A lawsuit filed by a cardroom against the City of San Jose is making the first frontal and focused attack on the deliberative process privilege, an increasingly argued justification for withholding government records in California. The plaintiff in Sutter’s Place Inc. v. Superior Court contended in oral argument before Court of Appeal for the Sixth District last week that use of the privilege was entirely undermined by passage of Proposition 59 of 2004. 

That statewide ballot measure, passed by an 83.4 percent approval of the electorate:
    • added open government—specifically, access to meetings of government bodies and records of public agencies and officials—as a fundamental right of Californians provided by the state constitution;
    • declared that notwithstanding this right, all existing limits on access found in statutes or the constitution would remain in place—but must be narrowly interpreted;
    • declared that any new laws limiting access must be based on findings as to their purpose and the need for the limitation; and
    • exempted meetings and records of the Legislature from any of these access rights.

The deliberative process privilege has, for the past decade and a half, been asserted by state and local agencies as a basis for keeping secret advice or other communications received or recorded by public officials in the process leading up to policy decisions.  The rationale is that if consultation among officials or even with private citizens is exposed to public scrutiny, candid consideration of policy options will be chilled and the quality of decision-making will suffer. 

The privilege, originating in common law principles applied by federal courts in limiting access to records under the Freedom of Information Act, was held by the California Supreme Court in Times Mirror Co. v. Superior Court (State of California) (1991) 53 Cal.3d 1325 to present a public interest in nondisclosure which, under the “balancing test” provided by the California Public Records Act, outweighed the public’s interest in knowing who had met with Governor George Deukmejian over a five-year period.  Public knowledge of that information, disclosed in appointment calendars sought by the Los Angeles Times, would tend to discourage citizens from contacting the Governor and dry up that stream of input from the public, the court reasoned.

(The preposterousness of this notion—that people with enough influence to gain a personal meeting with the Governor are generally shy about having that fact known—did not deter the high court’s majority (all Deukmejian appointees) from announcing it as self-evident, nor did the majority’s likewise conspicuous exercise in conjecture that to know who met with the Governor would disclose his thinking about this or that issue, or indeed that public knowledge of his thoughts would be contrary to public policy.  If this crippling of executive decision-making is real, that risk did not occur to in a recent U.S. District Court decision ordering the Secret Service to disclose White House visitor logs. Judge Royce C. Lamberth observed, “Knowledge of these visitors would not disclose presidential communications or shine a light on the president’s or vice president’s policy deliberations.”)

In this state the privilege has since been cited and upheld in California Public Records Act cases as justifying the withholding of information about those seeking the governor’s interim appointments to vacancies on boards of supervisors and even of information showing the phone numbers to which city council members placed official calls, or from which they received calls on official business.

The current Sutter’s Place litigation deals with the privilege in the discovery rather than the California Public Records Act context, but its thrust could if successful remove deliberative process as an exemption basis under that statute as well.  At issue is a major gambling club’s allegation that the city, which in 1999 encouraged it to relocate and vastly expand in order to increase its taxable revenue, has under a new mayor’s anti-gambling policy imposed limits on its operations calculated to shut it down entirely.  The card club has sought a number of city memos and other documents to illuminate that question, and the city has steadfastly cited the privilege in refusing to disclose them.

The card club’s central argument at this point: “In voting to pass Prop. 59, California voters intended to change the law to allow the public to obtain information about the motives of local agency officials in their decision-making . . . ”