to compel disclosure of public records, it is not entitled to
attorney fees under those provisions.
       The newspaper urges us not to reach this conclusion by citing to the constitutional
provision that the Act be read broadly in favor of public disclosure and to cases
purportedly construing the Act beyond the confines announced in Filarsky. First, the
newspaper cites Law Offices of Marc Grossman v. Victor Elementary School Dist., supra,
238 Cal.App.4th at page 1010, in support of its point that to deny fees in this case would
“ ‘elevate form over substance’ ” and run contrary to the Act’s goal of public disclosure.
There, an attorney filed an action under the Act in the name of his law firm. (Id. at
p. 1012.) Even though the attorney prevailed in subsequent litigation under the Act, the
trial court denied him attorney fees. (Id. at pp. 1012-1013.) The trial court reasoned that
because the attorney named his firm as the petitioner, his fees did not relate to
consideration for which a litigant was liable. (Id. at pp. 1013-1014.) When reversing, the
appellate court stated that reading the attorney’s petition to find the attorney did not
represent a client and brought the action completely on his own behalf “elevate[d] form
over substance” of the petition. The court concluded the attorney was entitled to fees
because he prevailed under the Act. (Id. at pp. 1014, 1015.) The appellate court did not
interpret the Act or its attorney fee provision, let alone construe it beyond the rule
announced in Filarsky. (Law Offices of Marc Grossman, at p. 1014.) Thus, the
newspaper’s reliance on this case is misplaced.
       The newspaper’s reliance on City of San Jose v. Superior Court (2017) 2 Cal.5th
608, is similarly misplaced. The newspaper cites to this case as an example of when our




                                              13
Supreme “Court rejected an overly technical interpretation of the [Act], such as the one
adopted by the trial court.” In City of San Jose, a requester sought documents
“includ[ing] emails and text messages ‘sent or received on private electronic devices used
by’ the mayor, two city council members, and their staff.” (Id. at p. 615.) The court held
city employees’ private voicemails, e-mails, and text messages relating to public business
are subject to disclosure under the Act if the contents otherwise meet the definition of a
public record. (Id. at p. 623.) The City of San Jose court thus rejected an interpretation
that “would allow evasion of [the Act] simply by the use of a personal account.” (Id. at
p. 625.)
       In so holding, our Supreme Court recognized that documents do not lose their
status as public records simply because “ ‘the official who possesses them takes them out
the door.’ ” (City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 623.) “The
rationale behind the Act is that it is for the public to make [the] determination [that the
government is working in its best interest], based on information to which it is entitled
under the law. . . . The whole purpose of [the Act] is to ensure transparency in
government activities. If public officials could evade the law simply by clicking into a
different e-mail account, or communicating through a personal device, sensitive
information could routinely evade public scrutiny.” (Id. at p. 625.) Thus, as the
Constitution provides, the Act was interpreted broadly to achieve the aim of public access
to public records.
       The goal of achieving access to public records is not adversely affected by our
conclusion in this case. As the Filarsky court noted, the Act, like its federal equivalent
Freedom of Information Act, “expressly provides only for a cause of action to compel
disclosure, not an action to prohibit disclosure.” (Marken, supra, 202 Cal.App.4th at




                                              14
pp. 1264-1265, citing Filarsky, supra, 28 Cal.4th at p. 431.) Here, and under any action
initiated by an interested party seeking to prevent disclosure, the public agency has
already agreed to disclose public records to a member of the public who requested them.
(Marken, at pp. 1265-1266.) These records would presumably include the public records
defined in City of San Jose, and in fact did include those type of records here. The Act is
simply not implicated in this type of proceeding because the public agency complied with
the purpose of the Act by providing public access to public records and need not be
compelled to do so.5
       It was this reasoning that led the Marken court to recognize an interested party’s
right to bring a mandamus action preventing disclosure of records. This type of action,
like an action brought by a requester under the Act, “seeks judicial review of an agency
decision under the [Act].” (Marken, supra, 202 Cal.App.4th at p. 1265.) The only
difference is that in the case of a mandamus proceeding initiated by an interested party,
the public agency decided to disclose the records. Without mandamus, an interested
party would have no avenue to review an agency’s decision to disclose a record that may
be exempted from disclosure under the Act. (Id. at p. 1266.)
       Further, the Marken court found a records requester’s procedural protections under
the Act are not impaired by this type of mandamus proceeding. (Marken, supra, 202
Cal.App.4th at pp. 1267-1268.) In particular, it found requesters maintain the ability to
avoid litigation, as they do under the Act, because the requester can rely on the public




5      The Reporters Committee for Freedom of the Press along with 14 media
organizations filed an amicus brief arguing the mandamus proceeding recognized in
Marken is contrary to California law. We do not address this argument because it was
not raised by the parties either at trial or on appeal.

                                            15
agency to assert the requester’s right to disclosure of the public document. Thus, the
Marken court reasoned, it was of no consequence that a requester would not be entitled to
attorney fees in such a proceeding because the requester’s involvement would be purely
voluntary. (Id. at p. 1268.)
       The newspaper takes issue with the Marken court’s findings in this regard because
it (the newspaper) could not rely on the City to assert its right to public disclosure since
the City did not oppose Johnson’s petition seeking to prevent disclosure of the requested
e-mails. This fact is even more problematic, the newspaper argues, considering it was an
officer of the City who sought to prevent disclosure, equating this legal proceeding to a
public officer withholding access to public records. As will be discussed, we do not find
the City’s failure to oppose the petition or the fact that an officer of the public agency
initiated the proceedings material to the question of whether the newspaper is entitled to
attorney fees under the Act.
       First, the City was not required to oppose Johnson’s petition and advocate for
disclosure of the requested e-mails. In the City’s review of requested public records, it
came across records that it determined were public but potentially fell under the attorney-
client privilege exemption in the Act. The City, however, was not the attorney or the
client in those communications, thus it could not assert the privilege that exempted the
records from disclosure. (Evid. Code, § 954 [“the client, whether or not a party, has a
privilege . . . to prevent another from disclosing, a confidential communication between
client and lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege;
[¶] (b) A person who is authorized to claim the privilege by the holder of the privilege;




                                              16
or [¶] (c) The person who was the lawyer at the time of the confidential
communication . . . .”].) The City’s determination that it must disclose the requested e-
mails 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.6 This is especially
true given the exemption at issue -- attorney-client privilege -- which can only be asserted
by the holder of the privilege, which in this case was not the public agency.
       Second, Johnson is entitled to challenge the public agency’s decision to disclose
records without morphing the proceeding into one under the Act. The newspaper argues
that because the communications at issue involved Johnson in his capacity as mayor, his
attempt to prevent the e-mails from disclosure equated to a public officer withholding
public records from a member of the public who requested them. Again, we disagree.
       “[The Act] and the Constitution strike a careful balance between public access and
personal privacy.” (City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 616.)
“When enacting [the Act], the Legislature was mindful of the right to privacy (§ 6250),
and set out multiple exemptions designed to protect that right. ([Citation]; see § 6254.)
Similarly, while the Constitution provides for public access, it does not supersede or
modify existing privacy rights. (Cal. Const., art. I, § 3, subd. (b)(3).)” (City of San Jose,
at pp. 615-616.) Although Johnson could only have been president of the National
Conference because of his position as Mayor of Sacramento, these inter-related positions
only contributed to the e-mails’ classification as public records. (See League of
California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 986-987 [E-mails
pertaining to legal work a city attorney did for the League of California Cities were




6      The exemptions to the Act do “not prevent any agency from opening its records
concerning the administration of the agency to public inspection, unless disclosure is
otherwise prohibited by law.” (§ 6254.) The newspaper does not argue the City was
prohibited by law from disclosing the requested e-mails.

                                             17
public records because the attorney was a member of the League based solely on his role
as the city’s attorney and his acts were intended to further the interest of the city as well
as the League].)
       Another contributing factor, as the newspaper points out, was likely Johnson’s use
of city resources, including city time and staff, to conduct National Conference business.
The inter-related positions, however, did not transform all of Johnson’s actions with
regard to the National Conference into actions of Johnson the public official. Johnson’s
claim of privilege over the e-mails stemmed from his position as the president of the
National Conference and not from his position as mayor of the City. Johnson did not
abandon his right to privacy or his right to assert the attorney-client privilege when he
was elected mayor. (See City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 626
[the proper course to take when requested records implicate a public official’s or
employee’s privacy rights is to assign the records the status which their content mandates,
and then assess privacy concerns raised in the public records on a case-by-case basis].)7




7       The Reporters Committee for Freedom of the Press also argues in its amicus brief
that our failure to apply the fee-shifting provisions in the Act to mandamus proceedings
initiated by interested parties, especially public officials, will lead to an abuse of the
mandamus proceeding by officials seeking to prevent disclosure of public records. This
argument ignores the fact that a requester could get attorney fees under the private
Attorney General statute (Code Civ. Proc., § 1021.5), which the newspaper sought in this
case. (3 JA 607:17-24) (See Pasadena Police Officers Association et al. v. City of
Pasadena, supra, 22 Cal.App.4th at p. 155, fn. 7.) Although the trial court did not award
the newspaper attorney fees under this statute, it did so based on the merits and not
because the fee-shifting statute was unavailable to the newspaper. Most importantly,
newspaper does not appeal the trial court’s decision to deny fees under the private
attorney general statute.

      Thus, contrary to the amici argument, a fee-shifting deterrent currently exists to
prevent the abuse amici fears will result from our conclusion.

                                              18
       Accordingly, because the newspaper did not prevail in litigation it initiated under
the exclusive procedure provided in the Act, it is not entitled to attorney fees under those
provisions.8
                                      DISPOSITION
       The order denying attorney fees is affirmed. In the interests of justice, the parties
are to bear their own costs on appeal. (Cal. Rule of Court, rule 8.278(a)(5).)



                                                  /s/
                                                  Robie, J.



We concur:



/s/
Hull, Acting P. J.



/s/
Hoch, J.




8      Because we have concluded the newspaper is not entitled to attorney fees under
the Act, we need not consider its remaining arguments.

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