City refuses to turn over e-mails requested under the California Public Records Act.
By Brian Hews
In a strange legal maneuver, the city of Pico Rivera and its law firm, Alavarez, Glasmen, and Colvin (AGC), have refused to turn over documents to the Lamplighter requested under the California Public Records Act pertaining to a contract awarded by the city to a local firm.
AGC indicated that the city is “not permitted to disclose” thirty four pages due to the “deliberative process privilege” established by Government Code Section 6255, citing Wilson v. Superior Court (1996) 51 Cal. App. 4th 1136.
The deliberative process privilege (known as ‘executive privilege’ under federal law) protects materials reflecting deliberative or decision-making processes. 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.”
The Lamplighter consulted with its attorneys on the matter and answered the city’s refusal, with several cases cited for disclosure, but the city continued to withhold the documents.
The Lamplighter’s attorneys wrote, “The documents requested in the present case are primarily email communications between a company that participated in the City of Pico Rivera’s competitive public bidding process and public officials of the City. The request seeks documents generated prior to the public hearing and decision of the City Council. You (Pico Rivera) have asserted that such communications, which are ordinarily not permitted at all in a competitive public bid situation, are subject to the deliberative process privilege. According to Government Code §6255 all communications that were distributed to a majority of the members of the Council by any bidder for consideration prior to the public hearing are disclosable public records and are not subject to the deliberative process privilege.
The city indicated in their second refusal letter that they had released all documents requested because the Lamplighter had requested the documents prior to the public hearing.
But at the time of the second letter the contract had been awarded to the local firm effectively voiding the deliberative process privilege.
The Lamplighter’s attorney’s cited the fact that the award of the contract was complete and that the exemption set forth in Government Code Section 6255 did not apply because it was overridden by the provisions of Government Code 54957.5 and applicable case law which states, “Notwithstanding section 6255 … agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act, and shall be made available upon request without delay “There is simply no legal basis for withholding the requested documents,” said Lamplighter attorneys. But the city still refused.
The Lamplighter has hired Kelly Aviles to file the Petition for Writ of Mandate, which seeks a court order compelling Pico Rivera to comply with its obligations under the California Public Records Act.
The case will be filed downtown, where the case should be assigned to one of three superior court judges that is dedicated to hearing these types of cases. Attorney Aviles said, “ Under the CPRA, these cases are entitled to priority, and states that the times for responsive pleadings and for hearing in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time. All in all we are looking at five months to one year to receive documents”.
