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A&A: City Wrongly Applying “Deliberative Process Exemption” To Requested Records

Q: The City administration is wrongfully terminating employees as punishment for asking for disability retirement. I am a victim. They are withholding emails by wrongfully applying the deliberative process exemption to protect themselves from lawsuit for the wrongful termination. I have written proof. I have contacted this agency once before using this form but never got a response. I thought I would try one more time.

A: If you believe that your City is wrongfully withholding documents under the deliberative process privilege, I would suggest writing a follow-up letter to the City explaining why you believe the documents may not be withheld under the exemption and renewing your request for copies of the documents.

If the City continues to refuse to disclose the records, your ultimate recourse would be to file a lawsuit under Government Code section 6259.  Lawsuits to enforce the CPRA are usually initiated by a verified petition (i.e., a request filed under oath) that asks the court to issues a “writ of mandate.” A writ of mandate is a type of order directing the public agency to take specified actions.  The lawsuit may be filed in the superior court of the county of the agency that is the holder of records.

The judge would consider the briefs and evidence submitted by the parties and would determine if the agency is justified in withholding the records. Note that the CPRA provides
that “[t]he court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section,” but “[i]f the court finds that the plaintiff’s case is clearly frivolous, it shall award court
costs and reasonable attorney fees to the public agency.”  Gov’t Code § 6259(d).

Note that in addition to possibly violating the CPRA, denying access to parts of an employee’s personnel file (to the extent you are requesting documents about your own file)
may also be a violation of the California Labor Code which says “[e]very current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s
performance or to any grievance concerning the employee.”  Cal. Lab. Code § 1198.5(a).

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.  No attorney-client relationship has been formed by way of this response.

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