Judge Mitchell L. Beckloff, Case Number: 22STCP02964, Date: 2023-07-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02964, Date: 2023-07-21 Tentative Ruling

Petitioner, Energy and Policy Institute, seeks a writ of mandate directing Respondents, State of California and Gavin Newsom, Governor of the State of California, to comply with their obligations under the California Public Records Act (CPRA), Government Code[1] section 7921.000, et seq.[2] More specifically, Petitioner requests an order requiring Respondents to disclose to Petitioner all non-exempt public records responsive to Petitioner’s CPRA request for the “calendar events” of Alice Reynolds, the Governor’s former Senior Advisor for Energy, reflecting meetings with multiple stakeholders between January 1, 2021 and December 31, 2021. Respondents oppose the petition.

Alice Reynolds was the Governor’s Senior Advisor for Energy from January 2019 to December 2021. (Sapp Decl. ¶ 6.) On November 22, 2021, effective December 21, 2021, the Governor appointed Reynolds as President of the California Public Utilities Commission (CPUC). (Kasper Decl. ¶ 12.)

On December 17, 2021, shortly before Reynolds’ appointment became effective, the CPUC issued a proposed decision updating its net metering tariffs. (Kasper Decl. ¶ 7.) Petitioner’s deputy director, Matt Kasper, believes the CPUC’s proposed net metering tariffs “created new barriers for utility customers to invest in rooftop solar and battery storage.” (Kasper Decl. ¶ 7.) Kasper attests “[t]he decision sparked significant backlash because it would reduce the value that rooftop solar customers, including schools, nonprofits, and businesses, receive for exporting clean energy back to the grid and implement a new solar-only fee.” (Kasper Decl.

On January 14, 2022, Petitioner requested the “calendars of Alice Reynolds from January 1, 2021 through December 31, 2021.” (Pet. Exh. A [emphasis added].) Petitioner and David Sapp, then the Governor’s Chief Deputy Legal Affairs Secretary, corresponded about the CPRA request beginning in January 24, 2022. (Pet. Exh. B-D.)

On March 22, 2022, in response to comments made by Sapp, Petitioner substantially narrowed the request to seek the following:

Alice Reynolds' calendar events specifically with representatives of the following entities from January 1, 2021 through December 31, 2021:

Kasper attests “San Diego Gas & Electric, Southern California Edison, Pacific Gas & Electric, would benefit directly from net metering tariffs that discouraged rooftop solar.” (Kasper Decl. ¶ 15.) Kasper declares other entities specified in the CPRA request “are groups that were members of a public relations campaign sponsored by the utility companies called ‘Affordable Clean Energy For All’ that supported the utility’s [sic] position on net metering . . .” and the “campaign spent hundreds of thousands of dollars on media to influence the debate on net metering.” (Kasper Decl. ¶ 16.) Respondents do not dispute this evidence in their opposition papers.

On April 1, 2022, Sapp confirmed Respondents have possession of records responsive to Petitioner’s CPRA request. Sapp denied disclosure of any of the records, however, on the following basis: “all of those records are exempt from disclosure as correspondence of or to the Governor and his staff (Gov. Code, § 6254(l)). The records are also exempt from disclosure because they reveal the deliberative process of the Governor or his staff, for reasons explained in our March 7, 2022 letter related to your prior request.” (Pet. Exh. F.) Sapp did not offer any suggestions to Petitioner to narrow the request further or otherwise offer to assist Petitioner in obtaining access to the requested records. (Pet. Exh. F.)

Pursuant to the CPRA, individual citizens have a right to access government records. In enacting the CPRA, the California Legislature declared “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (§ 7921.000; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)

Article 1, Section 3(b) of the Constitution affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business.” The Constitution mandates the CPRA be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.” (See National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (2020) 9 Cal.5th 488, 507.) The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” (§ 7921.300.) “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” (§ 7922.525, subd. (b).)

Petitioner bears the burden of proof and persuasion in a mandate proceeding. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) “To establish an agency has a duty to disclose under [the CPRA], the petitioner must show that: (1) the record ‘qualif[ies] as [a] ‘public record[ ]’ . . . and (2) the record is ‘in the possession of the agency.’ ” (Anderson-Barker v Superior Court (2019) 31 Cal.App.5th 528, 538.)

CPRA exemptions must be narrowly construed, and the agency bears the burden of showing a specific exemption applies. (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) “Because the agency has full knowledge of the contents of the withheld records and the requester has only the agency's affidavits and descriptions of the documents, [the agency’s] affidavits must be specific enough to give the requester ‘a meaningful opportunity to contest’ the withholding of the documents.” (American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 83; see also Getz v. Superior Court (2021) 72 Cal.App.5th 637, 654, 657.)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Respondents contend they properly denied the CPRA request pursuant to the correspondence exemption set forth in section 7928.000, subdivision (a). (Opposition 9-12.)

The CPRA exempts “the disclosure of correspondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s Legal Affairs Secretary.” (§ 7928.000, subd. (a).) Section 7928.000, subdivision (b) also provides that “Public records shall not be transferred to the custody of the Governor’s Legal Affairs Secretary to evade the disclosure provisions of this division.”

In Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 (Times Mirror), the California Supreme Court held the Governor’s “appointment calendars and schedules” were not exempt from disclosure under the CPRA pursuant to the correspondence exemption. The Court concluded the term “correspondence” in the statute should be interpreted as “communications by letter,” rather than the more general definition of “written communications” asserted by the Governor. (Id. at 1337.) The Court noted prior to 1975, the CPRA exempted disclosure of all of the Governor’s records, and the Legislature amended the exemption in 1975 to apply only to the correspondence of the Governor or his staff. The Court reasoned “the Governor's suggested definition of correspondence as ‘written communications’ is so broad as to encompass nearly every document generated by the Governor's office, effectively reinstating the original exemption and rendering the 1975 amendment a nullity.” (Ibid.)

In California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159 (CFAC), the Court of Appeal held that application forms exchanged between the Governor’s office and prospective appointees were protected “correspondence.” The evidence showed “all written communication between the Governor's office and applicants for the supervisor’s position was by letter.” (Id. at 165, 168.) The Court reasoned “the correspondence exemption was intended to protect communications to the Governor and members of the Governor's staff from correspondents outside of government. The Governor’s calendar and schedule [discussed in Times Mirror] was a public record when created; its transmission to the Governor within the Governor's office did not alter its character or entitle it to any greater protection than it would otherwise be entitled.” (Ibid.)

More recently, in Rittiman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018 (Rittiman), the Court of Appeal considered a CPRA request seeking “all communications between” CPUC President Marybel Batjer and/or her “principal executive staff,” and members of the Governor's staff. (Id. at 1026.) After analyzing the language and legislative history of the statute, the Court held the Governor’s correspondence exemption “is not limited, as petitioner advocates, to correspondence from private parties, but applies to any writing ‘of and to’ the Governor and his or her staff that qualifies as ‘correspondence’ under the Act.” (Id. at 1049.)

As relevant here, Rittiman also held the correspondence exemption applied to “communications composed or transmitted by way of e-mail or texts.” (Id. at 1050.) The Court reasoned Times Mirror had been decided “in 1991—during a different technological era. . . . It is now three decades later, and we would be ignoring present reality were we to agree with petitioner’s initial take on the correspondence exemption and conclude it applies only to correspondence drafted and delivered through now near-archaic means.” (Id. at 1051.) The Court stated:

“The import of the Supreme Court's holding in Times Mirror Co. is that there is a qualitative distinction between ‘communications’ . . . and ‘correspondence,’ and that only records of the latter sort come within the exemption. Thus, the salient question in the wake of Times Mirror Co., is whether a communication is fairly characterized as correspondence or some other form of written communication, such as a calendar or schedule, a private memo dictated and used solely by the Governor, or a legislative analysis prepared by and for the use of the Governor's office.” (Id. 1051 [emphasis added].)

Respondents contend “[s]ubsequent cases [after Times Mirror] have clarified that ‘correspondence’ is not limited to records taking the form of ‘letters,’ but rather encompasses any written communication transmitted to or from the Governor’s Office.” (Opposition 10:6-8.) The court disagrees with Respondents’ overbroad characterization. CFAC and Rittiman did not change the definition of “correspondence.” Rather, the Courts of Appeal applied the Times Mirror definition “communications by letter” to the specific facts and circumstances of those cases. (Times Mirror, supra, 53 Cal.3d at 1337.)

Respondents also assert, as a factual matter, the calendar records sought by Petitioner are “communications by letter” because Reynolds scheduled meetings by email using Microsoft Outlook. (Opposition 7:8, 11:6-7, 12:19.) Respondents contend “the meeting invitations are categorically exempt from disclosure because they were exchanged by email with parties outside of the Governor’s Office.” (Opposition 12:18-19.) Respondents rely on the declaration of Sapp for support:

“As Senior Advisor for Energy, Ms. Reynolds met and corresponded with a diverse set of parties and stakeholders in the energy sector. For the period relevant to this litigation (January 1, 2021 to December 31, 2021), her meetings were not transcribed in a traditional written calendar. Instead, Ms. Reynolds or an assistant scheduled meetings and appointments using Outlook, a Microsoft software product that allows users to send and receive meeting invitations via email. To schedule a meeting, Ms. Reynolds or an assistant would typically use Outlook’s ‘New Meeting’ function to select a meeting date, time, and location (if applicable), summarize the meeting agenda (as needed), and transmit that information via email to each meeting invitee’s email address. Conversely, a third party could schedule a meeting with Ms. Reynolds by sending an invitation to her email address. During the relevant time period, the Governor’s Office was closed to external visitors due to the COVID-19 pandemic, and our office hosted meetings with external parties via the Zoom videoconferencing platform, using Outlook meeting invitations to send the meeting link to meeting participants. Similarly, for meetings hosted by external parties, staff would receive a meeting invitation with a link to the relevant videoconferencing platform or telephone conference line, as applicable. Like any email, a meeting invitation appears in the recipient’s email inbox and can include a subject line, email body, and attachments. And, like any email, a recipient can respond to, or forward, a meeting invitation. The only practical difference between a standard email and a meeting invitation is that a meeting invitation can be viewed in a calendar-like format in Outlook (unless the meeting request has been rejected), whereas standard emails cannot. The Governor’s Office has always treated Ms. Reynolds’ meeting invitations, as well as those of other senior Governor’s Office staff, as confidential to ensure that current and future advisors to the Governor receive a free flow of candid feedback and input from interested parties.” (Sapp Decl. ¶ 6 [emphasis added].)

The court agrees with Respondents that email meeting invitations between Reynolds and external parties may be viewed as “correspondence” within the meaning of Times Mirror and its progeny. The meeting invitations are exchanged by email. “Like any email, a meeting invitation appears in the recipient’s email inbox and can include a subject line, email body, and attachments. And, like any email, a recipient can respond to, or forward, a meeting invitation.” (Sapp Decl. ¶ 6.) These meeting invitations, themselves, cannot be meaningfully distinguished from the application forms in CFAC or the emails and texts in Rittiman—they are correspondence (albeit email communications) of and to the Governor and his staff. (Rittiman, supra, 80 Cal.App.5th at 1049.) Petitioner develops no argument to the contrary.

However, as noted in reply, Petitioner’s CPRA request did not seek Reynolds’ “meeting invitations.” Instead, Petitioner expressly sought “calendar events” with representatives of the specified entities. (Pet. Exh. E; Reply 1.) Respondents, who have the burden of proof, do not persuasively address this clear distinction between calendar events and meeting invitations in their opposition.[4] (See Opposition 9-12 [arguing correspondence exemption applies to “meeting invitations” with no discussion of calendar events].) Nor did Respondents assert, in denying the CPRA request, they did not understand the term “calendar events” as used by Petitioner.[5] (See Pet. Exh. F.) As stated in reply, the term “calendar events” reasonably refers to a calendar entry—i.e., “what appears on Ms. Reynolds’s calendar [on Outlook or other calendaring system] when she or her assistant send out or accept a meeting invitation received by a third party.” (Reply 1.) Petitioner’s argument then is the Outlook calendar is the modern-day equivalent of a traditional calendar or scheduling book.

Although not entirely clear, Respondents’ position appears to be that calendar events are “correspondence” because they are created by a process that uses email. Thus, Respondents argue:

“Although they can be viewed on the Outlook calendar, the invitations are fundamentally emails: they were transmitted to or from the Governor’s Office via email. . . . the meeting invitations are unlike ‘some other form of written communication,’ such as a memorandum or internal appointment calendar, which may communicate information to a reader but is not exchanged outside of the Governor’s Office. . . . Because these invitations were exchanged with parties outside of the Governor’s Office, they are ‘correspondence’ and exempt from disclosure.” (Opposition 11:5-16 [emphasis added].)

Respondents focus their argument on the emailed “meeting invitations” instead of the requested calendar events. Respondents’ argument is unpersuasive. Cloaking calendar information communication within the confines of an electronic program does not convert the basic calendar information communication into protected correspondence.

As noted, Respondents have the burden of proof on the exemption. Respondents provide no exemplars of the “Outlook meeting invitations” or the resulting entries as calendar events on an Outlook calendar. It is clear from the evidence, however, basic calendar information such as “a meeting date, time, and location (if applicable), summarize the meeting agenda (as needed)” are populated to an Outlook calendar entry. (Sapp Decl. ¶ 6.)

As described by Sapp, the Outlook software enables the user “to select a meeting date, time, and location (if applicable), summarize the meeting agenda (as needed), and transmit that information via email to each meeting invitee’s email address.” (Sapp Decl. ¶ 6.) This information is transmitted in the emailed meeting invitation.

Significantly, Sapp also declares that a calendar event “can be viewed in a calendar-like format in Outlook (unless the meeting request has been rejected).” (Sapp Decl. ¶ 6.) Thus, the evidence supports the finding a calendar event entry appears on the Outlook calendar (a modern-day version of an appointment calendar) and is not, itself, email correspondence—it is a communication of calendar appointment information. Thus, the software program creates an event on the Outlook calendar segregable from any email message communication.

Given the narrow construction afforded CPRA exemptions, the court is not persuaded the basic facts of the meeting, as shown as a “calendar event” on the Outlook calendar—i.e., date, time, location, attendees, and meeting agenda (as needed)—fall within the scope of the correspondence exemption—the information is a communication, not correspondence. Such information is closely comparable to that available on traditional appointment calendars and schedules. That the basic information about the calendaring event appears in an email communication (a meeting invitation) does not suggest all the information communicated constitutes “correspondence.”

In Times Mirror, decided in 1991, evidence demonstrated the Governor’s calendars were produced through a process in which the Governor’s scheduling secretary reviewed “requests for meetings and invitations.” (Times Mirror, supra, 53 Cal.3d at 1330.) Given the decade, it is reasonable to infer many of the “requests” and “invitations” for meetings were made by letter to the Governor’s office and such letters would have qualified as exempt under the correspondence exemption. That the calendar entries resulted as the end result of such communication did not qualify the Governor’s calendars—i.e., the calendar events—as exempt under the correspondence exemption to the CPRA.

While technology has changed since Times Mirror, the basic process for creating a calendar event has not. A calendar event is still, in effect, an internal scheduling document generated by the Governor’s office that records the invitees or attendees, date, time, and location of a meeting. As in Times Mirror, the fact that the calendar event may be preceded by a communication of letters (i.e., a meeting invitation) does not, standing alone, qualify the resulting calendar event as exempt from disclosure pursuant to the correspondence exemption.

Neither CFAC nor Rittiman support a different conclusion. The application forms in CFAC were transmitted as part of an exchange of “letters;” included the applicants’ confidential responses to questions; and were functionally indistinguishable from letters. In Rittiman, in relevant part, the Court extended Times Mirror to an exchange of emails, which is the current-day equivalent of communication by letters. Neither case suggests a calendar event on an Outlook calendar alone falls within the correspondence exemption of the CPRA.

The court acknowledges the evidentiary record is not entirely clear as to how the “calendar events” appeared on Reynolds’ calendar in 2021. Nonetheless, the burden of proof is on Respondents to prove the applicability of the exemption and to show there is no “segregable” information subject to disclosure. (§ 7922.525, subd. (b).) Respondents did not meet that burden here.

The court also recognizes the process for scheduling a meeting that populates to the Outlook calendar, as described by Sapp, involves an exchange of emails. Those meeting invitations themselves were not requested (and may fall within the scope of the correspondence exemption). To the extent Respondents contend the calendar events themselves contain substantive email messages to or from Reynolds, meeting invitees, or external meeting schedulers, Respondents could have properly redacted such (unrequested) information when responding to Petitioner’s CPRA request. Pursuant to the CPRA, “[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” (§ 7922.525, subd. (b).)

Based on the foregoing, Respondents were not authorized by the correspondence exemption to withhold the calendar events sought by Petitioner, specifically the entries populated to Reynolds’ Outlook calendar showing the invitees, attendees, time, date, location of a meeting, and meeting agenda (as needed). To the extent email correspondence or messages are directly viewable or accessible in a calendar event, Respondents may redact such information as unrequested. (§ 7922.525, subd. (b).) However, any such redactions should not include basic calendar information—date, time, attendees, location and meeting agenda (as needed).

Respondents also contend they properly withheld disclosable documents pursuant to section 7922.000 and the deliberative process privilege.

The catchall exemption in section 7922.000 (formerly section 6255) “allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.” (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1017 [emphasis added].) “The burden of proof is on the proponent of nondisclosure, who must demonstrate a ‘clear overbalance’ on the side of confidentiality.” (Id. at 1018.)

“Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.” (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 305.)

To analyze a claim of deliberative process privilege, “the 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.’ ” (Times Mirror, supra, 53 Cal.3d at 1342; see also Labor & Workforce Development Agency v. Superior Court (LWDA) (2018) 19 Cal.App.5th 12, 30-31.)

In a CPRA proceeding, as with the general catchall exemption, the government agency claiming the deliberative process exemption must show on the facts of a particular case “the public interest in nondisclosure clearly outweighs the public interest in disclosure.” (Citizens for Open Government v. City of Lodi, supra, 205 Cal.App.4th at 306 [emphasis added]; see Times Mirror, supra, 53 Cal.3d at 1344.) “To carry its burden, the [government agency] must describe the justification for nondisclosure with reasonably specific detail and demonstrate that the information withheld is within the claimed privilege or exemption.” (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 790.) “Conclusory or boilerplate assertions that merely recite the statutory standards are not sufficient.” (Ibid.)

Respondents contend the requested calendar events are protected by the deliberative process privilege because “disclosing with whom Ms. Reynolds engaged would expose ‘the substance or direction of the Governor’s judgment and mental processes’ by revealing his priorities and deliberative choices . . . .” (Opposition 15:8-10.) Respondents contend a series of cases applying the deliberative process privilege to CPRA requests are “directly on point.” (Opposition 14:27; see Times Mirror, supra, 53 Cal.3d 1325; Rogers v. Superior Court (1993) 19 Cal.App.4th 469; and LWDA, supra, 19 Cal.App.5th at 12.)

In Times Mirror, our Supreme Court held the deliberative process privilege applied to a CPRA request for nearly five years of the Governor’s appointment calendars and schedules. The Court reasoned, in summary, as follows: “Disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes; such information would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment. The intrusion into the deliberative process is patent.” (Times Mirror, supra, 53 Cal.3d at 1343.) Further, “[c]ompelled disclosure could thus devalue or eliminate altogether a particular viewpoint from the Governor's consideration. Even routine meetings between the Governor and other lawmakers, lobbyists or citizens’ groups might be inhibited if the meetings were regularly revealed to the public and the participants routinely subjected to probing questions and scrutiny by the press.” (Id. at 1344.) The Court found the public interest in the records—a general interest in knowing “how [the Governor] performs his duties”—was insufficient to risk impairing the Governor’s deliberative process. (Id. at 1344-1345.)

Significantly, however, our Supreme Court stressed its analysis was based on the specific facts before it. The Court stated: “Lest there be any misunderstanding, however, we caution that our holding does not render inviolate the Governor's calendars and schedules or other records of the Governor's office. There may be cases where the public interest in certain specific information contained in one or more of the Governor's calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited; then, the court might properly conclude that the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.” (Id. at 1345-1346.)

In Rogers v. Superior Court, the Court of Appeal considered a journalist’s request for one year of telephone bills of city council members; found Times Mirror “indistinguishable”; and upheld the city’s nondisclosure of the telephone bills. The Court reasoned: “There is no meaningful distinction between the appointment calendars and schedules of the Governor and the telephone bills of a city council member. In both cases, disclosure of the records sought will disclose the identity of persons with whom the government official has consulted, thereby disclosing the official’s mental processes. In both cases, routine public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.” (Rogers v. Superior Court, supra, 19 Cal.App.4th at 479-480.) Given the “nonspecific and unfocused nature of the request,” the Court found the journalist’s interest in the records—to verify whether special interests contacted and influenced council members—was not sufficiently compelling to justify chilling the flow of information to city policymakers. (Id. at 477, 480-481.)

Finally, in LWDA, an agency helping to draft piece-rate wage legislation “sought confidential input from key stakeholders including representatives of business and labor.” (LWDA, supra, 19 Cal.App.5th at 18.) When an employer requested emails exchanged with a union, the agency redacted the correspondents’ identities. (Id. at 20.) Citing Times Mirror, the Court ruled the identities were protected deliberative information. (Id. at 27.) The Court found revealing the stakeholders’ identities “will tend to dissuade stakeholders on issues subject to future legislative efforts from commenting frankly, or at all, on matters for which only varying viewpoints can provide a more complete picture.” (Id. at 30.) The Court held the employer’s interest in the records–apparently, to test a theory that the agency amended the legislation to procure union support–was insufficient to justify public disclosure. (Id. at 19-20, 31.)

In his declaration, Sapp attests “[t]he Senior Advisor for Energy is the Governor’s lead expert on all matters concerning energy policy. A member of the Governor’s Cabinet Team, the Senior Advisor for Energy advises the Governor and helps craft and advance energy policy at the highest level within the Governor’s Office.” (Sapp Decl. ¶ 2.) Sapp also declares the Governor’s office “treats its senior advisors’ correspondence and meeting records as confidential to ensure that the Governor and his senior staff receive candid feedback from a diverse set of interested parties”; “the Governor has limited time and relies on his senior advisors to advance his priorities”; and “[t]reating correspondence and meeting records as confidential also promotes better policy by ensuring that the Governor’s senior advisors have latitude to explore new or unconventional ideas.” (Id. ¶¶ 3-5.) Significantly, however, Sapp also acknowledges that “the Governor voluntarily shares his own public calendar upon request.” (Id. ¶ 11.)

The court finds there is some public interest in non-disclosure of the calendar events records at issue. Although Petitioner seeks only a limited subset of Reynold’s calendar events for 2021, disclosure of the calendar records could partially reveal the “substance or direction” of Reynold’s and the Governor’s deliberations and mental processes with respect to energy policy. Disclosure could also possibly discourage stakeholders from meeting with the Governor’s senior advisors in fear that they would be “subjected to probing questions and scrutiny by the press.” (Times Mirror, supra, 53 Cal.3d at 1344.)

The public interest in non-disclosure here, however, is substantially less than that in Times Mirror and Rogers v. Superior Court.

First, Reynolds’ position is solely related to energy policy—she held a subject-matter limited position within the Governor’s office. The calendar events sought by Petitioner relate to stakeholders in energy policy generally. (See Sapp Decl. ¶ 6.) The circumstances here are distinct from those involving the sweeping and broad power of the state’s governor. The Senior Advisor for Energy is unlike a governor and the extensive policymaking in which the governor engages where meetings with diverse individuals can signal and disclose information about a governor’s deliberative process. That Reynolds was meeting with stakeholders in the energy sector is unremarkable and does not disclose her overall thought processes given her position and its purview. Reynolds’ situation is distinct from the that in Times Mirror:

“Disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor’s judgment and mental processes; such information would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment.” (Times Mirror, supra, 53 Cal.3d at 1343.)

Additionally, Petitioner seeks disclosure of calendar events for Reynold’s meetings with only 10 entities—energy policy stakeholders—for a one-year period. Petitioner does not seek a “wholesale production” of all of the calendar events of broad-based policymaker (as the requestors did in Times Mirror and Rogers), and the time period at issue is also substantially less than the five years at issue in Time Mirror.[6] Finally, Petitioner’s CPRA request is targeted as to only 10 entities—stakeholders in energy policy—and does not disclose the universe of other individuals with whom Reynolds met in 2021.

The public interest in non-disclosure is also not comparable to that in LWDA. In that case, the Court upheld non-disclosure of the “identities of persons with whom [the agency] communicated confidentially during the predecisional phase of gathering information for the drafting of Assembly Bill 1513.” (LWDA, supra, 19 Cal.App.5th at 31.) Respondents, who have the burden of proof, have not presented evidence suggesting disclosure of the calendar events at issue will reveal Reynolds’ or the Governor’s mental processes with respect to any specific item of legislation or policy—again, that Reynolds met with energy sector stakeholders is unremarkable given her position. Nor have Respondents presented declarations from a single energy stakeholder entity suggesting the entity would be hesitant to meet with the Governor’s senior advisor or comment on energy policy in the future if the calendar events are made public.

“ ‘If the records sought pertain to the conduct of the people’s business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.’ . . . . [I]n assigning weight to the general public interest in disclosure, courts should look to the ‘nature of the information’ and how disclosure of that information contributes to the public's understanding of government.” (Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1268.)

As described by Petitioner, its CPRA request seeks disclosure of “one year’s worth of calendars for a specific person who had recently left the Office of the Governor to lead the CPUC and specifically asked for portions of Ms. Reynolds’s calendar containing meetings with the CPUC and other utility groups that she now regulates as President of the CPUC.” (Opening Brief 13:10-13.) Petitioner contends Reynolds’ appointment, standing alone, shows a public interest in disclosure. (Reply 4.) The court agrees.

The public has a substantial interest in learning the extent to which the current president of the CPUC was meeting with the CPUC and the utilities regulated by the CPUC, as a Senior Advisor to the Governor, during the year preceding her appointment (January 2021 through December 2021.) While that public interest may not justify a “wholesale production” of Reynolds’ calendar events for 2021, it supports a more narrowly tailored request for calendar records of meetings with the CPUC and the regulated utilities, Sempra Utilities, San Diego Gas & Electric, Southern California Edison, and Pacific Gas & Electric.

Further, Petitioner submits undisputed evidence, other than the CPUC, the entities for which it seeks calendar events are either utilities that “would benefit directly from net metering tariffs that discouraged rooftop solar” or “groups that were members of a public relations campaign sponsored by the utility companies called ‘Affordable Clean Energy For All’ that supported the utility’s [sic] position on net metering. . . .” (Kasper Decl. ¶ 16.) Petitioner also submits undisputed evidence the CPUC’s proposed net metering tariffs, which were adopted on December 17, 2021, shortly before Reynolds’ appointment became effective, “sparked significant backlash because it would reduce the value that rooftop solar customers, including schools, nonprofits, and businesses, receive for exporting clean energy back to the grid and implement a new solar-only fee.” (Kasper Decl. ¶ 8.) These circumstances further show a substantial public interest in the calendar event records at issue.

Respondents do not dispute the substantial public interest in the revisions to the net metering program. Nor do Respondents seriously dispute the public has an interest in learning whether the current president of the CPUC was regularly meeting with utilities the CPUC regulates in her prior position with the Governor’s office the year prior to her appointment to the CPUC. (See Opposition 15-16.)

Respondents contend Petitioner’s “only claim is that Ms. Reynolds might have discussed the net metering program with interested parties while she was employed at the Governor’s Office”; and the “claim is speculative [because Petitioner] offers no evidence such meetings occurred.” (Opposition 16:4-7.)

Respondents’ argument is not persuasive and, if anything, actually confirms the public interest in Petitioner’s CPRA request. Respondents admittedly possess calendars responsive to the CPRA request. Respondents also admit the “Senior Advisor for Energy is the Governor’s lead expert on all matters concerning energy policy.” (Sapp Decl. ¶ 2.) The evidence shows, in 2021, net metering was an important matter of energy policy in California. One purpose of the CPRA request and this lawsuit is for Petitioner to obtain “evidence” that Reynolds met with the specified groups during a particular timeframe surrounding the net metering decisions and her appointment to the CPUC. (See Reply 8 and Pet. ¶¶ 5, 24-27.) Respondents, not Petitioner, have the burden to show “clearly” that Petitioner should be precluded under the CPRA from obtaining the public, government records Petitioner seeks.

Respondents also contend Petitioner’s CPRA request “fails to target ‘specific information’ of interest” and “remains overly broad: it seeks events created over a full calendar year and is not limited to any specific subject matter.” (Opposition 16:16-20.) However, as Respondents acknowledge, the CPRA request is much narrower than that in Times Mirror and Rogers v. Superior Court. Further, Respondents have not explained, either in their CPRA correspondence or opposition brief, how Petitioner could further narrow the request to obtain release of documents. Indeed, Respondents argue “[e]ven if [Petitioner] had limited its request to meetings relating to the net metering program, the request would remain overly broad by targeting meetings over a full calendar year, and because [Petitioner] has not identified any compelling public interest in viewing those records.” (Opposition 16, n. 5.) Respondents suggest even a narrower request for calendar events would be subject to the deliberative process privilege and any request for Reynolds’ calendar events, even if more tailored, would be denied.

Having considered the public interests asserted by Petitioner and Respondents, and the evidence in the record, the court finds the balancing of interests to fall on the side of public disclosure and open access to government records. Respondents, with the burden of proof on exemptions, have not shown with evidence there is a “clear overbalance” on the side of confidentiality. The CPRA must be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.” (See National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, supra, 9 Cal.5th at 507.) Respondents do not show the requested calendar events are exempt from disclosure pursuant to the deliberative process privilege and catchall exemption.

Petitioner argues Respondents failed to comply with the requirements of section 7922.600 “by denying the request in full without assisting [Petitioner] in formulating a request that would result in disclosure of documents.” (Opening Brief 15:13-16:12.) Petitioner alleged this claim in the petition. (Pet. ¶¶ 27, 31, 37 and Prayer ¶ 1.)

(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

Respondents argue Petitioner “had no difficulty describing identifiable records. The problem with [Petitioner’s] request was not one of discernibility—it was one of disclosability.” (Opposition 19:4-5.) Respondents point out, pursuant to section 7922.605, subdivision (c), the duty to assist does not apply if “an agency ‘determines that the request should be denied and bases that determination solely on an exemption listed in Section 7920.505.’ ” (Opposition 19:8-10 [quoting § 7922.605][emphasis added].)

Here, the correspondence exemption is an exemption listed in section 7920.505. The catchall exemption and deliberative process privilege, however, are not exemptions listed in section 7920.505. Arguably, section 7922.605 may be reasonably interpreted such that the duty to assist does not apply if a CPRA request is denied in full based on an exemption listed in section 7920.505, as was the case here. Moreover, even if section 7922.605, subdivision (c) does not apply here (since Respondents also relied on the catchall exemption), Respondents did not have a sufficient “practical basis” to provide suggestions for further amending the CPRA request given their determination that the responsive records were fully exempt. While the court finds Respondents erred in withholding the calendar events pursuant to the correspondence exemption and catchall exemption/deliberative process privilege, the court does not find that Respondents breached the duty to assist in section 7922.600. Petitioners substantially narrowed the request in response to Sapp’s comments; Respondents located responsive records and found them to be entirely exempt. From the court’s perspective, it appears the parties reasonably reached an impasse.

The court has considered Respondents’ remaining contentions that Proposition 59 did not curtail the deliberative process privilege; the privilege may apply to factual information; and Respondents need not show that the information is “predecisional.” (See Opposition 17-18.) Even if Respondents are correct on all three points, the court’s analysis does not change. Accordingly, the court need not reach these contentions.

The petition is GRANTED IN PART. The court will issue a writ directing Respondents to produce the calendar events requested in the CPRA request. (Pet. Exh. F.) Respondents may redact information not requested (i.e., meeting invitations) which may be viewable from the Outlook calendar entries.

The court finds, and the writ shall specify, redactions of any calendar events may not include the invitees, attendees, time, date, location of the meeting, and meeting (as needed).

[1] All further undesignated statutory references are to this code.

[2] The Legislature recodified the CPRA at section 7921.000 et seq. effective

[3] Kasper also declares: “In December 2022, the CPUC adopted D.22-12-056, establishing the Net Billing tariff as a successor to NEM 2.0. Under the adopted policy, solar installations are expected to remain flat in 2023 and then decrease 40 percent in 2024 and continue to decline each year through at least 2027.” (Kasper Decl. ¶ 10.)

[4] Indeed, after Petitioner discussed its request with Sapp, Petitioner amended its CPRA request to reflect calendar events instead of calendars.

[5] As noted, Petitioner amended its CPRA request after conferring with Sapp.

[6] The court acknowledges Rogers v. Superior Court found one year of disclosure of telephone records to be a similar burden as the five years in Times Mirror. City Councilmembers are like the governor in that their power is extensive and broad based. Further, the Court of Appeal in Rogers v. Superior Court stressed “it is the nonspecific and unfocused nature of the request which is dispositive, not its time period.” (Rogers v. Superior Court, supra, 19 Cal.App.th at 480.) The Court did not consider whether there would be less public interest in non-disclosure if a narrowly worded request was limited to a one-year period.