PETE WILSON, as Governor, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES TIMES, Real Party in Interest, 51 Cal. App. 4th 1136

Opinion ARMSTRONG, J. In a request made pursuant to the California Public Records Act (Gov. Code, §6250 et seq.), the Los Angeles Times (the Times) sought disclosure of, among other documents, copies of applications submitted to Governor Pete Wilson by persons seeking appointment to the vacancy on the Orange County Board of Supervisors created by the retirement of Supervisor Gaddi Vasquez. When Governor Wilson (through his deputy legal affairs secretary) declined to grant the Times access to the documents, the Times filed a petition for writ of mandate in respondent court.

In this proceeding, the Governor challenges respondent court’s judgment granting the Times’s petition. We hold the applications are exempt from disclosure under the act’s “public interest” or “catchall” exemption (§ 6255) because they are subject to the “deliberative process privilege” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 [283 Cal.Rptr. 893, 813 P.2d 240]) and that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Facts and Procedural Background In the summer of 1995, Orange County Supervisor Gaddi Vasquez announced his retirement from the board of supervisors.

On August 29, 1995, Eric Bailey, a staff writer for the Sacramento bureau of the Los Angeles Times, made a request under the California Public Records Act for “access to documents which describe or contain the names and background information about the persons who have applied for the soon-to-be-vacant 3rd Supervisorial District seat in Orange County.” An exchange of letters ensued between the Times (through its associate general counsel, Karlene Goller) and the Governor (through his deputy legal affairs secretary, Dale Bonner), concerning whether the act compelled the Governor to disclose these documents.

On October 10, 1995, the Governor appointed Don Saltarelli to fill the vacancy created by the retirement of Supervisor Vasquez. On March 1, 1996, five months after the Governor appointed Mr. Saltarelli, the Times filed a petition for writ of mandate in respondent court. The matter was heard May 23, 1996. The hearing was brief and the matter was submitted on the papers filed. On May 28, 1996, respondent court issued its ruling granting the petition as to the application forms only.

In its minute order, the court stated: “The completed application form by persons applying to the Governor’s Office for appointment does not impinge on the ‘deliberative process.’ Further, although the applications are directed to the Governor’s Office Before the decision was to have been made, they do not amount to ‘communications to the decision maker prior to the decision’ as provided in Times Mirror Co. v.

Superior Court, 53 Cal.3d 1325 [283 Cal.Rptr. 893, 813 P.2d 240]. [¶] In addition the applications are not ‘correspondence’ of and to the Governor’s Office within the meaning of Government Code section 6254(1). Moreover, Evidence Code

section 1040 is not applicable because the applications are not submitted in confidence. Indeed, the application form ‘Authorization and Release’ paragraph makes it clear that the information provided is not confidential as well as information obtained from other specific sources.” The “Authorization and Release” paragraph to which the court referred provides: “I understand that in connection with this application for appointment an extensive investigation of my personal and business background will be conducted.

I hereby authorize the release of any and all information pertaining to me or businesses in which I participated, including information of a confidential or privileged nature in the possession of government or private agencies or individuals. I hereby release all such agencies or individuals who furnish such information from liability for damages which may result from furnishing the information requested. You are also being notified that a consumer credit report may be requested and used in connection with this application for appointment.

The source of the report shall be a major national credit reporting agency, such as TRW, Transunion, or Equifax. In the event such a request is made, a copy of the report should be provided to you by the credit agency.” On July 9, 1996, the court entered a judgment granting the peremptory writ. Although the court’s order is denominated a “judgment,” the order is not appealable and is reviewable only by way of a petition for writ of mandate. Government Code

section 6259, subdivision (c), provides that an order “either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of

Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.” The petition must be filed within 20 days of service of notice of entry of the court’s order. The court’s judgment was served on the Governor on July 9, 1996. This petition, filed July 29, 1996, is therefore timely. Having conducted an independent review of respondent court’s judgment (Times Mirror Co. v. Superior Court, supra, 53 Cal. 3d at p. 1336; Rogers v.

Superior Court (1993) 19 Cal.App.4th 469, 475 [23 Cal.Rptr.2d 412]), we conclude the court’s determination that the Times’s request “does not impinge on the ‘deliberative process’ ” is not supported by substantial evidence. Accordingly, we grant the petition. Discussion The California Public Records Act (the Act) is modeled after the federal Freedom of Information Act (FOIA).

Because the two have a common purpose, federal decisions under the FOIA may be used to construe the Act. “The legislative history and judicial construction of the FOIA thus ‘serve to illuminate the interrelation of its California counterpart.’ ” (Times Mirror Co. v. Superior Court, supra, 53 Cal. 3d at p. 1338.) The Act was enacted in 1968 “for the explicit purpose of ‘increasing freedom of information’ by giving the public ‘access to information in possession of public agencies.’ ” (CBS, Inc. v.

Block (1986) 42 Cal.3d 646, 651 [230 Cal.Rptr. 362, 725 P.2d 470].) The Act was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. (Rogers v.

Superior Court, supra, 19 Cal.App.4th at p. 476.) The Legislature declared in enacting the measure that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (§ 6250.) The Act provides that “every person has a right to inspect any public record, except as hereafter provided.” (§ 6253) Thus, public records must be disclosed unless they come within one or more of the categories of documents exempt from disclosure. (§ 6254) In addition,

section 6255, referred to in Times Mirror as the “public interest” or “catchall” exemption (53 Cal.3d at pp. 1337-1338), provides a means by which an agency may withhold a public record which would not be exempt under any of the specific exemptions delineated in

section 6254, if the agency makes a showing that “on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”

Section 6255 exempts from disclosure documents which are protected by the deliberative process privilege. (Times Mirror Co. v. Superior Court, supra, 53 Cal. 3d 1325.) The deliberative process privilege (known as “executive privilege” under federal law) protects materials reflecting deliberative or decisionmaking processes. (EPA v.

Mink (1973) 410 U.S. 73 [35 L.Ed.2d 119, 93 S.Ct. 827].) The key question in every case is “ ‘whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.’ ” (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d 1325, 1342, citing Dudman Communications v. Dept. of Air Force (D.C.

Cir. 1987) 815 F.2d 1565, 1568 [259 App.D.C. 364].) Although the deliberative process privilege is designed to protect materials reflecting deliberative or policymaking processes, and not “purely factual, investigative matters” (EPA v.

Mink, supra, 410 U.S. at p. 89 [35 L.Ed.2d at p. 133]), the privilege has been held to protect factual information which “compromises the deliberative process,” including “predecisional” documents, that is, documents which are prepared to assist an agency decision-maker in making a decision. “To prevent injury to the quality of executive decisions, the courts have been particularly vigilant to protect communications to the decisionmaker before the decision is made. ‘Accordingly, the . . . courts have uniformly drawn a distinction between predecisional communications, which are privileged [citations]; and communications made after the decision and designed to explain it, which are not.’ ...” (Times Mirror Co., supra, 53 Cal.3d át p. 1341, citation omitted.) “As Professor Cox in his seminal

article on executive privilege has explained, protecting the predecisional deliberative process gives the chief executive ‘the freedom to “think out loud,” which enables him to test ideas and debate policy and personalities uninhibited by the danger that his tentative but rejected thoughts will become subjects of public discussion. Usually, the information is sought with respect to past decisions; the need is even stronger if the demand comes while policy is still being developed.’ ” (Ibid., citing Cox, Executive Privilege (1974) 122 U. Pa.

L.Rev. 1383, 1410.) In Times Mirror Co., supra, the Supreme Court held that the contents of a document, even though purely factual, may be exempt from disclosure if they are “actually . . . related to the process by which policies are formulated” or “inextricably intertwined” with policymaking processes. (Times Mirror Co. v.

Superior Court, supra, 53 Cal.3d at p. 1342.) Applying that rule, the court held that the deliberative process privilege protected the Governor’s schedules and appointment calendars: “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; such information 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 is patent.” (Times Mirror Co., supra, 53 Cal.3d at p. 1343.) The applications in issue here present at least as compelling an argument for application of the privilege as did the schedules and appointment calendars at issue in Times Mirror.

The applications are predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees, a process which depends upon comparison of the qualifications of the candidates as shown in the applications and confidential, candid discussion of the candidates’ professional competence, political views and private conduct. The application form itself solicits highly personal and occasionally embarrassing information regarding the applicant’s background, political beliefs and associations.

This includes medical history and financial information otherwise protected by the constitutional right of privacy. An applicant answers candidly with the expectation that his or her responses will remain confidential. In support of the Governor’s opposition to the Times’s petition, the Governor’s appointments secretary, Julia Justus, stated that both the candidates and those who provide information about them are assured that any information provided will be divulged only to the Governor and his senior staff.

This assures that applicants will be forthcoming and enhances the Governor’s ability to attract the most qualified applicants and to make educated and informed choices in selecting his appointees. Were that not the case, the pool of qualified applicants would quickly dwindle, the remaining applicants would not provide candid or truthful responses, and the public would not be assured of the qualified public servants to which it is entitled. Moreover, the threat of public disclosure would only encourage secrecy and the type of “back room” decisionmaking which the Act was designed to eliminate.

The Times argues that applicants for a highly visible public office should expect that their qualifications and background will be subjected to close public scrutiny. We do not disagree. There is a considerable difference, however, between an applicant’s disclosing such information to the Governor for purposes of a possible political appointment, and having such information disseminated in the press.

The Times also argues that the importance of public access to information regarding high government posts is manifest and that the appointment of an individual (one of only five) to the board of supervisors of a county emerging from bankruptcy is of utmost public interest. Again, we do not disagree. The question, however is whether the public interest in disclosure of these applications clearly outweighs the public interest in nondisclosure.

In resolving this issue we take the pragmatic approach approved by the Supreme Court in Times Mirror: “The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it. Politics is an ecumenical affair; it embraces persons and groups of every conceivable interest: public and private; popular and unpopular; Republican and Democratic and every partisan stripe in between; left, right and center.

To disclose every private meeting or association of the Governor and expect the decisionmaking process to function effectively, is to deny human nature and contrary to common sense and experience. [Citation.]” (Times Mirror v. Superior Court, supra, 53 Cal.3d at p. 1345.) As the Legislature recognized when it enacted

section 6255, and the Supreme Court recognized when it decided Times Mirror, there are instances in which, despite the Act’s clear mandate for disclosure, documents must be subjected to a balancing test to determine whether the public interest served by not making the document public clearly outweighs the public interest served by disclosing it. (Times Mirror, supra, 53 Cal.3d at p. 1344.) Having conducted the balancing test compelled by Times Mirror, we conclude the applications in question should not be made public.

Disposition Let a peremptory writ issue directing respondent court to vacate its judgment entered July 9, 1996, and enter a new and different order denying the petition of the Los Angeles Times for a writ of mandate. Each party to bear its own costs of this proceeding. Godoy Perez, J., concurred. All further statutory references are to the Government Code unless otherwise indicated. The Governor’s exhibits included a blank application form, but not the completed applications themselves.

Having determined that the applications are protected by the deliberative process privilege, we need not address the other points of respondent court’s judgment.