Humane Soc'y of the United States v. Superior Court of Yolo Cnty.

• Decision Date: 27 March 2013
• Docket Number: C067081
• Court: California Court of Appeals Court of Appeals
• Parties: The HUMANE SOCIETY OF THE UNITED STATES, Petitioner, v. SUPERIOR COURT OF YOLO COUNTY, Respondent; The Regents of the University of California, Real Party in Interest.

214 Cal.App.4th 1233

155 Cal.Rptr.3d 93

The HUMANE SOCIETY OF THE UNITED STATES, Petitioner,

v.SUPERIOR COURT OF YOLO COUNTY, Respondent;

The Regents of the University of California, Real Party in Interest.

C067081

Court of Appeal, Third District, California.

Filed March 27, 2013

Petition denied.

See 2 Witkin, Cal. Evidence (5th ed. 2012) Witnesses, § 308 et seq.

ORIGINAL PROCEEDINGS in mandate. David W. Reed, Judge. Petition denied. (Super. Ct. No. CV PT08–2337)

Evans & Page and Corey A. Evans, San Francisco, for Petitioner.

No appearance on behalf of Respondent.

Charles F. Robinson and Michael R. Goldstein; Reed Smith and Raymond A. Cardozo, San Francisco, for Real Party in Interest.

MURRAY, J.

This case presents issues concerning the balancing of public interests in research related to an academic study published by a state entity and the disclosure of documents pertaining to prepublication communications and deliberations relating to that study. Pursuant to the California Public Records Act (CPRA) (Gov.Code, § 6250 et seq.),¹ The Humane Society of the United States (HSUS) petitions this court for an extraordinary writ (§ 6259, subd. (c)) ² directing the trial court to order real party in interest, the Regents of the University of California (the Regents), to disclose records relating to the funding, preparation, and publishing of a study by the University's Agricultural Issues Center (AIC) entitled, Economic Effects of Proposed Restrictions on Egg-laying Hen Housing in California ( Economic Effects ). We issued an alternative writ.

HSUS contends the trial court improperly created a de facto academic “researcher” exemption with a presumption of nondisclosure, unless the party seeking disclosure can prove “improper influence,” and made no effort to segregate exempt information from nonexempt information. The Regents ask that we dismiss the petition on the grounds of untimeliness and inadequate record, in addition to opposing disclosure on the merits.

We conclude that the petition is timely and the record is adequate. Based on the evidence presented here, we conclude that the public interests served by not disclosing the records clearly outweigh the public interests served by disclosure of the records. Accordingly, we deny the petition on its merits and discharge the alternative writ.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2008, HSUS requested all records regarding the funding, preparation, release and publication of Economic Effects, published earlier that month by the AIC. Essentially, HSUS sought production of any records and communications concerning the funding, preparation,³ release and publication ⁴ of Economic Effects; any records and communications concerning Proposition 2 on the November 4, 2008 ballot, The Prevention Of Farm Animal Cruelty Act, which proposed phasing out intensive confinement of egg-laying hens, veal calves, and pregnant pigs on California farms; correspondence or communications with the American Egg Board; and any records of and correspondence concerning university policy on participation in political campaigns by university employees or agents, including correspondence concerning the limitations on such activities.

The Regents' July 30, 2008 response to the HSUS CPRA request, in which the Regents estimated a production date of October 1, 2008 for any nonexempt items, was unsatisfactory to HSUS.

On September 5, 2008, HSUS filed in the trial court a petition for a writ of mandate. (§ 6258.) ⁵ The petition alleged that the study characterized Proposition 2 as having a negative economic effect on California citizens, and the Regents were stalling disclosure of records until after the election. ⁶

After the writ petition was filed, the Regents produced 356 ⁷ pages of documents to HSUS, leaving approximately 3,100 pages still at issue. The Regents claimed the withheld pages were exempt from disclosure under three provisions: Government Code section 6255, a “catch-all” exemption balancing public interest in disclosure against public interest in nondisclosure; Government Code section 6254, subdivision (a), which provides a balancing test for preliminary drafts or memoranda not retained in the ordinary course of business; and Government Code section 6254, subdivision (k), which relates to documents privileged as “official information” under Evidence Code section 1040. The Regents claimed a public interest in preserving the privacy of documents, asserting exemption under “the deliberative process privilege,” the “official information privilege” and “the researcher's privilege.”

The Regents divided the withheld documents into four categories: (1) “raw financial data” provided by egg producers to AIC researchers, (2) drafts of the AIC study and prepublication communications between members of the AIC research team, (3) prepublication communications between members of the AIC research team and members of the AIC Board of Advisors, and (4) communications between members of the AIC research team and outside parties whom the researchers consulted for the study.

In November 2008, the election took place. The ballot pamphlet stated under the “CON” argument for Proposition 2: “Proposition 2 is too RISKY. Californians enjoy safe, local, affordable eggs. A UC Davis study says Proposition 2 eliminates California egg production. Instead, our eggs will come from out-of-state and Mexico. Public health experts oppose Proposition 2 because it THREATENS increased human exposure to Salmonella and Bird Flu. Vote No.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2008, argument in opposition to Prop. 2, p. 6.)) The voters rejected the “CON” argument and approved Proposition 2 at the November 2008 election. (Health & Saf.Code, § 25991 et seq. (operative Jan. 1, 2015) is the codification of the Proposition 2 initiative.)

The Regents submitted declarations of Daniel A. Sumner, AIC Director and agriculture and resource economics professor at the University of California, Davis (UCD).⁸ Sumner directed the study and coauthored Economic Effects. In his November 21, 2008 declaration, Sumner described the AIC. The AIC was created by California Assembly Resolution No. 8 in 1985 to research and analyze crucial trends and policy issues affecting agriculture and interlinked natural and human resources. The AIC provides information through studies, conferences and publications. The AIC's audience includes decision makers in agriculture and government, scholars and students, journalists and the general public.

The AIC operates as a unit of the University of California (UC) Division of Agriculture and Natural Resources (ANR), a statewide network of University of California researchers and educators. It is physically located at the UCD campus. The AIC has a director, several associate directors, professional staff and an advisory board. The advisory board, composed of leaders from the agricultural community and other sectors, helps guide the AIC's agenda, maintain a practical orientation for its programs, and communicate with off-campus audiences. In addition to AIC personnel, AIC projects draw on colleagues from other universities and research institutions, as well as government employees and private industry professionals. Among the positive findings of a five-year review of the AIC by a team of academics and members of the agricultural industry appointed by the ANR is the following: “The Center has an outstanding record of interacting with many facets of the agricultural industry in California and the nation, as well as UC academic and Cooperative Extension programs.”

Sumner attested that he has 30 years of experience working in research groups. He has been at UCD since 1993. Before that, Sumner served as the Assistant Secretary for Economics at the United States Department of Agriculture, where he was involved in policy formulation and analysis on a range of topics facing agriculture and rural America. He supervised the Department's economics and statistics agencies, and as such, he was responsible for data collection, outlook and economic research. During his academic career, he conducted numerous academic studies. In most cases, he supervised a team of researchers and other staff.

In his October 16, 2008 declaration, Sumner explained that AIC assured confidentiality to the farmers who provided raw financial data as part of the study upon which Economic Effects was based. Sumner further attested that the study was conducted in the same manner as other academic research in his experience. Sumner went on to describe that process.

“At the University of California, and at AIC in particular, the process of research involves trying new ideas and approaches, investigating lines of thinking that do not work out, suggesting ideas that turn out to be wrong, brainstorming and trying out drafts of explanations that turn out to be far from the final exposition of our approach and results. All of this back and forth happens among a team of project participants and with others who may have information and expertise upon which we can draw. Some of this process is undertaken by junior scholars who are relatively new in their research careers and serves as a part of the training process for graduate students, postdoctoral scholars and others. [¶] ... [¶] ... For the exchange of ideas, information, analysis, manuscript drafts and reviews to be efficient and effective, we communicate informally, often in jargon or short hand. We do not keep detailed records and pay little attention to how we communicate. There is not a consistent record of our exchanges and no clear thread of the process can be reproduced from remaining records. For example, an idea may be proposed in an email, discussed in a hallway conversation and rejected, with no record of why it is no longer pursued. Many, if not most, of these exchanges would make little sense to those outside the process. That said, for much of what we say and do, it would be...