B. Other statutory exclusions.

Catchall/Public Interest Exemption: Under Section 6255 an agency may withhold public records if "on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Cal. Gov't Code § 6255; County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 89 Cal. Rptr. 3d 374 (2009) (applying balancing and holding that public interest in disclosure of county’s GIS basemap data outweighed the public interest in nondisclosure); CBS Inc. v. Block, 42 Cal.3d 646, 652, 230 Cal Rptr. 362, 725 P.2d 470 (1986); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 908, 110 Rptr. 2d 889 (2001) ("The burden of proof is on the proponent of nondisclosure, who must demonstrate a 'clear overbalance' on the side of confidentiality.") (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999)).

While this section does not specifically identify the public interests to be served in non-disclosure, the nature of those interests may be inferred from the specific exemptions contained in Section 6254. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 813 P.2d 240, 283 Cal. Rptr. 893 (1991). This exemption should not be used where records are covered by specific exemptions under Section 6254, thus indicating that the Legislature did not intend to have the records governed by the vague catchall provision. See City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1421, 44 Cal. Rptr. 2d 532 (1995) (where court held catchall exemption could not apply to justify non-disclosure of internal personnel investigation of police officer since there were at least two other specific exemptions that covered related documents).

Importantly, while the Constitutional Sunshine Amendment expressly maintains preexisting statutory exemptions such as this, the elevation of the public's right of access to constitutional stature under the Amendment must now be considered when balancing the respective interests. Cal. Const. Art. I, § 3(b)(1). Moreover, "[t]here must be a clear overbalance on the side of confidentiality before the catchall applies." City of Hemet, 37 Cal. App. 4th at 1421 (citations omitted); see also Block, 42 Cal.3d at 652; CBS Broad. Inc., 91 Cal. App. 4th at 908 (quoting Block, quoting statute).

This public interest exemption, or "catchall" exemption, has been used to withhold public records not otherwise exempt under the CPRA or as an additional grounds for nondisclosure. See, e.g., Times Mirror Co., 53 Cal. 3d at 1340-47 (where Court recognized that potential threat to Governor's security that would be caused by disclosure of Governor's daily and weekly schedules bolstered Court's determination that the need for confidentiality outweighed the need for disclosure); see also City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1023, 88 Cal. Rptr. 2d 552 (1999) (where court held public interest in withholding names, addresses and telephone numbers of persons who complained to city about municipal airport noise outweighed public interest served by disclosure).

Where, however, the government agency is unable to meet its burden under this exemption, it cannot justify withholding public records under it. See, e.g., County of Santa Clara, 170 Cal. App. 4th at 1329 (holding that county failed to demonstrate a clear overbalance on the side of confidentiality in withholding GIS basemap data from the public); CBS Broad. Inc., 91 Cal. App. 4th at 908 (holding agency failed to meet burden of proof to withhold names of every individual granted a criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals); Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 835, 108 Cal. Rptr. 2d 870 (2001) (holding university failed to carry its burden of proof to justify withholding identity of every individual who obtained luxury suite licenses in arena being built on university property); Poway Unif. Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1506, 73 Cal. Rptr.2d 777 (1998) (where court held privacy of minors submitting claim forms to public schools, which the court said were relevant to public interest in ending school hazing practices, did not justify withholding records of claims under this exemption); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr.2d 410 (1997) (where court held that the perceived harm to deputies from disclosure of their names as officers who fired weapons in the line of duty, which resulted in the death of a civilian, did not outweigh the public interest served by disclosure of their names); Connell v. Superior Court, 56 Cal. App. 4th 601, 612, 65 Cal. Rptr. 2d 738 (1997) (where court held pure speculative security interests or burden and expense of providing requested information did not justify withholding unpaid warrants to state vendors, which pertained to the government's conduct in managing public revenues); City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 1091, 49 Cal. Rptr. 2d 35 (1996) (where court held public interest in disclosure of deposition transcripts in closed action against the city, which related to claims of excessive force in the use of police dogs, outweighed the privacy interest of the litigants and could not be overcome by purported chilling effect disclosure would have on way city prepares its cases); New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 268 Cal. Rptr. 21 (1990) (public disclosure of names of excessive users of water outweighed reputational/privacy interests of those issued citations); Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984) (where public interest in disclosure of medical records used by county in settling claim outweighed any purported privacy right in nondisclosure).

Deliberative Process Privilege Under Catchall Exemption: Disconcerting for proponents of open government, the catchall exemption has been used to engraft an expansive "deliberative process privilege" into the CPRA that would not otherwise be available under Section 6254(a)'s deliberative process exemption for preliminary drafts, notes or interagency or intra-agency memoranda, or any other specific exemption. See, e.g., Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991). Whether this privilege survives the passage of the Constitutional Sunshine Amendment remains to be determined. Because this privilege has been engrafted into Section 6255 through common law and the Amendment only maintains preexisting "constitutional and statutory exemption[s]," not those created through case law, an argument can be made that this privilege does not survive passage of the Amendment. Cal. Const. Art. I, § 3(b)(5); but see Sutter’s Place v. Superior Court, 161 Cal. App. 4th 1370, 75 Cal. Rptr. 3d 9 (2008) (in dicta, court rejected argument that the Sunshine Amendment eliminated the separate mental process privilege as applied to protect the motives and thought processes of local legislators and characterizing that privilege as rooted in constitutional, as well as statutory law) Indeed, without conceding the point, former California Governor Arnold Schwarzenegger has complied with requests for his daily calendars after passage of the Amendment. See www.cfac.org/Attachments/governor_calendars.htm.

The deliberative process privilege is designed to protect essentially three policy objectives: "First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that 'officials should be judged by what they decided, not for matters they considered before making up their minds.'" Times Mirror Co., 53 Cal. 3d at 1352 (Kennard, J., dissenting) (citing Jordan v. United States Dept. of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)); see also California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 170, 78 Cal. Rptr. 2d 847 (1998).

The key question in every case is "whether the disclosure of materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Id. at 1342. To qualify for the privilege the document sought must be both predecisional and deliberative. Id. at 1352 (Kennard, J., dissenting) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S. Ct. 1504, 44 .L.Ed.2d 29 (1975)). "To establish that a document is predecisional, an agency must identify an agency decision of policy to which the document contributed [citations omitted], or at least must show 'that the document is in fact part of some deliberative process' [citations omitted]." Id. (Kennard, J., dissenting). To show that a document is deliberative, a document generally must consist of opinions or recommendations. Id. As the majority in Times Mirror states, however, "[e]ven if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is 'actually . . . related to the process by which policies are formulated.' (citations omitted) or 'inextricably intertwined' with 'policy-making processes' (citations omitted)." Id. at 1342.

In Times Mirror, the California Supreme Court traced the origins of the deliberative process privilege to "the traditional common law privilege that attached to confidential intra-agency advisory opinions, a privilege which was later codified in exemption 5 of the [federal Freedom of Information Act.]" Id. at 1339-40 n.10. Thus, in Times Mirror, the Court construed a deliberative process privilege from federal decisions applying exemption 5 and from the broad language of Section 6255, which permits nondisclosure where the public interest in confidentiality clearly outweighs the interest in disclosure. Applying the privilege, the Court held that the Governor's appointment schedules, calendars and notes revealing the daily activities of the Governor over a five-year period while not exempt as correspondence to and from the Governor under Section 6254(l) were nevertheless exempt under Section 6255's catchall provision. The Court concluded that because "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" and disclosure "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 was "patent." Id. at 1343. In holding that the public interest in disclosure of such information was clearly outweighed by the public interest in confidentiality, the Court noted that, "[t]o disclose every private meeting or association of the Governor and expect the decision making process to function effectively, is to deny human nature and contrary to common sense and experience." Id.

The Court further noted, however, that its holding did not mean the Governor's calendars, schedules or other records were beyond the reach of the public. Id. at 1345. The Court recognized that given a more focused and limited request a court might properly conclude that the public interest in confidentiality does not clearly outweigh the public interest in disclosure. Id. Nevertheless, the Court's holding in Times Mirror Co., paved the way for a deliberative process privilege under the CPRA that reaches well beyond the one applicable to preliminary drafts, notes, and interagency and intra-agency memoranda under Section 6254(a).

Subsequent cases have expanded this deliberative process privilege. For example, it has been used to deny access to documents pertaining to applicants to local and county boards of supervisors. See, e.g., Wilson v. Superior Court, 51 Cal. App. 4th 1136, 1143, 59 Cal. Rptr. 2d 537 (1996) (where applications for position on county board of supervisors were considered "predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees. . . ."); see also Cal. First Amendment Coalition, 67 Cal. App. 4th 159. In Cal. First Amendment Coalition, petitioner sought access from the Governor's office of any documents containing the names of those who had applied for a county supervisor's position. Construing the request as seeking all documents containing information regarding applicants for appointment to the position, the appellate court held that the information sought was exempt from disclosure under the Governor's correspondence exemption of Section 6254(l) and under the catchall exemption of Section 6255. Under the later exemption, the court noted and petitioner conceded that written materials discussing the applicants' suitability for appointment were exempt as "communications to the decision maker" disclosure of which would reveal deliberative processes. Id. at 169. With respect to applications, the petitioner argued that since there was no assurance that the Governor even reviews them and they reveal nothing of the Governor's thought process, disclosure would not impair the Governor's decision-making process. Id. at 171. Rejecting this argument, the court reasoned that disclosure of the applications would likely reduce the applicant pool and discourage candor in those applying for the job, which would ultimately hinder the decision-making process. Id. at 172. The court went on to conclude that the proffered need for disclosure was outweighed by the need for confidentiality. Id. at 172-74.

In a non-CPRA case, the deliberative process privilege has been held to apply to local legislative bodies, such as a county local agency formation commission.  San Joaquin Local Agency Formation Com’n v. Superior Court, 162 Cal. App. 4th 159, 76 Cal. Rptr. 3d 93 (2008).  In probably its broadest application to date, the deliberative process privilege has been used to deny access to phone billing records of city council members to show calls placed as part of official business. Rogers v. Superior Court, 19 Cal. App. 4th 469, 23 Cal. Rptr. 2d 412 (1993).

Just how far the deliberative process privilege will go in justifying nondisclosure of public records is a question proponents of open government hope will not be answered by the current trend indicated by the above cases but by the overwhelming intent of the public in passing the Constitutional Sunshine Amendment.

Government Code Sections 6276.02-6276.48: In an attempt to assist members of the public and state and local agencies in identifying exemptions to the CPRA, the Legislature has compiled known exemptions from public disclosure in Article 2, Sections 6276.02 through 6276.45. Cal. Gov't Code § 6275. These sections list records or information that by statute agencies may not be required to disclose and thus may fall within Section 6254(k)'s exemption from disclosure. The records and information listed in Article 2 are not inclusive and the listing of a statute in the Article does not itself create an exemption. Cal. Gov't Code § 6275. Currently there are more than 600 categories of documents under Article 2 ranging from "Acquired Immune Deficiency Syndrome" (Section 6276.02) to "Youth Authority" (Section 6276.48). After January 1, 1999 each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to subdivision (k) of Section 6254 must be listed and described in Article 2. Id.

Some noteworthy exemptions contained in Article 2 include records pertaining to: (1) bids received by government agencies for public works under Section 10304 of the Public Contract Code; (2) driver's arrest for traffic violations under Section 40313 of the Vehicle Code; (3) employee personnel files under Section 1198.5 of the Labor Code; (4) firearm sales or transfers under Section 12082 of the Penal Code; (5) grand jury information or indictments under Sections 924 and 938.1 of the Penal Code; (6) hazardous waste control, notice of unlawful hazardous waste disposal under Section 25180.5 of the Health and Safety Code; (7) Insurance Commissioner information from examination or investigation under Sections 1215.7, 1433 and 1759.3 of the Insurance Code (and other provisions regarding the Insurance Commissioner and insurance); (8) Department of Motor Vehicle records under Section 1808 to 1808.7 of the Vehicle Code; (9) rap sheet information under Penal Code Sections 11075, 11105 and 13330.