Board of Supervisor candidates' materials exempt from disclosure

CALIFORNIA–The names and qualifications of applicants for a temporary appointment to a local board of supervisors are exempt from the state’s Public Record’s Act, an appellate court in Sacramento determined in early October. Although the documents containing the information are public records, they are exempt under the deliberative process privilege and as confidential communications to Gov. Pete Wilson, the court held.

An initial request for the names of applicants by the California First Amendment Coalition was denied by Wilson, who was charged with filling a vacancy that opened after the death of a member of the Plumas County Board of Supervisors in 1995. The governor had said that information gathered in the application process was kept strictly confidential by the governor’s office “to encourage qualified applicants to seek consideration.”

Although the materials requested were public records, exemptions in the state open records law prevented their disclosure, the court held.

State law exempts correspondence “of and to” the governor from disclosure, the court said, adding that application forms received from candidates constituted correspondence despite their lack of formal salutations and closings. Once received by the governor, the forms became public records and were exempt from disclosure under the correspondence exemption, the court said.

Additionally, the deliberative process exemption, which applies to staff evaluations and recommendations, also extends to “primarily factual” applications as well, the court wrote. In supporting the closure, the court wrote that the exemption “reflects a concern that the quality of decision making suffers when the deliberative process is prematurely exposed to public scrutiny.”

Without the knowledge that their applications materials would be shielded from public disclosure, applicants’ candor will diminish, the applicant pool will shrink and the deliberative process will suffer, the court wrote.

The court noted that not every disclosure that hampers decision- making implicated the exemption. After declaring that the public interest in nondisclosure must clearly outweigh the public interest in disclosure, the court noted that the need for secrecy was more compelling.

Writing for the unanimous court, Associate Justice Vance W. Raye noted that the records request reasonably identified the records sought and was not overbroad, rejecting Wilson’s arguments that the request was “a model of ambiguity.” (California First Amendment Coalition v. Superior Court, Sacramento County (Wilson); Media Attorneys: Edward Davis, Jr. and James Chadwick, San Jose)