In a decision issued December 21, 2015 (Caldecott v. Superior Court of Orange County (Newport- Mesa Unified School District)), the California Court of Appeal ruled that a former school district employee is entitled to records concerning his own allegations of misconduct against his former supervisor, the district’s superintendent. Petitioner, John Caldecott (“Caldecott”), was the Executive Director of Human Resources for the Newport-Mesa Unified School District (“District”). While acting in that capacity, Caldecott filed a complaint with the District alleging the superintendent committed various acts of malfeasance and created a hostile work environment. The District Governing Board responded that the complaint did not warrant any Board action. Shortly thereafter, the superintendent, with Board approval, terminated Caldecott.
Caldecott then submitted a Public Records Act request seeking copies of the District’s response to his complaint and an email Caldecott sent to the Board regarding its response; documents clearly within Caldecott’s possession and control. The District denied the request because Caldecott possessed the documents and, “because the potential impact of an unjustified accusation on the reputation of an innocent public employee” prevented disclosure of the requested documents. While the trial court accepted the District’s argument, the Court of Appeal wholeheartedly rejected it and granted Caldecott’s appeal.
Education Law commentators immediately drafted cautionary alerts warning school districts that the requester’s intent was irrelevant and that “mootness,” or stated differently, the fact that the requester already possesses the requested documents, was insufficient grounds to withhold documents. Still, others warned that simply because allegations against public employees were neither unequivocally proven nor resulted in discipline, documents related thereto were still subject to disclosure. Although important reminders, they reflect current case law. The true import of the Caldecott decision is secreted in the final pages of the opinion where the court sidesteps long-standing precedent and creates a virtually impossible standard for public entities to successfully assert the “deliberative process privilege.” Whether this decision reflects the constant tension between the judicial and executive branches, or the philosophical pendulum swinging in favor of the transparency community, practitioners must be made aware of this “Trojan horse” before withholding documents based on this long-standing common-law principle.
I. THE DELIBERATIVE PROCESS PRIVILEGE AND ITS ORIGINS
The deliberative process privilege has its origins in English common law. Many courts and commentators recognize the deliberative process privilege’s roots in the English Crown privilege, a privilege that protected government communications that were deliberative in nature, such as military reports and government employee correspondence. The English Crown privilege translated into Executive Privilege in the United States shortly after independence, protecting deliberations of high officials, including the President. The common-law privilege evolved into one protecting executive officials from disclosing information that was predecisional and deliberative. (Shilpa Nayaran, The Proper Assertion of the Deliberative Process Privilege: the Agency Had Requirement, Fordham L. Rev. 1188 (2008)). These substantive elements, which were included to ensure candor in discussions relating to policy making, are protected from the chilling effect brought on by fear of disclosure of such discussions and deliberations. Federal courts have upheld the legitimacy of this rationale through the tenure of deliberative process privilege case law. (Michael N Kennedy, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege, (2005) 99 Nw. U. L. Rev. 1769, note 8 at 1773.)
While the deliberative process privilege originated from common-law, it is more frequently litigated in the context of Freedom of Information Act (“FOIA”) requests. Exemption 5 of the FOIA, which applies to, “interagency or intra-agency memorandums or letters which would not be made available by law to a party other than the agency in litigation with the agency,” incorporates several privileges including the deliberative process privilege. (See United States Department of Justice Freedom of Information Act Guide 468 (2007) note 15 at 878).
In California, the deliberative process privilege is litigated in the context of the California Public Records Act. (“CPRA”). Government Code section 6255 allows public agencies to exempt records when, “on the facts of a particular case, the public interest served by nondisclosure clearly outweighs the public interest served by disclosure of the record.” The deliberative process privilege may exempt disclosure of records revealing the deliberations of government officials or information relied on by the officials in making decisions that they would not otherwise receive if the information were routinely disclosed. According to the California Supreme Court, which created the deliberative process privilege in 1991, the key question in every case is whether disclosure of materials would expose the government’s decision-making process in such a way as to discourage candid discussions with public officials and thereby undermine the government’s ability to perform its functions. (Times Mirror Co. v. Superior Court, 53 Cal 3d. 1325, 1342 (1991).)
II. SEMINAL CPRA CASES
In California, courts require the proponent of nondisclosure to demonstrate a clear over balance on the side of confidentiality. (Michealis, Montanari & Johnson v. Superior Court 38 Cal 4th 1065, 1071 (2006).) In the context of the Caldecott decision, it is important to understand the burden courts have traditionally placed on public agencies to demonstrate that overbalancing.
A. Times Mirror Co. v. Superior Court 53 Cal 3d. 1325 (1991)
In Times Mirror, a reporter for the Los Angeles Times (“Times”) wrote Governor Deukmejian requesting copies of his “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.” The Times asserted that, “in 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.”
The Governor submitted a declaration noting 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 ….” The Supreme Court found that the public interest in not disclosing the records clearly outweighed the public interest in disclosure.
B. Rogers v. Superior Court, 19 Cal App 4th 469 (1993)
In Rogers, a reporter sought records of telephone calls made by Burbank city council members from city-owned cellular phones and home offices over a one-year period. The reporter claimed, the public interest to be served by disclosure was: “On 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 city asserted the deliberative process privilege declaring that 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. Relying primarily on Times Mirror, the Court of Appeal concluded the trial court properly refused to order disclosure of the telephone numbers under the deliberative process privilege.
C. California First Amendment Coalition v. Superior Court (Wilson) 67 Cal App 4th 159, 171 (1998)
In the above-referenced case, the California First Amendment Coalition (“CFAC”) sought records from Governor Wilson concerning the names and qualifications of applicants for a temporary appointment to a local board of supervisors, necessitated by the death of an elected supervisor. Purportedly, CFAC wished to expose the applicant’s qualifications to public scrutiny.
The Governor asserted the deliberative process privilege. In support, the Governor submitted declarations explaining that the names of applicants, “are kept confidential in and outside the office, in part, to encourage qualified applicants to seek consideration.” No additional evidence was offered. Again, based on the Governor’s offer of proof, the court determined that the deliberative process privilege exempted the records from disclosure.
In all of the above cases, the requester sought records reflecting the deliberations of public officials. In each of the above cases, the requester sought to expose government malfeasance. Finally, in each of the above cases, the public agency offered a rationale for nondisclosure consistent with existing deliberative process privilege case law. In each of the above-referenced cases, courts determined the public interest in nondisclosure outweighed the public interest in disclosure.
III. THE TURNING OF THE TIDE
Two recent cases have either ignored or sidestepped the court’s traditional balancing analysis concerning the deliberative process privilege. Although they do not expressly overrule Times Mirror, Rogers, or California First Amendment Coalition, they hold the government entities to a much higher standard concerning the showing necessary to successfully assert the deliberative process privilege.
A. Citizens for an Open Government v. City of Lodi 205 Cal. App.4th 296 (2012)
The above-referenced case avoided much CPRA commentary because it involved a citizens group challenging the reapproval of a conditional use permit for a proposed shopping center. The deliberative process privilege was implicated by the exclusion of emails between city staff and consultants from the administrative record in the CEQA litigation.
In the trial court, the city asserted that the privilege was applicable because: “[T]he City Manager, City Attorney, Community Development Director, outside counsel and expert EIR consultants engaged in various deliberative discussions and document exchanges concerning the proposed EIR. In order to foster candid dialogue and attesting and challenging of the approaches to be taken, those discussions are appropriately exempt from disclosure under the deliberative process privilege…” The opposition characterized the city’s rationale as a “naked assertion” insufficient to justify withholding the records.
The court determined that the city’s rationale was, “simply a policy statement about why the privilege in general is necessary.” However, the court went on to hold, “invoking the policy is not sufficient to explain the public’s interests in nondisclosure of the documents in this case.” Thus, the city failed to carry its burden.
B. Caldecott v. The Court of Orange County (Newport Mesa Unified School District)
The facts of the dispute have been set forth above. Clearly, Caldecott wished to publicize the District documents. The District asserted the deliberative process privilege, offering declarations from the Superintendent and Board President that production of documents will, “impede the frank discussions” where “high-level administrators debate the merits of district programs.”
The Court citing exclusively to Citizens for Open Government found the District’s showing insufficient to demonstrate a public interest in nondisclosure, creating a new evidentiary standard. The Court stated, “… Other than [Superintendent’s] conclusory statement, nothing shows production of this document will interfere with the discussions or debate.” (Emphasis added).
IV. WHERE ARE WE NOW?-THE GATES OF TROY
I know what you’re thinking. What changed? How is the District’s rationale any more conclusory, or any less naked than the rationale offered by Governors Deukmejian and Wilson? In the venerated cases that created the deliberative process privilege as we know it, public entities were allowed to offer evidentiary rationale of what would occur if the deliberative processes were made public. Public entities were not required to prove what did occur. If you apply the Caldecott standard to the facts of Times Mirror, Rogers, and California First Amendment Coalition, the calendars, phone numbers, and applicants’ qualifications would have been undoubtedly disclosed, because they did not…show… interference with discussion or debate. They instead hypothesized about what would happen if such discussions or information was not protected.
Which begs the question, what showing will justify nondisclosure under the deliberative process privilege? If not declarations under penalty of perjury, then what? Are public officials going to have to religiously self-censure their inter-office communications? Are governmental emails going to include the disclaimer: “If the thoughts expressed in this electronic communication were exposed to public scrutiny, I would not feel free to express my candid opinions as a public officer”? Will the oath of office not only include a pledge to protect and defend the Constitution of the State of California, but also avoid frank discussions and exchange of ideas if those are made public? Although this sounds somewhat ridiculous, how do you show what might happen?
If the deliberative process privilege has fallen into such disfavor in this era of transparency, courts should simply overrule Times Mirror and eliminate the privilege once and for all. This subtle alteration of the evidentiary standard is a subterfuge, the Trojan horse that requesters will use to sneak behind the walls and “open the gates” to government employees thoughts, deliberations, and discussions. But unlike the Greeks during the Trojan war, requesters are ostensibly not seeking to destroy our government, but instead make it more transparent. Will the Caldecott decision result in the governmental decision-making process becoming more transparent or more private? That remains to be seen, but in the meantime, CPRA practitioners beware of asserting the deliberative process privilege.
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