A&A: How can I get around the CPRA “catch-all” exemption?

Q: A recent CPRA request  to the  California Department of  Justice resulted in a partial denial of responsive records; they claimed the deliberative process exemption for the records not provided (citing Times Mirror). If a process is not related to something truly requiring secrecy, are there any options to pursue this information and what would be the appropriate response to their letter?

A: For background purposes, Government Code section 6255(a) of the Public Records Act, known as the “catch-all” exemption, is typically invoked by governmental agencies when no other exemption applies. This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code section 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006). This exemption has been expanded by the courts to encompass a broad, categorical exemption known as the “deliberative process privilege.” See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991) (request for calendars of governor exempt from disclosure).

In Times Mirror, the Supreme Court stated that the “key question in every case is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions.” Id.

As stated in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172-73, “[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the Governor to establish the conditions for creation of the privilege.”

Given that the privilege is intended to promote candid discussion in connection with its decision-making process, I am not sure that the need for secrecy is necessarily a factor in deciding whether the privilege applies. Rather, if the agency contends that a record is not required to be disclosed under the Act, it must cite a specific exemption, and explain how that exemption applies to the requested record. Given how broad and undefined the deliberative process privilege is, you should press the agency to fully articulate the public interest served by nondisclosure. You could then use this information to enlighten the agency as to why the balancing test favors public disclosure. It will also put you in a position to dispute the agency’s claims if you bring an enforcement action to compel release of the records.

Finally, I should also mention Proposition 59, known as the Sunshine Amendment, which states: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” Cal. Constitution, art. I, section 3(b)(1).

It has been argued, and a state appellate court has rejected, that Prop. 59 was intended to eliminate the deliberative process privilege. See Sutter’s Place Inc. v. Superior Court, 161 Cal. App. 4th 1370, 1382-83 (2008) (no evidence of intent on the part of voters to supersede, override or alter the operation of the deliberative process privilege).

Nonetheless, courts acknowledge that Prop. 59 constitutionalizes the Public Records Act. Id. at 1382; see also Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 597 (2007). As such, you may want to mention Prop. 59 as additional authority that compels the release of the requested records in any future correspondence that you have with the DOJ.