Am. Civil Liberties Union of N. Cal. v. Superior Court
| Decision Date | 20 December 2011 |
| Docket Number | A131111. |
| Citation | 202 Cal.App.4th 55,134 Cal.Rptr.3d 472 |
| Parties | AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent; California Department of Corrections and Rehabilitation, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
202 Cal.App.4th 55
134 Cal.Rptr.3d 472
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Petitioner,
v.
The SUPERIOR COURT of San Francisco County, Respondent;
California Department of Corrections and Rehabilitation, Real Party in Interest.
No. A131111.
Court of Appeal, First District, Division 2, California.
Dec. 20, 2011.
American Civil Liberties Union Foundation Of Northern California, Michael Temple Risher, Linda Lye, San Francisco, for Petitioner.
Mennemeier, Glassman & Stroud LLP, Kenneth C. Mennemeier, Sacramento, Kelcie M. Gosling, Margaret Toledo, for Real Party in Interest.
KLINE, P.J.
This petition for writ of mandamus presents two issues, both arising under the California Public Records Act ( Gov.Code, § 6250 et seq. )1 (PRA): (1) whether the
California's Department of Corrections and Rehabilitation (CDCR) may withhold the names of the pharmaceutical companies and others from which it sought to acquire a prescription drug used by the state in executing condemned inmates and (2) whether CDCR can delete information from disclosed documents on the ground it is not responsive to petitioner's PRA request. The trial court answered both questions in the affirmative. We shall reverse the rulings.
FACTS AND PROCEEDINGS BELOW
California executes condemned inmates pursuant to a three-drug lethal injection protocol ( 15 Cal.Code Regs., § 3349 et seq. ), which replaced a similar protocol previously found flawed by federal and state courts under the
Eighth Amendment and the California Administrative Procedure Act ( Gov. Code,§ 11340 et seq. ). (Morales v. Tilton (N.D.Cal.2006) 465 F.Supp.2d 972 Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729, 85 Cal.Rptr.3d 724.) The first drug injected under the new protocol, sodium thiopental, is a barbiturate sedative intended to render the inmate unconscious and anesthetize him from the pain resulting from the two subsequently injected drugs, pancuroniam bromide, a neuromuscular blocking agent that induces paralysis, and potassium chloride, which causes cardiac arrest. (Morales v. Tilton, at p. 975.)
Shortly before the effective date of the new protocol, September 29, 2010, a death row inmate scheduled to be executed on that date intervened in a federal proceeding challenging the new protocol and sought a stay of execution. The district court issued a conditional stay order directing the inmate to make an election whether to be executed by the three-drug protocol or by injection of sodium thiopental only. The inmate declined to make the election and instead filed a motion in the Ninth Circuit to stay execution. (Morales v. Cate (9th Cir.2010) 623 F.3d 828.) In the course of explaining why the district court's unilateral decision to provide the inmate the one-drug option was "improper," the Ninth Circuit observed that there was a dispute whether the state has a sufficient supply of sodium thiopental to implement the one-drug option, and that the state had advised the court "that its current supply of sodium thiopental has an expiration date of October 1, 2010." (Id. at p. 831.)
On October 7, 2010, after petitioner learned that CDCR had obtained a new supply of sodium thiopental, it sent the department a PRA request for documents and other materials pertaining to its acquisition and use of the drug, including documents indicating "how much the state paid for the newly acquired sodium thiopental, how payment was made and from what account," from whom the department most recently acquired the drug, "[a]ll communications, internal or external, regarding efforts by CDCR to obtain sodium thiopental between August 1, 2010, and today," and "[a]ll documents relating to attempts by the CDCR to acquire sodium thiopental, successful or unsuccessful," during that period.
CDCR responded that the PRA request would be "partially denied," explaining that some of the requested materials were "protected by the attorney-client privilege, attorney work product, or were specifically prepared for CDCR's use in pending litigation" and therefore exempt from disclosure pursuant to specified provisions of the PRA and other statutes, or "would impose an unwarranted invasion of personal privacy, personnel records, or records deemed ‘protected information’ " by a federal protective order. Citing
Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240 (Times Mirror ), CDCR also stated in the letter that it would not provide "records protected by the deliberative process privilege," explaining that the PRA "allows CDCR to withhold information if nondisclosure of the records requested would outweigh the public interest in releasing the documents." According to CDCR, "[r]eleasing records that would expose CDCR's decision making process would discourage candid discussion, and thereby undermine the agency's ability to perform its functions."
Though CDCR's statement that the PRA request would be "partially denied" implied some disclosure would be made, the letter provided no documents or other materials nor indicated whether and when any would be provided. Petitioner therefore commenced a writ proceeding in the San Francisco Superior Court on November 17, 2010. On November 30, after a hearing, the trial court directed CDCR to produce all records requested by petitioner "other than those records [the CDCR] in good faith believes may lawfully be withheld under the PRA." CDCR was also directed to provide petitioner with a list of all withheld documents and an explanation why it believed such documents exempt from disclosure.
On December 10, 2010, in response to the order to produce, CDCR sent petitioner's counsel a "PRA Log" listing 1,121 documents, many of which had been withheld or redacted, and indicating which of nine possible reasons explained why a particular document had been withheld or redacted. (See discussion, post, at pp. 83-84.) CDCR disclosed approximately 980 pages of documents. Roughly 200 of these pages consisted solely of documents published by the federal government, including three copies of the Drug Enforcement Administrations Practitioner's Manual and blank forms relating to federal drug laws. Of the 780 remaining pages, all but 115 pages were redacted, some quite heavily. CDCR withheld approximately 120 documents, which fell into one or more of five categories: "confidential attorney-client communications or attorney work product, and records relating to pending litigation"; "communications with [the] Governor or his staff"; "other documents reflecting [a] deliberative process"; "employee names, [e-mail] addresses and titles"; and "records identifying pharmaceutical companies, other potential sources of sodium thiopental, and their employees."
On February 1, 2011, the court issued an order authorizing CDCR to withhold three categories of information: (1) "the names of pharmaceutical companies and other businesses and individuals, and the names of these companies' employees, the CDCR contacted in connection with its efforts to obtain sodium thiopental"; (2) "the names of CDCR and other California state employees who were not decisionmakers in CDCR's efforts to obtain sodium thiopental"; and (3) "the names of the members of the execution team, including the physician(s) on this team." The only one of the three
categories challenged by the petition for writ of mandate filed in this court on February 7, 2011, is the first, and only insofar as it pertains to disclosure of the names of pharmaceutical companies and other businesses and individuals CDCR contacted in order to acquire sodium thiopental. The petition does not contest the rulings that CDCR may withhold the names of employees of the pharmaceutical companies and others it contacted in order to acquire sodium thiopental, the names of state employees who lacked decisionmaking authority, and the names of the execution team, and we therefore do not address those rulings. The effect of the challenged rulings was to allow CDCR to withhold the identities of approximately 12 pharmaceutical distributors and other entities from
which it sought to obtain sodium thiopental.
The order did not allow CDCR to withhold internal governmental communications under section 6254, subdivision (l ), the Governor's correspondence exception to disclosure, because, as stated in California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 168, 78 Cal.Rptr.2d 847, that exception is "intended to protect communications to the Governor and members of the Governor's staff from correspondents outside of government" and was therefore inapplicable to the documents petitioner sought.
The order also...
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