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  5. What is the deliberative process privilege?

This common law privilege has been recognized as supporting, in certain circumstances, a withholding of access under the “balancing test” (see question above).  Its rationale is the same as that underlying the draft exemption, namely the need of government officials and their advisors to discuss policy options freely and frankly in the course of developing a decision, without fear of political recrimination upon disclosure.  But unlike the draft exemption with its limited application, the privilege invoked under the balancing test applies to documents that are not preliminary drafts or memos but that otherwise would impede or chill candid pre-decisional deliberation.  Cases applying the privilege in a balancing test to deny disclosure have concluded that:

• The chill on the candor and effectiveness of the governor’s consultations with visitors resulting from wholesale disclosure of his appointment calendars, and the risk to his security posed by wholesale disclosure of his travel itineraries, outweigh the arguable public interest in understanding patterns of access to and influences affecting state’s chief executive. Times Mirror Co. v. Superior Court (State of California, 53 Cal.3d 1325 (1991).

 • With respect to a request filed while an appointment decision is pending, avoiding interference with the governor’s prerogative to make appointments to fill vacancies on boards of supervisors that would result from disclosing information submitted by applicants for appointment outweighs the voters’ interest in knowing who is applying for the normally elective position and what qualifications they are citing in their favor. California First Amendment Coalition v. Superior Court, 67 Cal.App.4th 159 (3d Dist. 1998).

• With respect to a request for such records filed five months after the governor made the appointive decision, the same factors outweigh the voters’ interest in an appointment to the board of a county emerging from bankruptcy. Wilson v. Superior Court, 51 Cal.App.4th 1136 (2d Dist. 1997).

Disclosing the telephone numbers of persons with whom a city council member has spoken over a year’s time equates to revealing the substance or direction of the member’s judgment and mental process, and the inhibiting intrusion posed by such disclosures outweighs the public interest in learning which private citizens are influencing the member’s decisions. This holds especially where no misuse of public funds or other improprieties are alleged. Rogers v. Superior Court (City of Burbank), 19 Cal. App. 4th 469 (2d Dist. 1993).

The deliberative process privilege as a basis for withholding records may have been substantially weakened by Proposition 59 of 2004, whose ballot argument included the following:

What will Proposition 59 do? It will create a new civil right: a constitutional right to know what the government is doing, why it is doing it, and how. It will ensure that public agencies, officials, and courts broadly apply laws that promote public knowledge. It will compel them to narrowly apply laws that limit openness in government—including discretionary privileges and exemptions that are routinely invoked even when there is no need for secrecy. It will create a high hurdle for restrictions on your right to information, requiring a clear demonstration of the need for any new limitation. It will permit the courts to limit or eliminate laws that don’t clear that hurdle. It will allow the public to see and understand the deliberative process through which decisions are made.