State of California v. Super. Ct. ( 2024 )

Filed 4/5/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA et al., B330847
Petitioners, (Los Angeles County
Super. Ct. No. 22STCP02964)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
ENERGY AND POLICY
INSTITUTE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate.
Mitchell L. Beckloff, Judge. Petition denied.
Rob Bonta, Attorney General, Thomas S. Patterson,
Assistant Attorney General, Michelle M. Mitchell, Laura
Randles-Little and Andrew D. Day, Deputy Attorneys General,
for Petitioners.
No appearance for Respondent.
Law Offices of Kelly A. Aviles and Kelly A. Aviles for Real
Party in Interest.
____________________________
James Madison wrote in 1822, “A popular Government,
without popular information, or the means of acquiring it, is but
a Prologue to a Farce or a Tragedy; or, perhaps both.” (IX The
Writings of James Madison (G.P. Putnam’s Sons, ed. 1910) 103.)
The question before us is whether the “deliberative process
privilege” precludes disclosure pursuant to the California Public
Records Act (Gov. Code,1 § 7920.000 et seq.; PRA) of entries in
the calendars of the Governor’s former senior advisor for energy.
The requested entries reflect meetings with 10 specified
entities—the California Public Utilities Commission (CPUC),
electric utilities, and unions representing energy workers—
during the year prior to that senior advisor’s appointment to the
presidency of the CPUC. The trial court found the privilege
does not override the public interest in access to these calendar
entries and ordered the Governor to produce them to the
requestor, real party in interest Energy and Policy Institute
(EPI). The Governor petitions this court for a writ of mandate
vacating the trial court’s order.
In determining whether the deliberative process privilege
applies, the “key question . . . is ‘whether the disclosure of
materials would expose an agency’s decisionmaking process in
1 Unspecified statutory citations are to the Government
Code.
2
such a way as to discourage candid discussion within the agency
and thereby undermine the agency’s ability to perform its
functions.’ [Citation.]” (Times Mirror Co. v. Superior Court
(1991) 53 Cal.3d 1325, 1342 (Times Mirror).) In Times Mirror,
our Supreme Court held the deliberative process privilege barred
the wholesale disclosure of five years’ worth of the Governor’s
appointment schedules, calendars, and other records of his daily
activities. The court emphasized, however, 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.” (Id. at pp. 1345–1346.)
We conclude EPI’s request is 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. The record supports the finding that the entities
specified in EPI’s request are entities with which the Governor’s
senior energy advisor would be expected to meet regardless of the
Governor’s particular policy priorities. Accordingly, disclosure of
records that those meetings took place, without any information
as to the substance of those meetings, would reveal little if
anything about the Governor’s or his senior advisor’s policy
positions or thought processes. The record does not support that
disclosing the fact that these meetings took place would
discourage future meetings between the Governor’s senior energy
advisor and the specified entities or similar energy stakeholders.
We also conclude the public has a substantial interest in knowing
3
the extent to which the current CPUC president interacted with
the CPUC and the entities the CPUC regulates when she was the
Governor’s senior advisor for energy.
We therefore deny the writ petition.
BACKGROUND
1. EPI’s PRA request
Alice Reynolds served as the Governor’s Senior Advisor for
Energy from January 2019 to December 2021. The Governor
appointed Reynolds to the CPUC presidency effective
December 21, 2021.
On January 14, 2022, EPI submitted a PRA request to the
Governor’s office seeking “[t]he calendars of Alice Reynolds from
January 1, 2021 through December 31, 2021.” David Sapp, the
Governor’s Chief Deputy Legal Affairs Secretary at that time,
responded to the request. He stated his office had identified
responsive records, but the records “are exempt from disclosure
as records that reveal the deliberative process of the Governor or
his staff.” Sapp cited Government Code former section 6255,
California First Amendment Coalition v. Superior Court (1998)
67 Cal.App.4th 159, and Times Mirror, supra, 53 Cal.3d 1325.
After further correspondence between EPI and Sapp, EPI
submitted a second, narrower PRA request. The second request
sought “Alice Reynolds’ calendar events specifically with
representatives of the following entities from January 1, 2021
through December 31, 2021.” The request then listed 10 entities:
the CPUC, Sempra Utilities, San Diego Gas & Electric, Southern
California Edison, Pacific Gas & Electric, Engineers and
4
Scientists of California Local 20, IBEW 11, IBEW 1245,
IBEW 465, and IBEW 47.2
In a letter, Sapp again stated the Governor’s office had
identified records responsive to the request, but all were exempt
from disclosure both “as correspondence of or to the Governor and
his staff (Gov. Code, § 6254(l))” and “because they reveal the
deliberative process of the Governor or his staff.”
2. EPI’s petition for writ of mandate
EPI then filed a verified petition in the trial court for a writ
of mandate directing the Governor to provide the requested
records. In the petition, EPI explained why it was seeking
Reynolds’ calendars. EPI alleged that in 2020, the CPUC decided
to “revisit net metering tariffs,” which set compensation for
electricity sold to the electricity grid by owners of rooftop solar
panels. “Throughout 2020 and 2021, intervenors, including
electric utilities, filed comments and participated in workshops to
inform the CPUC’s development of a successor to the current net
metering tariffs.” The CPUC issued a proposed decision on
December 13, 2021 that, according to EPI, reduced the amount of
compensation paid to owners of rooftop solar panels and imposed
“a new solar-only fee.” EPI alleged these changes “created new
barriers for utility customers to invest in rooftop solar and
battery storage.”
EPI alleged, “CPUC executives have . . . indicated that the
Office of the Governor has significant involvement in CPUC
decision-making. The public thus has a significant interest in the
disclosure of records reflecting Ms. Reynolds’ interactions with
2IBEW is the International Brotherhood of Electrical
Workers.
5
entities in the electronic utility ecosystem during her tenure at
the Office of the Governor and prior to her appointment to the
CPUC.” EPI contended the records would show “how, in her role
for the Governor, Ms. Reynolds worked with the utility groups
that she now regulates as president of the CPUC.” In a
memorandum of points and authorities in support of its petition,
EPI further contended, “Questions have been publicly raised
about whether Ms. Reynolds was lobbied or swayed by the
electric companies who stand to benefit from the changes [to the
net metering tariffs], especially given her position within the
Governor’s office and the timing of her appointment to the
CPUC.”
In opposition, the Governor argued Reynolds’ calendar
entries were created through an exchange of e-mailed meeting
invitations, and therefore were exempt from disclosure as
“ ‘correspondence of and to the Governor or employees of the
Governor’s office” under section 7928.000, subdivision (a). The
Governor further argued that under Times Mirror and its
progeny, the calendars were protected from disclosure by the
deliberative process privilege. The Governor contended,
“[D]isclosing [Reynolds’] meeting invites could chill the future
flow of information to the Governor.”
Sapp, now the Governor’s Legal Affairs Secretary, provided
a declaration in support of the Governor’s opposition to the writ
petition. Sapp averred, “The Senior Advisor for Energy is the
Governor’s lead expert on all matters concerning energy policy. A
member of the Governor’s Cabinet Team, the Senior Advisor for
Energy advises the Governor and helps craft and advance energy
policy at the highest level within the Governor’s Office. A key
responsibility of the Senior Advisor for Energy is to engage with
6
interested parties—energy consumers, producers, regulators,
unions, and others—to identify emerging issues, understand
competing interests, and ensure that wide-ranging viewpoints
are considered in the policymaking process.”
Sapp further stated, “The Governor’s Office treats its senior
advisors’ correspondence and meeting records as confidential to
ensure that the Governor and his senior staff receive candid
feedback from a diverse set of interested parties. If those records
were made public, some parties might decline to meet with the
Governor’s senior staff out of concern for how the meeting might
be perceived—or misperceived—by others. By the same token, a
senior advisor might decline meeting with an unpopular or
controversial group if doing so would prompt unproductive or
distracting criticism from other groups. [¶] Similarly, the
Governor has limited time and relies on his senior advisors to
advance his priorities. This requires senior advisors to meet
internally regarding ongoing initiatives and emerging issues, as
well as to engage with interested stakeholders. Senior staff must
determine which meetings to accept and how to prioritize the
many competing demands on their time. By treating
correspondence and meeting records as confidential, the
Governor’s Office ensures that the Governor’s senior staff and all
interested parties feel free to meet and exchange ideas or
criticisms without weighing how the interaction might be
perceived by third parties, and for senior advisors to support the
internal decision making process effectively.”
Sapp continued, “Treating correspondence and meeting
records as confidential also promotes better policy by ensuring
that the Governor’s senior advisors have latitude to explore new
or unconventional ideas. Due to competing demands on their
7
time, the Governor and his senior advisors must choose which
meetings to accept. As a result, the mere fact that a meeting
occurred reveals that the Governor or his advisors decided to
explore a concept or prioritize one issue over another. Disclosing
their meeting records would therefore reveal information about
which issues receive heightened attention, the direction of the
senior advisor’s judgment on the issue, and which stakeholders
are deemed to be of significance of those priority issues.
Revealing that deliberative information could expose the
Governor to premature public pressure to adopt—or abandon—a
particular policy before it has been fully vetted. The Governor’s
Office avoids such outside pressures by maintaining the
confidentiality of correspondence and meeting records.”
Sapp also explained that Reynolds scheduled her meetings
not with a “traditional written calendar,” but with “Outlook, a
Microsoft software product that allows users to send and receive
meeting invitations via email.” Reynolds or an assistant would
schedule meetings “us[ing] Outlook’s ‘New Meeting’ function to
select a meeting date, time, and location (if applicable),
summarize the meeting agenda (as needed), and transmit that
information via email to each meeting invitee’s email address.”
3. Trial court’s ruling
The trial court issued a tentative decision granting EPI’s
petition. Following a hearing, the court adopted the tentative
decision as its final order.
Addressing first the correspondence exemption, the trial
court found that e-mailed meeting invitations were
“correspondence” and therefore exempt from disclosure. The
court further found, however, that EPI had not requested
meeting invitations, but only “ ‘calendar events,’ ” referring to “a
8
calendar entry—i.e., ‘what appears on Ms. Reynolds’s calendar
[on Outlook or other calendaring system] when she or her
assistant send out or accept a meeting invitation received by a
third party.’ ” Quoting Sapp’s declaration, the court stated those
entries would contain “basic calendar information such as ‘a
meeting date, time, and location (if applicable), [and] summarize
the meeting agenda (as needed).’ ” “[T]he fact that the calendar
event may be preceded by a communication of letters (i.e., a
meeting invitation) does not, standing alone, qualify the resulting
calendar event as exempt from disclosure pursuant to the
correspondence exemption.”
The trial court concluded, “Based on the foregoing, [the
Governor was] not authorized by the correspondence exemption
to withhold the calendar events sought by [EPI], specifically the
entries populated to Reynolds’ Outlook calendar showing the
invitees, attendees, time, date, location of a meeting, and meeting
agenda (as needed). To the extent email correspondence or
messages are directly viewable or accessible in a calendar event,
[the Governor] may redact such information as unrequested.
(§ 7922.525, subd. (b).) However, any such redactions should not
include basic calendar information—date, time, attendees,
location and meeting agenda (as needed).”
The trial court then addressed the deliberative process
privilege. The court explained to invoke that privilege, the
Governor “must show on the facts of a particular case ‘the public
interest in nondisclosure clearly outweighs the public interest in
disclosure.’ [Citations.]” (Boldface omitted.) The trial court
found “some public interest in non-disclosure of the calendar
events records at issue,” because they “could partially reveal the
‘substance or direction’ of Reynold[s’] and the Governor’s
9
deliberations and mental processes with respect to energy policy,”
and “possibly discourage stakeholders from meeting with the
Governor’s senior advisors in fear that they would be ‘subjected to
probing questions and scrutiny by the press.’ (Times Mirror,
supra, 53 Cal.3d at [p.] 1344.)”
The public interest in nondisclosure, the trial court found,
nonetheless was “substantially less” than in Times Mirror and
another case, Rogers v. Superior Court (1993) 19 Cal.App.4th 469(Rogers), the former of which involved a request for five years of
the Governor’s calendars, and the latter of which involved a
request for one year of Burbank city councilmembers’ telephone
records. (Times Mirror, supra, 53 Cal.3d at p. 1329; Rogers, at
pp. 474, 480.) Whereas disclosure of the Governor’s “meetings
with diverse individuals can signal and disclose information
about a governor’s deliberative process,” “Reynolds’ position is
solely related to energy policy.” Therefore, “[t]hat Reynolds was
meeting with stakeholders in the energy sector is unremarkable
and does not disclose her overall thought processes given her
position and its purview.”
The trial court further noted EPI did not seek “a ‘wholesale
production’ of all of the calendar events of [a] broad-based
policymaker,” but only calendar entries pertaining to 10
“stakeholders in energy policy,” which would “not disclose the
universe of other individuals with whom Reynolds met in 2021.”
The Governor “ha[s] not presented evidence suggesting disclosure
of the calendar events at issue will reveal Reynolds’ or the
Governor’s mental processes with respect to any specific item of
legislation or policy—again, that Reynolds met with energy sector
stakeholders is unremarkable given her position. Nor ha[s the
Governor] presented declarations from a single energy
10
stakeholder entity suggesting the entity would be hesitant to
meet with the Governor’s senior advisor or comment on energy
policy in the future if the calendar events are made public.”
As for the public interest in disclosure, the trial court
found, “The public has a substantial interest in learning the
extent to which the current president of the CPUC was meeting
with the CPUC and the utilities regulated by the CPUC, as a
Senior Advisor to the Governor, during the year preceding her
appointment.” The court stated, “While that public interest
may not justify a ‘wholesale production’ of Reynolds’ calendar
events for 2021, it supports a more narrowly tailored request for
calendar records of meetings with the CPUC and the regulated
utilities.” The court cited “undisputed evidence” from a
declaration submitted by EPI that, apart from the CPUC, “the
entities for which [EPI] seeks calendar events are either utilities
that ‘would benefit directly from net metering tariffs that
discouraged rooftop solar’ or ‘groups that were members of a
public relations campaign sponsored by the utility companies . . .
that supported the utilit[ies’] position on net metering.”
The trial court concluded, “The court will issue a writ
directing [the Governor] to produce the calendar events requested
in the [PRA] request. [Citation.] [The Governor] may redact
information not requested (i.e., meeting invitations) which may
be viewable from the Outlook calendar entries. [¶] The court
finds, and the writ shall specify, redactions of any calendar
events may not include the invitees, attendees, time, date,
location of the meeting, and meeting (as needed).” We address in
our Discussion, part C.1, post, the significance of the final clause,
“and meeting (as needed),” which appears to be missing a word.
11
The Governor then filed a petition for a writ of mandate in
this court challenging the trial court’s writ. After receiving and
reviewing a preliminary opposition and reply, we issued an order
to show cause and the parties submitted full briefing.
DISCUSSION
The Governor argues the trial court erred in ruling the
deliberative process privilege did not apply to the records at
issue. The Governor does not challenge the trial court’s
conclusion that the correspondence exemption does not apply,
although he emphasizes he does not concede that point.
A. The PRA
“The PRA and the California Constitution provide the
public with a broad right of access to government information.”
(Los Angeles County Bd. of Supervisors v. Superior Court (2016)
2 Cal.5th 282, 290 (Bd. of Supervisors).) “Modeled after the
federal Freedom of Information Act (5 U.S.C. § 552 et seq.), the
PRA was enacted for the purpose of increasing freedom of
information by giving members of the public access to records in
the possession of state and local agencies. [Citation.] Such
‘access to information concerning the conduct of the people’s
business,’ the Legislature declared, ‘is a fundamental and
necessary right of every person in this state.’ [Citation.]” (Bd. of
Supervisors, at p. 290.) “ ‘[A]ll public records are subject to
disclosure unless the Legislature has expressly provided to the
contrary.’ [Citation.]” (American Civil Liberties Union
Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1038–1039
(American Civil Liberties Union Foundation).)
Via ballot initiative, “voters enshrined the PRA’s right of
access to information in the state Constitution: ‘The people have
12
the right of access to information concerning the conduct of the
people’s business, and, therefore, . . . the writings of public
officials and agencies shall be open to public scrutiny.’ (Cal.
Const., art. I, § 3, subd. (b)(1).) As amended by the initiative, the
Constitution also directs that statutes ‘shall be broadly construed
if it furthers the people’s right of access, and narrowly construed
if it limits the right of access.’ (Cal. Const., art. I, § 3,
subd. (b)(2).)” (Bd. of Supervisors, supra, 2 Cal.5th at pp. 290–
291.)
“Despite the value assigned to robust public disclosure of
government records both in the California Constitution and in
the PRA,” there nonetheless are statutory exceptions to
disclosure. (Bd. of Supervisors, supra, 2 Cal.5th at p. 291.) The
PRA contains express exemptions for certain categories of
records; for example, the Governor here invoked below the
exemption for “correspondence of and to the Governor or
employees of the Governor’s office,” currently codified at
section 7928.000, subdivision (a). There is also a “catchall
exemption,” section 7922.000 (formerly section 6255), that
permits a public agency to withhold records if it can demonstrate
“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.” (See Iloh v. Regents of
University of California (2023) 87 Cal.App.5th 513, 523–524.)
As will be discussed, the deliberative process privilege is
not an express exemption, but an application of the PRA’s
catchall provision. (See Times Mirror, supra, 53 Cal.3d at
p. 1339.) When analyzing the trial court’s application of that
provision, “we review the public interest factors de novo but
accept the trial court’s factual findings as long as substantial
13
evidence supports them.” (American Civil Liberties Union
Foundation, supra, 3 Cal.5th at p. 1043; see Times Mirror, at
p. 1336 [independently reviewing trial court’s PRA ruling].)
B. The Deliberative Process Privilege
In asserting the deliberative process privilege, the
Governor relies on Times Mirror, Rogers, and a third case, Labor
& Workforce Development Agency v. Superior Court (2018)
19 Cal.App.5th 12 (Labor & Workforce Development Agency). We
summarize each below.
1. Times Mirror
In Times Mirror, the Los Angeles Times sought injunctive
and declaratory relief under the PRA after the Governor declined
its request for “ ‘appointment schedules, calendars, notebooks
and any other documents that would list [the Governor’s] daily
activities as governor from [his] inauguration in 1983 to the
present,’ ” a period of five years. (Times Mirror, supra, 53 Cal.3d
at p. 1329.) The Governor asserted numerous bases for refusing
to disclose the requested records, including the PRA’s catchall
provision, at that time former section 6255. (Times Mirror, at
p. 1329.) Specifically, the Governor contended release of his
calendars and schedules would “inhibit the free and candid
exchange of ideas necessary to the decisionmaking process.”3
(Times Mirror, at p. 1329.)
3 The Governor further contended the public interest in
nondisclosure outweighed the interest in disclosure because
release of the records would create a risk to his personal security,
an argument with which our Supreme Court agreed. (Times
Mirror, supra, 53 Cal.3d at pp. 1329, 1346–1347.) In the instant
14
In support of his position, the Governor submitted a
declaration that, inter alia, “[e]laborat[ed] upon the potentially
adverse consequences of disclosure on the decisionmaking
process.” (Times Mirror, supra, 53 Cal.3d at p. 1331.) “[T]he
Governor noted that his office requires him to meet with people of
wide-ranging views on a multiplicity of subjects. Because of the
frequent sensitivity of the subjects under discussion, ‘it is
necessary,’ he stated, ‘that the meetings themselves be
fundamentally private, so that those present may feel free to
express their candid opinions to me and so that I can be assured
of the candor of their expressions. . . .’ Routine disclosure of the
identities of the persons with whom the Governor meets, he
asserted, would inhibit the deliberative process, in some
instances by discouraging persons from attending meetings, in
others by leading to unwarranted inferences about the subject
under discussion. Furthermore, the Governor argued, although
the calendars and schedules contain ‘facts’ rather than opinions
or advice, they necessarily reflect the Governor's ‘deliberative
judgment’ as to those persons, issues or events he considers to be
of sufficient significance to occupy his time, and those he
does not.” (Id. at pp. 1331–1332.)
To assess the Governor’s claim of what our high court
referred to as the “deliberative process or ‘executive’ privilege,”
the court looked to federal cases interpreting exemption 5 of the
Freedom of Information Act (5 U.S.C. § 552(b)(5)), which protects
from disclosure “ ‘inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than
proceeding, the Governor does not contend release of Reynolds’
calendars would create a security risk.
15
an agency in litigation with the agency.’ ” (Times Mirror, supra,
53 Cal.3d at pp. 1339–1340 & fn. 11.) The court stated that
Congress, in adopting exemption 5, was concerned “that ‘frank
discussion of legal or policy matters’ might be inhibited if
‘subjected to public scrutiny,’ and that ‘efficiency of Government
would be greatly hampered’ if, with respect to such matters,
government agencies were ‘forced “to operate in a fishbowl.” ’
[Citations.]” (Id. at p. 1340.) “[T]he courts’ focus in exemption 5
cases is less on the nature of the records sought and more on the
effect of the records’ release. The key question in every case is
‘whether the disclosure of materials would expose an agency’s
decisionmaking process in such a way as to discourage candid
discussion within the agency and thereby undermine the agency’s
ability to perform its functions.’ [Citation.]” (Id. at p. 1342.)
Applying these principles, the court held, “Disclosing the
identity of persons with whom the Governor has met and
consulted is the functional equivalent of revealing the substance
or direction of the Governor’s judgment and mental processes;
such information would indicate which interests or individuals he
deemed to be of significance with respect to critical issues of the
moment. The intrusion into the deliberative process is patent.”
(Times Mirror, supra, 53 Cal.3d at p. 1343.) Further, “[i]f the law
required disclosure of a private meeting between the Governor
and a politically unpopular or controversial group, that meeting
might never occur. Compelled disclosure could thus devalue or
eliminate altogether a particular viewpoint from the Governor’s
consideration. Even routine meetings between the Governor and
other lawmakers, lobbyists or citizens’ groups might be inhibited
if the meetings were regularly revealed to the public and the
participants routinely subjected to probing questions and
16
scrutiny by the press.” (Id. at p. 1344.) “[W]hile the raw material
in the Governor’s appointment calendars and schedules is
factual, its essence is deliberative. Accordingly, we are
persuaded that the public interest in withholding disclosure of
the Governor’s appointment calendars and schedules is
considerable.” (Ibid.)
The court then turned to the question of whether the public
interest in nondisclosure clearly outweighed the public interest in
disclosure. (Times Mirror, supra, 53 Cal.3d at p. 1344.) The
Los Angeles Times argued, “ ‘[I]n a democratic society, the public
is entitled to know how [the Governor] performs his duties,
including the identity of persons with whom he meets in the
performance of his duties as Governor.’ ” (Ibid.) The court
acknowledged, “The public’s interest extends not only to the
individual they elect as Governor, but to the individuals their
Governor selects as advisors”—that is, the individuals with whom
the Governor chooses to consult. (Ibid.) Also, “[i]t could be
argued . . . that the prospect of publicity would expand rather
than contract the number and variety of persons meeting with
the Governor,” and “[d]isclosure might . . . reveal whether the
Governor was, in fact, receiving a broad range of opinions” and
“attending diligently to the public business.” (Id. at pp. 1344–
1345.) The court noted some might question whether “the
Governor, or those otherwise inclined to confer with the
Governor, would be deterred by the mere specter of publicity.”
(Id. at p. 1345.)
“The answer to these arguments,” wrote the court, “is not
that they lack substance, but pragmatism. The deliberative
process privilege is grounded in the unromantic reality of politics;
it rests on the understanding that if the public and the Governor
17
were entitled to precisely the same information, neither would
likely receive it.” (Times Mirror, supra, 53 Cal.3d at p. 1345.)
“To disclose every private meeting or association of the Governor
and expect the decisionmaking process to function effectively, is
to deny human nature and contrary to common sense and
experience.” (Ibid.) “Furthermore, whatever merit disclosure
might otherwise warrant in principle is simply crushed under the
massive weight of the Times’s request in this case: the
newspaper seeks almost five years of the Governor’s calendars
and schedules, covering undoubtedly thousands of meetings,
conferences and engagements of every conceivable nature. We
are not persuaded that any identifiable public interest supports
such a wholesale production of documents. [¶] Accordingly, on
the present record, we conclude that the public interest in
nondisclosure clearly outweighs the public interest in disclosure.”
(Ibid.)
The court concluded by cabining the scope of its holding:
“Lest there be any misunderstanding, however, we caution that
our holding does not render inviolate the Governor’s calendars
and schedules or other records of the Governor’s office. There
may be cases 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; then, the court
might properly conclude that the public interest in nondisclosure
does not clearly outweigh the public interest in disclosure,
whatever the incidental impact on the deliberative process.
Plainly, that is not the case here.” (Times Mirror, supra,
53 Cal.3d at pp. 1345–1346.)
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2. Rogers
In Rogers, a freelance writer and newspaper columnist
submitted a request for “telephone records of calls made and
received by [Burbank] city council members from cellular phones
and made from second telephones in home offices maintained by
two city council members.” (Rogers, supra, 19 Cal.App.4th at
p. 474.) The writer contended disclosure served the public
interest because “ ‘[o]n several occasions, Burbank City Council
members and high-level staffers have denied contact with specific
individuals who are alleged to wield considerable influence in the
conduct of City business. The requested telephone records will
provide significant confirmation—or evidence contrary—to those
claims. In either scenario, the public has a right to know
whether certain individuals or interests are influencing their
elected officials.’ ” (Id. at p. 477.)
Burbank provided the writer with the requested phone bills
but redacted the telephone numbers. (Rogers, supra,
19 Cal.App.4th at p. 474.) When the writer filed a complaint
under the PRA, the trial court ruled in favor of Burbank, citing,
inter alia, the deliberative process privilege. (Id. at p. 475.)
The Court of Appeal upheld the trial court’s ruling,
concluding that the facts of the case were “indistinguishable from
Times Mirror.” (Rogers, supra, 19 Cal.App.4th at p. 479.)
“Disclosing the telephone numbers of persons with whom a city
council member has spoken discloses the identity of such persons
and is ‘the functional equivalent of revealing the substance or
direction’ of the judgment and mental processes of the city council
member. [Citation.] There is no meaningful distinction between
the appointment calendars and schedules of the Governor and
the telephone bills of a city council member. In both cases,
19
disclosure of the records sought will disclose the identity of
persons with whom the government official has consulted,
thereby disclosing the official’s mental processes. In both cases,
routine public disclosure of such records would interfere with the
flow of information to the government official and intrude on the
deliberative process.” (Id. at pp. 479–480.)
The Court of Appeal found it immaterial that the request at
issue was for only a year of telephone records as opposed to the
five years of calendars in Times Mirror. (Rogers, supra,
19 Cal.App.4th at p. 480.) “Were we to conclude otherwise would
permit petitioner to make sequential annual requests. It is the
nonspecific and unfocused nature of the request which is
dispositive, not its time period.” (Ibid.) It also did not matter
that Times Mirror involved the Governor as opposed to city
council members: “[T]he deliberative process privilege is akin to
the executive privilege on the one hand and the legislative
mental processes privilege on the other. The legislative privilege
necessarily involves large numbers of legislators. Accordingly,
we do not find this distinction to be significant.” (Id. at p. 481.)
3. Labor & Workforce Development Agency
In Labor & Workforce Development Agency, two companies
filed PRA requests seeking information about Assembly Bill
No. 1513, which contained a carve-out that had the effect of
excluding the two companies from a wage-and-hour safe-harbor
provision. (Labor & Workforce Development Agency, supra,
19 Cal.App.5th at p. 16.) The companies submitted requests
seeking all public records relating to communications between
the Labor & Workforce Development Agency (LWDA) and the
United Farm Workers of America regarding Assembly Bill
No. 1513, all records “referring or relating to” the carve-out, and
20
all public records “referring or relating to” Assembly Bill
No. 1513. (Labor & Workforce Development Agency, at pp. 16–
17.)
The LWDA provided the companies with some documents,
but relied on, inter alia, the deliberative process privilege in
withholding other documents. (Labor & Workforce Development
Agency, supra, 19 Cal.App.5th at p. 18.) The companies then
petitioned for a writ of mandate in the trial court seeking
compliance with the PRA. (Id. at p. 20.) The trial court
acknowledged the deliberative process privilege likely protected
some of the withheld documents, but not all. (Id. at p. 21.) The
trial court ordered the LWDA “ ‘to prepare and submit to [the
companies] an index identifying the author, recipient (if any),
general subject matter of the document, and the nature of the
exemption claimed,’ ” after which the parties should “ ‘meet and
confer and attempt to resolve any remaining disputes.’ ” (Id. at
p. 22.)
In response to LWDA’s request to clarify its order, the trial
court stated, “ ‘The court finds the Agency’s concerns about
divulging the identities of “stakeholders” to be unfounded. In
general, the identities of the stakeholders already are known.
And to the extent they are unknown, the court is not persuaded
that divulging the identities for purposes of a “privilege log” will
have any significant “chilling effect” on the Agency’s ability to
have candid discussions with future stakeholders. . . .’ ” (Labor &
Workforce Development Agency, supra, 19 Cal.App.5th at p. 22.)
The Court of Appeal vacated the trial court’s order
requiring LWDA to prepare the index. (Labor & Workforce
Development Agency, supra, 19 Cal.App.5th at p. 36.) The court
explained, “The Agency acted at the direction of the Governor in
21
formulating the policies to be codified by Assembly Bill 1513. To
this end, the Agency worked with key staff in the Governor’s
office and the Legislature. The Agency also engaged in
confidential communications with third parties regarding the
issues relating to piece-work compensation that were to be
addressed in Assembly Bill 1513. These third parties had diverse
and conflicting views regarding the proposed substance of
Assembly Bill 1513. Indeed, some individuals who communicated
in confidence with the Agency represented constituencies that
themselves had divided views on the aims of the legislation. The
information the Agency acquired in confidence was relied upon in
its decisionmaking process and influenced the substantive choices
of language for Assembly Bill 1513. However, in the absence of
confidentiality, the Agency would have received less candid input
into the proposed legislation and may not have heard the
viewpoints of persons who were knowledgeable about the issues
but represented divided constituencies.” (Labor & Workforce
Development Agency, at p. 29.)
The appellate court disagreed with the trial court’s
conclusion that divulging the identities of those who met with the
Agency regarding Assembly Bill No. 1513 would not impact the
deliberative process. (Labor & Workforce Development Agency,
supra, 19 Cal.App.5th at p. 30.) “The harm in revealing the
identities of third parties who communicated confidentially with
the Agency is that it will tend to dissuade stakeholders on issues
subject to future legislative efforts from commenting frankly, or
at all, on matters for which only varying viewpoints can provide a
more complete picture. As in Times Mirror, disclosing the
identity of persons with whom the Agency ‘has met and consulted
is the functional equivalent of revealing the substance or
22
direction’ of the Agency’s ‘judgment and mental processes.’
[Citation.]” (Ibid.)
The appellate court further found no support in the record
for the trial court’s conclusion that the identities of the persons
who met with the LWDA already were known, noting the Agency
had provided a declaration stating, “[T]he third party
communications were received in confidence and disclosure of the
communicating parties ‘would very likely cause retaliation in the
form of harassment and ostracization from the representatives’
own supporters.’ ” (Labor & Workforce Development Agency,
supra, 19 Cal.App.5th at pp. 30–31.)
C. The Trial Court Properly Granted EPI’s Writ
1. EPI has not requested, nor has the trial court
ordered disclosure of, Reynolds’ meeting
agendas
As an initial matter, we must clarify the scope of EPI’s
records request and the trial court’s writ ordering disclosure,
specifically whether the request seeks and the writ would require
disclosure of meeting agendas or other information regarding the
substance of the meetings.4 This clarification is important
because the scope of EPI’s request and the trial court’s writ
impacts analysis of the deliberative process privilege. For the
reasons that follow, we conclude that neither EPI’s request nor
4 Neither the trial court nor the parties have defined the
term “agenda,” but we interpret it as having its common
meaning, “a list or outline of things to be considered or done.”
(Merriam-Webster’s Online Dict. (2023) <https://www.merriam-
webster.com/dictionary/agenda> [as of Mar. 26, 2024], archived at
<https://perma.cc/D6EQ-XS7H>.)
23
the trial court’s writ requires disclosure of meeting agendas or
other information revealing the substance of the meetings.
As discussed ante, in ruling on the Governor’s invocation of
the correspondence exemption, the trial court ruled that the
Governor could redact any “email correspondence or messages”
that were “directly viewable or accessible in a calendar event,”
but could not redact “basic calendar information—date, time,
attendees, location and meeting agenda (as needed).”
The trial court used somewhat different language when,
following its analysis of the deliberative process privilege, it
issued the writ directing the Governor to produce the requested
calendar events. The court stated, “[The Governor] may redact
information not requested (i.e., meeting invitations) which may
be viewable from the Outlook calendar entries. [¶] The court
finds, and the writ shall specify, redactions of any calendar
events may not include the invitees, attendees, time, date,
location of the meeting, and meeting (as needed).”
The portion of the trial court’s writ limiting the scope of
allowable redactions is confusing. It largely mirrors the language
from the court’s discussion of the correspondence exemption, but
omits the term “agenda.” It is not clear on the face of the writ
whether that omission was intentional; the sentence discussing
redactions appears to be incomplete, stating “redactions . . . may
not include the invitees, attendees, time, date, location of the
meeting, and meeting (as needed).” Based on the court’s earlier
discussion of the correspondence exemption, one would expect the
last few words of the sentence to read “meeting agenda (as
needed).” (Italics added.)
The parties in their briefing do not address this ambiguity,
and instead treat EPI’s request and the trial court’s writ as not
24
requiring the Governor to produce meeting agendas or other
information disclosing the topics or substance of Reynolds’
meetings with the 10 specified entities. At oral argument, both
EPI and the Governor confirmed this is their reading of the trial
court’s writ.
The trial court’s comments from the bench during the writ
hearing similarly suggest the court did not intend its writ to
encompass information that would disclose the substance of
Reynolds’ meetings. Towards the beginning of the hearing, when
discussing its tentative ruling regarding the correspondence
exemption, the court appeared to suggest, as had its tentative,
that the Governor could not redact the names of the meeting
participants, the meeting time and location, or the “meeting
agenda as needed.” Later in the hearing, however, when
disagreeing with the Governor that the deliberative process
privilege applied, the trial court stated the calendar events “just
show[ ] that [Reynolds] met with [the 10 entities]. It doesn’t
show anything else.” The court also acknowledged that if EPI’s
request had sought meetings on a “particular subject matter,” for
example “what days [Reynolds] met with . . . any of these
ten representatives about net metering,” “[t]hen you have got real
deliberative process privilege issues.” As formulated, however,
the court appeared to conclude EPI’s request would not reveal the
substance of the meetings: “[T]hey could be talking about a
whole host of things. [The requested records don’t] expose the net
metering issue or what the CPUC might have said.” Later, the
court stated, “You are never going to know because of deliberative
process privilege what was discussed in the meeting so that the
most that anyone could ever get is that they met.”
25
These statements by the trial court are irreconcilable with
an interpretation of the writ that would allow disclosure of the
substance of Reynolds’ meetings. We therefore conclude the trial
court deliberately omitted the word “agenda” from the writ, and
did not intend to prohibit the Governor from withholding or
redacting agendas or other information regarding the substance
or topics of Reynolds’ meetings with the 10 entities. (See
Concerned Citizens Coalition of Stockton v. City of Stockton
(2005) 128 Cal.App.4th 70, 77 [“ ‘If the language of the order be in
any degree uncertain, then reference may be had to the
circumstances surrounding, and the court’s intention in the
making of the same.’ ”].) Alternatively, EPI has conceded that it
has not requested information pertaining to the substance of
Reynolds’ meetings, and therefore agendas and the like are not
responsive to EPI’s request and need not be disclosed.
The question before us, then, is whether the deliberative
process privilege shields the information the trial court did order
disclosed regarding Reynolds’ meetings with the 10 entities,
namely “invitees, attendees, time, date, [and] location of the
meeting.” We turn to that question now.
2. The public interest in nondisclosure does not
clearly outweigh the public interest in
disclosure
The Governor contends the circumstances here are
materially indistinguishable from those of Times Mirror and its
progeny, and compel the conclusion that the public interest in
withholding Reynolds’ calendar entries clearly outweighs the
public interest in their disclosure. The Governor argues that
revealing the particular entities with whom Reynolds met, and
the frequency of those meetings, would “expose the Governor’s
26
and Ms. Reynolds’ ‘priorities and deliberative choices.’ ” The
Governor further asserts disclosure of the calendar entries could
deter the Governor or his senior staff from “meet[ing] with an
unpopular or controversial group,” or “ ‘deter some stakeholders
from contacting the Governor’s Office.’ ”
The Governor’s argument, and Sapp’s declaration below,
track the policy arguments the Supreme Court found
determinative in Times Mirror: Disclosure of everyone with
whom a top-level official meets would allow the press and others
to piece together the official’s policy priorities, and would
dissuade the official and third parties from meeting for fear of
public scrutiny and criticism.
We acknowledge that EPI’s request could intrude to a
limited degree into the deliberative process of the Governor’s
office. EPI apparently seeks this information to determine how
frequently the Governor’s office interacted with the CPUC and
energy stakeholders at the time the CPUC was formulating a
new net metering tariff policy.
Times Mirror makes clear, however, the mere fact that a
PRA request could intrude somewhat on the deliberative process
does not, by itself, shield the requested documents from
disclosure. The question is not simply “ ‘whether the disclosure of
materials would expose an agency’s decisionmaking process,’ ”
but whether the disclosure would do so “ ‘in such a way as to
discourage candid discussion within the agency and thereby
undermine the agency’s ability to perform its functions.’
[Citation.]” (Times Mirror, supra, 53 Cal.3d at p. 1342.) The
Supreme Court stated that a sufficiently narrow request might
justify disclosure “whatever the incidental impact on the
deliberative process.” (Id. at pp. 1345–1346.)
27
We agree with the trial court that EPI’s records request,
which is far narrower than the unvarnished and broad requests
at issue in Times Mirror or Rogers, mitigates the concern of
“ ‘discourag[ing] candid discussion,” and therefore reduces the
public interest in nondisclosure. EPI’s request is directed not
towards a top-level decisionmaker with a wide-ranging portfolio,
but a senior advisor focused solely on energy issues. EPI also
has not requested the advisor’s full calendars, but only those
pertaining to the CPUC and specified utilities and energy-related
unions. One would expect the Governor’s energy advisor to meet
with energy regulators, producers, and unions on a variety of
topics, regardless of the Governor’s or the advisor’s policy
priorities. Indeed, Sapp’s declaration stated that meeting with
“energy consumers, producers, regulators, [and] unions” is “[a]
key responsibility of the Senior Advisor for Energy.” Thus, as the
trial court stated, it is “unremarkable” that Reynolds met with
these entities, and the fact of those meetings “does not disclose
her overall thought processes given her position and its purview.”
This is particularly so because EPI’s request, and the trial court’s
writ, do not require disclosure of the substance of any of the
meetings.
Additionally, the intrusion on the deliberative process is
limited because without Reynolds’ full calendar for the year,
which EPI expressly did not request, it is difficult to determine
the extent to which Reynolds prioritized or focused on the 10
specified entities in comparison to all other parties with whom
she may have met. The Governor postulates that disclosure
nevertheless could reveal Reynolds met with the CPUC more
than with the specified utilities, or with those utilities more than
the specified unions, or with one utility more than the others.
28
But without Reynolds’ full calendar, disclosure will not show how
the specified entities fit into Reynolds’ overall portfolio. The
intrusion into the deliberative process therefore is far less than in
Times Mirror, which sought the Governor’s complete calendar
without limitation.
There also is no evidence suggesting that disclosure of the
fact that Reynolds met with energy producers, regulators, and
unions would discourage future meetings between those and
similar energy-related entities and the Governor’s energy
advisor. Again, given that meeting with these sorts of entities is,
as the Sapp declaration represented, a “key responsibility” of an
energy advisor, and therefore presumably any Governor’s energy
advisor would meet with these entities regardless of policy
positions or priorities, there is no indication those meetings
would draw the level of scrutiny or criticism that might
discourage the advisor and the entities from meeting in the
future. This is not like Labor & Workforce Development Agency,
in which the agency resisting disclosure submitted evidence that
the particular meetings for which the records were requested
were held in confidence with individuals who would suffer
repercussions if their identities were known. (See Labor &
Workforce Development Agency, supra, 19 Cal.App.5th at p. 31.)
There is also no suggestion in the evidence that the 10 entities at
issue in EPI’s request are “politically unpopular or controversial
group[s]” with whom the Governor’s office would interact only in
confidence. (Times Mirror, supra, 53 Cal.3d at p. 1344.)
On the other side of the scale, we agree with the trial court
there is a substantial public interest in disclosure. First, as
discussed, the public has a statutory and constitutional right to
the disclosure of public documents, and we are to construe any
29
limits on that right narrowly. (Cal. Const., art. I, § 3, subd. (b)(2);
Bd. of Supervisors, supra, 2 Cal.5th at pp. 290–291.) The
deliberative process privilege itself applies only if the public
interest in nondisclosure clearly outweighs the public interest in
disclosure. (§ 7922.000; Times Mirror, supra, 53 Cal.3d at
p. 1339.) Thus, even without EPI stating a specific reason for its
PRA request, there already is weight on the scale in favor of
disclosure that the Governor must overcome to assert the
deliberative process privilege.
EPI has, however, stated a specific reason for its request,
articulated by the trial court as “learning the extent to which the
current president of the CPUC was meeting with the CPUC and
the utilities regulated by the CPUC, as a Senior Advisor to the
Governor, during the year preceding her appointment.”
The CPUC “is not an ordinary administrative agency, but a
constitutional body with broad legislative and judicial powers.”
(Wise v. Pacific Gas & Electric Co. (1999) 77 Cal.App.4th 287,
300; BullsEye Telecom, Inc. v. Public Utilities Com. (2021)
66 Cal.App.5th 301, 308 [CPUC “ ‘ “is a state agency of
constitutional origin with far-reaching duties, functions and
powers” ’ ”]; see Cal. Const., art. XII, §§ 1–6.) We agree there is a
public interest in the extent to which the current CPUC president
met with the CPUC and its regulated entities when she served as
the Governor’s senior energy advisor.
We therefore conclude, as did the trial court, that the public
interest in nondisclosure in this case does not clearly outweigh
the interest in disclosure. In reaching this conclusion, we do not
suggest any agreement with EPI’s suspicion that energy
stakeholders lobbied or swayed Reynolds in regard to net
metering tariffs. Independent of any intimation of purported
30
impropriety, the public has an interest in knowing the extent to
which the Governor’s energy advisor, whom he later appointed to
lead the CPUC, interacted with the CPUC, energy utilities, or
unions of energy workers in the year prior to her appointment.
Our conclusion is based on the public’s statutory and
constitutional right to know how the government is conducting
the people’s business, and given the narrowness of EPI’s request,
the Governor has not shown an exemption abrogating that right.
Arguing to the contrary, the Governor reads Times Mirror
to protect calendar entries from disclosure except in the
“ ‘exceptional’ ” case. The Governor argues, “The point of the
deliberative process privilege is to shield the policymaking
process from all public intrusion.” He contends a PRA request
survives Times Mirror only if it “target[s] a narrow swath of
records that relate to a matter of significant—and fact-based—
public interest,” a test he claims EPI’s request does not meet.
We disagree that Times Mirror limits disclosure of calendar
entries to the exceptional case. Times Mirror involved a request
for five years’ worth of the Governor’s calendar entries with no
limitations on subject matter, meeting participants, or otherwise,
for no reason other than the public’s entitlement to know how the
Governor performs his duties and with whom the Governor
meets. Under those circumstances, the Supreme Court held the
deliberative process privilege shielded disclosure. Our high court
expressly acknowledged a more limited request could overcome
that privilege, and the court’s holding should not be read to
“render inviolate the Governor’s calendars and schedules or other
records of the Governor’s office.” (Times Mirror, supra, 53 Cal.3d
at pp. 1345–1346.)
31
Here, as discussed, EPI’s request was far more limited than
that in Times Mirror, targeting one year of calendar entries for
an advisor with solely an energy portfolio, and limited to
meetings with the CPUC and nine other entities. EPI’s request
is thus not comparable to the request in Times Mirror.
The Governor argues Times Mirror requires proper PRA
requests for officials’ calendar entries to seek “specific
information,” and EPI’s request is too broad to meet this test.
The Governor contends limiting the request to an advisor focused
solely on energy is insufficient because “ ‘energy’ is a category of
distinct and complex issues, ranging from labor issues to
regulatory matters.”
We do not dispute that “energy” is a broad topic involving
many players. Our point in noting Reynolds’ focus on energy is
simply that it is “unremarkable,” as the trial court put it, that an
energy advisor would meet with energy regulators, producers,
and unions. Records that those meetings took place disclose little
if anything as to what particular subjects may have been
discussed, or what the advisor’s or Governor’s policy goals were in
holding those meetings.
The Governor argues Times Mirror contemplates that to
overcome the deliberative process privilege, a request for
calendar events and like records must specify a particular topic,
but EPI’s request seeks calendar records of Reynolds’ meetings
with the specified entities regardless of topic. The Governor
characterizes this as a “fishing expedition.”
Nowhere does Times Mirror state that PRA requests for the
Governor’s calendars (or those of his advisors) must specify a
particular topic to overcome the deliberative process privilege.
Given the unrestricted scope of the request found wanting in
32
Times Mirror, that opinion gives little guidance as to how much
narrower a request need be to evade the privilege.
We further note that a request for calendar events
pertaining to meetings on a specific topic could be a greater
intrusion on the deliberative process than simply asking for when
and where meetings took place with a limited number of entities
within the executive agency’s or official’s purview. As
illustrative, Labor & Workforce Development Agency held a
request for the identities of individuals who communicated with
the LWDA regarding specific legislation ran afoul of the
deliberative process privilege. (Labor & Workforce Development
Agency, supra, 19 Cal.App.5th at pp. 29–30.) The fact that EPI’s
request does not seek information regarding the substance of the
meetings reduces its intrusion on the deliberative process and
distinguishes it from the request in Labor & Workforce
Development Agency.5
The Governor warns that if a PRA requestor can obtain
records of a single advisor’s meetings with specified entities, the
requestor easily could evade the deliberative process privilege,
and potentially determine the Governor’s entire agenda, by filing
a series of requests, each targeting a different advisor, a different
time frame, or a different set of entities. To be clear, we do not
hold that any request for calendar entries limited to a single
advisor and specified entities defeats the deliberative process
privilege. Our holding is based on the request at issue here,
which concerns meetings between an energy advisor
subsequently appointed to lead the CPUC and entities the energy
5 This is not to say the deliberative process privilege
necessarily would bar disclosure of calendar events on a specific
topic, a question on which we express no opinion.
33
advisor 1) would meet with regardless of policy priorities, and
2) now leads or regulates as president of the CPUC. We think it
unlikely those circumstances will be so commonplace as to allow
serial PRA requests that could reveal substantial portions of the
Governor’s agenda. If the Governor believes a particular
disclosure, combined with a previous disclosure, intrudes too
deeply into the Governor’s deliberative process, the Governor
may raise that issue for the courts’ consideration at the
appropriate time. Nothing in our opinion would preclude such an
argument or foreshadow how we would rule on it.
The Governor challenges the trial court’s observation that
the Governor submitted no evidence the entities identified in
EPI’s request intended their meetings with Reynolds to be in
confidence, or that future meetings with those entities would be
chilled by the disclosure of Reynolds’ calendars. The Governor
points out no such specific evidence was required in Times
Mirror.
Again, Times Mirror involved a request for the wholesale
disclosure of five years of the Governor’s calendar events. In
response to that broad and general request, the Supreme Court
accepted the Governor’s similarly broad declaration stating
general policy reasons why disclosure of his calendar events
would impede his deliberative process. Here, in contrast, EPI has
narrowed its request to 10 entities. Far from providing evidence
as to how disclosure of Reynolds’ calendar would impact those
and similar entities’ willingness to meet with the Governor’s
office, Sapp’s declaration acknowledged that meeting with these
kinds of entities was part of Reynolds’ job. We conclude, as did
the trial court, that the Governor did not meet his burden to show
34
disclosure of the particular calendar events sought by EPI would
impede the deliberative process.
The Governor argues EPI’s assertion of a public interest in
disclosure of Reynolds’ calendar events is “rooted in rank
speculation,” because there is no evidence of any impropriety
regarding the CPUC’s net metering tariff policy. The Governor
contends Times Mirror’s requirement that a requestor show a
“more compelling” interest in disclosure must mean “a compelling
interest with a basis in fact.” The Governor also contends that
because the calendar events at issue would not reveal whether
Reynolds discussed net metering tariffs with the CPUC or the
other identified entities, “disclosing the calendar events would
irreparably harm the Governor’s deliberative process yet provide
EPI no insight into whether Ms. Reynolds ever discussed net
metering—the very information that EPI claims justifies
disclosure.”
We see nothing in Times Mirror requiring a PRA requestor
to provide particular facts in support of its request. Assuming
arguendo that is so, our conclusion in this case that there is a
public interest in disclosure does not depend on speculation as to
Reynolds’ role in the CPUC’s net metering tariff decision.
Rather, it is based on the undisputed fact that Reynolds served as
the Governor’s senior energy advisor, in which role she interacted
with energy producers, regulators, and unions, and subsequently
the Governor appointed her to lead the CPUC. For the reasons
set forth earlier, we disagree that disclosure of the requested
calendar events would “irreparably harm the Governor’s
deliberative process.”
The Governor further argues that absent the net metering
tariff issue, EPI asserts only a “generic” public interest in how
35
Reynolds performed her duties, a public interest the Governor
contends is insufficient under Times Mirror. According to the
Governor, “The interest in protecting the deliberative process . . .
presses upon the scale with greater force than other interests,”
and therefore “once an agency establishes that disclosure would
intrude upon the deliberative process, the factual showing
necessary to counterbalance the interest must necessarily be
significant.”
We disagree with the Governor’s interpretation of Times
Mirror. The deliberative process privilege, like any application of
the PRA’s catchall exemption, applies only when the public
interest in nondisclosure clearly outweighs the public interest in
disclosure. The high court in Times Mirror recognized the
presumption in favor of disclosure, but held the deliberative
process privilege prevailed given the unbridled request in that
case.
To reiterate, EPI’s narrow request intrudes minimally into
the Governor’s deliberative process, and therefore the public
interest in nondisclosure of Reynolds’ calendars is necessarily far
less than in Times Mirror. Further, the public interest in
disclosure in this case is both more specific and more compelling
than the public interest in Times Mirror. In Times Mirror, the
interest asserted by the newspaper was a general interest in how
the Governor “ ‘performs his duties, including the identity of
persons with whom he meets in the performance of his duties as
Governor.’ ” (Times Mirror, supra, 53 Cal.3d at p. 1344.) Here,
in contrast, the open government principles underlying the PRA
underscore the public interest in knowing whether Reynolds on
behalf of the Governor interacted with the entities she now leads
and/or regulates. Again, the request here is distinguishable from
36
that of Times Mirror, and our holding therefore is not
inconsistent with that authority.
The Governor notes that in Rogers, the PRA requestor
asserted a public interest in determining whether city
councilmembers had communicated with certain special
interests, and the Court of Appeal held that interest insufficient
to overcome the deliberative process privilege. The Governor
argues that, to the extent EPI asserts an interest in knowing
whether Reynolds communicated with energy special interests,
the deliberative process privilege would prevail under Rogers.
Rogers is distinguishable. In that case, although the PRA
requestor claimed to be seeking information about city
councilmembers’ communications with particular individuals or
entities, the request was not limited to those communications,
and similar to Times Mirror, sought all telephone
communications, regardless of topic or participant, between city
councilmembers and third parties over the course of a year.
(Rogers, supra, 19 Cal.App.4th at p. 474.) The Court of Appeal
held the deliberative process privilege applied, and “the
nonspecific and unfocused nature of the request” was
“dispositive.” (Id. at p. 480.) Although the requestor offered to
disclose to the trial court “the focus of his request” so the court
“could intelligently review the telephone records in camera,” the
Court of Appeal held this was improper, and the requestor
“should have presented a specific and focused request to the
City,” not to the trial court. (Id. at pp. 480–481.) Rogers did not
confront the circumstances of the instant case, in which EPI has
submitted a narrow request for meetings between an advisor and
10 specific entities whom that advisor went on to lead or regulate.
In sum, our holding does not conflict with Rogers.
37
In light of the foregoing, we conclude the trial court did not
err in granting EPI’s writ petition.
DISPOSITION
The Governor’s petition for a writ of mandate is denied.
Real Party in Interest Energy and Policy Institute is awarded its
costs in this proceeding.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
38