State v. Super. Ct. of L.A. Cty.

• Docket Number: B330847
• Decision Date: 05 April 2024
• Citation: 320 Cal.Rptr.3d 154
• Parties: STATE of California et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Energy and Policy Institute, Real Party in Interest.
• Court: California Court of Appeals

320 Cal.Rptr.3d 154

STATE of California et al., Petitioners,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Energy and Policy Institute, Real Party in Interest.

B330847

Court of Appeal, Second District, Division 1.

Filed April 5, 2024

ORIGINAL PROCEEDINGS in mandate. Mitchell L. Beckloff, Judge. Petition denied. (Los Angeles County Super. Ct. No. 22STCP02964)

Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney General, Michelle M. Mitchell, Laura Randles-Little and Andrew D. Day, Deputy Attorneys General, for Petitioners.

No appearance for Respondent.

Law Offices of Kelly A. Aviles and Kelly A. Aviles, La Verne, for Real Party in Interest.

BENDIX, J.

James Madison wrote in 1822, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." (IX The Writings of James Madison (G.P. Putnam’s Sons, ed. 1910) 103.)

The question before us is whether the "deliberative process privilege" precludes disclosure pursuant to the California Public Records Act (Gov. Code,¹ § 7920.000 et seq.; PRA) of entries in the calendars of the Governor’s former senior advisor for energy. The requested entries reflect meetings with 10 specified entities—the California Public Utilities Commission (CPUC), electric utilities, and unions representing energy workers—during the year prior to that senior advisor’s appointment to the presidency of the CPUC. The trial court found the privilege does not override the public interest in access to these calendar entries and ordered the Governor to produce them to the requestor, real party in interest Energy and Policy Institute (EPI). The Governor petitions this court for a writ of mandate vacating the trial court’s order.

In determining whether the deliberative process privilege applies, the "key question … is ‘whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.’ [Citation.]" (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342, 283 Cal.Rptr. 893, 813 P.2d 240 (Times Mirror).) In Times Mirror, our Supreme Court held the deliberative process privilege barred the wholesale disclosure of five years’ worth of the Governor’s appointment schedules, calendars, and other records of his daily activities. The court emphasized, however, that in the appropriate case, "where the public interest in certain specific information contained in one or more of the Governor’s calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited," disclosure may be required "whatever the incidental impact on the deliberative process." (Id. at pp. 1345–1346, 283 Cal.Rptr. 893, 813 P.2d 240.)

We conclude EPI’s request is sufficiently specific, focused, and limited, and the public interest in disclosure sufficiently compelling when measured against the minimal impact on government decisionmaking, to override the deliberative process privilege. The record supports the finding that the entities specified in EPI’s request are entities with which the Governor’s senior energy advisor would be expected to meet regardless of the Governor’s particular policy priorities. Accordingly, disclosure of records that those meetings took place, without any information as to the substance of those meetings, would reveal little if anything about the Governor’s or his senior advisor’s policy positions or thought processes. The record does not support that disclosing the fact that these meetings took place would discourage future meetings between the Governor’s senior energy advisor and the specified entities or similar energy stakeholders. We also conclude the public has a substantial interest in knowing the extent to which the current CPUC president interacted with the CPUC and the entities the CPUC regu- lates when she was the Governor’s senior advisor for energy.

We therefore deny the writ petition.

BACKGROUND

1. EPI’s PRA request

Alice Reynolds served as the Governor’s Senior Advisor for Energy from January 2019 to December 2021. The Governor appointed Reynolds to the CPUC presidency effective December 21, 2021.

On January 14, 2022, EPI submitted a PRA request to the Governor’s office seeking "[t]he calendars of Alice Reynolds from January 1, 2021 through December 31, 2021." David Sapp, the Governor’s Chief Deputy Legal Affairs Secretary at that time, responded to the request. He stated his office had identified responsive records, but the records "are exempt from disclosure as records that reveal the deliberative process of the Governor or his staff." Sapp cited Government Code former section 6255, California First Amendment Coalition v. Superior Court (1998) 67 Cal. App.4th 159, 78 Cal.Rptr.2d 847, and Times Mirror, supra, 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240.

After further correspondence between EPI and Sapp, EPI submitted a second, narrower PRA request. The second request sought "Alice Reynolds’ calendar events specifically with representatives of the following entities from January 1, 2021 through December 31, 2021." The request then listed 10 entities: the CPUC, Sempra Utilities, San Diego Gas & Electric, Southern California Edison, Pacific Gas & Electric, Engineers and Scientists of California Local 20, IBEW 11, IBEW 1245, IBEW 465, and IBEW 47.²

In a letter, Sapp again stated the Governor’s office had identified records responsive to the request, but all were exempt from disclosure both "as correspondence of or to the Governor and his staff (Gov. Code, § 6254(l))" and "because they reveal the deliberative process of the Governor or his staff."

2. EPP’s petition for writ of mandate

EPI then filed a verified petition in the trial court for a writ of mandate directing the Governor to provide the requested records. In the petition, EPI explained why it was seeking Reynolds’ calendars. EPI alleged that in 2020, the CPUC decided to "revisit net metering tariffs," which set compensation for electricity sold to the electricity grid by owners of rooftop solar panels. "Throughout 2020 and 2021, intervenors, including electric utilities, filed comments and participated in workshops to inform the CPUC’s development of a successor to the current net metering tariffs." The CPUC issued a proposed decision on December 13, 2021 that, according to EPI, reduced the amount of compensation paid to owners of rooftop solar panels and imposed "a new solar-only fee." EPI alleged these changes "created new barriers for utility customers to invest in rooftop solar and battery storage."

EPI alleged, "CPUC executives have … indicated that the Office of the Governor has significant involvement in CPUC decision-making. The public thus has a significant interest in the disclosure of records reflecting Ms. Reynolds’ interactions with entities in the electronic utility ecosystem during her tenure at the Office of the Governor and prior to her appointment to the CPUC." EPI contended the records would show "how, in her role for the Governor, Ms. Reynolds worked with the utility groups that she now regulates as president of the CPUC." In a memorandum of points and authorities in support of its petition, EPI further contended, "Questions have been publicly raised about whether Ms. Reynolds was lobbied or swayed by the electric companies who stand to benefit from the changes [to the net metering tariffs], especially given her position within the Governor’s office and the timing of her appointment to the CPUC."

In opposition, the Governor argued Reynolds’ calendar entries were created through an exchange of e-mailed meeting invitations, and therefore were exempt from disclosure as " ‘correspondence of and to the Governor or employees of the Governor’s office" under section 7928.000, subdivision (a). The Governor further argued that under Times Mirror and its progeny, the calendars were protected from disclosure by the deliberative process privilege. The Governor contended, "[D]isclosing [Reynolds’] meeting invites could chill the future flow of information to the Governor."

Sapp, now the Governor’s Legal Affairs Secretary, provided a declaration in support of the Governor’s opposition to the writ petition. Sapp averred, "The Senior Advisor for Energy is the Governor’s lead expert on all matters concerning energy policy. A member of the Governor’s Cabinet Team, the Senior Advisor for Energy advises the Governor and helps craft and advance energy policy at the highest level within the Governor’s Office. A key responsibility of the Senior Advisor for Energy is to engage with interested parties— energy consumers, producers, regulators, unions, and others—to identify emerging issues, understand competing interests, and ensure that wide-ranging viewpoints are considered in the policymaking process."

Sapp further stated, "The Governor’s Office treats its senior advisors’ correspondence and meeting records as confidential to ensure that the Governor and his senior staff receive candid feedback from a diverse set of interested parties. If those records were made public, some parties might decline to meet with the Governor’s senior staff out of concern for how the meeting might be perceived—or misperceived—by others. By the same token, a senior advisor might decline meeting with an unpopular or controversial group if doing so would prompt unproductive or distracting criticism from other groups. [¶] Similarly, the Governor has limited time and relies on his senior advisors to advance his priorities. This requires senior advisors to meet internally regarding ongoing initiatives and emerging issues, as well as to engage with interested stakeholders. Senior staff must determine which meetings to accept and how to prioritize the many competing demands on their time. By treating correspondence and meeting records as confidential, the Governor’s...