Judge Mitchell L. Beckloff, Case 20STCP00144 2023-02-15 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP00144, Date: 2023-02-15 Tentative Ruling

The petition alleges Respondent, California Horse Racing Board (CHRB), improperly dismissed a matter after a horse allegedly tested positive for a prohibited substance. Petitioner, Ruis Racing, LLC, asserts the horse should have been disqualified and its owners ordered to forfeit purse money won.

CHRB moves for an order lodging under seal three pages of the administrative record—“the CHRB respectfully requests that this Court order that the Subject Documents be lodged under seal for purposes of trial on this matter.” (Motion 7:2-3.)

Petitioner’s objections to evidence submitted by CHRB: Objections 1 and 2 are sustained. Objections 3 and 4 are overruled.

“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (California Rules of Court [CRC], Rule 2.551, subd. (b)(1).)

The court must make express findings to support sealing under CRC, Rule 2.550. Specifically, CRC, Rule 2.550, subdivision (d) provides:

“The court may order that a record be filed under seal only if it expressly finds that:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

Courts recognize enforcement of binding contractual obligations not to disclose “can constitute an overriding interest within the meaning of Rule 243.1(d) [currently California Rules of Court, Rule 2.550].” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1284.) However, to order records sealed, the court must also find a substantial probability that the moving party would be prejudiced absent sealing. (Id. at 1280-1284)

The parties entered into a Joint Stipulation and Protective Order (Protective Order) based on the court’s model protective order. After the court filed the Protective Order, CHRB produced 188 pages of documents; several of which were designated as “Confidential” pursuant to the terms of the Protective Order. Petitioner objected to the confidentiality designation of the documents numbered CHRB 183-188. After hearing argument, the court ordered several of the documents be designated and treated as confidential.

Now, CHRB seeks to lodge a portion of these documents under seal with the administrative record.

1. CHRB 0186 (re-stamped as CHRB 3036): A Memorandum from CHRB Staff Counsel to the Commissioners of the CHRB regarding a closed session to discuss test results. (Exhibit C).

2. CHRB 0187-0188 (re-stamped as CHRB 3038-3039): A Memorandum from CHRB Staff Counsel to the CHRB Commissioners concerning test results. (Exhibit D).

CHRB argues the subject documents contain sensitive and protected information such that there is “an overriding interest that overcomes the right of public access to the record” and “supports sealing the record” citing CRC, Rule 2.550, subdivision (d). Specifically, CHRB argues the documents expose the CHRB’s decision-making process and are attorney-client privileged.

As a preliminary matter, CRC, Rule 2.550, subdivision (d) applies only to records that will be filed under seal. For purposes of a trial in administrative mandate, the administrative record is lodged, not filed. (Los Angeles County Court Rules (LR), Rule 3.231, subd. (k).) As such, the CRC concerning sealing is inapplicable here. For this reason alone, the motion is denied.[1]

Moreover, even assuming the CRC regarding sealing applied, CHRB has not justified sealing the records pursuant to CRC, Rule 2.550.

First, as to the attorney-client privilege, the court finds (again) CHRB has waived any attorney-client privilege by producing the documents to Petitioner. Although CHRB discusses at length the sanctity of the attorney-client privilege in its moving papers, CHRB omits any discussion of waiver. (The court previously found CHRB waived any attorney-client privilege on December 10, 2021. See Motion, Ex. B.) Disclosure is a clear waiver of this privilege. (Evid. Code, § 912 [attorney-client 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 or has consented to disclosure made by anyone”].) While Petitioner argues the documents have not been disclosed to the “public,” CHRB fails to identity any legal authority suggesting waiver only occurs when a privileged document is released to the public. CHRB’s argument is thus unsupported by any legal authority.

Accordingly, the court finds a claim of attorney-client privilege alone under the circumstances here is insufficient to justify sealing the documents. There is no attorney-client privilege consideration in the context of confidentiality where the privilege has been waived.

Second, Petitioner suggests the these records are protected under Evidence Code section 1040 and Government Code sections 11126 and 6255.[2]

Evidence Code 1040, subdivision (a) creates a privilege for “official information” which “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.” CHRB does not explain how the subject documents fall within the official information privilege. CHRB’s argument is undeveloped in its moving and reply papers.

“(ii) The legal counsel of the state body shall prepare and submit to it a memorandum stating the specific reasons and legal authority for the closed session. If the closed session is pursuant to paragraph (1), the memorandum shall include the title of the litigation. If the closed session is pursuant to subparagraph (A) or (B), the memorandum shall include the existing facts and circumstances on which it is based. The legal counsel shall submit the memorandum to the state body prior to the closed session, if feasible, and in any case no later than one week after the closed session. The memorandum shall be exempt from disclosure pursuant to Section 7927.205.”

CHRB seemingly suggests Government Code section 11126 supports its sealing request because records that fall within the statute’s scope are exempt from disclosure under the California Public Records Act (CPRA), Government Code section 7920.000, et seq. (Memo 5, n. 3 [bolding portion of statute discussing exemption from disclosure].)

Similarly, CHRB argues the CPRA exempts from disclosure documents which are protected by the deliberative process privilege. CHRB cites no authority suggesting exemptions under the CPRA are relevant to (or inform on) a request to seal. This is especially true where the documents have been released and waiver is an issue. (See Gov. Code, § 7921.505, subd. (c).)

The court is not inclined to find CHRB has demonstrated an (1) an overriding interest that overcomes the right of public access to the records and (2) prejudice CHRB may suffer if the records are not sealed. CHRB has no proffered no admissible evidence to support such a finding.[3] (Petersen Decl., ¶ 8 objection sustained.)

Moreover, the evidence presented (if considered) is too general to demonstrate a privilege based on deliberative process privilege. Citizens for Open Government v. City of Lodi concerned a city’s certification of an environmental impact report (EIR) for a large commercial development. (Citizens for Open Government v. City of Lodi, supra, 205 Cal.App.4th at 302-304.) Opponents of the development sought city staff emails concerning the preparation of the EIR. (Ibid.) The city withheld the communications claiming deliberative process privilege. (Ibid.) The city claimed “disclosing staff communications would hamper candid dialogue and a testing and challenging of the approaches to be taken . . . .” (Id. at 307 [internal quotations omitted].) The party seeking the communications argued the city’s justification “is not sufficient to demonstrate the public interest in nondisclosure clearly outweighs the public interest in disclosure.” (Ibid.)

Under such facts, the Court of Appeal found “the city never established the conditions for creation of the privilege. The city’s explanation . . . of why the privilege applies, i.e., to ‘foster candid dialogue and a testing and challenging of the approaches to be taken,’ was simply a policy statement about why the privilege in general is necessary.” (Ibid.) The Court of Appeal continued: “Indeed, the city’s explanation was similar to one of the policy reasons for the deliberative process privilege enunciated by this court: the privilege ‘protects creative debate and candid conversation of alternatives within an agency, and, thereby, improves the quality of agency policy decisions.’ ” (Ibid. [quoting California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 170].)

The Court of Appeal further explained “invoking the privilege is not sufficient to explain the public’s specific interest in nondisclosure of the documents in this case. That policy could apply to almost any decisionmaking process.” (Ibid.) The Court of Appeal concluded the city had not met its burden of establishing the deliberative process exception, or why the public’s interest in nondisclosure was clearly outweighed by the public’s interest in disclosure. (Ibid.)

For similar reasons, the court finds CHRB’s justification (if considered) is nothing more than a generalized boilerplate statement of why the privilege is necessary as a general matter. In fact, CHRB’s argument here appears no different than the insufficient justification offered by the city in Citizens for Open Government v. City of Lodi, supra, 205 Cal.App.4th 296.

As a final note, CHRB attempts to turn the burden on the motion to seal on its head. CHRB suggests “petitioner has not articulated what prejudice, if any, would result should the subject documents remain confidential.” (Reply 3:6-7.) Petitioner has no burden on CHRB’s motion to seal. Further, the obvious prejudice on a motion to seal is the prejudice to the public, which has a constitutional right of access to the courts and their records. CHRB has not demonstrated some overriding greater interest here.

[1] The motion to seal may become necessary if any party seeks to file or quote portions of the “confidential” records in their briefs. The court notes Petitioner’s Opening Brief cites the records but does not quote any portion of them. It is not clear if CHRB intends to quote portions of the confidential records in its briefing.

[2] Government Code section 6255 has been recodified at Government Code sections 7922.000 and 7922.540, subdivision (a).

[3] Moreover, even assuming the court considered paragraph 8 of Mr. Petersen’s declaration, the evidence is insufficient to carry CHRB’s burden. (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 306. [“The burden is on the [one claiming the privilege] to establish the conditions for creation of the privilege.”])