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Court relies on deliberative process privilege to rule that stakeholder communications with state agency are confidential

Court relies on deliberative process privilege to rule that stakeholder communications with state agency are confidential

On Tuesday, the third appellate district court decided to keep secret the names of stakeholders who communicated with the Labor and Workforce Development Agency, expanding the deliberative process privilege and dealing a blow to the public’s right to know.

The case centers on legislation drafted in 2015, , authored by then-Assembly member Das Williams (D-Santa Barbara) which regulated piece-rate pay. The legislation included certain safe-harbor provisions that are “out of reach” for many California companies. Two of those companies, Fowler Packing and Gerawan Farms, sued the LWDA which sponsored the bill to find out why they were denied the safe-harbor, seeking communications the agency had with stakeholders and with the legislature.

In applying the California Public Records Act, the court said that exemptions applied to prevent the release of information that the trial court had ordered to be disclosed in a privilege log. Namely, information about communications between the agency and Legislative Counsel, an office of lawyers that drafts every bill, and the agency and stakeholders, who the court said spoke to the agency with an understanding of confidentiality.

In keeping secret the stakeholder identities, the court relied on and expanded the deliberative process exemption, which was established in the Times Mirror case in 1991. The court said, “The harm in revealing the identities of third parties who communicated confidentially with the Agency is that it 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.”

The court also ruled that an attorney-client relationship existed between the executive agency, by virtue of its relationship with the governor, and legislative counsel, which serves as a lawyer to the governor, making those communications exempt from disclosure in a privilege log or otherwise.

The attorneys for the requesters have stated that they are mulling an appeal.