In Labor and Workforce Development Agency v. Superior Court of Sacramento County, et al., the California Court of Appeal recently dealt with a case involving the balance between open government principles and the need for confidentiality in the process of drafting legislation. The Court held that the deliberative process privilege protects a government agency from being forced to produce a privilege log in response to a Public Records Act (“PRA”) request that might reveal the substance of the agency’s decision making process when drafting legislation.
Following court decisions regarding minimum-wage laws, the Governor directed the California Labor and Workforce Development Agency to draft legislation to address penalties for employers who fail to correctly compensate piece-rate employees (employees paid per task such as farm workers). In drafting the legislation, the Agency worked with the Governor’s office, members of the legislature, and representatives of business and labor. When the Bill was enacted it included a safety harbor provision that provided an affirmative defense to certain employers. However, the Bill expressly excluded employers Gerawan Farming and Fowler Packing Company from using the safety harbor provision in class actions suits filed against them.
Fowler and Gerawan sued, alleging their exclusion was due to a labor group demanding they not be included in exchange for their support of the provision. They also alleged that the labor group sought their exclusion as retribution for resistance in contractual negotiations with the group.
Public Records Act Request
To support their lawsuit, Fowler and Gerawan submitted a PRA request to the Agency seeking public records 1) referring or relating to communications between the Agency and the labor group regarding the Bill, 2) excluding companies from the safe harbor provision, and 3) referring or relating to the Bill and Fowler and Gerawan. In response, the Agency provided some documents but withheld others, citing several privileges including the deliberative process privilege. Fowler and Gerawan filed a writ of mandate seeking compliance with the PRA.
The trial court held that some of the materials fell within the deliberative process privilege but directed the Agency to produce a privilege log identifying the author, recipient, and general subject matter for all records withheld. The Agency appealed, citing concerns that the privilege log would reveal the identity of parties with whom the Agency had communicated confidentially during the deliberative process of drafting the Bill.
Court of Appeals Decision
The Court of Appeal concluded that disclosing the identity of persons with whom the Agency had met and consulted with would be tantamount to revealing the Agency’s judgment and mental processes. Therefore, it reversed the trial court and held that the deliberative process privilege shielded the Agency from having to produce a privilege log identifying individuals with whom the agency conferred with in furtherance of preparing the Bill.
Many parties assume that producing a privilege log will be enough to protect confidential information. However, including names, dates, and general subject matters can be revealing.
Therefore, agencies should consider using the deliberative process privilege as a way to prevent producing information in a privilege log if the agency has a legitimate concern that the information would reveal their strategies and thought processes in formulating policies.