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Newsom’s Bid to Shield Ex-Advisor’s Records Fails in C.A.
Governor Sought Writ Blocking Disclosure of Appointment Calendars of Ex-Aide on Energy Issues; Bendix Says State Supreme Court’s 1991 Opinion Protecting Then-Governor Deukmejian’s Records Doesn’t Aid Incumbent
By a MetNews Staff Writer
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ALICE REYNOLDS CPUC president |
The deliberative process privilege, which the California Supreme Court held in 1991 shielded then-Gov. George Deukmejian’s appointment calendars and schedules from forced public disclosure, does not attach to records reflecting meetings Gov. Gavin Newsom’s former senior advisor for energy had with a state a regulatory agency and nine groups tied to the electric power industry, the Court of Appeal for this district has declared.
Justice Helen Bendix of Div. One authored the opinion, filed Friday. It denies a petition for a writ of mandate sought by Newsom to overturn a writ granted by then-Los Angeles Superior Court Judge Mitchell Beckloff, who on Friday retired from the bench.
The present request under the state Public Records Act (“PRA”) for appointment calendars from January 2019 to December 2021 of Newsom’s then-advisor Alice Reynolds is considerably narrower than the one made by the Los Angeles Times for all records of Deukmejian’s daily activities over a five-year period, Bendix pointed out. Energy and Policy Institute (“EPI”)—which bills itself as “a watchdog organization working to expose attacks on renewable energy”—wants records relating to meetings Reynolds had with representatives of the California Public Utilities Commission (“CPUC”)—which she now heads—and certain electric utilities, including Southern California Edison, and their workers’ unions.
Its request is for information as to who from the 10 groups she met with and when, but not summaries of what was discussed.
CPUC Decisions
In seeking the records, EPI cited decisions by the CPUC since Reynolds, an attorney, became president of it—appointed by Newsom effective Dec. 31, 2021, with confirmation by the Senate on Aug. 17, 2022 after she assumed the role—which decrease financial incentives for homeowners to switch to solar power. Although key proposals were put forth by the CPUC 18 days before she took the reigns of the agency and were effectuated later, EPI asserted a right to uncover “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 argued that the CPUC has “created new barriers for utility customers to invest in rooftop solar and battery storage.”
It asserted that “[q]uestions have been publicly raised about whether Ms. Reynolds” while an advisor to Newsom “was lobbied or swayed by the electric companies who stand to benefit from the changes, especially given her position within the Governor’s office and the timing of her appointment to the CPUC.”
In expressing agreement with Beckloff’s decision to grant EPI access to the records, Bendix specified that “we do not suggest any agreement with EPI’s suspicion that energy stakeholders lobbied or swayed Reynolds,” setting forth:
“Independent of any intimation of purported impropriety, the public has an interest in knowing the extent to which the Governor’s energy advisor, whom he later appointed to lead the CPUC, interacted with the CPUC, energy utilities, or unions of energy workers in the year prior to her appointment. Our conclusion is based on the public’s tatutory and constitutional right to know how the government is conducting the people’s business, and given the narrowness of EPI’s request, the Governor has not shown an exemption abrogating that right.”
The holding “is not inconsistent” with that of the California Supreme Court in Times Mirror Co. v. Superior Court denying access to Deukmejian’s records, where records request was “unbridled,” she wrote.
Arabian’s Opinion
In Times-Mirror, Justice Armand Arabian (since deceased) said:
“Disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor’s judgment and mental processes; such information would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment. The intrusion into the deliberative process is patent.”
He reasoned:
“If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur. Compelled disclosure could thus devalue or eliminate altogether a particular viewpoint from the Governor’s consideration. Even routine meetings between the Governor and other lawmakers, lobbyists or citizens’ groups might be inhibited if the meetings were regularly revealed to the public and the participants routinely subjected to probing questions and scrutiny by the press.”
Arabian added:
“To disclose every private meeting or association of the Governor and expect the decision-making process to function effectively, is to deny human nature and contrary to common sense and experience.”
“Lest there be any misunderstanding, however, we caution that our holding does not render inviolate the Governor’s calendars and schedules or other records of the Governor’s office. There may be cases 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; then, the court might properly conclude that the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process. Plainly, that is not the case here.”
Case Differentiated
At hand, Bendix discerned, is a case of the nature the Times Mirror court speculated might arise where disclosure would be appropriate. Distinguishing the present fact situation from that presented in Times Mirror, she wrote:
“…Times Mirror involved a request for the wholesale disclosure of five years of the Governor’s calendar events. In response to that broad and general request, the Supreme Court accepted the Governor’s similarly broad declaration stating general policy reasons why disclosure of his calendar events would impede his deliberative process. Here, in contrast, EPI has narrowed its request to 10 entities.
She continued:
“Far from providing evidence as to how disclosure of Reynolds’ calendar would impact those and similar entities’ willingness to meet with the Governor’s office, [the administration] acknowledged that meeting with these kinds of entities was part of Reynolds’ job. We conclude, as did the trial court, that the Governor did not meet his burden to show disclosure of the particular calendar events sought by EPI would impede the deliberative process.”
Bendix noted that “the PRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies” and that the right of access was bolstered by Art. I, §3 of the state Constitution which provides: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore,...the writings of public officials and agencies shall be open to public scrutiny.”
The justice commented:
“[T]he public has a statutory and constitutional right to the disclosure of public documents, and we are to construe any limits on that right narrowly.”
‘Catchall’ Provision
The PRA contains various exemptions, but there’s no mention of the deliberative process privilege. Where it is applied, as in Times-Mirror, Bendix said, it’s by operation of the PRA’s “catchall” provision which says that nondisclosure may be justified where “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
She remarked that “EPI’s narrow request intrudes minimally into the Governor’s deliberative process, and therefore the public interest in nondisclosure of Reynolds’ calendars is necessarily far less than in Times Mirror” and that. in weighing the interests, factors in favor of disclosure preponderate.
Her opinion begins with this 1822 post-presidency quotation from James Madison:
“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.”
The case is State of California v. Superior Court (Energy and Policy Institute), 2024 S.O.S. 1274.
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