Rittiman v. Public Utilities Commission
| Decision Date | 17 June 2022 |
| Docket Number | A162842 |
| Citation | 80 Cal.App.5th 1018,295 Cal.Rptr.3d 285 |
| Parties | Brandon RITTIMAN et al., Petitioners, v. PUBLIC UTILITIES COMMISSION, Respondent. |
| Court | California Court of Appeals Court of Appeals |
Law Office of Steven D. Zansberg, LLC, Steven David Zansberg for Petitioner.
David Arthur Urban, Los Angeles, Suzanne Solomon, San Francisco, Rachel Ann Peterson, Kathleen Sue Chovan, Keenan Patrick O'Connor, San Diego, and Christofer Charles Nolan for Respondent.
This original mandamus proceeding brought under the Public Records Act (PRA) ( Gov. Code, §§ 6251 et seq. ) presents three questions: (1) Was petitioner1 required to fully exhaust the administrative remedies set forth in the Public Utilities Code and in California Public Utilities Commission (CPUC) General Order 66-D in order to judicially challenge the commission's denial of his PRA requests? (2) Has the CPUC's action on petitioner's administrative appeal rendered this writ proceeding moot? (3) Did the commission properly deny petitioner's PRA requests on the basis of the "Governor's correspondence" exemption ( Gov. Code, § 6254 subd. (l) ) and/or the "deliberative process" privilege ( id. , §§ 6254 subd. (k), 6255, subd. (a) )? We conclude the answer to the first two questions is "no," and the answer to the third, is "yes." We therefore sustain the CPUC's return by way of demurrer without leave to amend and dismiss this original proceeding.
In mid-November 2020, petitioner made four PRA requests seeking "all communications between" CPUC President Marybel Batjer and/or her "principal executive staff," and members of the Governor's staff, since the date of Batjer's appointment in mid-August 2019. The requested records included "all documents, emails, or texts whether made on state-issued or personal devices."
Consistent with Government Code section 6253, subdivision (c),2 the CPUC, on November 30, notified petitioner of its "determination" that the requested records were statutorily exempt from disclosure under Government Code section 6254, subdivision (l) —the Governor's correspondence exemption3 —and would not be made available.
On December 4, in accordance with CPUC General Order 66-D, enacted pursuant to Government Code section 6253.4, subdivisions (a) and (b)(28),4 petitioner sent an e-mail to a CPUC Legal Division attorney appealing the determination that the requested records are statutorily exempt from disclosure. His stated ground for appeal was that "correspondence," as the term is used in the exemption, must be "narrowly... ‘confined to communications by letter,’ " citing Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1337, 283 Cal.Rptr. 893, 813 P.2d 240 ( Times Mirror Co. ). (Underscoring omitted.) He therefore requested that the commission provide "all text messages, emails, and calendar entries." Although petitioner's e-mail did not comply with the commission's procedural rules for such appeals, the commission acknowledged receipt of his appeal.
The next step in the CPUC's internal appeal process requires its legal division to prepare a draft "Resolution" responding to the issue(s) raised by the requestor's appeal. (Gen. Ord. 66-D § 6.1.) As the resolution subsequently adopted by the commission in this case illustrates, such resolutions are in the nature of a detailed legal disposition that summarizes the facts of the particular PRA request and discusses and applies what the CPUC determines is the applicable law. Draft resolutions are made available for public review and comment, and acted on by the commission at the next scheduled board meeting. (Gen. Ord. 66-D § 6.1.) General Order 66-D does not set forth deadlines for completing and posting of draft resolutions, or for commission action on a draft resolution.
As of mid-April 2021, the CPUC had not posted a draft resolution on petitioner's appeal, and petitioner notified the commission by letter that if a draft was not before it on April 22, he would deem its lack of action "a constructive denial" of his appeal "and seek judicial review" in the appellate courts.
In his letter, petitioner advanced a new reason why the Governor's correspondence exemption assertedly did not apply. He maintained a "California's Court of Appeals has held that [Government Code] section 6254(l) provides confidentiality to a small subset of ‘letters’ and other correspondence received by the Governor's Office: it applies only to those communications sent from individuals, companies, and/or groups who are outside of the government ," citing to California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 168, 78 Cal.Rptr.2d 847 ( First Amendment Coalition ).
A CPUC attorney responded by letter five days later, apologizing for the delay in the draft resolution, citing "workload issues." She anticipated the draft resolution would be prepared and posted on May 21, for action at the commission's June 24 board meeting.
Not seeing a draft resolution on May 21, petitioner e-mailed the same CPUC attorney on May 24 and 25. The attorney again apologized and stated the draft would be circulated by July 2 for the commission's August 4 board meeting.
Two weeks later, on June 14, petitioner filed the instant mandamus proceeding. He alleged, given the passage of seven months since the filing of his administrative appeal, his appeal had been "constructively denied." He further maintained the Governor's correspondence exemption applies solely to correspondence from private parties and therefore is inapplicable to his requests for communications between the Commission President and/or her principle executive staff, and the Governor's staff. He requested immediate access to the disputed records.
We summarily denied the petition, indicating petitioner had not exhausted his administrative remedies. The Supreme Court granted review and transferred the matter back to us with directions to vacate our denial order and issue an order to show cause (OSC) to the trial court. The high court corrected its order on November 22, directing that we issue an OSC to the CPUC. We did so on December 1.
In the meantime, on November 18, the commission adopted Resolution No. L-612, an 11-page, single-spaced decision, denying petitioner's administrative appeal, principally on the basis of the Governor's correspondence exemption ( Gov. Code, § 6254, subd. (l) ), and "deliberative process" privilege ( id. , §§ 6254, subd. (k), 62555 ).
On November 30, petitioner sent an e-mail to several CPUC e-mail addresses, including that of the person (a legal support supervisor II) who had served him by e-mail him with a copy of the CPUC's Resolution, attaching an "Application for Rehearing." Petitioner sent a follow up e-mail asking for confirmation that his prior e-mail had been received, to which the same person responded, "Confirm receipt."6 This apparent filing effort was not done in accordance with CPUC procedural rules, which require either filing a hard copy with the CPUC docket office or use of a specific e-filing service, which, upon filing, provides the party with confirmation of filing and docketing. ( Cal. Code Regs., tit 20, § 1.13.) Petitioner's e-mail never made its way to the docketing office, and apparently petitioner never followed up to confirm timely filing and docketing.
The CPUC duly filed a return to the OSC in the form of a demurrer, supported by a memorandum of points and authorities. The commission advanced three grounds for dismissal of the writ petition: (1) Petitioner failed to fully exhaust his administrative remedies, specifically by failing to file an application for rehearing as required by Public Utilities Code section 1731 and General Order 66-D section 6.2. (2) The CPUC's adoption of Resolution No. L-612 denying petitioner's administrative appeal moots this mandamus proceeding. (3) The commission properly denied petitioner's PRA requests on the basis of the Governor's correspondence exemption and the deliberative process privilege.
Petitioner filed a reply, taking issue with each of these grounds.
We first address the CPUC's claim that since petitioner failed to exhaust his administrative remedies set forth in the Public Utilities Code, and specifically the rehearing provisions of Public Utilities Code section 1731, we lack jurisdiction to consider the merits of petitioner's challenge to the denial of his PRA requests and must dismiss his writ petition. Petitioner maintains, having granted review and transferred the matter to this court, the Supreme Court has already ruled in his favor on exhaustion and therefore the issue need not detain us further. He further claims that even if exhaustion may otherwise be required, he is excused from doing so in this case given the commission's delay in acting on his administrative appeal. As we shall explain, we conclude the administrative remedies set forth in the Public Utilities Code, and specifically section 1731, do not apply to the PRA and therefore there is no jurisdictional impediment to our review of petitioner's challenge to the commission's determination denying his requests. We further conclude any non-statutory administrative remedies must comply with the language and purpose of the PRA and, in this case, petitioner is excused from exhausting such remedies.
Before taking up the CPUC's exhaustion argument, we address petitioner's assertion that the issue has already been decided in his favor because the Supreme Court granted review and transferred the matter back to us with directions to issue an OSC. According to petitioner, "[t]he fact that the Supreme Court issued the Writ proves, beyond peradventure, that it necessarily rejected CPUC's argument that no court has jurisdiction over this case until Petitioners ‘have exhausted their administrative remedies.’ "
Petitioner is mistaken as to the import of a grant of review by our high court...
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Case Law Updates
...play" and "common sense" were an insufficient basis on which to grant leave.PUBLIC RECORDS Rittiman v. Public Utilities Comm'n (2022) 80 Cal. App.5th 1018, filed June 17, 2022, modified on July 13, 2022This opinion clarified that the Governor's correspondence exemption to the disclosure of ......