Court of Appeal Clarifies Deliberative Process Privilege

08.02.2024

A recent ruling of the California Court of Appeal clarified the application of the deliberative process privilege to exempt certain public records from disclosure under the California Public Records Act (CPRA). In State v. Superior Ct. of Los Angeles Cnty. (2024) 101 Cal. App. 5th 214, the Court of Appeal held that a specific and narrow CPRA request for records that would otherwise be exempt from disclosure pursuant to the deliberative process privilege will nonetheless be subject to disclosure where the public interest in nondisclosure does not clearly outweigh public interest in disclosure.

The case involved a public records request made by the Energy and Policy Institute (EPI) to the California Governor’s Office for the calendars of Alice Reynolds, the former Senior Advisor for Energy. EPI made the request under the CPRA, which provides the public with the right to request documents relating to the public’s business from governmental agencies. Upon receipt of EPI’s request, the Governor’s Office responded that the records sought (i.e., Reynolds’ calendars) were exempt from disclosure based on the deliberative process privilege. EPI submitted a second, narrower request for Reynolds’ calendar events with specific entities. When the Governor maintained that these records were exempt “because they reveal the deliberative process of the Governor or his staff,” EPI filed a writ of mandate to compel the production of the records. The trial court granted EPI’s writ, and the Governor then filed his own writ to challenge the trial court.

In determining whether the trial court erred in granting EPI’s writ, the Court of Appeal reviewed the purpose and intent of the CPRA, which provides that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state,” and such access enables the public to monitor the functioning of their government. 

The CPRA contains several express exemptions, including a “public interest” or “catch-all” exemption that permits a public agency to withhold any record by demonstrating that, on the facts of a particular case, the public interest in nondisclosure clearly outweighs the public interest in disclosure. (Gov. Code § 7922.000.) The Court centered its analysis on the deliberative process privilege, which served as the basis for the Governor to argue that Reynolds’ calendar events were protected and exempt from disclosure.

The deliberative process privilege is an application of the catch-all exemption and is intended to protect communications of public agency decisionmakers on legal or policy matters that might be inhibited if subject to public scrutiny. In analyzing whether this exemption applies, the key question is “whether the disclosure of materials would expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”

In its analysis, the Court discussed a prior case, Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 (Times Mirror), that held that the deliberative process privilege barred the disclosure of five years’ worth of the Governor's appointment schedules, calendars, and other records of his daily activities. However, the court in Times Mirror also found that in the appropriate case, “where the public interest in certain specific information contained in one or more of the Governor's calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited,” disclosure may be required “whatever the incidental impact on the deliberative process.”

The Court acknowledged that EPI’s request for Reynolds’ calendar events with representatives could intrude, to a limited degree, into the deliberative process of the Governor's office. The Court emphasized, however, that this was not the end of the inquiry.

To determine if the deliberative process privilege would exempt disclosure, there must also be an analysis of whether the disclosure would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions. Using the test from Times Mirror, the Court found that “EPI’s request was sufficiently specific, focused, and limited, and the public interest in disclosure sufficiently compelling when measured against the minimal impact on government decisionmaking, to override the deliberative process privilege.” EPI’s request was specific to whether Reynolds, on behalf of the Governor, interacted with the entities she now leads and/or regulates. Therefore, disclosure of these records was required despite the incidental impact on the Governor’s deliberative process.

This decision has implications for California public agencies that receive CPRA records requests. Public agencies may assert appropriate exemptions to disclosure, including the deliberative process privilege. In light of this ruling, however, public agencies should also be cognizant of requests that are narrowly drafted and may compel disclosure of certain records.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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