Requesters Must Post an Undertaking if Public Agency Will Suffer Certain Damages During Injunction Proceedings

A California Public Records Act appellate court decision may require requesters to post an undertaking to cover a local agency’s email storage costs during injunction proceedings. An undertaking is an amount the applicant to an injunction must post to cover certain damages the other party may sustain because of the injunction.

While this case discusses the niche issue of an undertaking, the facts of the case involve a number of currently controversial CPRA issues.

In Stevenson v. City of Sacramento, CPRA requesters sought 15 million emails that the City planned to destroy as part of its two-year email retention policy. The trial court granted a preliminary injunction to prevent the destruction of the records at issue. However, it also required the requesters to post an undertaking of $2,349.50, which is the amount the City calculated it would need to spend to comply with the injunction. The requesters appealed, claiming that this would have a chilling effect on CPRA requests.

The Court of Appeal considered Code of Civil Procedure section 529, which requires an undertaking in injunction proceedings and lists specific exemptions. The exemptions include a public entity, but does not include CPRA requesters. The appellants argued that the undertaking is a restriction on the public’s right to access records, which must be expressly and unambiguously approved by the Legislature. The court replied that “this position proves too much” and Code of Civil Procedure section 529’s requirements are unambiguous. The court noted that there are certain unavoidable obligations when challenging a local agency’s CPRA determination, such as court filing fees. Moreover, the court did not agree that the undertaking requirement would necessarily limit the public’s right to access records because state law allows courts to except indigent parties from section 529’s undertaking requirements under specified conditions.

Email retention policies have been the subject of much debate in recent years, including attempted legislation to regulate such policies that was vetoed by Gov. Gavin Newsom in 2019. Electronic storage costs have also been an evolving issue, as evidenced in Stevenson, where the City first estimated that it would cost $80,000 to comply with the injunction. This was later revised to $2,349.50. The court and the Legislature have significantly increased access to public records in the last decade, but Stevenson offers a rare limitation on CPRA requesters.

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