The Deliberative Process Privilege Broadly Protects Records That Reveal An Agency’s Collective Bargaining Evaluations, Research, Theories, Or Strategy

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Feb 07, 2023

In January and March 2020, an organization called the Freedom Foundation submitted two requests under the California Public Records Act (CPRA). The CPRA generally requires a public agency to disclose public records upon request, unless an exemption or privilege applies.

The Freedom Foundation requested a variety of information on the bargaining unit membership of state employees. For each employee currently employed in certain bargaining units, it requested: full name, month and year of birth, job classification title, job classification code, employee identification number, hire date, current pay rate/salary, work email address, worksite/duty station address, and bargaining unit number.

The California Department of Human Resources (CalHR) had the information requested via a report it purchased on a yearly basis from the database of another department of the state government.  CalHR then used this report to inform its decisions about formulating bargaining proposals, evaluate proposals from unions, and inform and direct its negotiators concerning labor relations.

Because CalHR uses the information the Freedom Foundation requested in a strategic manner and to inform its decisions, CalHR contended it did not have to provide the information due to the deliberative process privilege. The Freedom Foundation argued that the privilege did not apply because no decision or strategy was contained in the records requested; the records contained only the information used in making a decision or strategy.

However, the trial court stated that the relevant definition of the deliberative process privilege is not only records that reveal a state agency’s deliberative process, but also records that reveal a state agency’s impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy. The trial court found that the requested information revealed CalHR’s research and evaluation of information, and therefore, the information was protected by the deliberative process privilege.

The Freedom Foundation appealed to the California Court of Appeal, which promptly affirmed the lower court’s decision.

A related issue, in this case, dealt with whether CalHR was required to search the database of the other government department to come up with the information requested.  As referenced above, that other government departments owned, controlled, and operated this database.  CalHR did not possess the database or have the power or authority to manage, direct, or oversee the information within it.  All CalHR did was view the parts of the database contained in the report it obtained.

Because CalHR did not have control over or possess the relevant files, the trial court and Court of Appeal held that CalHR was not required to search the other agency’s database and provide further information.

Freedom Foundation v. Superior Court of Sacramento County, 302 Cal.Rptr.3d 655 (2022).

Note: This case illustrates the breadth and depth of the deliberative process privilege, and how agencies can use it to protect internal collective bargaining deliberations and strategies. Although this case concerned the deliberative process for state agencies at the newly re-codified Public Records Act at Government Code Section 7928.405, an identical deliberative process statute for local government agencies is codified at Government Code Section 7928.410. 

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