Deliberative process and the public record
Q: 1) Are public record emails to and from an elected county supervisor and his aides and staffers off limits, as the county counsel never quoted a legal reference when denying my request for such, only writing my “request may seek records that reflect the deliberative process contributing to an executive or legislative decision, “It’s believed communications exist chronicling a County Supervisor quashing, and meddling into, a reported Elder Abuse claim against one of the Supervisor’s political—$$$—supporters such that the identity of the elder abuse reporter was outed, getting her evicted from her home by the political supporter of the Supervisor; the political supporter was landlord over the edler abuse reporter.
2) In the few documents county counsel sent me today, the elder abuse reporter—a woman—confirmed 2-pages sent me originate from the county’s Risk Management Agency. Because county counsel sent me these 2-pages, am I then entitled to the full Risk Management report from which these 2-pages came from? What legal reference(s) may help me in this regard? It’s believed damaging communications and information of & about the Supervisor meddling into the elder abuse case are in the Risk Management report.
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 the privilege applies, it allows the government to withhold records that would otherwise be subject to disclosure under the Public Records Act.
While the Times Mirror case dealt with records reflecting who met with the Governor and the Governor’s aides, the Court of Appeals has extended the privilege to include telephone calls to and from city council members, which would be akin to emails to and from a supervisor and his aides. See Rogers v. Superior Court, 19 Cal. App. 4th 469 (1993).
However, there is an exception to the deliberative privilege, however. In the words of the state Supreme Court, as quoted by the Court of Appeal: “‘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.'” Rogers, 19 Cal. App. 4th at 479 (quoting Times Mirror Co., 53 Cal. 3d at 1345-46). This might be such a case, since you could demand only those emails concerning the Elder Abuse reporter (and ask a court to review the emails in camera to ensure all such emails were produced).
In addition, there is an argument that the recent elevation of the public’s right to know to a constitutional right, in Article I, Section 3 of the California Constitution, has vitiated the deliberative process privilege. This argument convinced the Governor’s office last year to release records reflecting with whom the Governor and his aides had met (the very records the Times Mirror court said were covered by the privilege).
As for your question about whether the release of two pages from the Risk Management report, we are not aware of any authority suggesting that it waived any claim of privilege with respect to the rest of that report.