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New CPRA Decision: CPRA's deliberative process privilege shields identity of those who communicate confidentially with public agencies about potential legislation

In the recent case, Labor and Workforce Development Agency v. Superior Court, California's Third District Court of Appeals relied on the deliberative process privilege contained in the California Public Records Act ("CPRA") to shield the identity of "stakeholders" who offered confidential input to the Labor and Workforce Development Agency regarding AB 1513–a bill which addresses minimum wages for employees paid on a piece-rate basis. In so doing, the Court relied heavily on the reasoning in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 to find the CPRA's deliberative process privilege protects the identities of third parties who communicate confidentially with an agency during the predecisional phase of gathering information for drafting legislation. The Court did not address whether the passage of Proposition 59–which added the right of access to public records to the California Constitution–impacted the deliberative process privilege analysis under the CPRA's "catch-all" exemption found in Cal. Gov't Code § 6255.

The case arose when two farming companies, Gerawan Farming, Inc. and Fowler Packing Company, Inc., sought records under the CPRA to assist in their lawsuit challenging the constitutionality of certain provisions of AB 1513. In particular, the companies sought records from the Labor and Workforce Development Agency–which drafted the legislation–concerning communications between the agency and the United Farm Workers ("UFW"), records related to the statutory carve-out at issue, and records which discuss Gerawan and Fowler in relation to AB 1513. After the agency produced 119 pages, some of which were redacted, and stated that it was withholding other documents on grounds of various privileges, the companies filed suit.  The trial court granted the petition in part and denied it in part. With respect to records withheld under the deliberative process privilege, the trial court ordered the agency to create an index containing the author, the recipient, and general subject matter of each document to aid in the determination as to whether documents were deliberative and, therefore, exempt from disclosure. The agency sought appellate review of the trial court decision.

The Court held that an index was not required because the deliberative process privilege extends to the identities of those who offered confidential communications regarding AB 1513, and thus directed the trial court to vacate its order. The Court also found that communications between attorneys in the Legislative Counsel's Office and the agency were privileged under the attorney work product privilege.

In its deliberative process ruling, the Court adopted many of the policy arguments in Times Mirror–the benchmark deliberative process privilege case–without discussing how the policy analysis may have changed by virtue of the subsequent passage of Proposition 59. The Court's heavy reliance on Times Mirror may encourage agencies to broadly claim the deliberative process privilege as it pertains to predecisional communications with third parties such as lobbyists. However, the Court emphasized that, here, the communications were solicited with assurances of confidentiality. As such, this case may not permit agencies to withhold predecisional communications from third parties which were freely submitted or otherwise not solicited with assurances of confidentiality.  

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