A&A: Public Records Act Request Denied Due to Inability to Redact “Deliberative Material”

Q:  In response to public comment that I made before the school board, the school district’s Charter School Division sent an email to a charter school asking for data so that they could report back to the Board.  I sent a Public Records Act request to the District asking for a copy of the report that was generated using this data.

The school district has informed me that the records that I requested are exempt from disclosure citing Gov. Code §6255. I appealed the decision based on the wording of the code that states: “If a record contains both factual and deliberative materials, the deliberative materials may be redacted and the remainder of the record must be disclosed.” They rejected this claim stating that “Board Informatives are directly correlated to the deliberative material and redactions would not apply” as the “factual material is inextricably intertwined with the deliberative material.”

Is there any way that I can proceed to force the disclosure of this material?

A: It sounds as though the agency has invoked the “deliberative process privilege,” which allows nondisclosure of records revealing the deliberations of agency officials. This doctrine was created by the California Supreme Court in 1991, in a case involving a request for the calendars of then Governor Deukmejian, and has since been applied in many other contexts, including records of phone calls by city council members, and records regarding applications to the Government for appointment to fill vacancies on county boards of supervisors. According to the Supreme Court, “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.”  Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991).

The ultimate recourse to enforce the PRA is a lawsuit.  Gov’t Code § 6259.  Note that “[t]he court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation” to enforce the PRA, 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).

You can find additional information about the PRA on the website here.

If you are considering filing a lawsuit, you might be able to find an attorney to assist through the Los Angeles County Bar Association’s Lawyer Referral Service

As you know, Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.