When Government Cover-ups Are a Good Thing: Preventing Exposure of Your Agency's Decisionmaking via the Deliberative Process Privilege

• Citation: Vol. 37 No. 3
• Publication year: 2014
• Author: By David H. King*

When Government Cover-ups are a Good Thing: Preventing Exposure of Your Agency's Decisionmaking Via the Deliberative Process Privilege

By David H. King*

At a recent meeting of an agency governing board, a scene familiar to many public agency counsel quickly unfolded. A disgruntled group of citizens attended the meeting, questioning a particular project that would soon be decided by the governing board. The group threatened to file a lawsuit, alleging that the board had made backroom deals on the project and that the agency's officials had engaged in other nefarious activities. The group, not content to wait until the decision was made before raising their protest, repeated the all-too-familiar mantra of "the people have a right to know" among their allegations of a government conspiracy.

Such scenes play out over and over again in chambers and hearing rooms throughout the Golden State. And while it is true that California law recognizes the public's right to know, that right is balanced against the agency's right to protect its decision-making process — a balancing act that is the heart of the deliberative process privilege. This article examines the privilege, its scope and application, and provides six helpful facets that public agency counsel should know about the privilege.

I. OVERVIEW OF THE PRIVILEGE

Under the deliberative process privilege, governmental officials may not be examined concerning their "mental processes by which a given decision was reached" and need not disclose "the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated."¹ California courts have traced the origins of the privilege to U.S. v. Morgan, a 1941 U.S. Supreme Court case, and its California progeny, including City of Fairfield v. Superior Court.²

The privilege protects the agency, its officials and the public all at the same time. It guards the agency by encouraging "creative debate and candid consideration of alternatives within an agency"; if an examination or the disclosure of materials would "expose the agency's decision making process and undermine the agency's ability to perform its functions," then the privilege applies.³ The privilege also safeguards the public "from the confusion that would result from premature disclosure of discussions occurring before the policies affecting it had actually been settled upon."⁴ Lastly, the privilege protects officials by making the focus of the public's attention on the decision, rather than "matters [the officials] considered before making up their minds."⁵ This rationale for the privilege underscores our democratic system of government, making the ballot box, not public disclosure of deliberative materials, the "ultimate check" on the officials' decision.⁶

The deliberative process privilege is a hybrid of both the executive privilege and legislator's mental process privilege.⁷ The executive privilege is established by federal law and shields executive branch decisions from public scrutiny.⁸This privilege is codified in the federal Freedom of Information Act, as exemption 5.⁹ On the other hand, the mental processes privilege (also referred to as the legislative process privilege) prevents inquiries as to the reasons a legislator made a particular decision when the decision is undergoing direct review by a court.¹⁰

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II. THE APPLICATION OF THE PRIVILEGE

In California, for purposes of the Public Records Act ("PRA"),¹¹ courts have construed Government Code Section 6255 — the catchall exemption from disclosure — to include the deliberative process privilege.¹² But whether the privilege applies to other contexts beyond the PRA, such as civil discovery, is subject to debate. Despite the fact that the privilege exists for purposes of the PRA, by its terms, the exemptions in the PRA do not "affect ... the rights of litigants ... under the laws of discovery of this state."¹³ The deliberative process privilege is not found in the Evidence Code; rather, the privilege is established by common law.¹⁴

The general rule is that the deliberative process privilege applies in litigation when a governmental decision is "undergoing direct review by a court."¹⁵ For example, on at least two occasions, courts have held that the privilege prevented inquiry into the deliberations of government officials when their respective agencies' decision was being challenged. In City of Fairfield, the California Supreme Court prevented inquiry into the thought processes of two council members.¹⁶ And in San Joaquin LAFCO v. Superior Court ("San Joaquin"), the Court of Appeal, Third District, applied the deliberative process privilege to notices of deposition propounded to the San Joaquin Local Agency Formation Committee (LAFCO) executive officer and commissioners.

In both City of Fairfield and San Joaquin, the underlying case was brought as a petition for writ of administrative mandamus, challenging the agency's decision. If the underlying case does not challenge an agency's decision, courts have held that the deliberative process privilege does not apply.¹⁷ For instance, the Court of Appeal, Second District, acknowledged the deliberative process privilege is found in the PRA, but declined to apply the privilege to discovery in the context of civil litigation.¹⁸ In Marylander v. Superior Court ("Marylander"), a chapter 11 trustee had sued the officer and director of a nonprofit corporation, alleging misrepresentation, concealment and breach of fiduciary duty.¹⁹ The trustee named the State of California Office of Statewide Health Planning and Development (OSHPD) as a real party in interest because OSHPD had guaranteed a loan that was the subject of the lawsuit.²⁰ During the course of discovery, the defendant propounded a deposition subpoena upon OSHPD seeking production of written communications known as Governor Action Requests (GAR's).²¹ OSHPD asserted the deliberative process privilege and refused to produce the GAR's. When the defendant moved to compel production of the GAR's, the trial court denied the motion to compel, finding that the deliberative process privilege applied to the GAR's.²²

The court of appeal disagreed, however, finding that the only applicable privilege that could be asserted by the OSHPD under the facts of the case was Evidence Code Section 1040(b), the official information privilege. According to the court, the official information privilege "'represents the exclusive means by which a public agency may assert a claim of governmental privilege based on the necessity for secrecy.'"²³ The official information privilege requires that the agency prove that the "information [was] acquired in confidence by a public employee."²⁴If this threshold showing is made, then the agency must demonstrate that "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice." ²⁵

Importantly, the Marylander court acknowledged that courts will occasionally allow for non-statutory, common law privileges "compelled by constitutional considerations."²⁶ If constitutional considerations require judicial declaration of a privilege not based on a statute, the courts will balance the interests, comparable to the balancing test in Evidence Code section 1040(b) (2). This means that any non-statutory privilege is qualified and not absolute.²⁷

Arguably, the deliberative process privilege is based on similar constitutional considerations, namely, the separation of powers doctrine.²⁸ The doctrine prohibits the courts from exercising the core functions of either the executive or legislative branches.²⁹ Although the Marylander court did not recognize the deliberative process privilege under the facts of the case before it, other courts — including the San Joaquin court — have held that the separation of powers doctrine prevented administrative officers from testifying as to their mental processes in performing quasi-judicial functions.³⁰

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In sum, while counsel can rest assured that the deliberative process privilege applies to PRA requests, whether the privilege applies in the context of civil litigation depends on the underlying case. If the government's decision is undergoing direct review by a court, then the privilege has been held to apply to inquiries into the officials' thought processes.³¹ If the government's decision is not being challenged in the context...