Question
A local activist says that the Mayor and City Attorney “have both sent me letters refusing to divulge the mayor’s calendar of scheduled May appearances as Mayor and/or his appointment book of meetings as Mayor for the past two months.”
Is this legal under Prop 59?
Answer
In 1991, the California Supreme Court ruled that something called the “deliberative process” exemption allowed the Governor to refuse to release copies of his appointment calendars for the five years he had been in office. The case was Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991). Even though this exemption is not listed in the California Public Records Act, the Court held it could be applied under section 6255 of the PRA, which allows government agencies to withhold public records from disclosure if the public interest in support of non-disclosure “clearly outweighs” the public interest in disclosure.
Since then, the courts have read the deliberative process broadly, and refused to enforce PRA requests for records similar to appointment calendars (such as telephone records) even for shorter periods of time than the 5 years of records requested in the Times-Mirror case — even though the Court in that case said that more narrower requests might not be subject to the deliberate process exemption.
Under the Times-Mirror case, then, Mr. Norse might have a difficult time convincing a court to order the Mayor to release the calendars and appointment book.
However, in November the voters passed Prop. 59, which elevated the PRA to the status of a constitutional right. The legislative history of Prop 59 indicates it was intended to, among other things, get rid of the deliberative process exemption.
After Prop 59 passed, CFAC sent a PRA request to Gov. Schwarzenegger for his appointment calendars, arguing that Prop. 59 had changed the law. The Governor’s Office agreed to release the records. However, the Gov’s Office has since refused to release one week’s worth of appointment calendars for two of the Governor’s top aides. CFAC is now considering whether to file a lawsuit to try to get those records, which may result in a court ruling as to whether Prop 59 negated the Times-Mirror case and eliminated the deliberative process privilege. If that happens, Mr. Norse would be able to cite that ruling in support of a renewed PRA request for the Mayor’s appointment records.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.