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Governor’s Former Advisor’s Calendar Items Are Public Records That Must Be Disclosed

CATEGORY: Client Update for Public Agencies
CLIENT TYPE: Public Employers
DATE: May 03, 2024

A Senior Advisor for Energy named Alice Reynolds served California Governor Gavin Newsom from January 2019 to December 2021.  In December 2021, the Governor appointed Reynolds  as president of the California Public Utilities Commission (CPUC).

The California Public Records Act (CPRA) requires that public records be open to inspection, unless exempt for a reason specified in the law.  The deliberative process exemption, exempts records and materials that reveal an agency’s course of decision-making.  If a requestor challenges the use of the exemption, the agency must show that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In 2022, the Energy and Policy Institute (EPI), a “watchdog organization,” submitted a CPRA request to the Governor’s office seeking “Reynolds’ calendars”.  The Governor’s office claimed that although they had identified records responsive to the request, the records fell under the deliberative process exemption.

EPI submitted a second, narrower CPRA request, this time seeking Reynolds’ “calendar events” with representatives of 10 entities, including the CPUC, where Reynolds had been appointed to serve as president.  The Governor’s office again rejected EPI’s request, stating that although they had identified records responsive to the request, they were exempt from disclosure: as “correspondence of or to the governor and his staff;” and “because they reveal the deliberative process of the Governor or his staff.”

EPI sued under the CPRA to direct the Governor to provide the records.  According to EPI, the CPUC had issued a proposed decision that reduced the amount of compensation paid to owners of rooftop solar panels, that “created new barriers for utility customers to invest in rooftop solar and battery storage.”  EPI contended the records would show that while advising the Governor, Reynolds “worked with the utility groups that she now regulates as president of the CPUC” and that “questions have been publicly raised” about whether Reynolds “was lobbied or swayed by the electric companies who stand to benefit from the changes.”  Thus, EPI argued, the public had a significant interest in Reynolds’ interactions with entities in the electric utility industry prior to her appointment to the CPUC.  The Governor’s office reiterated that the records fell under the deliberative process exemption, and separately, a correspondence exemption.

The trial court granted EPI’s petition.  The court ordered that the calendar events on Reynolds’ calendar and the information contained there – such as date, time, attendees, location and meeting agenda– were not exempt.  Correspondence concerning the calendar events, however, would be exempt.  Concerning the deliberative process exemption, the trial court concluded that the public interest in withholding the calendar events did not outweigh the public interest in disclosure.  The court issued the writ and the Governor’s office appealed.

The California Court of Appeal agreed with the lower court.  The Court held that the public interest in nondisclosure did not clearly outweigh the public interest in disclosure because the calendar items would show only that Reynolds met with the entities.  Those meetings would be expected and unremarkable, given her position.  Moreover, the requests were not for the meeting agendas.  The Court reasoned that although the calendars may result in limited exposure of the office’s “priorities and deliberative choices”, the intrusion was not enough to discourage candid discussion within the agency or undermine the agency’s functions.

The Court further held that there would be substantial public interest in disclosure.  The Court reasoned that the CPUC is a constitutional body with broad legislative and judicial powers, so there would be a public interest in the extent to which the current CPUC president met with the CPUC and its regulated entities while serving as an advisor to the Governor.  The Court concluded that the public interest in nondisclosure in this case did not clearly outweigh the interest in disclosure.

State of California v. The Superior Court of Los Angeles County.

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