A&A: Can the Deliberative Process Privilege be used to avoid answering a deposition?

Q:  Is there any new case law on deliberative process privilege? I read on the website that in 2008 the CA court of appeals ruled Prop. 59 didn’t eliminate the deliberative process privilege.

So, is the fact that the right to know is a constitutional right a dead argument?

Can the privilege be claimed to prevent deposition of City Council members if it is believed their motivation was discrimination and retaliation?

I hope there has been some new case law on this issue in light of all the political corruption in CA. It seems absurd that politicians can hide their dirty deeds behind this privilege.

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A:  To answer your question if the right to know is dead – the answer is no, the right to know is not dead although it may be difficult if the agency or council member invokes the deliberative process privilege.  As far as I am aware, there has not been any new case law concerning the deliberative process privilege.

The “deliberative process privilege,” is a court-created exemption derived from Government Code § 6254(a) (exempting preliminary drafts, notes and memoranda) and Government Code § 6255 (the so-called “catch-all exemption”), which is intended to protect the government’s decision making process.

“The key question in every case is ‘whether the disclosure of 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. at 170, quoting Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991).

The burden is on the agency to demonstrate that the balance tips strongly in favor of non-disclosure when considering the public’s interest in disclosure with the government’s interest in non-disclosure.  We unfortunately all too often see this exemption, as well as the catch-all exemption, invoked when an agency does not want to disclose the requested records.

If a council member has been deposed in connection with ongoing litigation, then it would not seem that he or she could invoke the deliberative process privilege in order to avoid answering questions about governmental decision making.

In other words, the exemptions found in the PRA do not extend to court-sanctioned processes and hearings such as depositions and discovery.  Of course, within the deposition context, numerous objections are typically asserted by the individual being deposed (or his or her attorney) – i.e., a question is ambiguous, argumentative, immaterial; or the answer is hearsay or has no foundation.

Witnesses at depositions typically (though not always) still answer the questions, regardless of objections, even if that answer might be stricken by a judge later on.

Of course, this is all highly fact specific, so you might want to retain an attorney if you are currently in litigation and are wishing to depose a City Council member or conduct other discovery in connection with your case.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. 

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