Judge Stephen I. Goorvitch, Case Number: 23STCP00869, Date: 2024-08-14 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP00869, Date: 2024-08-14 Tentative Ruling

Keep Bel-Air Beautiful (“Petitioner”) petitions for a writ of mandate directing the Los Angeles County Metropolitan Transportation Authority (“Respondent” or “Metro”) to comply with Petitioner’s requests for public records under the California Public Records Act (“CPRA”). Petitioner seeks “materials necessary to understand Metro’s analysis” of the Sepulveda Transit Corridor Project (the “project”), including “its proposal to tunnel below Bel-Air, as well as to determine what, if any, public outreach was conducted.” (Opening Brief (“OB”) 6:7-9.)

Metro admittedly withheld and redacted public records that are responsive to Petitioner’s CPRA request. Of particular relevance, Metro has asserted that certain records are exempt pursuant to the deliberative process privilege and the catchall exemption of the CPRA. To justify such claims of exemption, Metro must prove that “the public interest in nondisclosure clearly outweighs the public interest in disclosure.” (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 305.) Specifically:

[The] declarations supporting the agency’s claims of exemption must be specific enough to give the requester a meaningful opportunity to contest the withholding of the documents and the court to determine whether the exemption applies. The agency must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.

(Golden Door Properties, LLC v. Sup. Ct. (2020) 53 Cal.App.5th 733, 790, citations and internal quotations and alterations omitted.) Metro has not provided sufficient information for the court to evaluate its claims of exemption and privilege with respect to any specific public record. Metro does not identify specific documents and does not analyze the exemptions with respect to those specific documents. Therefore, the court (reluctantly) continues this hearing to afford Metro “an opportunity to file supplemental declaration(s) in the superior court containing information from which the court may make an informed decision on privilege and exemption claims.” (Id. at 792.)

According to a Fact Sheet published by Metro, “Metro is conducting an environmental review for the Sepulveda Transit Corridor Project, which will create a high-quality, reliable rail transit service alternative connecting the San Fernando Valley and the Westside.” (Helpern Decl. ¶ 35, Exh. LL.) “Funding for planning and construction of the Sepulveda Transit Corridor is provided partially by Measure M with the project scheduled to open between the San Fernando Valley and the Westside in 2033–2035 ($5.7 billion) and a future extension to LAX opening in 2057–2059 ($3.8 billion).” (Ibid.) “This project is currently in the planning phase. An environmental review is underway analyzing six alternatives with varying potential routes and modes. Metro is working with two private sector proposers, LA SkyRail Express (monorail) and Sepulveda Transit Corridor Partners (heavy rail), under a first-of-its-kind pre-development agreement to potentially accelerate delivery of this project.” (Ibid.; see also Coppolo Decl. ¶¶ 2-8 [discussing pre-development agreements and deliverables]; and Carter Decl. ¶¶ 3-27 [discussing project feasibility study and environmental review process].)

Pursuant to the California Environmental Quality Act (“CEQA”), Metro released a Notice of Preparation of a Draft Environmental Impact Report (“NOP”) for the Project on November 30, 2021. (Carter Decl. ¶ 12.) Metro contracted with HTA Partners (“HTA”) to prepare a draft environmental impact report (“DEIR”). (Id. ¶¶ 11, 22.) HTA is required to complete multiple “tasks” and “subtasks,” including preparation of technical analyses on potential environmental impacts of the Project. (Id. ¶ 22.) This environmental review process under CEQA is ongoing and has not been completed. (Id. ¶ 26.)

On November 22, 2022, Petitioner submitted a CPRA request to Metro seeking approximately 40 categories of records for the period of January 1, 2012, to November 22, 2022 (“Request”). (Petition for Writ of Mandate (“Pet.”) ¶ 15, Exh. A; and Answer (“Ans.”) ¶ 15.) The Request seeks production of records related to Metro’s public communications regarding the Project, such as “all records containing any draft responses to written questions from the public regarding the [Project].” (Pet. Exh. A.)

The Request also seeks production of numerous categories of records related to technical and financial attributes of the Project, as well as other Metro projects. Examples of the specific categories of requests include the following:

a. Produce all records relating to the decision(s) to consider tunneling under the Sepulveda pass.

h. Produce all records relating to Pre-Development Agreements and/or contracts for Public Private Partnerships with respect to the [Project].

a. Produce all records showing any analysis of safety issues relating to the [Project.]

b. Produce all records relating to the safety issues that caused the shut-down of the Purple (D) Line Extension project.

f. Produce all records showing any analysis of the potential for criminal activity on all existing or planned LACTMA trains, including [the Project].

a. Produce all records containing any budget forecasts or actual budgets for the [Project].

On December 2, 2022, Metro informed Petitioner that it needed an additional 14 days to respond to the CPRA Request. On December 16, 2022, Metro informed Petitioner that it was still searching for records and that “[d]ue to the number of records requested and the upcoming holidays, we anticipate this will require another 30 days to complete.” (Helpern Decl. Exh. C, D.)

In a declaration, David Lor, Metro’s Senior Manager for Information Governance, explains, in very general terms, the process by which Metro searched for records responsive to the CPRA Request. Metro “determined that the following departments had potentially responsive records: Metro Countywide Planning & Development, Project Management, Community Relations, the Board Clerk, System Security and Law Enforcement, and Community Relations, and Office of Strategic Innovation staff.” (Lor Decl. ¶ 6.) Heads of each of these departments participated in searching for the public records responsive to the CPRA Request. (Id. ¶¶ 7-10.)

On January 13, 2023, Metro produced its first set of responsive documents to Petitioner. (Id. ¶ 6.) Metro also advised Petitioner on that date that it would need additional time to search for responsive records and complete production. (Ibid.; see Helpern Decl. Exh. F.) On March 20, 2023, while Metro’s production was ongoing, Petitioner filed this writ petition.

At times, Metro has made requests to Petitioner for clarifications of certain parts of the Request. (Hamouie Decl. ¶ 21, Exh. B, E, H, I.) On July 27, 2023, Petitioner responded to one such request for clarification by “explaining that when it stated that it seeks ‘all records relating to contracts related to the [Project]’ it really meant that it was seeking all deliverables provided to Metro pursuant to Metro Contract PS 4044200, Metro Contract AE 67085000, Metro PreDevelopment Agreement Contract PS66773HRT, and Metro Pre-Development Agreement Contract PS66773MRT, ‘as well as any preliminary drafts thereof and any related documentation—including internal written correspondence and written correspondence with contractors and subcontractors.’” (Id. ¶ 22, Exh. N.) Metro interpreted Petitioner’s July 27, 2023, letter as a new CPRA request and provided an estimated production date of December 29, 2023. (Id. ¶ 23.)

In total, Metro made about 15 productions of records between January 13, 2023, and December 15, 2023, in response to the Request. Metro has produced more than 25,000 pages of records in response to the Request. (Hamouie Decl. ¶¶ 13-20.) Metro has also asserted that responsive records (or parts thereof) are exempt from production on various grounds.

Counsel for Petitioner and Metro have met and conferred, at some length, regarding these exemptions. (See Id. ¶ 28 and Helpern Decl. Exh. Z-DD.) During the meet and confer, Petitioner’s counsel asserted that for records withheld or redacted based on privilege, Petitioner “needs more information about why the privilege supposedly applies.” (Helpern Decl. Exh. BB.) In response, Metro asserted that it “is not required to prepare a privilege log under the Public Records Act. (See Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1075.)” (Helpern Decl. Exh. CC.)

Pursuant to the CPRA, Government Code sections 7921.000, et seq., individual citizens have a right to access government records. [1] In enacting the CPRA, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 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 that the CPRA be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.” (See Nat’l Lawyers Guild 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.” (Gov. Code § 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.” (Gov. Code § 7922.525(b).)

Metro contends: “Bel-Air has failed to overcome the presumption that Metro complied with the Act and fails to to [sic] identify records improperly withheld. Metro has produced records responsive to all categories Bel-Air asserts are missing from the production. Records Bel-Air asserted were missing during meet and confer discussions Metro has already explained have either: (1) already been produced; (2) were not in Metro’s possession; or (3) are exempt from disclosure pursuant to the Act’s multiple express and the ‘catch-all’ exemption. No further action is required.” (Oppo. 7:16-21.)[2]

Metro misperceives its burden of proof in this CPRA action. “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 Sup.Ct. (2019) 31 Cal.App.5th 528, 538.) However, the petitioner establishes this initial burden, the agency has the burden to prove that public records have been properly redacted or withheld from disclosure. (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) “[B]ecause the party opposing disclosure under any CPRA exemption always bears the burden of proving the exemption applies … on the facts, doubtful cases must always be resolved in favor of disclosure.” (Essick v. County of Sonoma (2022) 81 Cal.App.5th 941, 950.) While government agencies are generally “entitled to a presumption that they have reasonably and in good faith complied with the obligation to disclose responsive information … that presumption cannot be permitted to obstruct the prodisclosure [sic] purposes of the [C]PRA.” (ACLU of Northern Cal. v. Sup.Ct. (2011) 202 Cal.App.4th 55, 83.)

To carry its burden, the [agency] must describe the justification for nondisclosure with reasonably specific detail and demonstrate that the information withheld is within the claimed privilege or exemption. This process cannot require an agency to disclose the very information it seeks to protect. Having both the burden of proof and all the evidence, the agency has the difficult task of justifying its withholding the documents without compromising that very act by revealing too much information. However, declarations supporting the agency’s claims of exemption must be specific enough to give the requester a meaningful opportunity to contest the withholding of the documents and the court to determine whether the exemption applies. The agency must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information. Conclusory or boilerplate assertions that merely recite the statutory standards are not sufficient. A statement is

conclusory ... where no factual support is provided for an essential element of the claimed basis for withholding information.

Here, it is clear that Metro withheld and/or redacted public records that are responsive to the Request. Indeed, Metro has admitted as much in its correspondence with Petitioner and in its opposition brief. (See, e.g., Helpern Decl. Exh. Y, AA; see Oppo. 7:22-23, 11:10-13, and 14-19.) Accordingly, Petitioner has met its initial burden of proof in this writ action as to those withheld and redacted records. The burden shifts to Metro to provide sufficiently detailed declarations or other evidence to justify nondisclosure of the withheld records and redacted information. For the reasons discussed below, Metro has not provided sufficient information from which the court can make an informed decision on Metro’s privilege and exemption claims.

Metro entered into predevelopment agreements (“PDAs”) as part of a procurement process that “engages the private sector during the early planning and predevelopment stages of a project working with an owner to determine whether a project is feasible, viable, and whether the owner should move forward with development of a project.” (Scott Decl. ¶ 5.) Metro takes the position that the “deliverables” from the contractors must be treated as confidential to protect “their unique ideas and work products as part of a competitive process.” (Id. ¶ 8.) Metro seeks to withhold these documents pursuant to: (1) The catchall exemption under Government Code section 7922.000, and (2) The deliberative process privilege.

The catchall exemption in Government Code section 7922.000 “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.) “The burden of proof is on the proponent of nondisclosure, who must demonstrate a ‘clear overbalance’ on the side of confidentiality.” (Id. at 1018, citations omitted.)

“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.) In a CPRA action, the government agency claiming the deliberative process exemption must show that on the facts of a particular case “the public interest in nondisclosure clearly outweighs the public interest in disclosure.” (See Citizens for Open Government, supra, 205 Cal.App.4th at 306; see also Times Mirror Co., supra, 53 Cal.3d at 1344.) “To carry its burden, [Metro] 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, supra, 53 Cal.App.5th at 790.) “Conclusory or boilerplate assertions that merely recite the statutory standards are not sufficient.” (Ibid.)

Petitioner does not dispute that either or both of these exemptions may apply to some of the PDA deliverables. Petitioner states: “While it may be true that some documents prepared as part of this process could properly be shielded from disclosure, there is no hard and fast rule that every record pertaining to a current negotiation or bidding process is exempt from disclosure.” (Petitioner’s Reply Brief, 8:14-16, emphasis in original.) The court agrees with Petitioner. Metro argues that the public interest “clearly” weighs in favor of nondisclosure of certain records. (Oppo. 14-18.) However, Metro does not adequately describe the PDA deliverables at issue, and the court shares Petitioner’s concern that Metro is taking a “blanket approach” to all documents in the PDA process. Simply, the court does not have sufficient information to evaluate the issue.

According to the declaration of Peter Carter, Metro’s Senior Director in Countywide Planning & Development, the PDA deliverables include “unvetted draft technical material addressing the cost and environmental and community impacts of the alternatives identified in the NOP.” (Carter Decl. ¶ 29; see also Id. ¶ 22 [“HTA’s scope of work includes 12 tasks and multiple subtasks.”].) Carter opines:

A premature release of pre-“camera-ready” HTA deliverables would interfere with Metro’s ability to effectively engage with and reach consensus with the [Federal Transit Administration] regarding the content of the EIS that is required to be adopted by the FTA prior to granting federal funding or other approvals for the Project” and “would also interfere with Metro’s ability to finalize both the DEIR and the DEIS by generating public and public agency inquiries regarding the technical and legal adequacy of preliminary analyses which have not been verified by Metro and its public agency partners.

(Carter Decl. ¶¶ 30-31; see also Coppolo Decl. ¶ 8 [asserting that confidentiality of the PDAs “is imperative”].) This declaration does not specify what documents are included in the determination.

Two of Metro’s declarations, those of Carolina Coppolo and Peter Carter, provide general information about the PDAs, PDA deliverables, and the DEIR process. However, the court cannot balance the interests for and against disclosure in the abstract and without more specific information concerning each of the withheld records. Further, even if Metro were to prove that the privilege applies to some or all of the withheld records, Metro must also show that no information in the withheld public records is “segregable.” (See Gov. Code § 7922.525(b) [“Any reasonably segregable portion of a record shall be available for inspection … after deletion of the portions that are exempted by law.”]) Metro’s opposition does not make that showing.

Metro’s remaining declarations do not provide sufficient information. David Lor, Metro’s Senior Manager for Information Governance, explains only in general terms the process by which Metro searched for records responsive to the CPRA Request. (Lor Decl. ¶¶ 6-9.) Sid Scott provides generalized information about PDAs. While he opines that confidential work products would “typically” include certain types of documents, he does not discuss any specific records at issue in this case. (Scott Decl. ¶ 8; see also Id. ¶¶ 9-11) Scott’s discussion of “specific examples of deliverables under the Sepulveda Corridor PDA” lacks reference to any actual records that were withheld or redacted by Metro. (Id. ¶ 10.) Further, Scott, an outside consultant, does not show that he has personal knowledge of Metro’s search for responsive records and of the records that were actually withheld or redacted by Metro. (Id. ¶¶ 2-4.)

Similarly, declarations from litigation counsel did not provide sufficient information. In her declaration, Maya Hamouie reproduces parts of Metro’s letter dated February 2, 2024, to Petitioner’s counsel, in which Metro argued that certain records were properly withheld pursuant to the catchall exemption and deliberative process privilege. (Hamouie Decl. ¶ 28; see also Helpern Decl. Exh. AA [February 2, 2024, letter].) Metro’s February 2, 2024, letter is not verified under penalty of perjury, and Hamouie did not show personal knowledge of the contents of each of the records identified in that letter or the reasons for non-disclosure. More important, this letter does not appear to provide a comprehensive list of the withheld records and the letter lacks sufficient information about each withheld or redacted document to support a determination that the specified records were properly withheld or redacted. As examples, the February 2, 2024, letter describes the first two withheld records as follows:

From this information—the title of the record and the contract “task” to which it relates—the court cannot make an informed decision about whether there is a “clear overbalance” on the side of confidentiality for any specific record. Nor can the court make an informed decision about whether any information in the records is “segregable.”

Notably, “the deliberative process privilege itself applies only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.” (State v. Sup.Ct. (2024) 101 Cal.App.5th 214, 237.) “Thus, even without [Petitioner] stating a specific reason for its PRA request, there already is weight on the scale in favor of disclosure that [Metro] must overcome to assert the deliberative process privilege.” (Ibid.) That there is “weight of the scale in favor of disclosure” is an additional reason that Metro must provide sufficiently detailed declarations to justify withholding public records under the catchall exemption.

Metro argues that it was not required “to provide detailed affidavits supporting the public interest in nondisclosure before Bel-Air filed this litigation.” (Oppo. 17:7-8 [bold italics in original].) Metro is correct that it did not have an obligation to produce a privilege log or “detailed affidavits” in response to the Request and before Petitioner filed this litigation. (See Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1075.) However, now, the issue is whether Metro has provided sufficient information to support a determination, by this court, with respect to claims of exemption asserted by Metro. The California Supreme Court and Court of Appeal have held that a court may order the agency to prepare a privilege log or provide more detail declarations if such evidence is necessary to resolve a pending lawsuit concerning the agency’s duty of disclosure under the CPRA. (Id. at 1072-1073; see also Golden Door, supra, 53 Cal.App.5th at 790.) If Metro hopes to prevail in this proceeding, it must provide sufficient information for the court to evaluate the claims of exemption.

In sum, the court agrees with Metro that some of the PDA deliverables are likely exempt, and the court agrees with Petitioner that Metro appears to be applying a blanket approach to the documents. Metro does not provide sufficient information for the court to evaluate its claims of exemption, e.g., identification of specific documents that were withheld, the reasons why disclosure would the public interest would be served by non-disclosure, etc. The closest Metro comes is in the declaration of Sid Scott, but it is not even clear this is the list of documents that was withheld. This is not sufficient. (See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), recognizing that “[j]udges are not like pigs, hunting for truffles buried in the briefs [or the record].”)

First, Metro argues that “preliminary cost estimates and feasibility reports” are exempt from production under Government Code section 7928.705. This section provides an exemption from disclosure for “the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by a state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained.” (Gov. Code § 7928.705, emphasis added.) Section 7927.500 provides an exemption from disclosure for “any preliminary drafts, notes, or interagency or intraagency memoranda that are not retained by a public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” (Gov. Code § 7927.500, emphasis added.)

A determination of whether sections 7928.705 and 7927.500 justify withholding or redacting of a public record depends on both the specific contents of the records at issue and the surrounding factual circumstances (i.e., has the property been acquired or the contract agreement obtained; or does the public interest in non-disclosure clearly outweigh the public interest in disclosure). In its opposition brief, Metro has not given any explanation of how this court may determine, based on the declarations provided, that any specific record falls within the scope of sections 7928.705 and 7927.500. Again, it appears that Metro is taking a blanket approach to documents, and the court does not have sufficient information to determine whether the withheld documents fall within the scope of the exemption.

In a letter dated December 15, 2023, Metro informed Petitioner that it withheld and/or redacted responsive record based on the “self-critical analysis privilege.” (Helpern Decl. Exh. Y, AA.) On June 15, 2022, Metro informed Petitioner that it was claiming the self-critical analysis privilege with respect to certain redactions in an email exchange dated June 15, 2022. (Id. Exh. AA.) On February 14, 2024, Petitioner then asserted that the self-critical analysis privilege has not been recognized in California. (Id. Exh. B, citing Cloud v. Superior Court (1996) 50 Cal.App.4th 1552, 1559.) On April 15, 2024, shortly before Petitioner’s opening writ brief was due, Metro waived the self-critical analysis privilege with respect to email exchange of June 15, 2022. (See Hamouie Decl. ¶ 26, Exh. AB; Helpern Decl. Exh. DD.)

Petitioner contends that Metro’s “last-minute disclosure” of the unredacted version of the email exchange shows, as a general matter, that “Metro is withholding materials from the public that are both highly-relevant and not subject to any exemption from production.” (Opening Brief (“OB”) 17-18.) The court declines to make such finding based solely on Metro’s waiver of privilege for this one email. At all times, a public agency has the discretion to waive certain exemptions recognized by the Act, including exemption in Government Code section 7927.705 upon which Metro relied to assert the self-critical analysis privilege. (See Gov. Code

§ 7921.505(b) and § 7920.505(a)(23).) Metro’s counsel explains that Metro decided to waive the privilege as to the email exchange of June 15, 2022, “in order to limit the issues in the litigation.” (Hamouie Decl. ¶ 26.) Based on the court’s review of the redacted and unredacted record at issue, the court finds that explanation credible. (See Helpern Decl. ¶¶ 32-33, Exh. EE and FF.)

Metro contends that Petitioner’s “self-critical analysis privilege argument is moot” because “Metro waived the self-critical analysis privilege with respect to a limited set of records relating to the June 15, 2022 email communication.” (Oppo. 19 [bold italics added].) Metro does not prove that the issue is moot. In its opposition brief and in its April 15, 2024, letter, Metro only stated that it “has elected to waive the deliberative process privilege, the self-critical analysis privilege, and the catch-all exemption with respect to a limited set of records.” (Helpern Decl. Exh. DD [bold italics added].) Again, Metro has not provided any privilege log or declaration from a custodian of records attesting that Metro claimed the self-critical analysis privilege only as to the email exchange of June 15, 2022. Metro has previously claimed this privilege broadly as to an unspecified number of withheld records. (Helpern Decl. Exh. Y.) Accordingly, the court infers that Metro may have additional responsive records that were withheld based on the self-critical analysis privilege.

Moreover, the parties dispute whether the self-critical analysis privilege is a proper exemption under the CPRA. (See Oppo. 19, fn. 9; Reply 10-11.) The CPRA “does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” (Gov. Code § 7927.705.) The Cloud decision, upon which Petitioner relies, did not address Government Code section 7927.705 or whether the self-critical analysis privilege is recognized under federal law and the CPRA. Regardless, to the extent the exemption is proper, the court cannot determine whether it applies to a specific record without more information about the record or records at issue.

In its correspondence with Petitioner, Metro also claimed that it withheld responsive records pursuant to the following exemptions and privileges: “attorney-client communications and attorney work product doctrine (Gov. Code §§ 7927.200, 7927.705; Evid. Code, §§ 952, 1040, 1129; Bus. & Prof. Code, §§ 6149, 6068 subd. (e); County of Los Angeles Bd. of Supervisors v. Superior Court (2017) 12 Cal.App.5th 1264, 1275); proprietary or trade secret information [privilege] (Civ. Code, § 3426.1, subd. (d); Gov. Code, § 7927.605); official information and catchall exemption (Gov. Code, § 7922.000, Evid. Code., § 1040); see also Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1073-74]; [and the] sensitive security information [privilege] (Gov. Code, § 7927.705; 49 C.F.R. § 1520).” (Helpern Decl. Exh. Y.) In addition, Metro acknowledged that it redacted certain information pursuant to the right to personal privacy, the attorney-client privilege, and attorney work product doctrine. (Ibid.) For the reasons discussed above, the court does not have sufficient information to evaluate these claims of exemption.

F. Metro’s Production of Records for Certain “Categories” Is Not Dispositive

Petitioner’s consultant, Bob Anderson, describes multiple “categories of documents that [he] did not see in [a] review of Metro’s production.” (Anderson Decl. ¶¶ 5-6.) In its opposition papers, Metro has not responded directly to Anderson’s contention that these categories of records are responsive to the Request. (See Oppo. 13:21-14:4.) Instead, Metro simply argues: “In fact, Metro produced records in response to each of these categories. (Hamouie Decl. ¶ 30.) Metro has not omitted records.” (Oppo. 14.) In two footnotes, Metro also states: “Examples of records that Bel-Air claims Metro omitted are attached to the declaration of Maya Hamouie. (See Id. at ¶ 30, Exhs. U-Y.) Importantly, Bel-Air never met and conferred with Metro regarding these purported ‘missing’ categories of records prior to filing the Petition. (Hamouie Decl.

In fact, Petitioner met and conferred with Metro, at some length, regarding Metro’s responses to the Request. Metro cites no authority that further meet and confer was required for a CPRA petition. (See Helpern Decl. Exh. C-DD.)

In her declaration, attorney Hamouie includes a table in which she lists “examples of records produced by Metro” in response to certain categories discussed in Anderson’s declaration and Petitioner’s opening brief. (Hamouie Decl. ¶ 30.) As a preliminary matter, Metro and Hamouie do not adequately explain how the referenced exhibits are responsive to the “missing categories” outlined in Andersons’ declaration. For instance, as argued in reply, Exhibit W is a five-page table of contents for a Metro document titled “Measure M Five-Year Comprehensive Assessment and Equity Report.” Metro and Hamouie do not explain how this table of contents proves that Metro produced all responsive records relating to whether other transit projects funded pursuant to Measure M are, or have been, over budget. (Reply 11:15-28.)

Furthermore, as discussed, Hamouie does not purport to provide a comprehensive statement of the records that have been produced for each category in the Request. That Metro has produced some responsive records is not disputed. The issue here is that Metro has admittedly withheld and redacted responsive public records within its possession. Metro, not Petitioner, has the burden to provide sufficient information to this court describing the withheld or redacted records so that the court can rule on the claims of exemption and privilege.

Counsel for Metro attacks this petition as being motivated by “distaste for the potential of a public transit facility in Bel-Air’s backyard—home to some of the wealthiest Americans.” (Oppo. at 7:4-5.) Counsel for Metro also complains about “abusive conduct,” viz., emails sent by someone named Fredric Rosen, who is not Petitioner’s counsel. Counsel for Metro cites no authority that these issues support a denial of the petition for writ of mandate. Nevertheless, the court will limit the meet-and-confer sessions to counsel and order that clients may not attend or participate directly.

The court does not have sufficient information to resolve Metro’s claims of exemption. If the agency’s declarations are not sufficiently detailed to support a determination of exemption under the CPRA, the agency “should be afforded an opportunity to file supplemental declaration(s) in the superior court containing information from which the court may make an informed decision on privilege and exemption claims.” (Golden Door, supra, 53 Cal.App.5th at 792.) Therefore, the court will continue the hearing to a new hearing date so that Metro may have an opportunity to submit a privilege log and supplemental declarations. (Golden Door, supra, 53 Cal.App.5th at 792.) Metro must provide sufficient information about each of the withheld or redacted records “to give the requester ‘a meaningful opportunity to contest’ the withholding of the documents and the court to determine whether the exemption applies.’ [Citation.] ‘[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.’” (Golden Door, supra, 53 Cal.App.5th at 790.) If Metro contends that there are too many records to be listed individually in a privilege log (though it has not submitted evidence of this), then Metro may group related documents together in a privilege log. However, the privilege log and supplemental declarations must provide sufficiently detailed information about each of the withheld or redacted records such that the court can rule on Metro’s claims of exemption as to each responsive record. The court will also grant Petitioner an opportunity to file a response to Metro’s privilege log and supplemental declarations.

In camera review of the unredacted records is permitted under the CPRA, but it is not required. (See e.g. Gov. Code § 7923.105(a); see American Civil Liberties Union of Northern Cal. V. Sup. Ct. (2011) 202 Cal.App.4th 55, 74 [“Because the agency opposing disclosure bears the burden of proving that an exemption applies,” it has the burden to submit evidence, including for in camera review]; see also Id. at 87 [“a trial court's prerogative to inspect documents in camera ‘is not a substitute for the government's burden of proof, and should not be resorted to lightly’”].) Neither party has argued, or shown, that in camera review is necessary for the court to decide the petition at this time. The court, in its discretion, will grant Metro an opportunity to submit a privilege log and more detailed declarations, as outlined above. However, should that additional process be insufficient for the court to adjudicate Metro’s claims of exemption and privilege, the court will then consider in camera review of the withheld and/or redacted records.

Metro’s privilege log and supplemental declarations may have relevance to other issues raised in the briefs, including: (1) the adequacy of Metro’s search for records and the timing of Metro’s compliance with the CPRA; (2) Metro’s allegations concerning allegedly improper conduct of Petitioner’s members; and (3) Petitioner’s cause of action for declaratory relief. Accordingly, the court defers a ruling on those issues until after it reviews Metro’s privilege log and supplemental declarations.

1. The court orders counsel for the parties to meet-and-confer concerning the dispositive issues. For example, it appears to the court that some of the PDA deliverables likely are exempt from disclosure but that Metro is taking a “blanket approach” with respect to every document in the PDA process. The meet-and-confer shall occur via telephone, video-conference, or live (i.e., not via email).

2. The court orders the parties to file a status report concerning the results of their meet-and-confer, i.e., whether they were able to resolve any issues and, if so, what issues remain for the court to decide. This status report shall be filed on or before ________, 2024.

3. The court shall hold a status conference on ________, 2024, at ____, to discuss the issues and set a further hearing/briefing schedule if necessary.

4. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] The CPRA statutes were re-numbered effective January 1, 2023. Unless otherwise stated, statutory references are to the Government Code.

[2] Metro’s claim that “Bel-Air’s vague and overbroad Request imposed a considerable burden on Metro and its staff, and Metro could have denied it on that ground alone” is not relevant because Metro did not purport to deny the Request or withhold records on that basis. (Oppo. 13:4-5.)

	Record	Metro’s Response
1.	Capital Costs Report (Task 4.2 from Metro Sepulveda Mobility Partners contract PS 40442000)	Metro withheld this record because it contains information that is subject to the deliberative process privilege (California First Amendment Coalition v. Superior Court (1991) 53 Cal.3d 1325, 1338); and the catchall exemption (Gov. Code, § 7922.000; see also Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1073-74].)
7.	Draft and Final Cost Methodology Reports (Task 7.13.1 from Metro HTA Partners contract AE 67085000)	Metro withheld this record because it contains information that is subject to the deliberative process privilege (California First Amendment Coalition v. Superior Court (1991) 53 Cal.3d 1325, 1338); and the catchall exemption (Gov. Code, § 7922.000; see also Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1073-74].)