Pay to know: SN&R to appeal ruling that let K.J. off the hook for legal fees

Sacramento News & Review will appeal a December court ruling that allows former Mayor Kevin Johnson to escape reimbursing the newspaper $114,000 in legal fees incurred in a battle over public transparency.

SN&R won the case in July and is looking to hold Johnson accountable for resources expended defending the California Public Records Act. Attorneys say the appeal has broader implications for how newspapers monitor elected officials.

“We’re very disappointed in the ruling,” said SN&R CEO and majority owner Jeff vonKaenel. “Because of the costs involved, this has horrible implications for newspapers making routine public information requests. It puts a chill on reporters doing the work they need to do.”

The clash began in March 2015, when former SN&R contributing editor Cosmo Garvin filed an official request with the city to review communications from Johnson’s office. The city had a cache of emails involving city business from a private email server that Johnson set up using Gmail, evidently to circumvent public records laws. Johnson quickly sued SN&R and the city he represented to prevent these communications form coming to light.

The electronic documents, which SN&R received in batches following the July ruling, reveal to what lengths Johnson used city staff and volunteers from his education nonprofit to coordinate a successful “coup” of the National Conference of Black Mayors. After Johnson got himself elected president in 2013, he steered the NCBM into bankruptcy and has since replaced it with the African American Mayors Association. (Read “K.J.’s shadow coup,” Local News, December 22, 2016.)

Nikki Moore, an attorney with the California Newspaper Publishers Association, said Johnson’s lawsuit—and the ruling on attorney fees—represent “a really unusual precedent” that could imperil the public’s ability to know how elected officials are conducting the people’s business.

“The implications for someone who wants to use the Public Records Act are great,” Moore observed. “Whether it’s a newspaper or a private citizen, they now know they might be sued simply for asking the government for information. That’s very troubling for a newspaper who’s going to have to shoulder those fees. … It means they are liable for a significant amount of fees, even if they prevailed in the action.”

After Sacramento Superior Court Judge Christopher Krueger ordered the vast majority of emails to be released this past summer, SN&R attorneys Tom Burke and Dan Laidman, of Davis Wright Tremaine LLP, filed a motion for Johnson, in his capacity as mayor, to reimburse the newspaper’s legal fees, a remedy enshrined in the California Public Records Act. After a long delay, Krueger ruled against SN&R.

SN&R’s attorneys believe there are legal grounds to overturn the ruling. Moore, who has been tracking the issue across the state, said Johnson’s strategy should be challenged.

“This is fundamentally undermining the system and the statutory framework that the legislature has made for getting records from the government,” Moore stressed. “The attorneys’ fees provision is what keeps public agencies and officials honest. It forces them to use a scalpel instead of a cleaver when they are looking at redacting information. If they withhold that information, they know they are going to have to pay for it if someone challenges them.”

VonKaenel agreed.

“This is a dangerous bar,” vonKaenel said. “In an era when we have a president who regulatory abuses the legal system, we can’t set up an environment where public information is about who has the most money.”

Editor’s Note: This story has been updated to more accurately reflect Moore’s experience on transparency lawsuits.