Q: I need to access documents from the California Coastal Commission in an appeal, including information regarding upload logs of documents to their website, all interagency correspondences with Coastal regarding our project, any announcements of the hearing, and all communications between the Commission and any parties regarding our project but most important, correspondence between staff and a specific developer. Please advise.
A: Under the California Public Records Act (CPRA), public records—which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Cal. Gov. Code § 6252(e)—are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. The CPRA contains many exceptions to its disclosure rules, including, possibly relevant here, the deliberative process exemption and the drafts exemption.
There is a chance that the Commission may claim that some of the documents you request are subject to the “drafts” exemption. The CPRA exempts from disclosure preliminary drafts, notes or memos not normally retained in the ordinary course of business (Gov’t Code section 6254(a)). This exemption requires meeting three conditions: (1) it applies only to documents that are “pre-decisional,” namely records that contribute to reaching some administrative or executive determination; (2) it applies only to documents not normally kept on file; and (3) it only applies if the public interest in withholding the records clearly outweigh the public interest in disclosure. Citizens for A Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 714 (1985). “If the records sought pertain to the conduct of the people’s business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.” Id. at 715.
Another possible exemption the Commission may claim here is the “deliberative process privilege,” which, as explained in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 169-70 (1998), is a court-created exemption derived from the same section mentioned above (Government Code § 6254(a)) and Government Code § 6255 (the so-called “catch-all exemption”). The deliberative process privilege 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.
Finally, to the extent it’s applicable, the CPRA also incorporates within its exemptions the protections of the California Evidence Code and therefore includes the attorney-client privilege. Cal. Gov. Code § 6254(k). This privilege applies to communications made within the scope of the attorney-client relationship even if the communication does not relate to pending litigation, including legal advice when no litigation is threatened. Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993).
The first step in obtaining the documents you seek would be making a written request to the Commission making clear that you are requesting the documents pursuant to the CPRA. When an agency receives a request for public records, it has ten days to determine whether the request seeks copies of disclosable records, and to either disclose them or to cite an applicable exemption and its reasoning why that exemption applies. Cal. Gov. Code § 6253(c). If the Commission pushes back or rejects the request without providing enough clarity, you may want to write back and ask that it explain its justification for withholding the records (including listing any specific exemptions it claims). At that point, you could let the Commission know that you do not believe it is justified in withholding the emails for some of the reasons cited above.
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.