A&A: Does “Deliberative Process Privilege” Allow California governor to Withhold Communications Relating to Voter-Mandated Study?

Q: I submitted a California Public Records Act request to the California Department of Public Health, Bureau of Cannabis Control (BCC), Gov. Newsom, CA Department of Tax and Fee Administration and Attorney General Xavier Becerra regarding the voter mandated nonprofit feasibility study required by the text of CA Prop 64. I received a response from all agencies, except the BCC stated the department needed 60 days to produce the records they were in possession of. Six months later and I have not yet received these records.

Gov. Newsom’s legal team has claimed that the Governor’s communications are exempt because it would “reveal the deliberative process of the Governor and his administration.” Despite the requested communications only pertain to the mandated nonprofit feasibility study. The Governor’s legal team has not responded to a request for an explanation of how the public interest in nondisclosure of the requested information outweighs the public interest in disclosure.

I am currently trying to figure out what is the best option to continue action to receive the requested information in compliance with the Public Records Act. Any information or assistance you can provide would be greatly appreciated.

A: The “deliberative process privilege” 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).

This privilege, which stems from the Act’s catch-all exemption, provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “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 § 6255(a).  Overall, this exemption is broad and undefined and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure. 

It sounds like you already wrote a letter back to the BCC to ask that it be more specific about the exemptions it is claiming, and requesting facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.  You could choose to write one more letter stating that you have not heard back and re-requesting the above.  In it, you could briefly state why you believe the claimed exemption does not apply, and note in the letter—as you did in your request below—that your request is limited to communications pertaining to the mandated nonprofit feasibility study.

If this does not work, 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 could remind the agency in your letter that if you are forced to file a lawsuit to enforce your rights under the PRA, the BCC will be liable for your attorneys’ fees should you prevail.  

Bryan Cave Leighton Paisner 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.