Agency That Properly Withholds Documents from Production under the Public Records Act under Deliberative Privilege May Not Be Ordered to Produce Index of Withheld Documents That Reveals Confidential Information

In Labor and Workforce Development Agency v. Superior Court (Fowler Packing Co.), published January 8, 2018, the Third District Court of Appeal issued a writ of mandate directing a trial court to vacate an order directing the Agency to produce an index identifying the author, recipient, matter, and nature of exception for each document the Agency withheld from a California Public Records Act request.  The governor tasked the Agency with drafting and enacting a piece of legislation.  In preparing legislative proposals for the bill, the Agency communicated with Legislative Counsel.  It also sought and received confidential input from key stakeholders including representatives of business and labor.  A CPRA request asked for all public records from the Agency regarding the bill.  The agency withheld documents based on the Deliberative Privilege and attorney work protection.  The trial court permitted the Agency to withhold from disclosure documents protected by the Deliberative Process exemption and Evidence Code section 1040 (protecting confidential government communications).  But it directed the Agency to prepare the challenged index.  it also concluded that attorney work product protection did not apply to communications between the Agency and Legislative Counsel, concluding that the Counsel's client was the Governor, not the agency.

The appellate court held that the trial court erred in ordering that the authors and recipients of the exempt documents be revealed in the index.  The Deliberative Process exemption encourages open exchange of ideas before a legislative decision is made, in recognition that people will not openly share ideas if their ideas and involvement are revealed to the public.  By revealing the identities of the stakeholders who provided the information, the court's order would not serve the Deliberative Process exemption's purpose. The trial court also erred in determining attorney work product protection did not apply.  Because the Governor ordered the state Agency to take the lead in drafting and enacting the legislation, the attorney-client relationship between the Governor and Legislative Counsel extended to the Agency.