Judge James C. Chalfant, Case Number: 23STCP00841, Date: 2024-03-28 Tentative Ruling

Petitioner Timothy Ryan, M.D. (“Ryan”) seeks a writ of traditional mandate directing Respondent County of Los Angeles (“County”) to provide public records responsive to his requests under the California Public Records Act (“CPRA”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Ryan filed the verified Petition on March 16, 2023, alleging a cause of action for traditional mandamus. The Petition alleges in pertinent part as follows.

From 2013-18, Ryan was employed at Harbor-UCLA Medical Center (“Harbor-UCLA”) as a vascular surgeon. A jury verdict subsequently found that, while working at Harbor-UCLA, Ryan was subject to retaliation for whistleblowing activity related to the submission of false medical claims.

On August 15, 2022, Ryan made a CPRA request for records related to Dr. Louis Kwong (“Kwong”), former chairman of Harbor-UCLA's orthopedics department. On September 22, 2022, the County requested an extension to respond.

On October 4, 2022, Ryan made a CPRA request for any records related to Kwong’s employment, allegations of his misconduct, and his suspension. The first category of documents was for all documents indicating Kwong’s suspension in the first week of April 2022. The second category was for all documents referring to or identifying the reasons for such suspension.

The County invoked a 14-day extension to respond. On November 11, 2022, the County asserted that all documents responsive to the two requests fell under statutory exemptions to disclosure.

In April and November 2015, Ryan filed two complaints with the County Intake Specialist Unit (“CISU”). In Timothy Ryan, M.D. v. The County of Los Angeles, (“Ryan I”) Case No. BC606535, County employees testified that the County never conducted an internal investigation into his complaints. In Timothy Ryan, M.D. v. Brant Putnam, M.D. (“Ryan v. Putnam”) Case No. 2:17-cv-05752- CAS-RAO, discovery showed that the County had initiated an external investigation through Sheppard, Mullin, Richter & Hampton LLP (“Sheppard Mullin”). They showed that Sheppard Mullin attorney Robert Barker, Esq. (“Barker”) interviewed Christian de Virgilio, M.D. (“De Virgilio”), and Janine Vintch, M.D. (“Vintch”) as part of the investigation.

A County employee filed a third complaint based on improper retaliation against Ryan. The County interviewed Ryan on tape for this investigation. A November 5, 2018 notice designated the complaint as “A.” The County Policy of Equity (“CPOE”) defines a designation of A to mean that the initial investigation revealed a potential violation of the policy.

In June 2020, County Equity Investigation Unit (“CEIU”) investigator Ana Palacios (“Palacios”) contacted Ryan about the investigation based on the third-party’s complaint. Ryan provided Palacios with various documents supporting the complaint. Discovery in Ryan v. Putnam revealed that Palacios conducted three interviews as part of this investigation.

The jury in Ryan I ruled in Ryan’s favor. On March 3, 2023, the County informed Ryan that it had determined that the facts in support of the retaliation allegations were unsubstantiated.

On November 15, 2022, Ryan made a CPRA request for (1) all documents related to CISU matter #2018-5003062, (2) all documents related to CEIU #2019-13746, and (3) the audio/video recordings of Palacios’ June 2020 interviews of DeVirgilio, Anish Mahajan (“Mahajan”), and Brant Putnam (“Putnam”), plus any other interviews related to this matter.

On December 6, 2022, the County denied the requests entirely based on numerous abstract exemptions.

On December 11, 2022, Ryan made a CPRA request for documents related to any investigation of Ryan’s complaints by Sheppard Mullin or other outside counsel. This included Sheppard Mullin’s bills submitted to the County for the 2018 investigation of allegations made against Ryan. The investigation included allegations of fraud and record falsification by Rodney White, M.D. (“White”) and Carlos Donayre, M.D. (“Donayre”) and any kickback payments Medtronic made to White. Ryan also requested documents and findings created or collected as part of the investigations, communications to or from then-County PMU employee Tito Rodriguez (“Rodriguez”) about the investigations, any such communications to or from any other County employee, and any such communications to or from Barker.

The County extended the deadline to respond four times and, as of the Petition, has not provided a complete determination or produced responsive documents.

On May 23, 2016, Harbor-UCLA’s Medical Executive Committee (“MEC”) discussed allegations of the diversion or theft of controlled substances.

On September 8, 2022, Ryan made a CPRA request. As to the County Department of Health Services (“DHS”), Ryan requested (1) all reports, correspondence and supporting documents relating to the discovery, investigation, and reporting of the 2016 allegations and (2) any related allegations, complaints, or reports made to the California Board of Pharmacy (“Board of Pharmacy”) as required under Business and Professions Code (“Bus. & Prof. Code”) section 4104 and California Code of Regulations Title 16 (“16 CCR”) section 1715.6. As to the Los Angeles Sheriff’s Department (“LASD”), Ryan requested records of any complaints, arrests, charges against individuals based on involvement in the diversion and or theft of controlled substances at Harbor-UCLA between March 2015 and May 23, 2016, subject to limitations in Government Code[1] section 6254(f).

The County extended the deadline multiple times. On October 24, 2022, the County denied the requests in full based on several exemptions.

Ryan seeks declaratory relief holding that the County violated the CPRA when it failed to disclose documents responsive to the requests and to timely respond to the December 11, 2022 requests. He asks the court to order the disclosure of documents responsive to all of his requests. Alternatively, the court should conduct an in camera review of the requested records to determine which should be disclosed. Ryan also seeks attorney’s fees and costs under either section 7923.115 or CCP section 1021.5.

On July 19, 2023, Ryan filed a Notice of Related Cases for eight state and four federal cases. On July 27, 2023, Ryan clarified that he did not want this case transferred to another court or consolidated with the other cases.

On August 29, 2023, the court informed counsel that it would not order a privilege log before trial.

The CPRA was enacted in 1968 to safeguard the accountability of government to the public. San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App.4th 762, 771-72. Government Code section 7921.000[2] declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The CPRA’s purpose is to increase freedom of information by giving the public access to information in possession of public agencies. CBS. Inc. v. Block, (1986) 42 Cal. 3d 646, 651. The CPRA was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. Wilson v. Superior Court, (1996) 51 Cal.App.4th 1136, 1141. This requires maximum disclosure of the conduct of government operations. California State University Fresno Assn., Inc. v. Superior Court, (“California State University”) (2001) 90 Cal.App.4th 810, 823. In 2004, the voters endorsed the CPRA by approving Prop 59, which amended the state Constitution to declare that “the writings of public agencies…shall be open to public scrutiny.” Cal. Const. art. I, §3(b)(1). Accordingly, any statute, court rule, or other authority shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right. Cal. Const. art. I, §3(b)(2).

The CPRA makes clear that “every person” has a right to inspect any public record. §7922.525(a). The inspection may be for any purpose; the requester’s motivation is irrelevant. §7921.300. The term “public record” is broadly defined to include any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. §7920.530(a). The definition of “state agency” excludes agencies described in articles IV and VI of the state constitution, which describe the legislative and judicial branches, except the State Bar of California. §7920.540.

A CPRA request must reasonably describe an identifiable public record or records. §7922.530(a). Upon receiving a request for a copy of public records, an agency must determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, but that deadline may be extended up to 14 days for unusual circumstances. §§ 7922.535(a), (b). Nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” §7922.500.

Even significant expense to the agency will not excuse an agency from conducting a thorough search for responsive records unless it constitutes an undue burden. See, e.g., CBS Broadcasting Inc. v. Superior Ct., (2001) 91 Cal. App. 4th 892, 909 ($43,000 cost to agency to compile responsive public records was not valid reason to deny CPRA request). “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. In general, the scope of an agency’s search for public records ‘need only be reasonably calculated to locate responsive documents.’” City of San Jose v. Superior Court, (2017) 2 Cal.5th 608, 627 (citation omitted).

The “CPRA does not prescribe specific methods of searching for those documents and agencies may develop their own internal policies for conducting searches. Some general principles have emerged, however. Once an agency receives a CPRA request, it must “‘communicate the scope of the information requested to the custodians of its records,’ although it need not use the precise language of the request...” Ibid. (citation omitted). If the agency determines that the requested records are subject to disclosure, it must state in the determination “the estimated date and time when the records will be made available.” §7922.535(a). There is no deadline expressed in number of days for producing the records. Rather, the agency “shall make the records promptly available.” §7922.530(a).

If the agency determines that the requested records are not subject to disclosure, the agency must promptly notify the person making the request and provide the reasons for its determination. §7922.535(a). The agency must justify withholding a responsive record by demonstrating it is exempt or that on the facts of the case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. §7922.000. The determination that the request is denied, in whole or part, must be in writing. §7922.540(a).

The right to inspect is subject to certain exemptions, which are narrowly construed. California State University, supra, 90 Cal.App.4th at 831. The burden of demonstrating that exemptions apply lies with the governmental entity. §7922.000. Additionally, if a state or local agency discloses a public record that is otherwise exempt to a member of the public, this disclosure shall constitute a waiver of the applicable exemptions. §7921.505(b). This does not apply to disclosures (1) made through legal proceedings or as otherwise required by law (§7921.505(c)(2)); (2) within the scope of disclosure of a statute that limits disclosure of specified writings to certain purposes (§7921.505(c)(3)); or (3) made to a governmental agency that agrees to treat the disclosed material as confidential (§7921.505(c)(5)).

A CPRA claim to compel compliance with a public records request may proceed through either mandamus or declaratory relief. §7923.000. Because the petitioner may proceed through either mandamus or declaratory relief, the trial court independently decides whether disclosure is required. See City of San Jose v. Superior Court, (1999) 74 Cal.App.4th 1008, 1018 (appellate court independently reviews trial court CPRA decision). No administrative record is required, and the parties must submit admissible evidence.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

Whenever it is made to appear, by verified petition to the superior court of the county where the records or some part thereof are situated, that certain public records are being improperly withheld from a member of the public, the court shall order the officer or other person charged with withholding the records to disclose those records or show cause why that person should not do so. §7923.100. The court shall do so order after it has (a) examined the record in camera, if so permitted by Evid. Code section 915(b); (b) examined the papers filed by the parties; and (c) considered any oral argument and additional evidence as the court may allow. §7923.105.

If the court finds that the public official’s decision to refuse disclosure is not justified, the court shall order the public official to make the record public. §7923.110(a). If the court finds that the public official was justified in refusing to make the record public, the court shall return the record to the public official without disclosing its content, together with an order supporting the decision refusing disclosure. §7923.110(b).

If the requestor prevails in such litigation, the court shall award court costs and reasonable attorney’s fees, to be paid by the public agency at issue. §7923.115(a). If the case was clearly frivolous, the court shall award court costs and reasonable attorney’s fees to the public agency. §7923.115(b).

Ryan requests judicial notice of (1) records from Ryan I and Ryan v. Putnam attached to his declaration (Ryan Decl., Exs. T-V), (2) records from Ryan v. Putnam attached to the declaration of Aaron Field (“Field”) (Field Decl., Exs. C-E), (3) records from Melani Cargle, M.D., M.B.A. v. The County of Los Angeles (“Cargle”) Case No. 23STCV12356, attached to Field’s declaration (Field Decl., Exs. F-G), (4) the complaint in Madonna Fernandez-Frackelton, M.D. v. County of Los Angeles (“Fernandez-Frackelton”) Case No. 23STCV24422 (Field Decl., Ex. H), (5) the complaint in Jennifer Hsu, M.D. and Haleh Badkoobehi, M.D., MPH v. County of Los Angeles (“Hsu”) Case No. 23STCV21134 (Field Decl., Ex. I), and (6) news articles attached to Field’s declaration (Field Decl., Exs. J-N). The County categorizes Exhibits C, D, E, T, U, and V as “Ryan Court Records”, Exhibits F, G, H, and I as “Pending Litigation Records”, and Exhibits J, K, L ,M, and N as “Media Records”. The court will adopt these identifications.

The County asserts that the Ryan Court Records, the Pending Litigation Records, and the Media Records are all irrelevant. They tell Ryan’s story and motivation, but the requester’s motive is irrelevant in a CPRA case. See County of Santa Clara, (2009) 170 Cal.App.4^th 1301, 1324. Additionally, the Pending Litigation Records and Media Records (except Ex. M) post-date Ryan’s requests. Ryan RJN Opp. at 3.

Ryan responds that these documents are relevant because they show the public interest in disclosure of the requested documents for purposes of exemption balancing tests. Ryan RJN at 3.

The Pending Litigation Records and the Ryan Court Records do not bear on the public’s interest. However, the Ryan Court Records are relevant to his requests concerning retaliation against him and are judicially noticed solely for that reason. Evid. Code §452(d).

In addition to not reflecting on the public’s interest, the Pending Litigation Records post-date the County’s November 11, 2022 denial of the Kwong Requests and have no bearing on the other Requests. As such, they also are irrelevant. See post. Therefore, Ryan’s requests to judicially notice the Pending Litigation Records are denied.

Media articles are not subject to judicial notice for the truth of their content, but judicial notice of media articles in a CPRA case is appropriate for the limited purposes of showing the public’s interest in and concern about the subject matter. Sonoma County Employees’ Retirement Assn. v. Superior Court, (2011) 198 Cal. App. 4th 986, 1006, n. 11. All Media Records except Ex. M also post-date the County’s November 11, 2022 denial of the Kwong Requests and the December 6, 2022 and February 3, 2023 denial of the Retaliation Requests, thereby affecting their relevance. Since Ex. M pre-dates the denials, the court will consider the other Media Records for corroborative purposes. See post. Ryan’s requests for judicial notice of the Media Records are granted to the extent that they show the public’s interest in the issues therein. Evid. Code §452(g).

The County requests judicial notice of the court’s docket in Ryan I (Bolan Decl., Ex. A) and Timothy Ryan, M.D. v. The County of Los Angeles, (“Ryan v. County II”) Case No. B320677 (Bolan Decl., Ex. B). The requests are granted. Evid. Code §452(d)

Ryan started work at Harbor-UCLA on October 4, 2013. Ryan Decl., ¶6. He reported to White, Harbor-UCLA’s then-Chief of Vascular Surgery and Associate Department of Surgery Chairman. Ryan Decl., ¶6. Ryan was terminated in October 2018. Ryan Decl., ¶6.

On January 8, 2016, Ryan filed the complaint in Ryan I, alleging retaliation under Labor Code section 1102. Ryan Decl., Ex. T. In April 2022, the jury in Ryan I found that the County had retaliated against Ryan and awarded him $2,100,000 in damages. Ryan Decl., Ex. T.

On August 15, 2022, Ryan made a CPRA request for all communications and documents (1) from Haleh Badkoobehi (“Badkoobehi”) about Kwong since July 1, 2021 (“Request No. 1”); (2) from Mahajan about Kwong or allegations of improper behavior from him since July 1, 2021 (“Request No. 2”); and (3) from Badkoobehi about allegations that Kwong inappropriately touched, viewed or commented on the genitalia or genital area of a patient or patients (“Request No. 3”). Ryan Decl., ¶10, Ex. C. Ryan also requested (1) all communications from Madonna Fernandez-Frackelton, M.D. (“Fernandez-Frackelton”) to any County employee related to allegations of harassment by Kwong or any other orthopedic surgeons (“Request No. 4”); and (5) all documents, including notes and recordings and evidence collected, from all interviews that any County employee conducted about allegations of improper activity by Kwong (“Request No. 5”). Ex. C.

On September 22, 2022, the County requested a 14-day extension to respond to the August Requests. Ryan Decl., ¶10, Ex. D.

On October 4, 2022, Ryan made a CPRA request for other records related to Kwong. Ryan Decl., ¶8, Ex. A. Request No. 1 was for all documents indicating, suggesting, implementing or notifying any County agent or employee of Kwong’s suspension in the first week of April 2022. Ryan Decl., ¶8, Ex. A. Request No. 2 was for all documents referring to or identifying the reasons for such suspension. Ryan Decl., ¶8, Ex. A.

On October 14, 2022, the County invoked a 14-day extension to respond. Ryan Decl., ¶9, Ex. B.

On November 11, 2022, the County asserted that all documents responsive to the Requests fell under statutory exemptions to disclosure. Ryan Decl., ¶9, Ex. E. The documents were personnel files the County had no duty to disclose. Ex. E. Many of them also contained attorney-client communications or privileged confidential communications between public employees in the course of their duties and were therefore exempt under the CPRA’s incorporation of privilege. Ex. E. Other documents were exempt because they revealed a local agency’s deliberative processes as to Kwong’s employment. Ex. E.

The County also asserted that, per then-section 6254(c), the records at issue could include personnel records whose disclosure would constitute an unwarranted invasion of personal privacy. Ex. E. The County could not even confirm that the records existed without revealing confidential details about Kwong’s employment status. Ex. E. The County further invoked the catch-all exemption, asserting that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. Ex. E. This included the deliberative process privilege. Ex. E.

On November 21, 2022, Ryan disputed the rationale for the County’s refusal to produce documents responsive to the August and October 2022 Requests. (Hereinafter, the August and October 2022 Requests are referred to as the “Kwong Requests”). Ryan Decl., ¶11, Ex. F. On December 5, 2022, the County rejected the arguments in full and continued to deny the Kwong Requests. Ryan Decl., ¶11, Ex. G.

In April and November 2015, Ryan filed complaints with CISU. Ryan Decl., ¶12. Ryan originally thought CISU never investigated these complaints. Ryan Decl., ¶13. During discovery in Ryan v. Putnam, he received emails between County staff and Sheppard Mullin. Ryan Decl., ¶13, Ex. H. Some of these emails explained that Sheppard Mullin was investigating allegations of unprofessional conduct by Ryan throughout 2018. Ryan Decl., ¶13, Ex. H. This led Ryan to understand that the County had at least initiated an external investigation into his complaints. Ryan Decl., ¶13.

Another County employee filed a third-party complaint with CISU alleging retaliation against Ryan. Ryan Decl., ¶14, Ex. I. On November 5, 2018, the County sent Ryan notice that this complaint, CISU matter #2018-5003062, filed by him or on his behalf, had been designated as “A”, which means that further investigation by CEIU is required. Ryan Decl., ¶14, Exs. I, J.

In June 2020, CEIU investigator Palacios contacted Ryan about the investigation based on the third-party complaint. Ryan Decl., ¶15. Ryan provided Palacios with various documents supporting the complaint. Ryan Decl., ¶15. He offered to sit for another interview, but this never occurred. Ryan Decl., ¶15.

Discovery in Ryan v. Putnam revealed that Palacios conducted three interviews as part of this investigation. Ryan Decl., ¶15. Three emails in June 2020 reflect calendar invites for “Interview re CEIU Investigation Equity Complaint.” Ryan Decl., ¶15, Ex. K. Eduardo Montelongo (“Montelongo”) organized the interviews, and they were attended by Palacios. Ryan Decl., ¶15, Ex. K. The apparent interviewees were Putnam, Mahajan, and De Virgilio. Ryan Decl., ¶15, Ex. K.

On November 15, 2022, Ryan made a CPRA request for (1) all documents related to the Third-Party Complaint, CISU matter #2018-5003062, including the notes, records, interviews, recommendations and conclusions (“Request No. 1”); (2) all documents of the same type related to CEIU #2019-13746 (“Request No. 2”); and (3) the audio/video recordings of Palacios’ June 2020 interviews of DeVirgilio, Mahajan, and Putnam, plus any other interviews related to this matter (“Request No. 3”). Ryan Decl., ¶16, Ex. L.

On November 21, 2022, the County’s outside counsel asserted that it needed a 14-day extension on top of a prior extension of the deadline to December 12, 2022, extending the deadline to December 26, 2022. Ryan Decl., ¶17, Ex. M.

On December 6, 2022, the County denied the Requests. Ryan Decl., ¶17, Ex. N. It cited then-section 6254(k)’s exemption based on records for which disclosure is prohibited under state or federal law, including the constitutional right of privacy, attorney client privilege, the attorney work product doctrine, and the official information privilege. Ex. N. The County also cited the CPRA exemptions for preliminary drafts and the deliberative process exemption and the official information privilege “[t]o the extent” the records sought identify official information acquired in confidence by a public employee. Ex. N.

On March 3, 2023, the County sent Ryan the results of CEIU’s investigation into one of the complaints. Ryan Decl., ¶15, Ex. X. It said the complaint’s allegations were unsubstantiated as to violations of “Section 6 – Retaliation, Basis: (Engaged in a Protected Activity) and Section 5 – Inappropriate Conduct Toward Others, Basis: (Retaliation).” Ryan Decl., ¶15, Ex. X. These results were provided after the jury verdict in Ryan I in Ryan’s favor. Ryan Decl., ¶15, Ex. T.

On December 11, 2022, Ryan made a Request for documents related to any investigation of Ryan’s complaints by Sheppard Mullin or other outside counsel. Ryan Decl., ¶18, Ex. O. Request No. 1 was for the Sheppard Firm’s bills to the County for the 2018 investigation of allegations against Ryan. Ryan Decl., ¶18, Ex. O. This included investigation of the fraud and record falsification by White and Donayre and any kickback payments Medtronic made to White. Ryan Decl., ¶18, Ex. O. The Requests also sought (2) documents and findings created or collected as part of the investigations, (3) communications to or from then-County PMU employee Rodriguez about the investigations, (4) any such communications to or from any other County employee, and (5) any such communications to or from Barker. Ryan Decl., ¶18, Ex. O.

On December 22, 2022, the County extended the deadline to respond to the December Requests to January 5, 2023. Ryan Decl., ¶19, Ex. P. It then extended the deadline three more times, eventually to February 16, 2023. Ryan Decl., ¶19, Ex. Q.

On February 7, 2023, the County denied the Requests. Ryan Decl., ¶20, Ex. W. It cited the attorney-client privilege, the attorney work-product doctrine, the pending litigation exemption under section 7927.200, the exemption for preliminary drafts not retained in the ordinary course of business under section 7927.500, and the general balancing of public interests under section 7922.000. Ryan Decl., ¶20, Ex. W. (Hereinafter, the November 15 and December 11, 2022 Requests are referred to as the “Retaliation Requests”.)

Harbor-UCLA’s Medical Executive Committee (“MEC”) May 23, 2016 meeting minutes show that it discussed allegations of the diversion or theft of controlled substances. Ryan Decl., ¶21, Ex. R.

On September 8, 2022, Ryan made Requests using the MEC’s May 23, 2016 minutes as reference. Ryan Decl., ¶21, Ex. R. As to DHS, Ryan requested (1) all reports, correspondence and supporting documents relating to the discovery, investigation, and reporting of the allegations (“Request No. 1”); and (2) any related allegations, complaints, or reports made to the Board of Pharmacy as required under Bus. & Prof. Code section 4104 and 16 CCR section 1715.6 (“Request No. 2”). Ryan Decl., ¶21, Ex. R.

As to LASD, Request No. 3 sought records of any complaints, arrests, charges against individuals based on involvement in the diversion and or theft of controlled substances at Harbor-UCLA between March 2015 and May 23, 2016, subject to limitations in section 6254(f). Ryan Decl., ¶21, Ex. R. (Hereinafter, the September 8, 2022 Requests are referred to as the “Drug Theft Requests”).

On October 24, 2022, the County denied the Drug Theft Requests. Ryan Decl., ¶21, Ex. S. It cited several exemptions “[t]o the extent” they applied, including inter alia the official information privilege, the exemption for preliminary drafts or notes, the exemption for records that would invade the personal privacy of public officials or employees, and the exemption for documents prepared in anticipation of litigation or for pending litigation. Ex. S. The County also cited the physician-patient privilege under Evid. Code section 990 and protection of peer review proceedings under Evid. Code section 1157. Ex. S.

Ryan’s interrogatories asked the County to identify the legal basis for withholding the documents responsive to the five Requests. Field Decl., Exs. A-B. The County invoked the attorney-client privilege, the attorney work product doctrine, the catch-all exemption, the deliberative process doctrine encompassed by the catch-all exemption, the personnel records exemption, the official information privilege, the records of investigation exemption, and the constitutional right to privacy. Field Decl., Ex. B.

The County also noted that it had already identified the reasons for withholding documents in the responses to each Request. Ex. B. The County also refused to elaborate on the types of documents withheld and the reasons why because this itself would reveal information ordinarily deemed exempt. Ex. B, pp. 9, 34-35.

As to Drug Theft Request No. 3, the County asserted that LASD had searched for but did not find any responsive records. Field Decl., Ex. B, p. 37.

Kwong was interim and official Chairman of Harbor-UCLA’s Department of Orthopedic Surgery from 2013 to 2018. Ryan Decl., ¶22. Kwong was suspended from Harbor-UCLA on April 5, 2022. Ryan Decl., ¶23.

Between June and November 2023, several articles were published about the allegations of Kwong’s misconduct. Field Decl., Exs. J-M. One article reported that the Accreditation Council for Graduate Medical Education (“ACGME”) had placed Harbor-UCLA’s residency program on “probationary accreditation” status. Field Decl., Ex. L.

Harbor-UCLA has received only “Probationary Accreditation” from ACGME for the 2023-24 academic year. Field Decl., ¶10.[4]

Ryan filed the complaint in Ryan I on January 6, 2016. Bolan Decl., ¶2, Ex. A. The judgment was entered on April 21, 2022. Bolan Decl., ¶2, Ex. A. Two appeals from this judgment have been filed and consolidated. Bolan Decl., ¶¶ 2-3, Exs. A-B. The appeals are pending. Bolan Decl., ¶¶ 2-3, Exs. A-B.

The CPOE is intended to preserve the dignity and professionalism of the workplace. Stormer Decl., ¶5, Ex. 1. It also seeks to protect employees’ right to be free from discrimination, unlawful harassment, retaliation, and inappropriate conduct based on a protected status. Stormer Decl., ¶5, Ex. 1.

The CPOE is a proactive policy that seeks to uphold the highest of professional workplace standards. Stormer Decl., ¶6. It prohibits behavior that is inappropriate for the workplace before it violates applicable law. Stormer Decl., ¶6. For example, the County prohibits inappropriate conduct towards other employees based on a protected status, even if the conduct does not meet the Fair Employment and Housing Act’s (“FEHA”) legal definition of discrimination, retaliation, or harassment. Stormer Decl., ¶7.

The County’s Equity Oversight Panel (“CEOP”) reviews CPOE investigations and makes recommendations to County departments as to risk management issues, quality improvement issues, and corrective personnel action or discipline. Stormer Decl., ¶9. It consists of independent contractors the County hires as consultants, most of whom are employment law attorneys. Stormer Decl., ¶9.

The CEOP assesses any complaints it receives based on the CPOE’s standard, which is more stringent than the legal standard. Stormer Decl., ¶8. Based on this standard, the CPOE decides whether the complaint merits a full investigation or some other administrative review. Stormer Decl., ¶8. If a full investigation occurs, the CEOP will make a recommendation as to whether the complaint is “substantiated” or “unsubstantiated.” Stormer Decl., ¶8.

When the County receives a complaint related to the CPOE, the County Intake Specialist Unit (CEIU”) performs an initial review. Stormer Decl., ¶10. Where appropriate, the complaint is referred to the County Equity Investigations Unit (“CISU”). Stormer Decl., ¶10.

The CISU is responsible for promptly, fully, and fairly investigating complaints that potentially violate the CPOE. Stormer Decl., ¶11. The CISU first reviews a complaint and available information and documents to determine if the factual allegations could potentially amount to a CPOE violation. Stormer Decl., ¶10. The CISU prepares a confidential investigative report summarizing the investigation, including the CISU assessment and any relevant evidence. Stormer Decl., ¶11.

Three CEOP panel members then review the investigative report. Stormer Decl., ¶11. These members deliberate without the involved department present. Stormer Decl., ¶11. They then schedule a confidential deliberative process meeting with that department’s designated representatives and sometimes a County legal advisor. Stormer Decl., ¶12. They discuss the allegations, the investigation, and any related risk management concerns. Stormer Decl., ¶12.

The panel further deliberates in private to discuss recommendations as to quality improvement considerations and corrective action. Stormer Decl., ¶12. Recommendations for corrective action may include a range of discipline or training. Stormer Decl., ¶12. This recommendation is memorialized in a written Panel Recommendation, which is highly confidential and only shared with County counsel and departmental heads. Stormer Decl., ¶13. The Panel Recommendation is not included in the subject’s personnel file or part of the CEIU records. Stormer Decl., ¶13.

The Panel Recommendation is an internal, governmental, pre-decisional analysis that is kept under confidential seal and never publicly disclosed. Stormer Decl., ¶13. Although the responsible department considers the Panel Recommendation, it makes the ultimate decision as it chooses. Stormer Decl., ¶14.

Section 9 of the CPOE requires the County to maintain all complaint-related information in confidence, to the extent possible given the obligation to conduct a full and fair investigation and to the extent permitted by law. Stormer Decl., ¶16, Ex. 1. This mandate requires confidentiality at every stage of the investigation. Stormer Decl., ¶16. Such confidentiality is essential for the CPOE to be efficient and effective. Stormer Decl., ¶20.

Subjects of an investigation receive an Administrative Rights form that says the investigation is confidential. Stormer Decl., ¶17. This confidentiality encourages parties and witnesses to provide open and candid statements. Stormer Decl., ¶17. If these documents and claimants’ identities were public knowledge, it would inhibit the County’s ability to engage in open and candid debate with employees. Stormer Decl., ¶18. It would also make employees less willing to come forward with complaints. Stormer Decl., ¶18. The County would find it harder to investigate and address complaints that concern CPOE violations. Stormer Decl., ¶18.

Public disclosure of the Panel Recommendation also would impede the County’s ability to engage in open and candid debate. Stormer Decl., ¶19. This would hamper pre-decisional discussions and compromise the integrity of the complaint reporting and investigation process. Stormer Decl., ¶19.

In April 2022, Harbor-UCLA placed Kwong on administrative leave. Mathers Decl., ¶4. He remained on administrative leave throughout 2022 and 2023. Mathers Decl., ¶4. He was on leave when Ryan served each of the Requests. Mathers Decl., ¶4.

The CEOP launched multiple investigations into allegations of Kwong’s misconduct. Mathers Decl., ¶5. These allegations were pending in 2022 and 2023, including at the time of the Requests. Mathers Decl., ¶5. To date, some investigations are still pending. Mathers Decl., ¶5. At the time of the Requests, the County had not yet taken any disciplinary action against Kwong. Mathers Decl., ¶6.

The County cannot affirm or deny Kwong’s employment of disciplinary status without violating his constitutional right to privacy and possibly the deliberative process, official information, or attorney-client privileges. Bolan Decl., ¶4. Publicly releasing information about potential discipline before the final decision could jeopardize those due process rights and undermine the County’s ability to implement such disciplinary action. Mathers Decl., ¶9.

The County also cannot elaborate on the burdens imposed by the Requests, attorney-client communications, or attorney work product without divulging exempt information. Bolan Decl., ¶4.

At the July 6, 2023 trial setting conference, Ryan expressed his intent to move to compel the County to produce a privilege log. Bolan Decl., ¶5. The court ordered the parties to meet and confer and file a two-page brief each on any authority for such a motion. Bolan Decl., ¶5. The County explained during meet-and-confer sessions that an exemption log would itself vitiate many of the exemptions at issue, but Ryan insisted on filing his motion. Bolan Decl., ¶6.

On August 29, 2023, the court ruled that the County would not be ordered to produce a pretrial exemption log. Bolan Decl., ¶7. It allowed Ryan to conduct limited discovery, and Ryan served the County with a set of interrogatories on October 23, 2023. Bolan Decl., ¶¶ 7-8. The County served responses on November 28, 2023. Bolan Decl., ¶9. Ryan did not move to compel further responses. Bolan Decl., ¶9.

Petitioner Ryan seeks to compel the County to produce the records sought in his five Requests.

The burden of demonstrating that exemptions apply lies with the governmental entity. §7922.000; Cal. State Univ. Fresno v. Superior Court, (“CSU Fresno”) (2001) 90 Cal.App.4th 810, 831. In denying the five Requests and in pre-lawsuit correspondence, the County cited a litany of statutes and exemptions. See Pet. Op. Br. .at 15, n. 5. The County’s opposition does not rely on many of these previously raised exemptions.

For the Kwong Requests, the County asserts the catch-all exemption (§7922.000), the deliberative process doctrine, and the official information privilege (Evid. Code §1040).

For the Retaliation Requests, the County asserts the catch-all exemption (§7922.000), the deliberative process doctrine, the official information privilege (Evid. Code §1040), the attorney-client privilege, and the attorney work product doctrine.

For the Drug Theft Requests, the County asserts the peer review privilege. Evid. Code §1157).

Because the County asserts only these exemptions, all others are waived.[5] See Evans v. Centerstone Development Co., (2005) 134 Cal. App. 4th 151, 165 (issues not fully or properly briefed are waived).

The County argues that the Requests should be evaluated as of the date the record was requested, not when it was created. Opp. at 8. Ryan has cited no authority that the CPRA creates an ongoing obligation for a public agency to produce responsive records should an asserted exemption later become inapplicable, or should newly responsive records come into existence. Yet, the bulk of his opening brief grounds is based on factual developments that post-date the Requests and the County’s responses. Specifically, the court should disregard the litigation exhibits and news stories because they are not relevant to whether the County complied with the CPRA. Opp. at 19.

The County adds that, even if the court examines the County’s CPRA compliance under the lens of 2023 and 2024 events, the lawsuits and news articles only strengthen the County’s position that any responsive records were and are still properly withheld. The County and the public have an interest in merits resolutions of pending litigation, including the lawsuits filed by County employees involving allegations against Kwong. The news articles Ryan references show only that those plaintiffs and their counsel have not been shy about approaching the media and that there is a real threat of these matters being tried in the court of public opinion. Publicly disseminating records that pertain to the allegations against Kwong may intimidate or bias potential witnesses, particularly where those witnesses were told their statements would be confidential. Opp. at 19.

Ryan argues that neither Walnut Creek nor the pertinent line of cases holds that the court can only consider information available to the agency when the request was made and must ignore subsequent corroboration in evaluating whether misconduct allegations are substantial enough to require disclosure. In any event, the County does not contest, let alone disprove, that the allegations behind each of his Requests were substantial when the requests were made. Reply at 8.

The County cites Walnut Creek Police Officers Assn. v. City of Walnut Creek, (“Walnut Creek”) (2019) 33 Cal.App.5^th 940, 941-42, but that case only held that peace officer records disclosable under Penal Code section 832.7 must be disclosed even though they were created before the 2019 effective date of the new law. Id. In other words, the new law changed the public’s right to access, not the legal consequences of peace officer conduct. Id. Walnut Creek does not state that a CPRA request must be evaluated by the court as of the date it was made.

Nonetheless, the court partly agrees with the County. The issue before the court in a CPRA mandamus or declaratory relief case is whether the agency made the correct decision in denying a request. While the parties have not cited a pertinent appellate case on this issue, and the court is not aware of any either, it makes sense to freeze a CPRA request as of the date it was made and then consider only the evidence that was available to the agency when it made the decision to deny the request. Subsequent evidence (such as the Media Records) may corroborate the evidence that was before the agency at the time of its decision but should not substitute for it. If a requester wants to rely on new evidence that contradicts the evidence before the agency at the time of the request, he or she can make a new request. This rule need not be hard and fast, and the court is not required to ignore the obvious if justice requires it.

To meet its burden under FOIA, the agency’s declarations must provide the plaintiff with a meaningful opportunity to contest, and the district court an opportunity to review, the soundness of the withholding. ACLU of N. Cal. v. Superior Court, (“ACLU of N. Cal.”) (2011) 202 Cal.App.4^th 55, 85.[6] The agency generally “must describe each document or portion thereof withheld” and the consequences of disclosure “for each withholding.” Id. at 83. “[T]he agency must describe ‘each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information’” Id. (citations) (emphasis in original). “Conclusory or boilerplate assertions that merely recite statutory standards are not sufficient.” Id. (citations).

Ryan correctly argues (Reply at 4) that the County’s evidence falls short of meeting its burden. The County presents only two substantive declarations. Stormer Decl. ¶¶ 15-20; Mathers Decl. ¶¶ 4-9. The declarations consist of the sort of “[c]onclusory” and “boilerplate assertions,” and “speculative, self-serving opinions designed to preclude the dissemination of information” that courts have held insufficient to justify non-disclosure. See ACLU of N. Cal., supra, 202 Cal.App.4th at 83; CSU Fresno, supra, 90 Cal.App.4th at 835.

Specifically, Stormer’s declaration notes a local confidentiality policy (Stormer Decl. ¶16) and then makes a series of conclusory statements about his personal belief in the confidentiality of investigations. Id., ¶¶ 17-20. He says nothing about the particular investigations for which Ryan seeks records. See id. ¶¶ 2-20. Mathers’ declaration speculates that disclosing unspecified information about potential discipline against a County employee before the County has made a final disciplinary decision could jeopardize the employee’s due process rights and undermine the process. Mathers Decl., ¶9. Clearly, the County has not justified withholding any records in response to any of the Requests.

The County argues that it is impossible for it to do so without overriding the exemptions themselves. See Haynie v. Superior Court, (“Haynie”) (2001) 26 Cal. 4th 1061, 1075 (even describing documents withheld “may also reveal information ordinarily deemed exempt from disclosure, such as how far the investigation had progressed, whether witnesses had been contacted, and whether forensic tests had been conducted”). Opp. at 18.

For example, even affirming or denying Kwong’s employment and/or discipline status would, inter alia, violate his constitutional right to privacy and potentially disclose information protected by the deliberative process, official information, and attorney-client privileges. Bolan Decl., ¶3. The County cannot expand on the (1) burdens imposed by the Requests, (2) attorney-client communications, or (3) attorney work product without divulging exempt information. Id. The California Supreme Court in Haynie upheld this approach. 26 Cal. 4th at 1075. As another example, the Evidence Code section 1157 exemption was asserted in response to the Drug Theft Requests. See Ryan Exs. N, S. Id. In its interrogatory responses, the County explained that “identifying documents responsive to [that] request would reveal information that is exempted from disclosure under the CPRA.” Field Decl. Ex. B, pp. 34-35. Opp. at 18.

The County’s reliance on Haynie is misplaced. In Haynie, the California Supreme Court addressed the distinction between the investigatory file and records of investigation exemptions in former section 6254(f) (now section 7923.600(a)). 26 Cal.4^th at 1061. Plaintiff Haynie, a black male, was stopped by LASD, handcuffed, and questioned without charges filed based on a citizen complaint. Id. Haynie filed a tort claim and separately sought and writings concerning the incident. Id. LASD invoked section 6254(f) and refused to comply. Id.

The Supreme Court noted that case law had held that section 6254(f)’s exemption for investigatory files applies only when the prospect of enforcement is concrete and definite. Once this is shown, as well as that a record was created for the purpose of investigation, Haynie rejected any requirement that the agency show a valid need to withhold records, such as evidence that the disclosure would endanger a witness or the investigation itself. Id. at 1071. Haynie cautioned that this does not mean that everything law enforcement does is shielded from disclosure. Officers have citizen contacts for purposes of crime prevention and public safety that are unrelated to either civil or criminal investigations, and records are exempt under section 6254(f)’s protection of records of investigation only for investigations taken for purposes of whether a violation of law has or may occur. Id. at 1071.

Unlike Haynie, the County is not relying on either the investigatory privilege or the records of investigation exemptions, which apply only to law enforcement anyway. Additionally, Haynie’s statement that even describing withheld documents “may also reveal information ordinarily deemed exempt from disclosure, such as how far the investigation had progressed, whether witnesses had been contacted, and whether forensic tests had been conducted” was made in the context of whether the law enforcement agency should be compelled to list the withheld documents in the agency’s initial response to CPRA requests, not when it opposes compliance in court. Id. at 1075. Indeed, Haynie expressly approved published appellate cases requiring a list of records for which the agency claimed an exemption at the mandamus proceeding, whether reviewed in camera or otherwise. Id. at 1073 (citing State Board of Equalization v. Superior Court, (1992) 10 Cal.App.4^th 1177 and Williams v. Superior Court, (1993) 5 Cal.4^th 337, 341).

Under the pertinent case law, the County was obligated to present evidence to the court that it has gathered the requested records, reviewed them, and demonstrate the elements of exemption; it may not rely on a claim that doing so would reveal exempt information. The County has not performed this preliminary task. Despite this failure, the court will permit the County to rely on the attorney-client privilege and the attorney work product rule upon presentation of an adequate privilege log. The County also may rely on the catch-all exemption because it is based on a balancing of public interests for which no additional showing need be required. The County may not rely on the deliberative process and official information privileges without a showing, by document or category, of the information necessary to provide Ryan with a meaningful opportunity to contest the soundness of the withholding. See ACLU of N. Cal., supra, 202 Cal.App.4^th at 85.[7] The County argues that, if the court concludes that the County must disclose a category of records, the court should permit an in camera review to resolve these issues. See §7923.105(a). Opp. at 18.

To determine a claim of exemption from the CPRA, the trial court may, but is not required, to examine the disputed records in camera. Section 7923.105(a) provides that the court shall decide the case after examining “the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code,” papers filed by the parties, and such oral argument and additional evidence as the court may allow. Register Div. of Freedom Newspapers, Inc. v. County of Orange, (1984) 158 Cal.App.3d 893, 900 (citation omitted). However, the in camera hearing provisions of Evidence Code section 915(b) are permissive. Id. Thus, under section 7923.105(a) “in camera inspection of the record in question is not required as a matter of law, but is trusted to the sound discretion of the trial court.” Id. (quoting Yarish v. Nelson, (1972)) 27 Cal.App.3d 893, 904).

There are circumstances where it is self-evidence that the information sought to be protected is covered by the privilege. Torres v. Superior Court, (2000) 80 Cal.App.4th 867, 873. If not, the party claiming privilege must show in open court why the matter is not privileged or declarant that doing so would compromise the privilege. Id. If it appears to the trial court that this claim cannot be determined without an in camera review, it may call for one. Id. But simply requesting an in camera hearing without explaining why the privilege applies to the requested information, or declaring that the agency cannot provide that explanation open court without betraying a privilege, cannot justify an in camera review.

It is not self-evident that any documents withheld by the County are protected by a privilege and the court declines to review them all in camera. The County cannot make a blanket argument that all of the records sought by the Kwong Requests, the Retaliation Requests, and the Drug Theft Requests are privileged and then ask for an in camera review. In camera review is burdensome for trial courts, “is not a substitute for the government’s burden of proof, and should not be resorted to lightly.” ACLU of N. Cal., supra, 202 Cal.App.4^th at 87 (citation omitted). It should be invoked only when the issue cannot otherwise be resolved. Id. (citation omitted).

On August 15, 2022, Ryan made a CPRA request for all communications and documents (1) from Badkoobehi about Kwong since July 1, 2021 (Request No. 1); (2) from Mahajan about Kwong or allegations of improper behavior from him since July 1, 2021 (Request No. 2); and (3) from Badkoobehi about allegations that Kwong inappropriately touched, viewed, or commented on the genitalia or genital area of a patient or patients (Request No. 3). Ryan Decl., ¶10, Ex. C. Ryan also requested (4) all communications from Fernandez-Frackelton to any County employee related to allegations of harassment by Kwong or any other orthopedic surgeons (Request No. 4); and (5) all documents, including notes and recordings and evidence collected, from all interviews that any County employee conducted about allegations of improper activity by Kwong (Request No. 5). Ex. C.

The County asserts the catch-all exemption (§7922.000), the deliberative process doctrine, and the official information privilege (Evid. Code §1040) for the Kwong Requests.

Under the catch-all provision of 7922.000 (formerly §6255), public records are exempt from disclosure if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.” Pursuant to the catch-all provisions, the agency must demonstrate a clear overbalance on the side of confidentiality. California State University, Fresno Assn., Inc. v. Superior Court, (2001) 90 Cal.App.4th 810, 831. Any reasonably segregable portion of a record shall be available for inspection after deletion of the portions that are exempted by law. §7922.525(b).

The County notes that, while there is no exhaustive list, the catch-all exemption has been recognized in the following instances: (1) where disclosure “will create a danger to personal safety or security”; (2) to “protect[] people from dissemination of unfounded charges”; (3) to prevent “chilling effects on communication to government”; (4) where disclosure would “discourage or impede constructive activities by private persons”; and (5) where “protecting the confidentiality of public records [is] necessary to protect a government program or activity.” See Michael Asimow et al., California Practice Guide: Administrative Law, (Nov. 2023 Update) ch. 29-F, Exemptions from Right of Inspection and Copying, ¶29:730 et seq. Opp. at 13.

Ryan argues that the County cannot show that the public interest in non-disclosure of the Kwong Requests clearly outweighs the public interest in access. The news articles confirm a powerful public interest in access to determine whether Harbor-UCLA is managed appropriately and offers appropriate education and care. Ryan argues that American Federation of State Etc. Employees v. Regents of University of California, (“AFSCME”) (197) 80 Cal.App.3d 913, and Bakersfield City School District v. Superior Court, (“Bakersfield”) (2004) 0118 Cal.App.4th 1041, set the baseline on how exemptions apply to records related to misconduct allegations against public employees. Pet. Op. Br. at 9.

In AFSCME, a public employee union sought pursuant to the CPRA to compel the University of California to disclose an audit report of the investigation of a union employee’s allegations of financial misconduct by two of her superiors. 80 Cal.App.3d at 916. The chancellor denied the request on grounds of invasion of privacy and the catch-all balancing test. Id. at 916-17. The trial court reviewed the audit report in camera and refused to order disclosure because the public interest in non-disclosure clearly outweighed the public interest in disclosure. Id. at 917-18. The appellate court cited Chronicle Pub. Co v. Superior Court, 54 Cal.2d 548, 568-69, in which the California Supreme Court held that complaints against a state bar attorney, like public officer and employee discipline, are considered highly confidential until the charges are found true or discipline is imposed, in which case the strong public policy against disclosure vanishes. AFSCME concluded that reconciliation of the CPRA and privacy rights meant that the public has a right of access to complaints against individual agency employees whenever they are “of a substantial nature” and, a fortiori, where “there is reasonable cause to believe the complaint to be well founded.” Id. at 918. The courts need not rely on the agency’s determination to the contrary. Id. Applying this rule, although the audit report found allegations of improper financial reporting by an employee to be partly “wholly ‘unsupported by evidence,’” partly “‘without substance,’” and partly representative of “either entirely acceptable practices, or matters which appeared to be minor violations of established university procedures having no cost or other unfavorable consequences,” the court ordered portions of the audit report disclosed. Id. at 919.

In Bakersfield, a newspaper sought the disciplinary records of a school district employee under the CPRA. 118 Cal.App.4^th at 1043. The trial court reviewed the employee’s personnel records in camera and concluded that some of the records were not substantial and there was no reasonable cause to believe the complaints were well founded. Id. As to a particular incident of sexual violence, however, the trial court found the records met this standard and should be produced. Id.

The Bakersfield appellate court relied on the ASCFME standard for complaints of public employee wrongdoing to require disclosure “where complaints of a public employee's wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well founded.” Id. at 1046. The court elaborated that there is no requirement under this standard that a charge or complaint first must be found true or discipline imposed. Id. Neither “a finding of the truth of the complaint contained in the personnel records” nor “the imposition of employee discipline is a prerequisite to disclosure.” Id. Courts should determine whether there is reasonable cause to believe a complaint is well founded de novo, looking at the records at issue “to determine whether they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded.” Id. at 1047.

Ryan also argues that, if an employee is a “public official” with a reduced expectation of privacy, the public interest in access is even greater and an even more compelling showing is required to justify non-disclosure. For this conclusion, Ryan relies on BRV, Inc. v. Superior Court, (“BRV”) (2006) 143 Cal.App.4^th 742. Pet. Op. Br. at 10-11.

In BRV, a newspaper publisher sought CPRA disclosure of an investigative report prepared for a school district board concerning allegations of verbal abuse and sexual harassment of female students by the school district’s superintendent and school principal. 143 Cal.App.4^th at 747. The appellate court applied the catch-all and personnel file exemptions, the test for which was essentially the same. Id. at 755. The appellate court noted that the public was greatly concerned about the behavior of the superintendent and the district’s governing board in responding to the complaints. Id. at 759. The appellate court reversed the trial court’s denial of access to the investigative report because, even though an “investigator [had] determined most of the allegations” discussed “were not sufficiently reliable,” the court “could not conclude the allegations were so unreliable the accusations could not be anything but false.” Id. at 759. The superintendent’s position of authority as a public official and the public nature of the allegations meant that the public interest in disclosure outweighed the superintendent’s interest in non-disclosure. Id. The report exonerated the superintendent of all serious allegations except outbursts of anger and the public’s interest in understanding why he was exonerated outweighed his interest in keeping the allegations confidential. Id. at 759. However, the identities and contact information of witnesses, none of whom were public officials, should be redacted. Id.

Ryan argues that Kwong is a public official under BRV, and the County’s opposition does not contend otherwise. Under BRV’s standard, the catch-all exemption does not prevent disclosure of records related to misconduct allegations against a public official unless the court concludes, based on its assessment of the evidence presented and the records at issue, that “the allegations [are] so unreliable the accusations could not be anything but false.” Id. at 759. Reply at 7.

Kwong is not a public official. He is a public employee who is a department head in a County hospital. Unlike the superintendent in BRV, Kwong is not in a position of authority in which he deals with members of the public about public issues. His authority lies only in the supervision of his department, an issue not fleshed out by any party. Therefore, the proper test for disclosure is whether complaints of Kwong’s wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature and there is reasonable cause to believe the allegations are well founded. See Bakersfield, supra, 118 Cal.App.4^th at 1046.

Ryan argues that, even if Kwong is only a public employee, the Bakersfield/ASCFME standard does not justify any non-disclosure under sections 7927.700 (personnel, medical, or similar files that would constitute an unwarranted invasion of privacy) or 7922.000 (catch-all), let alone blanket denials. These two exemptions are based on the facts of the particular case. International Federation of Professional l& Technical Engineers, etc. v. Superior Court, (2007) 42 Cal.4th 319, 337. Reply at 6.

Ryan lumps the five Requests together and argues that the misconduct allegations against Kwong are plainly substantial and well-founded, citing pending lawsuits (Field Decl., Exs. F-I), news articles (Field Decl., Ex. J-M), CISU’s assignment of an A designation for Cargle’s complaint against Kwong (Field Decl., Ex. G (Cargle Decl., Ex. 3), Harbor-UCLA’s Accreditation Probation (Field Decl., Ex. O), and Ryan’s belief that Kwong was suspended in April 2022. Ryan Decl., ¶22. Ryan contends that the Retaliation Requests, which concern his claims of retaliation by Harbor-UCLA for whistleblowing about White, are likewise substantial, as shown by his declaration, the jury verdict in his favor, the summary judgment orders in his favor, and the A designation that CISU assigned to a related third-party complaint. Ryan Decl., Ex. I, T-V. Finally, Ryan contends that the Drug Theft Requests, which are based on the MEC meeting minutes and concern the theft of controlled substances by two staff members (Ryan Decl., Ex. R), are substantial based on the minutes alone. Pet. Op. Br. at 11.

In reply, Ryan argues the seriousness of the allegations against Kwong: multiple women, in multiple forums, and in at least one instance under penalty of perjury, have accused him of misconduct ranging from workplace sexism and racism to sexual misconduct toward anesthetized patients. See, e.g., Field Decl., ¶14; see also Field Decl., Ex. I, ¶56. He allegedly used sexist, racist, and anti-LGBTQ language in the workplace as a matter of course. See Field Decl., Ex. F, ¶15. He allegedly engaged in a pattern of behavior that involved criticizing pregnant women for taking maternity leave and leaving work to attend obstetrics appointments. Field Decl., Ex. I, ¶¶ 26-29. He allegedly brought a gun and knives to work and carried them into the operating room. Id., ¶54. Reply at 6-7.

Ryan adds that the County’s opposition does not dispute the substantial nature under Bakersfield/AFSCME of the allegations behind all five Requests. The County concedes that Harbor-UCLA placed Kwong on administrative leave in April 2022 and he has remained so throughout 2022 and 2023. Mathers Decl., ¶4. The County also concedes that Harbor-UCLA was placed on probationary accreditation status by ACGME. Opp. at 9, n. 1. Reply at 6.

The County notes that Ryan does not cite any case that dismantles a public employee’s privacy interest while resolution of allegations against him or her are still pending. When Ryan’s Requests were made in 2022, the County’s investigation of allegations against Kwong was ongoing. Mathers Decl., ¶5. Ryan’s claim that his evidence of allegations against Kwong are substantial and well-founded is misguided because his citation to lawsuits and the ACGME Accreditation Probation post-date the Kwong Requests and the County’s denial.[8] See Field Decl. Exs. F-O. Opp. at 9.

The County argues that the cases cited by Ryan concern a court’s determination that an individual’s privacy interest did not outweigh the public’s interest in obtaining information, not the balancing of public interests required for the catch-all exemption. Neither AFSCME, BRV, nor Bakersfield analyzed the balance between “the public interest served by not disclosing the record” and the “public interest served by disclosure of the record” in instances where an employee was actively under review, the deliberative process was ongoing, or individuals had provided information under the official information privilege. Opp. at 10.

Moreover, none of the cases addressed records from a pending investigation, which is the key issue here. The ongoing nature of the investigations into allegations against Kwong supported the County’s invocation of the official information privilege and CPRA catchall exemption. Opp. at 10. In AFSCME, supra, 80 Cal. App. 3d at 913, the request for the audit report came after the audit was completed and there were no ongoing privacy concerns. Opp. at 8. In BRV, supra, 143 Cal. App. 4th at 742, 747, the public and the media demanded the school board release the report after the board received it and entered into an agreement accepting the superintendent’s resignation. In Bakersfield, supra, 118 Cal. App. 4th at 1041, although the court noted “that neither the imposition of discipline nor a finding that the charge is true is a prerequisite to disclosure” (id. at 1044), it did not hold that discipline-related records should be disclosed in the midst of a pending investigation. Opp. at 8-9.

Additionally, these cases do not hold that the public interest in transparency always trumps personal privacy rights or the right to withhold confidential personnel records. Instead, they recognize that “strong public policies weigh against disclosure” of complaints against public officers and employees “against whom such communications ‘are to be considered as highly confidential, and as records to which public policy would forbid the confidence to be violated.’” Bakersfield, supra, 118 Cal. App. 4th at 1046 (quoting AFSCME, supra, 80 Cal. App. 3d at 918) (further internal quotations omitted). Opp. at 9.

The court agrees with the County that the ongoing nature of the Kwong investigation at the time of the County’s denial is important. But it is not dispositive. As Ryan correctly replies (Reply at 7), the County’s blanket denial cannot solely be justified under the catch-all exemption simply because it had not finished its investigation when Ryan made the Kwong Requests. “[N]either the imposition of discipline nor a finding that the charge is true is a prerequisite to disclosure.” Bakersfield, supra, 118 Cal.App.4th at 1046. It follows that disclosure of records responsive to the Kwong Requests need not necessarily await the County’s decision to formally conclude its investigation, especially since the County suspended Kwong in April 2022.

Ryan argues that the County’s limited opposition evidence is not sufficient to substantiate its catch-all exemption claim because the three lawsuits, a sworn declaration by Cargle, the County’s A designation of Cargle’s complaint, and Kwong’s April 2022 suspension show that the allegations are of a substantial nature and there is reasonable cause to believe the charges are well-founded. Reply at 7-8.

The court does not agree. The court has denied judicial notice of the Pending Litigation Records (Exs. F, G, H, and I) because they post-date the County’s November 11, 2022 denial of the Kwong Requests and are irrelevant. The court has judicially noticed the Ryan Court Records (Exs. C, D, E, T, U, and V), but solely with respect to the Retaliation Requests; they do not bear on the Kwong Requests. The court also has judicially noticed the Media Records to show public interest, but not for the truth of their content. Consequently, Ryan has no evidence on the Kwong Request issue.

Even if, arguendo, the court considered the Pending Litigation Records and the Ryan Court Records for the Kwong Requests, they are insufficient to be substantial in nature and showing reasonable cause to believe the charges are well-founded. The lawsuit complaints (Exs. F, H, and I) are unverified, plead ultimate facts as allegations, and are not evidence.

Plaintiff Cargle’s declaration (Field Decl., Ex. G) makes allegations against Kwong about carrying a gun, making sexual comments about a patient in the operating room, making sexists comments in the operating room. Ex G, ¶¶ 6-11. There are also references to written communications with the County about Kwong. Ex G, ¶36, Ex. 3-6. Most of the rest of her declaration makes allegations about Harbor UCLA using initials to identify individuals. Ex. G, ¶¶ 13-37. These accusations are substantial, but the court does not view them by themselves as well founded.

The CISU’s assignment of an “A” designation for Cargle’s complaint against Kwong (Field Decl., Ex. G (Cargle Decl., Ex. 3) shows only that CISU believed that, after the initial intake of the complaint, there has been a potential CPOE violation that requires investigation. Ryan Decl., Ex. J, p. 8. Finally, Harbor-UCLA’s Accreditation Probation – the court notes that Ryan failed to include Field Decl., Ex. O -- was issued on June 21, 2023, and Ryan fails to show that it has anything to do with Kwong.[9]

Unlike the deliberative process and official information exemptions (see post), the catch-all has no additional elements for the County to prove beyond the balancing of public interests. While the pending nature of the Kwong investigation at the time of the Requests is not dispositive under Bakersfield/ AFSCME, it is an important factor. The evidence before the court is insufficient to constitute reasonable cause that the allegations against Kwong are well founded.

The pending nature of the investigation also means that there would be few or no records for the court to review in camera. To ensure that Ryan has not overcome the catch-all exemption, the court will inquire of the County whether any portion of the Kwong investigation was available -- such as written witness interviews -- on the November 11, 2022 date the Kwong Requests were denied. If so, the court might consider reviewing them in camera. Based on the existing evidence, however, the catch-all exemption applies to the Kwong Requests.

The deliberative process privilege falls under the section 7922.000 catchall’s exemption when “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” See, e.g., Labor & Workforce Development Agency v. Superior Court, (2018) 19 Cal.App.5th 12, 20, 25, 29-31. The deliberative process privilege protects “mental processes by which a given decision was reached” and “the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.” Regents of University of California v. Superior Court, (1999) 20 Cal.4th 509, 540. The point is that the frank discussion of legal or policy matters inwriting may be inhibited if the discussion is made public, with the result of poorer decisions and policies formulated. Id. (citation omitted).

In applying the privilege, “[t]he key question in every case is ‘whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.’ [Citation.] Even if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is ‘actually... related to the process by which policies are formulated’ [citation] or ‘inextricably intertwined with ‘policy-making processes.’ [Citations.]” American Civil Liberties Union of Northern California v. Superior Court, (“ACLU”) (2011) 202 Cal.App.4th 55, 75-76 (Times Mirror Co. v. Superior Court, (1991) 53 Cal.3d 1325, 1342 (the public interest in non-disclosure of almost five years of the governor’s appointment calendars and schedules, covering thousands of meetings, conferences and engagements of every conceivable nature, clearly outweighed the public interest in disclosure).

Ryan argues that the public interest analysis reflected in Bakersfield/AFSCME confirms that the County’s assertion of the deliberative process doctrine is misplaced. The deliberative process doctrine applies in CPRA cases if records contain material that is “predecisional”[10] and “deliberative”[11]. Non-disclosure is justified “[o]nly if the public interest in non-disclosure clearly outweighs the public interest in disclosure.” Marylander v. Superior Court, (2000) 81 Cal.App.4th 1119, 1128. As explained for the catchall exemption, the public interest in access prevails. Pet. Op. Br. at 11-12.

The County responds that the Kwong Requests seek documents and communications related to the County’s investigation which would contain, and therefore expose, the County’s decision-making process regarding the investigations. The “efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to operate in a fishbowl.” Grand Cent. P’ship, Inc. v. Cuomo, (2d Cir. 1999) 166 F.3d 473, 481 (HUD employees’ internal discussion of an investigation was exempt from disclosure under FOIA). Thus, disclosure of these documents was not warranted or appropriate. Opp. at 12.[12]

While Ryan asserts that access to the records is necessary for the public to determine whether Harbor-UCLA is managed appropriately, it is undeniable that part of appropriate hospital management includes thoroughly investigating and taking appropriate action in response to allegations of misconduct. Ryan’s quest threatens the County’s ability to manage Harbor-UCLA. Because disclosing any communications, interviews, and other records concerning the ongoing investigations of Kwong could compromise the integrity of the County’s internal processes and the pending civil lawsuits, there is an overwhelming public interest in upholding the exemptions. Opp. at 19-20.

The court need not address the County’s argument in detail. The court agrees with Ryan (Reply at 8-9) that the deliberative process doctrine is based on the catch-all exemption and the court already has determined that the catch-all exemption applies. However, the County has not met the elements of deliberative process beyond the balancing of public interests required for the catch-all exemption. To withhold records based on the deliberative process doctrine, an agency must prove the records are both pre-decisional and deliberative. The County has not made either showing. Reply at 8-9.

Because the County has not met the additional elements required beyond the catch-all balancing, the deliberative process exemption does not apply.

Public records are exempt from disclosure where “exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” §7927.705.

A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either (1) disclosure is forbidden by an act of the Congress of the United States or a state statute; or (2) disclosure 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. Evid. Code §1040(b). “Official information” means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. Evid. Code §1040(a).

Ryan argues that the official information privilege – just like the catch-all and deliberative process exemptions – turns on a public interest balancing analysis. “A trial court commits error under this section if the court fails to make the threshold determination or fails to engage in the process of balancing the interests.” Marylander v. Superior Court, supra, 81 Cal.App.4th at 1126 (citations omitted); CBS, Inc. v. Block, (1986) 42 Cal.3d 646, 656 (weighing process mandated by Evidence Code section 1040 requires review of the same elements that must be considered under section 6255 (now §7922.000)). Ryan argues that the public interest in disclosure is overriding, which is dispositive. Pet. Op. Br. at 13.

The County notes that “[o]ngoing investigations fall under the privilege for official information.” People v. Jackson, (2003) 110 Cal. App. 4th 280, 287. At the time the Kwong Requests were made, there were ongoing investigations into the allegations against Kwong. Mathers Decl., ¶5. Public dissemination of the requested information could have interfered with those investigations, which continued after the filing of this lawsuit. Id. Witnesses could have been discouraged from participating in interviews, or become biased based on slanted and partial portrayals of the facts by the media. “Both complaining citizens and the public have an interest in the confidentiality of complaints of wrongdoing prior to the inception of formal enforcement or disciplinary proceedings.…Complainants often demand anonymity. The prospect of public exposure discourages complaints and inhibits effective enforcement.” Black Panther Party v. Kehoe, (1974) 42 Cal. App. 3d 645, 653 (1974). It was critical to protect the confidentiality of the investigations, which outweighed the public interest in disclosure of investigation records. Opp. at 10-11.

Ryan contends that the County’s suggestion that the existence of an ongoing investigation automatically justifies non-disclosure under the official information privilege is incorrect. See PSC Geothermal Services Co. v. Superior Court, (“PSC Geothermal”) (1994) 25 Cal.App.4th 1697, 1713-14. Pet. Op. Br. at 12-13.

In PSC Geothermal, the trial court sealed an affidavit for a search warrant hours before hearing the petitioners’ request for the return of seized materials. Id. at 1713. Penal Code section 1534 required that the documents and records for a search warrant shall be open to the public after the warrant has been executed. Id. The appellate court reversed the trial court sealing order. The official information privilege may apply to the affidavit as information obtained by a public employee which, if disclosed, is against the public interest because of the ongoing nature of the criminal investigation. Id. at 1714. But the trial court did not perform the two-stage analysis of confidentiality and public interest necessary to seal and did not consider redacting the affidavit. Id. Because the trial court had not considered the balancing of interests required under Evidence Code section 1040, the case was remanded for a hearing on whether part or all of the affidavit was subject to the official information privilege. Id. at 1715. The court would need to redact the affidavit and seal only that portion which might be found to be official information. Id.

Ryan argues that here, too, the County’s ongoing investigation claim cannot justify non-disclosure. Pet Op. Br. at 13.

The County responds that Ryan constructs a straw man by suggesting the County is asserting that the official information privilege applies indiscriminately to all ongoing investigations. That is not the case. The County examined the Kwong Requests and concluded that it could not disclose any information related to the allegations against Kwong because it would risk the integrity of the investigations, chill employee participation, and undermine the independence of the investigations. Opp. at 11.

The County has not met the elements of the official information privilege. The County has not shown that each record withheld (1) were “acquired in confidence” (2) “by a public employee in the course of his or her duty” and (3) was “not open, or officially disclosed, to the public prior to” the privilege claim. Evid. Code § 1040(a). In fact, the County fails to show that it ever looked at the records of the Kwong investigation. The County attempts to show the official information elements by arguing that CPOE confidentiality provisions necessarily mean that the information gathered during a CPOE investigation meets these elements. Opp. at 14. Not true. The County’s general reference to CPOE investigations does not meet this factually required showing. The official information exemption does not apply to the Kwong Requests.

On November 15, 2022, Ryan made a CPRA request for (1) all documents related to the Third-Party Complaint (CISU matter #2018-5003062), including the notes, records, interviews, recommendations and conclusions (Request No. 1), (2) all documents of the same type related to CEIU #2019-13746 (Request No. 2), and (3) the audio/video recordings of Palacios’ June 2020 interviews of DeVirgilio, Mahajan, and Putnam, plus any other interviews related to this matter (Request No. 3). Ryan Decl., ¶16, Ex. L.

On December 11, 2022, Ryan made a Request for documents related to any investigation of Ryan’s complaints by Sheppard Mullin or other outside counsel. Ryan Decl., ¶18, Ex. O. Request No. 1 was for Sheppard Mullin’s bills to the County for the 2018 investigation of allegations against Ryan. Ryan Decl., ¶18, Ex. O. This included investigation of the fraud and record falsification by White and Donayre and any kickback payments Medtronic made to White. Ryan Decl., ¶18, Ex. O. The Requests also sought (2) documents and findings created or collected as part of the investigations, (3) communications to or from then-County PMU employee Rodriguez about the investigations, (4) any such communications to or from any other County employee, and (5) any such communications to or from Barker. Ryan Decl., ¶18, Ex. O.

Although the Petition alleges that Ryan did not receive a response to the December 11, 2022 Request (Pet., ¶15), Ryan now concedes the County issued several responses to this Request, including the ultimate response dated February 7, 2023. See Ryan Decl., ¶¶ 18-20, Exs. Q, W.

As for the remaining Retaliation Requests, the County asserts the catch-all exemption (§7922.000), the deliberative process doctrine, the official information privilege (Evid. Code §1040), the attorney-client privilege, and the attorney work product doctrine. Opp. at 14-15.

The County argues that, to the extent any complaints were made to CISU, or CEIU made any investigations, all complaints and resulting notes, recordings, evidence collected, and ultimate findings are confidential. See Stormer Decl., ¶16. Public interest favors maintaining this confidentiality. Courts have consistently held that the disclosure of information obtained in internal investigations may chill employee communications and investigation participation, even after an investigation is complete. In Rackauckas v. Superior Court, (“Rackauckas”) (2002) 104 Cal. App. 4th 169 (2002), the court noted that in instances of police misconduct allegations, where the involved officer may remain on the force, disclosing information obtained during investigations could “compromise the reopening of a case and the effectiveness of related investigations.” Id. at 177. Indeed, “officers who step forward to aid in investigations may do so only on assurances of confidentiality; public disclosure of their statements could expose them to unjustified criticism or animosity, and cost the department their future cooperation.” Id. For the same reasons, the California Supreme Court held that, despite the strong public policy for openness, grand jury investigation documents should not be disclosed because of the potential negative impact upon the willingness of prospective witnesses to come forward or to speak “fully and frankly.” Daily Journal Corp. v. Superior Court, (“Daily Journal”) (1999) 20 Cal. 4th 1117, 1126 (internal quotations omitted). Opp. at 13-14.

The County argues that “public disclosure of [employees’] statements could expose them to unjustified criticism or animosity, and cost the department their future cooperation.” See Rackauckas, supra, 104 Cal. App. 4th at 177. If the CPOE’s confidentiality provisions were overcome, employees may be dissuaded from coming forward or participating in an interview due to fear of criticism or animosity from colleagues. This concern is even more heightened when it comes to victims of inappropriate behavior who may feel embarrassed about the nature of their claim. For it to be effective, the County’s promise of confidentiality cannot be subject to question. In applying the catch-all exemption, the public’s interest in withholding the CPOE complaints, interviews, investigative notes, and findings far outweighs any interest in their disclosure. Opp. at 14.

The cases cited by the County are readily distinguishable. Disclosure of public employee misconduct investigations does not carry the concerns of compromising criminal investigations and prosecutions that were at issue in Rackauckas and Daily Journal, respectively. While there still may be concerns about witness and victim intimidation, criticism, and animosity, Bakersfield/AFSCME demonstrates that those can be overcome when there is sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded. Redaction of witness and victim identity is also available to mitigate this concern. See BRV, supra, 143 Cal.App.4^th at 759.

Ryan argues that the Bakersfield/AFSCME standard defeats the County’s reliance on the catch-all exemption. Ryan won a jury verdict against the County, confirming that his allegations were substantial. Pet. Op. Br. at 11.

This is true. The Ryan Court Records (Exs. C, D, E, T, U, and V) show that he obtained a retaliation jury verdict and judgment in his favor (Ex. T), he provided a declaration concerning retaliation and lost pay (Ex. U), he has defended summary judgment in a pending federal case against individual County employees (Exs. C-D). Although his superior court case is on appeal and not final (Bolan Decl., Exs. A, B), that does not significantly undermine the well-founded nature of the retaliation allegations. Moreover, unlike the Kwong Requests, the County does not show that the investigation of the complaints of retaliation against Ryan is ongoing. Nor does the public interest in non-disclosure appear to have any weight where the identities of interviewees have been revealed. The County cannot rely on the catch-all exemption for the Retaliation Requests.

As it does for the Kwong Requests, the County argues that CPOE confidentiality provisions mean the information gathered during a CPOE investigation necessarily meets the elements of the official information privilege. Disclosure is against the public interest because the CPOE’s confidentiality provisions would be rendered meaningless if anyone could circumvent them via a CPRA request. Public disclosure is likely to have a chilling effect and may discourage employees from coming forward to report, or help the County investigate, CPOE violations. Opp. at 14.

The third and fourth categories of the December 11 Request ask for all communications from Tito Rodriguez, or any County employee, respectively, related to Sheppard Mullin’s investigation into allegations against Ryan. These internal communications are exempt because they related to pending litigation, reflected the County’s deliberative process, or contained official information. Opp. at 16.

As the court has ruled for the Kwong Requests, the County has not presented evidence sufficient to demonstrate that responsive records meet the requirements for invoking the deliberative process doctrine or the official information privilege. The County’s reliance on the confidentiality of CPOE investigations is insufficient. The County’s conclusion that that disclosure might interfere with its ability to litigate against Ryan in civil cases is unsupported by evidence and cannot justify non-disclosure. The County fails to meet the elements of deliberative process and official information for the Retaliation Requests.

The attorney-client privilege is a legislative creation codified in the Evidence Code. McKesson HBOC, Inc. v. Superior Court,¿(2004) 115 Cal.App.4th 1229, 1236. Its purpose is to promote full and open discussion between clients and their attorneys. Ibid. The attorney-client privilege covers all forms of communication, including transactional advice and advice in contemplation of threatened litigation. Titmas v. Superior Court,¿(2001) 87 Cal.App.4th 738, 744.

A “confidential communication between client and lawyer” is “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Evid. Code §952. The attorney-client privilege is the client’s privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. Evid. Code §954.

The party claiming the attorney-client privilege has the burden of establishing the preliminary facts necessary to support its exercise -- i.e., a communication made in the course of an attorney-client relationship. Costco Wholesale Corp. v. Superior Court,¿(2009) 47 Cal.4th 725, 733. These preliminary facts are (a) information transmitted between and client and lawyer, (b) in the course of a relationship, (c) in confidence, and it includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. Evid. Code §952. Not every communication between an attorney and client is privileged, however. Los Angeles County Board of Supervisors v. Superior Court, (2016) 2 Cal.5^th 296, 282. If the preliminary facts show a communication made in the course of an attorney-client relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply. Ibid. (citing Evid. Code §917(a)).

In performing various duties, a lawyer must work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Hickman v. Taylor (1947) 329 U.S. 495, 510. Preparation of a client’s case demands that the lawyer assemble information, sift relevant from irrelevant facts, prepare legal theories, and plan a strategy without undue and needless interference. Id. at 511.

It is the policy of the state to (a) preserve the rights of attorneys to prepare cases for trial, with the degree of privacy necessary to encourage them to prepare their cases thoroughly and investigate the favorable and unfavorable aspects of those cases; and (b) prevent attorneys from taking undue advantage of their adversary’s industry and efforts. CCP §2018.020. Any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. CCP §2018.030(a). Any other work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. CCP §2018.030(b). The doctrine is not limited to writings created by a lawyer in anticipation of a lawsuit. League of Cal. Cities v. Sup. Ct., (2015) 241 Cal.App.4th 976, 993. It also applies to writings prepared by an attorney while acting in a nonlitigation capacity. Id.

The party claiming the work product rule “has the burden of establishing the preliminary facts necessary to support its exercise”. Citizens for Ceres, (2013) 217 Cal.App.4th 889, 911-12 (citation omitted). The preliminary facts necessary to support a work product doctrine claim are those that establish that the documents are work product. Fellows v. Superior Court, (1980) 108 Cal.App.3d 55, 61 disapproved on other grounds by Coito v. Superior Court, (“Coito”) (2012) 54 Cal.4th 480 (noting that preliminary showing must establish that documents in question qualify as attorney’s work product and establish whether absolute or condition portions of privilege apply). In the case of absolute work product protection, this means that the agency must make a preliminary showing that the disclosure would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories.” Coito, supra, 54 Cal.4th at 495 (citing CCP §2018.030(a)). In the case of qualified work product protection, the agency must make a preliminary showing that disclosure “would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.” See id. at 502. For every document withheld based on this doctrine, the party seeking protection must produce a brief description of the document and its contents sufficient to determine (1) whether the document is work product, (2) whether absolute or partial work product protection applies, and (3) why the work product protection applies.

Whether specific material is protected work product must be resolved on a case-by-case basis. League of Cal. Cities v. Sup. Ct. supra, 241 Cal.App.4th at 993. In camera inspection is the proper procedure to evaluate the applicability of the attorney work product doctrine to specific documents, and to categorize whether each document should be given qualified or absolute protection. Id.

The County notes that the first and fifth items in the December 11, 2022 Retaliation Requests seek Shepard Mullin billing records for a 2018 investigation against Ryan and communications with Sheppard Mullin about that investigation. The County argues that these records are exempt from disclosure due to attorney-client privilege. §7927.705 (exempting from disclosure under the CPRA records privileged under the Evidence Code). The privilege covers the billing invoices because “[w]hen a legal matter remains pending and active, the [attorney-client] privilege encompasses everything in an invoice, including the amount of aggregate fees.” Los Angeles Cnty. Bd. of Supervisors v. Superior Court, (“Board of Supervisors”) (2016) 2 Cal. 5th 282, 297. The information contained in these records would “reveal [information] about legal consultation,” and such information falls within the scope and “heartland” of the privilege. Cnty. of Los Angeles Bd. of Supervisors v. Superior Court, (2017) 12 Cal. App. 5th 1264, 1272-75. Opp. at 15.

The County is still in litigation with Ryan. Although he obtained a jury verdict, the matter is on appeal and not final. Bolan Decl., Exs. A, B. Accordingly, the disclosure of any part of Sheppard Mullin’s billing records for its work related to Ryan—performed in 2018, during the litigation—could improperly reveal the County’s investigative efforts and trial strategy and jeopardize a new trial, if the appellate court orders one. See Board of Supervisors, supra, 2 Cal. 5th at 297 (quotation omitted). Opp. at 15.

The County notes that the third and fourth categories of the December 11 Request ask for all communications from Tito Rodriguez, or any County employee, respectively, related to Sheppard Mullin’s investigation into allegations against Ryan. The County contends that any such communications between a County employee and Sheppard Mullin are subject to the attorney-client privilege. Opp. at 16.

Finally, the County argues that the second item of the December 11 Request sought “[a]ll documents, report, notes and finding created or collected in the course of” the investigation. These records prepared by Sheppard Mullin, as the County’s counsel, are protected from disclosure by the attorney work-product doctrine, codified in Code of Civil Procedure section 2018.030. The work-product doctrine applies to writings prepared by an attorney, whether or not in anticipation of a lawsuit. State Comp. Ins. Fund v. Superior Court, (2001) 91 Ca1. App. 4th 1080, 1091. Opp. at 15-16.

Ryan argues that the County may not rely on the attorney-client privilege and the attorney work product doctrine. To assert attorney-client privilege, a party must prove a communication was made in the course of an attorney-client relationship. City & County of San Francisco v. Superior Court, (1951) 37 Cal.2d 227, 234-35; Evid. Code §§ 952, 954. The communication must also be confidential, and the privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication.” Evid. Code §912(a); see also Caldecott v. Superior Court, (2015) 243 Cal.App.4th 212, 227 (rejecting attorney-client privilege as grounds for blanket non-disclosure). A work product doctrine claim must, likewise, be resolved on an “item-by-item basis.” BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261; see also CCP §2018.030. The County has presented no evidence on these issues and has not shown that either applies. Pet. Op. Br. at 14; Reply at 9-10.

Ryan is correct. However, the court explained to the parties during the August 29, 2023 hearing that it would not require an attorney-client privilege log before trial. The County will be required to provide a privilege log for all documents withheld pursuant to the attorney-client or work product privileges. The privilege log must be sufficient for Ryan to test whether the attorney-client privilege or work product rule applies to a document. The parties shall meet and confer after the log is provided to ensure that sufficient information is included.

For the Drug Theft Requests, Ryan requested (1) all reports, correspondence and supporting documents relating to the discovery, investigation, and reporting of the allegations (Request No. 1); and (2) any related allegations, complaints, or reports made to the Board of Pharmacy as required under Bus. & Prof. Code section 4104 and 16 CCR section 1715.6 (Request No. 2). Ryan Decl., ¶21, Ex. R.[13]

Every pharmacy shall have in place procedures for taking action to protect the public when a licensed individual employed by or with the pharmacy is discovered or known to have engaged in the theft, diversion, or self-use of dangerous drugs. Bus. & Prof. Code §4104(a).

Every pharmacy shall report and provide to the Board of Pharmacy, inter alia, any admission by a licensed individual of theft, diversion, or self-use of dangerous drugs, any video or documentary evidence demonstrating theft, diversion, or self-use of dangerous drugs by a licensed individual, and any termination of a licensed individual based on theft, diversion, or self-use of dangerous drugs. Bus. & Prof. Code §4104(c). This report must have sufficient detail to inform the Board of Pharmacy of the facts upon which the report is based, including an estimate of the type and quantity of all dangerous drugs involved, the timeframe over which the losses are suspected, and the date of the last controlled substances inventory. Bus. & Prof. Code §4104(d); 16 CCR §1715.6(b).

The County asserts the peer review privilege for the Drug Theft Requests. Evid. Code §1157. Neither the proceedings nor the records of organized committees of medical staffs in hospitals, or of a peer review body, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for that peer review body, shall be subject to discovery. Evid. Code §1157(a).

In his moving papers, Ryan attacks the County’s assertion of the constitutional right to privacy Cal. Const., art. I, §1), as not justifying non-disclosure. The California Supreme Court explained when the constitutional right to privacy applies in Hill v. National Collegiate Athletic Assn., (1994) 7 Cal.4th 1, 350-38. Ryan argues that the County cannot show that any records meet Hill’s requirements for assertion of the right to privacy, especially as to communications with the Board of Pharmacy. California v. Greenwood, (1988) 486 U.S. 35, 40 (no reasonable expectation of privacy as to material voluntarily disclosed to third party). Also, once again, the public interest in access would overcome any privacy interest and require disclosure. Pet. Op. Br. at 14.

In response, the County does not rely on a privacy exemption. For Request No. 1, the County notes that the Drug Theft Requests are based on MEC meeting minutes obtained via discovery in federal litigation. Ryan Decl., ¶21. These minutes—typically protected from disclosure under Evidence Code section 1157—make a brief reference to two nurses who were reported to state authorities, arrested, and terminated for diverting pharmaceuticals. Ryan Decl., Ex. R. The County contends that it cannot disclose the categories of responsive records without circumventing the peer review exemption. Opp. at 16.

With respect to Request No. 2, the County argues that California v. Greenwood, supra, 486 U.S. at 35 is inapposite. There, the court held that criminal defendants did not have a reasonable expectation of privacy under the Fourth Amendment with regard to garbage placed in opaque bags outside their house for collection by the trash collector. Id. at 40. Here, there is no disclosure to a private party or the public. A public entity (County) sent correspondence to another public entity (Board of Pharmacy), pursuant to a legal reporting mandate. Opp. at 16-17.

The County notes that its report to the Board of Pharmacy did not waive any exemption. A waiver of exemptions can only be effected where an agency discloses a record to a member of the public. §7921.505(b). Further, the County is required to make the report to the Board of Pharmacy pursuant to law. Bus. & Prof. Code § 4104; 16 CCR §1715.6. There is no waiver where disclosure is required by law. §7921.505(c)(2). Opp. at 17.

This is correct. Ryan replies that the County again has not met the elements of the exemption. Evid. Code section 1157 only covers peer review bodies under Civil Code section 43.7(b), which does not include bodies that peer review nurses. Reply at 10. Whether or not he is correct, a particularized showing of Evid. Code section 1157’s application is required where the information sought is not obviously within the purview of a peer committee. Santa Rosa Memorial Hospital v. Super. Ct., (1985) 174 Cal.App.3d 711, 727. It is not at all obvious that any or all records pertinent to the Drug Theft Requests are within the scope of Evid. Code section 1157. As Ryan argues, that provision does not exempt records that are independent of the investigative and evaluative activities of medical staff committees and peer review bodies. West Covina Hospital v. Super. Ct., (1986) 41 Cal.3d 846, 859, n. 5.

The County has failed to show an exemption for the Drug Theft Requests and must produce those records.

The Petition is granted in part. An order shall issue directing the County to do the following:

(b) prepare an attorney-client and work product privilege log for the Retaliation Request records. The County is directed to produce the Retaliation Request records not protected by attorney-client or work product privilege, which may be redacted if necessary to protect the identity of witnesses or victims not already disclosed; and

(c) inform the court whether there are any Kwong Request records that existed on November 11, 2022, when the Kwong Request was denied. Upon receiving that information, the court may elect to review them in camera. If it does not, the County need not produce the Kwong Request records.

[1] All further statutory references are to the Government Code unless stated otherwise.

[2] In 2023, the California Legislature re-codified the CPRA.

[3] The court has ruled on the parties’ written objections. The clerk is directed to scan and electronically file the court’s rulings.

[4] Field’s declaration asserts that Exhibit O is an ACGME report showing this “Probationary Accreditation” status. Field Decl., ¶10. The declaration does not include this exhibit.

[5] As Ryan notes, the County does not assert or mention, inter alia, the personnel records exemption (§7927.700), the records of investigation exemption (§7923.600), or the right to privacy (Cal. Const., art. I, §1). See Reply at 3.

[6] Federal judicial interpretations of FOIA may be used in construing the CPRA. Id. at 79.

[7] The court does not understand the County’s argument that it cannot expand on the issues of burdens imposed by the Requests, but any undue burden issue has been waived.

[8] ACGME placed Harbor-UCLA on probationary accreditation status on June 21, 2023, before three Harbor-UCLA employees filed lawsuits against the County. Opp. at 9, n. 1.

[9] It is worth noting that the County admits that Kwong was suspended in April 2022, and Ryan’s October 4, 2022 Requests specifically sought all documents indicating Kwong’s suspension and the reasons for it. Ryan Decl., ¶8, Ex. A. Nonetheless, without reasonable cause to believe the charges were well-founded when the Kwong Requests were denied, the County was not required to provide these suspension records.

[10] “A document is predecisional” where “prepared in order to assist an agency decisionmaker in arriving at his decision” rather than to support a decision already made. The decision must be antecedent to the adoption of the agency policy. ACLU, supra, 202 Cal.App.4th at 76 (citations and quotation marks omitted).

[11] A document is deliberative to the extent that it is actually “related to the process by which policies are formulated.” Fox News Network, LLC v. U.S. Department of the Treasury, (S.D.N.Y. 2010) 739 F.Supp.2d 515, 541 (citations and quotation marks omitted).

[12] The County adds that Kwong has due process rights as a County employee under Skelly v. State Personnel Bd., (1975) 15 Cal. 3d 194, 206-08. When Ryan submitted the Kwong Requests in 2022, the County had not taken disciplinary actions against Kwong. Mathers Decl., ¶6. Publicly releasing information about potential discipline before the County makes any final disciplinary decisions could jeopardize the employee’s due process rights and undermine the County’s ability to implement a disciplinary action. Id., ¶9. Opp. at 12. The court finds that Kwong’s due process rights have little or no bearing on the public interest in disclosure.

[13] For LASD, Request No. 3 sought records of any complaints, arrests, charges against individuals based on involvement in the diversion and or theft of controlled substances at Harbor-UCLA between March 2015 and May 23, 2016, subject to limitations in section 6254(f). Ryan Decl., ¶21, Ex. R. LASD informed Ryan that it was unable to locate records responsive to his request (Field Decl. Ex. B, 37), and Ryan does not dispute that explanation. This category is not at issue. Opp. at 16.