A trio of nonprofit organizations led by Californians Aware (CalAware) is asking the California Supreme Court to order the depublication of a controversial decision of the California Court of Appeal concerning access to government records.  Depublication would leave the decision in place, binding the parties to the case, but would remove its force as precedent to guide other cases.

CalAware, the California First Amendment Coalition and the California Newspaper Publishers Association contend, in the letter composed and signed by Los Angeles attorney Dennis Winston—CalAware’s secretary-treasurer—that the opinion of the Court of Appeal for the Sixth District in Sutter’s Place v. Superior Court contains unnecessary and erroneous language, and in particular needlessly belittles the effect of Proposition 59 on the California Public Records Act (CPRA). 

The plaintiff in the underlying case, a cardroom, made a discovery request for a host of documents, intending to show that the San Jose City Council approved restrictions on its operating permit that were deliberately designed to limit and eventually ruin its business.  The city argued, and the trial court agreed, that a constitutionally-based “mental processes” privilege precluded access to evidence of the councilmembers’ motivations, which in any event could not be used to attack decisions that otherwise complied with the law.

In challenging this ruling before the Court of Appeal, the cardroom argued among other things that Proposition 59 had effectively repealed a superficially similar privilege—for executive decision-makers’ “deliberative processes”—that had been recognized as supporting an exemption from disclosure under the CPRA.  The Court of Appeal decided to the contrary and then some: that Proposition 59 not only did not eliminate deliberative process as a basis for withholding records, but really had no substantial effect on interpretation of the CPRA.

The request for depublication argues that the whole CPRA/Proposition 59/deliberative process line of reference is a red herring—one that conclusively and summarily answers questions that never needed to be addressed in order to decide whether the city’s documents were privileged from discovery as a shield from attack on the councilmembers’ “mental processes.”  But leaving the opinion in Sutter’s Place on the books would be not only unnecessary but also damaging to Proposition 59’s rule that doubts arising in the interpretation of open government laws be resolved in favor of access, the letter says:

In short, the result of allowing the Opinion to remain published will likely be to see it invoked as a basis for public agencies rejecting every request for public records that, in the view of the agency, touches upon the “deliberative process.”