The “deliberative process privilege” is dead or, at best, on life support. Here’s to pulling the plug on an FOI loophole that never should have been.
By Peter Scheer
The chairman of the San Bernardino County Board of Supervisors, Bill Postmus, refuses to make public his calendar of meetings and other government events. This refusal takes no small amount of chutzpah, since Governor Arnold Schwarzenegger regularly releases his calendars, as have all other statewide elected officials.
Postmus is not alone. Other, mostly obscure local political figures, outside the media spotlight, have opted to withhold their calendars—which would show, among other things, the special interest groups they confer with and which constituents get their attention. These officials rely on Times Mirror v. Superior Court, a 15-year-old decision in which the California Supreme Court blessed the decision of then-Governor George Deukmejian to reject a newspaper’s request for copies of his calendar of business meetings.
Their reliance is misplaced, however.
The Times Mirror decision is a textbook case of judicial activism run amok. Unable to find an applicable exemption in the state Public Records Act, the Court concocted a new one, ruling that the governor could not be forced to disclose records that would reveal or reflect his “deliberative process” in making decisions. Drawing on concepts of evidentiary privilege, the Court decided that the state’s chief executive needed to be able to function more like–well, more like the Court itself.
The judiciary is the most secretive branch of California government. State courts are exempt from open-government laws. The Supreme Court forbids lawyers from citing or discussing cases it has not specifically approved for that purpose–an arcane form of censorship that the federal courts have wisely abandoned. Even Proposition 59, the constitutional amendment enacted overwhelmingly in 2004, is claimed by the courts to have absolutely no effect on them. (So the judiciary argues in pleadings filed recently in a Riverside County lawsuit brought by CFAC and the Press-Enterprise newspaper).
Some degree of secrecy for judicial proceedings is necessary, to be sure. While the public must be allowed to attend court hearings and read legal pleadings, judges’ decision-making in individual cases—their “deliberative process”—is appropriately off-limits in order to insulate that process from political pressure and provide due process to litigants.
But the deliberative process of the governor is fundamentally different. Political considerations are highly relevant, if not always desirable. As you read this, Governor Arnold Schwarzenegger is deciding whether to sign or veto literally hundreds of bills sent to him by the Legislature. Any notion that his decisions will not be politically calculated, or that political influence can be banished by means of judicially crafted rules, is naive in the extreme.
In ruling that the public has no business observing the Governor’s deliberative process, the Court’s biggest mistake was in failing to see that the Public Records Act cannot be read in isolation—that it is part of a system of California access laws that includes, most significantly, the Brown Act. The Brown Act matters greatly because its central purpose is to give voters a 50 yard-line seat to the deliberative process of state and local government.
The Brown Act requires legislative bodies to confine their decision-making—their deliberations on virtually any issue—to meetings that are open to the public and that give voters an opportunity to register disapproval. Legislators can’t discuss public business in the elevator, at a cocktail party, the bathroom or in group email. A properly noticed public meeting is the sole legal venue for such deliberations.
Only by ignoring the Brown Act could the Supreme Court in the Times Mirror case possibly conclude that the chief executive’s deliberative process is off limits to the public. And only an activist Supreme Court that was determined to create a huge new exemption in the Public Records Act could ignore the Brown Act in deciding the issue.
But there’s another reason why San Bernardino’s supervisor, and other local officials who withhold their calendars, are out of luck: The deliberative process privilege announced in the Times Mirror case is unique to the governor; it was never meant to apply to every Tom, Dick and Harriet in local government who has an inflated opinion of his/her own importance.
The Court in Times-Mirror looked to federal principles of “executive privilege” as the source for the deliberative process privilege. And executive privilege in the federal sphere, first recognized in the famous Nixon Tapes Case, is personal to the President of the United States as the head of the executive branch of government and the personification of federal sovereignty. The privilege may not be invoked by the Secretary of Defense, Secretary of State or other cabinet officers. The privilege is the President’s alone.
By analogy to the federal scheme, only Schwarzenegger can invoke the deliberative process privilege to withhold records under the Public Records Act. The privilege is not available to his aides or department heads since they do not symbolize or represent state sovereignty. And it certainly isn’t available to officials at the local level of government. To be blunt about it, no local officials are remotely important enough to justify exalting their deliberative process over the competing considerations of public access and political accountability.
Finally, public officials’ calendars must be made public because Proposition 59, which is now part of the state Constitution, overturned the Times Mirror decision. That, however, is an argument for another commentary and another day. Suffice it to say that, one way or another, county supervisor Postmus is going to have to relinquish his calendar of government meetings.
Peter Scheer, a lawyer and journalist, is executive director of CFAC.