QUESTION: I requested calendar appointments of the Superintendent for my district. He refused saying they were exempt from the Public Records Act pursuant to Govt. Code 6254(a) and (k) and 6255, as they relate to the “deliberative process.” However, I understand that the agency must clearly explain not merely state why the public interest does not favor disclosure. (Times Mirror v. Superior CT.) I responded with codes 6253(a) They’ve also postponed other records past the 14 day extension. They have not explained how his calendar appointments include any substantive information about the actual deliberative process. What do I do?
ANSWER: Holme Roberts & Owen LLP is general counsel for the California First Amendment Coalition and responds to CFAC action line inquiries. In responding to these inquiries, we can give general information regarding access to governmental meetings and records, and related First Amendment issues, but cannot provide specific legal advice or representation.
You are correct in that the burden is on the government agency, when asserting the deliberate process privilege (codified in Gov’t Code § 6255), to show that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure. Gov’t Code § 6255(a).
The California Supreme Court has held that the “deliberative process” privilege protects communications to and from “decision makers” that might reflect with whom they spoke, and about what, in making decisions. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991). Where an agency invokes the deliberative process privilege, courts have held that the key question is whether disclosure of the materials would expose the agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to do its job.
You should be aware that the deliberative process privilege is intended to protect only documents reflecting a deliberative or policy-making process. The District seems to be taking the position, as was the case in Times Mirror, that calendar appointment information is instrumental to the agency’s decision-making process and, therefore, is exempt from disclosure. As you seem to know, Times Mirror allowed the governor to refuse to release his calendars and other records of people he met with, on the theory that this would reveal too much of the deliberative process.
However, the fact that the deliberate process privilege allowed the governor to withhold this type of information does not necessarily mean that it would apply to exempt these same records in the hands of the District’s Superintendent. As noted, in order to invoke the deliberate process privilege, an agency must be able to justify its withholding by demonstrating that the public interest served by not the record. Govt. Code section. 6255(a).
This exemption must be applied on a case by case basis. (Note that in the Times-Mirror case, the court cautioned that “our holding does not render inviolate the Governor’s calendars and schedules or other records of the Governor’s office. There may be cases where the public interest in certain specific information contained in one or more of the Governor’s calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited; then, the court might properly conclude that the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.” Times Mirror, 53 Cal. 3d at 1346.)
You might want to contact the agency once again and request that they articulate the public interest served by nondisclosure of the calendar appointments and how such interest clearly outweighs the public interest served by disclosure.
The District has also cited § 6254(k) as another basis for withholding calendar appointment information. It is not entirely clear how this exemption applies here. Section 6254(k) exempts from disclosure any information that is exempt pursuant to state or federal law. In other words, the District seems to be stating that there is a state or federal law, which would be incorporated into the PRA through subdivision (k) of 6254, that allows it to withhold the records you seek. If the District did not cite the particular state or federal law that it purports to incorporate, you also might want to press the District for that information — information to which you are entitled to under the PRA — so that you can better determine whether such state or federal law applies.
With respect to their response time, under § 6253(c), agencies are required to provide you with the documents requested, or notify you that your request has been denied, within 10 days of submitting a written request. Gov’t Code § 6253. “In unusual circumstances,” this 10-day limit may be extended by 14 days. Gov’t code § 6253. “Unusual circumstances” is limited to four situations (listed below). Please note, if the agency has determined to extend the 10-day limit, it MUST first notify you in writing of such extension and must set forth, in the notice, the reasons for the extension. Thus, unless the District has notified you that it will extend the 10-day limit by 14 days and has cited one of the four reasons as the basis for the extension, the District is not within its rights to withhold disclosure of non-exempt public documents beyond the 10 days.
The 14 day extension are limited to the following situations:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.
Gov’t code § 6253.
Again, in your next communication with the District, you might want to remind the agency of the 10 day limit to respond to your request, and of the conditions under which they can extend this limit by 14 days. You might find the sample PRA request letter on CFAC’s web site helpful in drafting your follow up request. A link to the sample request letter is below.
http://www.cfac.org/templates/cpraletter.html. I hope this information is helpful.
Holme Roberts & Owen LLP