COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT ____________________________ ) Third District Civ. No.

: C066633 TIM CREWS, ) Plaintiff and Appellant, ) ) vs. ) Glenn County Superior Court, ) Case No. 09CV00697 ) (Hon. Peter Twede) WILLOWS UNIFIED SCHOOL ) DISTRICT ET AL., ) Defendants and Respondents ) ) ____________________________) ____________________________________________________________ APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE AND CALIFORNIANS AWARE IN SUPPORT OF APPELLANT TIM CREWS ____________________________________________________________ JOSEPH T. FRANCKE (SBN 88654) 2218 Homewood Way Carmichael, CA 95608 terry@calaware.org Attorney for Amici Curiae William T. Bagley, Leland Yee and Californians Aware

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT ____________________________ ) Third District Civ. No.: C066633 TIM CREWS, ) Plaintiff and Appellant, ) ) vs. ) Glenn County Superior Court, ) Case No. 09CV00697 ) (Hon. Peter Twede) WILLOWS UNIFIED SCHOOL ) DISTRICT ET AL., ) Defendants and Respondents ) ) ____________________________) ___________________________________________ APPLICATION TO FILE BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE AND CALIFORNIANS AWARE IN SUPPORT OF APPELLANT TIM CREWS ____________________________________________________________ JOSEPH T. FRANCKE (SBN 88654) 2218 Homewood Way Carmichael, CA 95608 terry@calaware.org Attorney for Amici Curiae William T. Bagley, Leland Yee and Californians Aware

October 1, 2012 RE: Crews v. Willows Unified School District et al., Third District Civ. No. C066633 TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE THIRD APPELLATE DISTRICT FOR THE STATE OF CALIFORNIA: Amici curiae William T. Bagley, Leland Yee and Californians Aware request permission to file the attached brief in support of Plaintiff and Appellant Tim Crews in the captioned case. Interests of Amici Amici are current and former public officials, recognized for their strong and principled support of government transparency and accountability, as well as a nonprofit advocacy organization dedicated to the people's right to know about, and to participate in, their government. Amicus William T. Bagley, a lawyer, was a Member of the California Assembly from 1961 to 1974, representing Marin and Sonoma counties. In 1968 he was the author of Assembly Bill 1381 (Ch. 1473, Stats. 1968), which enacted the California Public Records Act (CPRA). He also was the author of the open meetings law that bears his name, the Bagley-Keene Act, Government Code sections 11120-11132, enacted in 1967. The prelude to the latter states: " The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, . . . insist on remaining informed so that they may retain control over the instruments they have created." Section 11120. Amicus Leland Yee, a Member of the California Senate, is the legislator currently mostactive in attempting to strengthen access to public information and proceedings, exemplified in this sessions Senate Bills (SBs): 8 (Ch. 247, Stats. 2011), making records held by public higher education auxiliary organizations presumptively subject to public scrutiny, available at http://info.sen.ca.gov/pub/1112/bill/sen/sb_00010050/sb_8_bill_20110906_ chaptered.html 1000 (failed passage), making safety-related records provided by regulated utilities to the California Public Utilities Commission
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presumptively public consistent with the CPRA, available at http://info.sen.ca.gov/pub/1112/bill/sen/sb_09511000/sb_1000_bill_20120614_amended_asm_v95.ht ml 1001 (Ch. 506, Stats 2012), increasing lobbying fees to support improvements to Secretary of States online campaign spending information site, Cal-Access, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2011201 20SB1001 1002, (vetoed), requiring a study and recommendations on the use of an open data format, including searchability, for state and local records subject to the CPRA, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2011201 20SB1002 1003, (signed by the Governor Sept. 28), creating a citizens cease and desist nonjudicial enforcement procedure for challenging practices suspected of violating the Ralph M. Brown Act, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=2011201 20SB1003and 1336 (failed passage), requiring State Auditor and local government auditors to release information on dispositions of investigations of whistleblower-reported improper governmental activity, available at http://info.sen.ca.gov/pub/1112/bill/sen/sb_13011350/sb_1336_bill_20120508_amended_sen_v97.htm l Amicus Californians Aware is a nonpartisan, non-profit advocacy group established as a public benefit corporation under California law and an Internal Revenue Code Section 501(c)(3) public charity. Its mission is declared as being To foster the improvement of, compliance with and public understanding and use of, public forum law, which deals with peoples rights to find out what citizens need to know to be truly selfgoverning, and to share what they know and believe without fear or loss. With that focus it tracks and sponsors selected legislation, occasionally litigates to enforce the open government laws, publishes guides to those laws and to the rights and risks of journalists, and offers training to public agencies and public employee organizations, news organizations and citizens in general statewide. Disclosure: Plaintiff/Appellant Tim Crews is secretary-treasurer of Californians Aware but has not requested its participation in this brief and has not commented or been consulted on its content.
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COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT ____________________________ ) Third District Civ. No.: C066633 TIM CREWS, ) Plaintiff and Appellant, ) ) vs. ) Glenn County Superior Court, ) Case No. 09CV00697 ) (Hon. Peter Twede) WILLOWS UNIFIED SCHOOL ) DISTRICT ET AL., ) Defendants and Respondents ) ) ____________________________) ____________________________________________________________ BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE AND CALIFORNIANS AWARE IN SUPPORT OF APPELLANT TIM CREWS ____________________________________________________________ JOSEPH T. FRANCKE (SBN 88654) 2218 Homewood Way Carmichael, CA 95608 terry@calaware.org Attorney for Amici Curiae William T. Bagley, Leland Yee and Californians Aware

CONTENTS I. INTRODUCTION Page

A. Plaintiff/Petitioner May Be the CPRAs Most Experienced Litigant 10 B. The Litigation Sought to Shed Light on the Conduct of a Public Official ... 12 II. SEQUENCE OF EVENTS 13 III. LEGAL ANALYSIS A. The Court Creates an Unsupported Hybrid Theory of Fee Recovery 1. Prevailing Law: Requester Is Due Fees When It a. Got All It Sought, After and Because It Sued. 19 b. Got Some of What It Sought, after and Because It Sued 20 2. Prevailing Law: Neither Side Is Due Fees When Requester a. Got None of What It Sought in an Arguable but Unsuccessful Suit 20 b. Got Some or All of What It Sought After, but Not Because, It Sued.. 21 3. Prevailing Law: Agency Is Due Fees When Requester Got None of What It Sought in a Case Not Even Arguably Meritorious 22 4. Trial Courts Hybrid Theory: Agency Is Due Fees When Requester Got Very Little of What It Sought in an Arguable Case That Might Have Been Unnecessary............ 22

B. Lack of Benefit to the Plaintiff Does Not Render the Litigation Frivolous.. 23 C. Crews Going to Court Was Neither Premature Nor Unnecessary to Obtain Records.... 23 IV. CONCLUSION. 25

AUTHORITIES Cases Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240.. 20 Belth v. Garamendi (1991) 232 Cal.App.3d 896... 19, 21 Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379. 20 Butt v. City of Richmond (1996) 44 Cal.App.4th 925. 22 City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411.. 13 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414.. 19 Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249... 21 Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th1381... 20, 23 Motorola Communication & Electronics, Inc. v. Dept. of General Services (1997) 155 Cal.App.4th 1340 22 People v. Battin (1978) 77 Cal.App.3d 635.... 12 Rogers v. Superior Court (1993) 19 Cal.App.4th 469 22 Stanson v. Mott (1976) 17 Cal. 3d 206.... 12 Tracy Press v. Superior Court (2008) 164 Cal.App.4th 1290.... 21
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Statutes Govt. Code 6253 (c). 24 Govt. Code 6253.9 13 Govt. Code 6254 (b). 19 Govt. Code 6257.5 12 Govt. Code 6259 (d).. 19, 20 Pen. Code 424 (a) (2) ... 12

I. INTRODUCTION A. Plaintiff/Petitioner May Be the CPRAs Most Experienced Litigant Tim Crews, editor and publisher of the twice-weekly Sacramento Valley Mirror, a newspaper serving Glenn County, is well known respected by his professional peers statewide and beyond and notorious to local public officials and business competitorsas a uniquely dogged investigative journalist and litigant for open government. As noted in a front page story two years ago in California Lawyer magazine, there had been more than two dozen cases over the past five years when (Crews) has either sought government records under the California Public Records Act or pursued violations of the state's open meetings law. See The Sunshine Boys, August 2010, available at http://www.callawyer.com/clstory.cfm?pubdt=201008&eid=910837&evid= 1. By contrast, even Californias very largest news organizations may bring two or three such cases a year, in an era when evaporating advertising revenues have markedly reduced news media budgets for public information litigation nationwide. See CT 1676-77, 1683. Mr. Crews readiness to go to court to keep government visible is of a piece with the substance and success of his reporting, winning him the Freedom of Information Award in three annual contests conducted by the California Newspaper Publishers Association. And his readiness to confront what he sees as overreaching or misguided official power shows up in his defensive as well as offensive game. Nearing 70, he is the only living journalist in the state known to have served jail time for refusing to name a source of published information subpoenaed in connection with a criminal prosecution. For this act of principled refusal, coupled with his activism for governmental transparency generally, he has received:
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 the Bill Farr Award of the California Society of Newspaper Editors in 2000. See Editors Honor Publisher Who Went to Jail to Protect Sources, La Prensa San Diego, available at http://laprensasandiego.org/archieve/april07/editors.htm Hofstra Universitys Francis Frost Wood Courage in Journalism Award in 2004. See Maya Dollarhyde, Publisher of biweekly newspaper receives award for journalistic courage, Freedom Forum Online, available at http://www.freedomforum.org/templates/document.asp?documentID=1232 8; the California Press Associations Newspaper Executive of the Year Award in 2009, See Terry Francke, Californias Most Courageous Newspaperman, Californians Aware, available at http://calaware.org/freedom-of-the-press/californias-most-courageousnewspaperman; and the Norwin Yoffie Lifetime Achievement Award of the Northern California Chapter of the Society of Professional Journalists in 2011. See Rebecca Bowe, Sunshine Superheroes, San Francisco Bay Guardian, available at http://www.sfbg.com/2011/03/15/sunshine-superheroes. Also in recognition of his work, apparently, Mr. Crews has had his office burgled, his building set afire, his cars brakes and wheels weakened to the point of failure and his dog poisoned. Apparently, because none of these events has been investigated to the point of an arrest. All that notwithstanding, even the most professionally laudable journalist, whose record of serious public service reporting could not be called frivolous except by a frivolous accuser, may of course be judicially deemed frivolous for filing an exceptional case with no arguable merit that no reasonable attorney would ever consider bringing. But that record is not
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irrelevant in considering whether simple persistence in prosecuting a disclosure action under the California Public Records Act (CPRA) for records persistently withheldwithout justification or explanationcomes even close to what the law means by frivolous litigation. B. The Litigation Sought to Shed Light on the Conduct of a Public Official While a CPRA plaintiffs purpose is not necessarily determinative of whether the litigation is frivolous, and indeed under Government Code section 6257.5 should not be considered, in this case the purpose was no different from that of those regularly filed over the preceding yearsto obtain information withheld by government officials and agencies about their conduct of the publics business. In this instance the particular focus was on whether, as suggested by a source, the superintendent of the Willows Unified School District was using his office and District resources to support campaigns for the passage of a ballot measure and the recall of the Glenn County Superintendent of Schools. Such conduct, if confirmed, would violate the constitutional prohibition against the use of public funds to influence an election, including a ballot measure. Stanson v. Mott (1976) 17 Cal. 3d 206. It could also be prosecuted as an unlawful use of public funds, a felony violation of Penal Code Section 424 (a) (2). People v. Battin (1978) 77 Cal. App. 3d 635. Thus Mr. Crews request for a years worth of the superintendents email messages was not simply a use of the CPRA to obtain information held by government concerning private persons or institutions, but rather to acquire information held by government about government, focusing on the central concern of official integrity. We must give due regard to the primary purpose of CPRA, or what the United States Supreme Court has described as the "core purpose" of the analogous federal act: to " 'contribute significantly to public understanding
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of the operations or activities of the government' " and to let citizens know " 'what their government is up to.' " City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1417. Consistent with this core purpose, the trial court conceded that Crews case as filed was not frivolous. CT 1798.

II. SEQUENCE OF EVENTS To summarize, based on undisputed facts itemized in the Appellants Opening Brief, the sequence of significant events in the case is as follows: 2009 March 5 Crews requests copies of all the Superintendents emails for the past year, in electronic form. March 15 District elects to extend 10-day period for response, stating more time needed. March 30 District responds that no emails prior to April 28, 2009, can be produced, and produces none at that point. April 28 Crews petitions court to order District to produce records requested. May 5 May 11 Crews serves District. District begins producing records, but in unsearchable PDF copies of email pages rather than in native format, maintaining that it has the right to choose the format for release. [Note: the CPRA in Government Code section 6253.9, subd. (a) states, in pertinent part:]
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Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall make that information available in an electronic format when requested by any person and, when applicable, shall comply with the following: in which it holds the information. In responsive negotiation Crews offers not to challenge the PDF format if District will expedite production, but District does not agree to this compromise. July 31 Crews amends petition to allege that District failed to produce records in the searchable electronic format he has requested, and needlessly delayed production. December 3 District ends production, but Crews finds that thousands of records are still being withheld, many produced have been redacted and many make reference to attachments that are not produced. 2010 April 28 Crews files opening brief seeking access to withheld emails in native format (not PDFs), as originally requested, supported by expert declarations as to the difference, the already produced PDFs lack of header (To and From) information showing the origin and distribution of the messages, and other advantages of native format versions, including but not limited to searchability. District opposes, contending that Crews offer of
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(1) The agency

shall make the information available in any electronic format

compromise a year earlier (PDFs acceptable if production expedited) waived his right to object to PDFs now. Crews replies that his offer was not a waiver; that evidence of the offer was inadmissible; that at least the emails not considered exempt from disclosure; and/or their metadata, should be released in native format; that production cost would be minimal; and that the court should review all withheld records in camera to decide if secrecy should continue. March 15 Court issues tentative decision finding, inter alia: District was unable to produce emails in native format, but did its best to provide exact copies; Since email is defined as a message, District complied with Crews request by providing the body text of emails, but should also be required to produce any attachments Crews can specify, if not exempt from disclosure; Crews counsel not only agreed to the PDF format, but insisted upon it; No violation of the CPRA has occurred because District offered to submit withheld records to in camera review; Petition is dismissed; Crews did not prevail and is not entitled to attorney fees. August 5 Crews objects to tentative decision, arguing, inter alia: District knows how to provide native format emails, electronically redacted as needed;
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 Neither Crews nor his attorney unconditionally consented to accept PDFs of emails, and District had no reason to believe they had, after his July 31, 2009 amended petition; Uncontested emails should be provided in native format, or if waiver is found, metadata should be provided in hard copy; Despite tentative decision, District is still unwilling to produce missing attachments. June 8 August 2 Trial court sets in camera hearing date. Pursuant to courts order Crews files pre-hearing brief, including: specification of all possible exemptions applicable to requested records; argument as to why each would not apply; emphasis on Districts burden to justify exemptions; description of courts role in conducting in camera review; exhibits of emails showing: missing attachments; improperly redacted messages; and illegible messages; and request for recording of hearing and deliberation for potential appellate review (repeated in subsequent pre-hearing request). In opposition, District says it will provide court with three CDs containing uncontested emails and attachments; those argued to be exempt as preliminary drafts, notes and intra-agency memoranda (Government Code Section 6254, subdivision (a)); and those argued to be otherwise exempt.
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September 1 Court conducts in camera review, with no testimony or evidence, of some 3,200 hard copy pages. Minutes show hearing lasted 45 minutes, with District counsel only present. September 9 Crews supplemental brief reports that District has, after 18 months, produced some but not all requested attachments, but is still withholding others that do not print out and show up only when viewed on computer. October 8 Court issues statement of decision adopting the tentative ruling but adding (for the first time) a finding that Crews action was frivolous, and awarding fees and costs to District. October 20-21 Crews files objection and amended objection, repeating all prior requests for findings of law and fact. November 1 Court issues final judgment denying petition and finding Crews serving the writ petition premature and unnecessary; that it did not result in any benefit whatsoever to the petitioner and was therefore frivolous. Crews files notice of appeal on the frivolousness finding; District files motion for more than $100,000 in attorney fees; Crews submits declaration stating his personal annual income of $20,000, and stressing Valley Mirrors chronic flirtation with insolvency. 2011 April 11 Court orders additional briefing on whether District is claiming fees not just for defending the litigation but for reviewing Crews record requests. May 13 Crews submits declaration reiterating his assertion of
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approximately $20,000 personal income, and to debts including back taxes due to IRS, denying that, as asserted by District, he had kept for his own use a previous CPRA attorney fee award of $100,000. June 2 August 17 Court holds hearing on fee motion. Court rules on Districts fee request, reducing it to almost $54,000, but finding that while Crews petition was not frivolous per se, serving it after the first of many appropriate responses to the petitioners request for production was frivolous. (Emphasis added) Conceding that District has withheld some 3,200 pages of documents, the Court suggests that the parties should have hired a neutral to resolve any issue before application was made to the court through the formal writ proceeding. (Emphasis added) [Under a motion to augment the record, Crews attorney now declaresin response to this judicial afterthoughtthat Crews had offered to hire and pay for a neutral intermediary, which offer the District refused.] Court chooses to disbelieve Crews statements as to his ability to pay, specifically rejecting both his and his attorneys uncontradicted denials that he had pocketed the attorney fee award from the previous case. Court awards more than $56,000 in attorney fees and costs to the District.

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III. LEGAL ANALYSIS A. The Court Creates an Unsupported Hybrid Theory of Fee Recovery The CPRA statutory and case law recognize five instances that determine how and to whom attorney fee and cost awardsif anyare due. The court here creates a sixth hybrid category without reference to any authority and which is impossible to apply in any principled fashion. 1. Prevailing Law: Requester Is Due Fees When It a. Got All It Sought, After and Because It Sued The standard rule is in Government Code Section 6259, subdiv. (d): The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. A fee award to plaintiff is mandatory in such circumstances. Belth v. Garamendi (1991), 232 Cal.App.3d 896, 900). The plaintiff prevails for fee purposes, even if the case does not reach adjudication, when he or she files an action which results in defendant releasing a copy of a previously withheld document. Id. at 898. Moreover, when a defendant public agency released a previously contested document after a petition has been filed because the exemption under which it has been withhelde.g. records pertaining to pending litigation in Government Code Section 6254, subd. (b) has circumstantially expired since the litigation is no longer pending, that release does not moot the fee entitlement issue. The trial court must decide whether the exemption asserted (and any others never ruled upon) were properly claimed in the first instance, and if not, the plaintiff has prevailed in establishing its access right on the merits and is entitled to fees. Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1422.

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b. Got Some of What It Sought, After and Because It Sued Circumstances could arise under which a plaintiff obtains documents, as a result of a lawsuit, that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail. But there is no support for such a finding in (a) case . . .where (a) court ordered disclosure of one of two contested documents, and where the claim for the other was not frivolous. Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391. Furthermore, (W)hile the degree of the plaintiff's success in obtaining the objectives of the litigation is a factor that the trial court may consider in determining an award of reasonable attorney fees under a fee statute . . . including the CPRA fee statute ( 6259, subd. (d)), we determine that there is no requirement that the trial court make an award of attorney fees in an amount that is commensurate with or in proportion to the degree of success in the CPRA litigation. Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1398. 2. Prevailing Law: Neither Side Is Due Fees When Requester a. Got None of What It Sought in an Arguable but Unsuccessful Suit Here the American Rule that the parties will bear their own attorney fees irrespective of the outcome of the case (See Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240, 247) is the default because the CPRAs fee-shifting provision does not apply when the plaintiff s case is neither successful nor frivolous. One example involved a newspapers action against a city for disclosure of emails concerning public business sent and received through the personal account of a member of a city council, where the
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trial court ruled the records unavailable under the CPRA but this court dismissed without reaching the merits, due to the plaintiffs failure to join the council member as a necessary party at the appellate stage. This court ruled that this procedural defect which doomed the case did not render it frivolous, however, since the petition attempted to raise an important and novel issue concerning whether writings in the sole possession of a city council member are "prepared, owned, used, or retained by any state or local agency" (Gov. Code, 6252, subd. (e)) and are therefore subject to a public records request under the Public Records Act and the California Constitution. The participation of amici curiae attests to the importance of the issue. We therefore conclude that this proceeding is not clearly frivolous. Tracy Press v. Superior Court (2008) 164 Cal.App.4th 1290, 1302. b. Got Some or All of What It Sought After, but Not Because, It Sued The catalyst rule of Belth v. Garamendi, supra does not come into play if the defendants production of requested documents was not caused by the plaintiffs filing of the action, i.e., where delay in the eventual production of records resulted from factors other than deliberate denial of access, or improperly conditioning access on a stipulation that certain embarrassing information could be redacted and that the information released would not be circulated to others. Fontana Police Dept. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249, 1251. For example, where the agency commences its search for requested records before the action is filed and produces most of the documents responsive to the request, its later post-filing discovery and production of other responsive but overlooked documents is a result of its continuing due diligence
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and not of the filing of the action. Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 483. In short, delayed production of documents until after the action is filed will justify a catalyst fee if the delay resulted from agency intransigence, but not if it was attributable only to inadvertent bureaucratic processing lags due to administrative problems. Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 155 Cal.App.4th 1340, 1346. 3. Prevailing Law: Agency Is Due Fees When Requester Got None of What It Sought in a Case Not Even Arguably Meritorious This is the other side of the fee-shifting rule in Government Code Section 6259, subdivision (d): 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. There are no published cases finding such an award applicable for utter lack of merit. In Butt v. City of Richmond (1996) 44 Cal.App.4th 925, the only appellate case affirming the award of fees to a defendant public agency, a discussion of the merits of the case was ordered unpublished. 4. Trial Courts Hybrid Theory: Agency Is Due Fees When Requester Got Very Little of What It Sought in an Arguable Case That Might Have Been Unnecessary This is the hybrid category created by the trial court, without precedent or consistency with either the law or the facts. The error began with its March 15, 2010 tentative decision with the contradictory findings that on the one hand Crews was entitled to any email attachments he could identify, if not exempt from disclosure (and he reported receiving 91 pages of them thereafter), but that on the other hand Crews did not prevail in the litigation and was not entitled to attorney fees.
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Los Angeles Times v. Alameda Corridor Transportation Authority, supra, 88 Cal.App.4th at 1391-92, teaches that a plaintiff obtaining more than a minimal or insignificant portion of the records requested can be said to have prevailed, even if not completely successful. The court here did not find, nor could it have found at that point, that the attachments were quantitatively minimal or qualitatively insignificant, since they had yet to be produced. For all the court knew, one or more attachments might contain key evidence as to the involvement of the superintendent in prohibited activity. B. Lack of Benefit to the Plaintiff Does Not Render the Litigation Frivolous The trial courts conclusion in its November 1 judgment that the litigation did not result in any benefit whatsoever to the petitioner and was therefore frivolous (emphases added) is the non sequitur crystallizing the courts fundamental conflation of the fee entitlement standards. A case without any benefit whatsoever to the plaintiffdecisively less success than the minimal or insignificant harvest described in Los Angeles Times disentitles him to attorney fees simply because it means he did not prevail. But it does not render the case therefore frivolous because if it did, every unproductive CPRA case, however well-meant and ably waged, would be frivolous; the price of losing would be approximately twice as high as it now is; and the incentive to use the courts to enforce public information law would be reversed. C. Crews Going to Court Was Neither Premature nor Unnecessary to Obtain Records The filing of a CPRA action can be said to be both premature and unnecessary when done before the government has been given its due opportunity to respond, i.e., before expiration of its 10-day period for making and informing the requester of its determination.
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Here, by contrast, Crews filed and served his action on April 28 and May 5, respectively, approximately two months after making his March 5 request, and one month after the Districts extended time for a determination response had expired, with no word on what kind of email content would be withheld as exempt from disclosure. Government Code Section 6253, subdivision (c) provides, in pertinent part: Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. Indeed if the District ever articulated its exemption positions (instead of simply redacting information it did not wish disclosed), it could only have been to the court in the in camera hearing of September 1some 16 months after the action was filedunattended by Crews counsel. None of the 3,200 records said to have been reviewed in that session was ordered released to Crews, nor did the court identify any exemptions applicable to particular documents, despite Crews pre-hearing motion, diligently arguing the inapplicability of a number of exemptions that it anticipated the District might be asserting.
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The District, in short, never provided a determination and the reasons therefor that would govern the extent of its email disclosure. That, and the fact that from the very beginning it refused to provide emails in native format despite undisputed expert testimony that doing so was not difficult, and a CPRA mandate to provide records in any format used by the agency, should remove any doubt that the litigation was neither premature nor unnecessary. Why the 3,200 records were not ordered released is not known, but it cannot be denied that the District would never have been forced to consider releasing them had no action been filed. Even if premature and unnecessary litigation was enough to make an action clearly frivolous and it isnt there is no support for such a finding here. III. Conclusion Plaintiff/Petitioner Tim Crews, likely the states most experienced journalist litigant under the CPRA, used a request under that statute in seeking to verify an informants tip that a school district superintendent had made unlawful use of public funds to influence an election. His request to the District sought the prior years worth of messages to and from the superintendent in electronic format. Approximately two months later, having received neither any records nor even a letter of determination as to which if any exemptions from disclosure would be applicable, Crews filed an action seeking an order for disclosure, and only then began receiving email messagesin an unsearchable PDF format. He continued to protest this unresponsive production after his offer to accept PDFs in return for expedited production was rejected. His compromise offer was argued by the district to be a waiver, and the trial court, despite evidence to the contrary, even found that he had insisted on PDFs. Production of all that Crews would get ended almost eight months after his request, leaving thousands of responsive messages and all
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attachments unreleased. The court reviewed 3,200 of the messages in camera but neither ordered any of them released nor announced any reason to excuse their disclosure. The court then entered a tentative statement of decision finding Crews not to have prevailed and not entitled to an award of attorneys fees. The court later adopted that decision in a final statement, but for the first time adding an attorney fee award to the District, finding Crews resort to and persistence in the litigation: entirely without benefit to himdespite the release of email messages that began only after he sued, and the production of attachments only months later, on order of the court; premature, despite the Districts utter failure to specify either within the provided statutory response period or even later which if any messages would be withheld under which exemptions; and unnecessary, for failing to use a neutral to resolve any issue presented before application was made to the court, despite Crews having offered to hire and pay just such an arbiter, which offer the District had rejected. All three findings are contrary to fact, and even if true, insufficient to show frivolousness. A CPRA lawsuit that results in no benefit to the plaintiff is not for that fact frivolous; it simply disqualifies the plaintiff from an attorney fee award. A CPRA lawsuit is premature to the point of frivolousness only if it is filed before the government has had due opportunity to make a determination of exemption. A CPRA lawsuit that could have been avoided by recourse to an extrajudicial third party arbiter is not frivolous, because no such mechanism is contemplated in the statute as an even reasonable, much less required, dispute resolution alternative. A

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march to the courthouse on the schedule allowed in the law is not a race to the courthouse depriving the government of due deliberation. For these reasons, not only should the judgment against Crews be reversed, but he should be awarded his own attorneys fees for securing the release of withheld attachments. Dated: 1st day of October, 2012. JOSEPH T. FRANCKE By: _________________________________ Joseph T. Francke Attorney for Amici Curiae WILLIAM T. BAGLEY, LELAND YEE and CALIFORNIANS AWARE

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CERTIFICATE OF COMPLIANCE I, Joseph T. Francke, counsel for Amici Curiae WILLIAM T. BAGLEY, LELAND YEE AND CALIFORNIANS AWARE in the instant matter, Tim Crews v. Willows Unified School District et al., Case No. C066633, hereby certify that the foregoing document was prepared pursuant to and in compliance with California Rule of Court Section 8.204(c)(1). This brief contains a total of 5,810 words and was formatted in Times New Roman, 13-point typeface. I declare under penalty of perjury that the foregoing is true and correct. Dated: October 1, 2012 Respectfully submitted, ________________________________ Joseph T. Francke Attorney for Amici Curiae ________________________________

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PROOF OF SERVICE Tim Crews v. Willows Unified School District No. C066633 I, Joseph T. Francke, state: I am a citizen of the United States. My business address is 2218 Homewood Way, Carmichael, CA 95608. I am employed in the County of Sacramento where this mailing occurs. I am over the age of eighteen years and not a party to this action. On the date set forth below, I served the foregoing documents described as: APPLICATION TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF WILLIAM T. BAGLEY, LELAND YEE AND CALIFORNIANS AWARE IN SUPPORT OF APPELLANT TIM CREWS on the following person(s) in this action addressed as follows: Matthew P. Juhl-Darlington MATT JUHL-DARLINGTON & ASSOCIATES 555 Main Street, Suite 210 Chico, CA 95928 Tel: 530-343-3334 Fax: 530-924-4784 Email: matt@mjdedlaw.com Attorneys for Defendant and Respondent Donald A. Velez BURKE, WILLIAMS & SORENSEN, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612-3501 Tel: (510) 273.8780 Fax: (510) 839.9104 Email: dvelez@bwslaw.com Attorneys for Respondent Willows Unified School District Clerk Superior Court of California County of Glenn Willows Branch - Main Courthouse 526 West Sycamore Street Willows, CA 95988

Office of the Clerk Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 (4 copies)

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Karl Olson RAM, OLSON, CEREGHINO & KOPCZYNSKI LLP 555 Montgomery Street, Suite 820 San Francisco, CA 94111 Tel: 414-433-4949 Fax: 415-433-7311 Email: kolson@rocklawcal.com Attorneys for Plaintiff and Appellant Tim Crews X BY FIRST CLASS MAIL - I am readily familiar with my firms practices for collection and processing of correspondence for mailing with the United States Postal Service, to-wit, that correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business. I sealed said envelopes and placed them for collection and mailing this date, following ordinary business practices. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on October 3, 2012 at Carmichael, California.

_______________________________

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