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Deliberative Process Privilege Protects Identity of Stakeholders from Disclosure

  • Vol. 2018, No. 1
  • February 06, 2018

Vol. 2018,No. 1 | February 06, 2018

Last month, a California appellate court held that the deliberative process privilege protected identities of persons who communicated with a government agency from disclosure under the California Public Records Act (CPRA).  (Labor and Workforce Development Agency v. Superior Court (2018) __ Cal.App.5th __ [2018 WL 316865].)  The Court confirmed that confidential communications by third parties seeking to influence agency decisions, including the identity of those making the communications, may be exempt from disclosure.  The Court found that disclosing the identities of third parties with whom the state agency had met was the functional equivalent of revealing the substance or direction of the state agency’s judgment and mental processes, and thus, the CPRA did not require disclosure of this information.

Background

In preparing legislative proposals for an assembly bill, a state agency sought confidential input from various key stakeholders who had divided views regarding the bill.  After the bill was enacted, a CPRA request was made to the state agency for any public records relating to the bill.  When the state agency withheld various documents, including communications between the state agency and these third parties based on the deliberative process privilege, the trial court ordered the state agency to create an index for the withheld documents identifying the author, recipient, and general subject matter of the documents.

Decision

The Court of Appeal reversed the trial court, concluding that releasing the identities of third parties with whom the state agency had communicated during drafting of the bill would reveal the state agency’s judgment and mental process.  The Court did not question the trial court’s holding that the content of the communications themselves were exempt from disclosure as “official information,” as they were solicited by the agency on a confidential basis.

The Court found that divulging the identities of the individuals would undermine the candor provided by stakeholders who had been promised confidentiality.  It recognized that such disclosure “will tend to dissuade stakeholders on issues subject to future [decisions] from commenting frankly, or at all, on matters for which only varying viewpoints can provide a more complete picture.”  The purpose of the deliberative process privilege, the Court said, was to prevent potential public disclosure from discouraging consideration of all views/options.  In the absence of this protection, the Court found disclosure would prevent agencies from gathering varying viewpoints necessary to obtaining a complete picture before making a decision.

Impact

This decision provides another example of information that may be protected from disclosure under the CPRA by the deliberative process privilege.  It suggests that the privilege may protect the communications and identities of those who confidentially communicate with public agencies about pending decisions.  The Court’s holding stresses that the privilege may be applied where disclosure will dissuade frank input and discussion about future decisions.

Dannis Woliver Kelley has experience handling a wide variety of CPRA requests and can assist your district in formulating appropriate responses to any type of CPRA request. If you have questions about responding to any other CPRA request, please contact a DWK attorney.

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