In November 2012, a decision was issued by a California appellate court that requires disclosure of a public agency’s attorney fees and costs when those records are requested pursuant to a written California Public Records Act (“CPRA”) request, even while litigation is pending in which the public agency is one of the parties. The County of Los Angeles brought the matter up on appeal after it lost on this issue in a lower court, only to lose on the issue again. This can be good news for families and their attorneys who find themselves engaged in litigation on behalf of their special education students in California.
Here’s the scenario in a nutshell: CPRA requests can be submitted for public information any old time a citizen wants and a public agency can only refuse to disclose requested documents for a very limited number of reasons. A document may not be provided in response to a PRA request if it contains information that is subject to attorney-client privilege or is otherwise attorney work product. Documents specifically prepared for the pending litigation are excluded, presumably because they are covered under the attorney work product exclusion.
The problem, here, was that LA County evidently asserted the position that any documents relating to the litigation were excluded from disclosure, such as their legal expenses for the pending litigation, which the Courts failed to support. Because the public’s right to know what the government is doing with the tax dollars we give it carries so much weight, CRPA is to be interpreted broadly and its exclusions are to be interpreted narrowly. In other words, the law is more in favor of disclosure than not.
In the case reflected in the November 2012 appeal decision, the issue was that the parties had been embroiled in ongoing litigation for about 10 years over a matter that wasn’t spelled out in detail in the November 2012 decision. Evidently, the case involved a child with disabilities and his parents that resulted in a civil rights suit against LA County. The issue was that the firm representing the family submitted requests for opposing counsel’s billing in the pending civil rights lawsuit and LA County didn’t want to disclose how much it had paid and continued to pay its lawyers to fight the civil rights claims.
Some public agency representatives squander public monies on unnecessary litigation costs just because they want to win an argument, not because they are providing sound stewardship. It’s not coming out of their own pockets so they don’t care; their six- and seven-figure budgets seem big enough for them to throw public money at lawyers rather than the programs their public agencies are mandated to administer and they can get cocky knowing that their constituents usually don’t have access to the same caliber of resources.
The problem is that these situations can turn into fiscal boondoggles for public education agencies really quickly. Spending $75K in litigation costs to fight with parents over a one-time expenditure for an educationally necessary remedial reading program that would have cost only $16K by comparison is just asinine. I have a specific case in mind from about 13 years ago in which these were the facts; the school district lost but the remedy requested by the parents was reduced, so their child only got about $4K worth of remedial reading programming at the district’s expense.
While the district was blowing its horn for getting the remedy cut down to a quarter of what was requested by the parents, it spent nearly 5 times more than the cost of the parents’ requested remedy on legal expenses to achieve that outcome. This does not take into account: the costs of pulling teaching staff out of their classrooms to testify, paying them for their time to participate in a hearing rather than teach students, and hiring subs to cover these teachers while they participate in hearing; facilities costs to host the due process hearing; or any of the other various expenses other than attorney’s fees and costs associated with litigation.
The truth about this case only came to light when the director of the Special Education Local Plan Area (“SELPA”) to which the involved school district belonged testified at an Informational Hearing conducted by the California Senate Select Committee on Government Oversight in December 2000. After the SELPA director bragged about how much litigation the SELPA and its member Districts had avoided by settling most cases with parents, he cited this case as an example of where litigation allegedly saved money, citing the fact that the hearing officer had reduced the remedy awarded to the student from $16K to $4K worth of remedial reading programming. But, when asked how much it cost to litigate the case, he responded that it was around $75K and promptly had his rear-end handed to him on a platter by the panel of outraged State senators conducting the proceeding.
This example illustrates why the November 2012 appellate court case is so important. If citizens can see the legal bills for an ongoing case against a public education agency, the public can evaluate whether its money is being spent on the right thing or not. And, that’s what LA County and its attorneys tried to prevent. They didn’t want to disclose the legal bills requested and tried everything they could think of to try and prevent the disclosure until after the pending litigation was over to which the requested billing records pertained.
It’s always a bad when you have public officials who make reckless, irresponsible decisions that hurt our kids and waste our taxpayer investment into the system in combination with profit-motivated law firms that take advantage of that reckless, irresponsible behavior for its own financial gain. The public has a right to be able to catch that kind of situation before it gets out of control and put a stop to it. Frankly, the earlier situations like that can be caught, the better.