TIMES MIRROR COMPANY, Petitioner, v. SUPERIOR COURT, County of Sacramento, Respondent, STATE of California et al., Real Parties in Interest.
In this case we are asked to determine whether the Governor's appointment schedules and calendars are public records which must be disclosed to a newspaper seeking access to these materials under the California Public Records Act (Gov.Code, § 6250, et seq.) (hereinafter PRA or Act).1 We conclude the trial court erred in finding these items exempt from disclosure and shall reverse and remand for further proceedings.
BACKGROUND AND PROVISIONS OF THE PRA
Before describing the events culminating in this case, we briefly review the background and provisions of the PRA. “When the PRA was enacted in 1968, ‘ “[t]he Legislature had long been attempting to ‘formulate a workable means of minimizing secrecy in government.’ ” ' [Citations.] The PRA was modeled on the federal Freedom of Information Act [citations] and was passed for the explicit purpose of ‘increasing freedom of information’ by giving the public ‘access to information in possession of public agencies.’ [Citation]. Maximum disclosure of the conduct of governmental operations was to be promoted by the Act. [Citation.]” (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651–652, 230 Cal.Rptr. 362, 725 P.2d 470.)
Section 6250 of the Act provides: “In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” To preserve this right, section 6253, subdivision (a) provides: “Public records are open to inspection at all times ․ and every person has a right to inspect any public record, except as hereafter provided.” A newspaper enjoys the identical right. (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774, 192 Cal.Rptr. 415.)
“ ‘Public records' includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. ‘Public records' in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975.’ ” (§ 6252, subd. (d).) 2
Section 6254 specifies a variety of records exempt from disclosure, including “[c]orrespondence of and to the Governor or employees of the Governor's office or in the custody of or maintained by the Governor's legal affairs secretary, provided public records shall not be transferred to the custody of the Governor's legal affairs secretary to evade the disclosure provisions of this chapter.” (Subd. (l ).)
The agency or officer claiming nondisclosure must show the documents in question are either expressly exempt under the provisions of the chapter in question or exempt under the public interest provisions of section 6255, which sets forth the two prongs of exemption. (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 345, 201 Cal.Rptr. 654; Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 657, 117 Cal.Rptr. 106.) Section 6255 provides: “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or 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.” (§ 6255; emphasis added.)
If an agency claims an exemption from disclosure, “[t]he court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code,3 papers filed by the parties and such oral argument and additional evidence as the court may allow.” (§ 6259, subd. (a).)
With these provisions in mind, we turn to the instant case.
FACTUAL AND PROCEDURAL BACKGROUND
The record discloses the pertinent facts are as follows: In August 1988, a reporter for the Los Angeles Times (Times) wrote Governor George Deukmejian pursuant to the “California Open [sic] Records Act” to request copies of the Governor's “appointment schedules, calendars, notebooks and any other documents that would list [the Governor's] daily activities as governor from [his] inauguration in 1983 to the present.”
The Governor's legal affairs secretary denied this request, asserting the materials sought came within section 6254, subdivision (l ), which exempts from disclosure “correspondence of and to the Governor.” The denial letter explained, “The information you requested consists of correspondence—written information received and compiled by the Governor's scheduling staff and communicated to the Governor and to other employees of the Governor's office. This correspondence serves a dual purpose. It informs the Governor of his appointments and it also informs certain employees of the whereabouts and location of the Governor. Access to the schedule has always been restricted to selected staff members. The schedule is not released to individuals outside of the Governor's office. [¶] The above-cited Public Records Act exemption [i.e., § 6254, subd. (l ) ] is intended to preserve and encourage the free flow of all forms of correspondence to and from the Governor and the employees of the Governor's office. It is imperative that the confidentiality of all such correspondence be protected․”
When its request to reconsider this decision was denied, the Times filed suit seeking injunctive and declaratory relief to obtain disclosure of the requested materials. In opposition, the Governor submitted several declarations explaining how his calendar and appointment schedule are created.4
The Governor again claimed the requested materials came within the correspondence exemption of section 6254, subdivision (l ) and in addition asserted the general public interest exemption of section 6255 was applicable as the public's interest in nondisclosure outweighed its interest in disclosure. Specifically, the Governor alleged the release of his calendar and appointment schedule would (a) create a security risk and (b) thwart the free exchange of ideas necessary to the decision-making process.
The trial court denied both the Times' request for an in camera review of the materials and the newspaper's motion for injunctive relief, finding the calendars and appointment schedules exempt from disclosure for each of the reasons urged by the Governor. This court granted the Times' petition for a writ of review. (See § 6259, subd. (c).)
SCOPE OF REVIEW
In a supplemental brief filed the last working day before oral argument, the Governor for the first time questioned the scope of review in this case. Citing Freedom Newspapers, Inc. v. Superior Court (1986) 186 Cal.App.3d 1102, 231 Cal.Rptr. 189, he asserted the Times can prevail only if the trial court acted in excess of its jurisdiction. He argued mere disagreement over interpretation of the PRA would not justify reversal of the trial court's decision. We ordered and received additional briefing from the parties on this issue.
Preliminarily, we note the Governor has tendered no explanation for the failure to raise the issue of scope of review in a timely manner. Freedom Newspapers became final in January 1987, more than two years before we issued the instant writ. If the Governor wished to challenge the scope of review, an argument to that effect should have been included in the opposition to the writ petition. It was not. Instead, the Governor simply pointed out that the Times was statutorily limited to seeking a writ of review and was not entitled to writs of prohibition and mandate despite referring to all three forms of extraordinary relief in its writ petition. In his return to the writ, the Governor responded to the arguments presented and argued the merits of the Times' claims. No mention was made of scope of review. Indeed, this issue was not raised at all until the day before oral argument. Under these circumstances, we would be justified in deeming the Governor's claim as waived. In the interests of justice, however, we shall treat this issue as if properly presented.
Section 6259, subdivision (c) provides in relevant part: “[A]n order of the court, 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 the extraordinary writ of review as defined in Section 1067 of the Code of Civil Procedure.” That section states: “The writ of certiorari may be denominated the writ of review.” A court may grant a writ of review when “an inferior tribunal ․ has exceeded the jurisdiction of such tribunal․” (Code Civ.Proc., § 1068.) Section 1074, Code of Civil Procedure provides: “the review upon this writ [writ of review] cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.”
The scope of review afforded a writ of review was considered in Freedom Newspapers, supra, 186 Cal.App.3d 1102, 231 Cal.Rptr. 189. In that case, a newspaper used the PRA to try to obtain sealed information concerning fees paid to court-appointed lawyers and investigators in an ongoing capital murder case. The trial court denied the newspaper's request, finding the defendant's right to a fair trial would be jeopardized by the release of this information. The Court of Appeal affirmed, despite the majority's view that this ruling was erroneous. (Id. at p. 1105, 231 Cal.Rptr. 189.) The court noted Code of Civil Procedure section 1068 limits the granting of writs of review to those situations in which a trial court has exceeded its jurisdiction. Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454, 20 Cal.Rptr. 321, 369 P.2d 937 and Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942, the court explained “that jurisdiction includes more than simple power over person and subject matter. In the present context it means an act exceeding the power of the court, whether defined by the Constitution, a statute, or a court-developed rule under the doctrine of stare decisis. [Citations.]” (Id. 186 Cal.App.3d at pp. 1108–1109, 231 Cal.Rptr. 189.) The Freedom Newspapers court concluded the trial court had “attempted conscientiously to follow the law,” and that its ruling, while erroneous in the view of the majority of the court, did not exceed its jurisdiction as no statute or controlling precedent based on the PRA compelled a contrary determination. (Id. at p. 1109, 231 Cal.Rptr. 189.)
It is unnecessary that we evaluate the soundness of the Freedom Newspapers decision, for, even if we assume that case was correctly decided, factually it is inapposite to the present case.
At issue in Freedom Newspapers was the second prong of section 6255, the public interest exception, under which the trial court is required to weigh the public interest served by nondisclosure against the public interest served by disclosure and determine which interest outweighs the other. This is not a statutory direction to the trial court that disclosure is either compelled or not compelled. It is a direction that the court act according to an authorized, prescribed procedure. If a court acts contrary to the authorized procedure, it acts in excess of its jurisdiction. (Rodman v. Superior Court (1939) 13 Cal.2d 262, 269, 89 P.2d 109; Yoakum v. Small Claims Court (1975) 53 Cal.App.3d 398, 402, 125 Cal.Rptr. 882.) As aptly stated in Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, 109 P.2d 942, wherein our Supreme court distinguished between lack of fundamental jurisdiction and acts in excess of jurisdiction: “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (Id. at p. 288, 109 P.2d 942.) On the other hand, “any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. ” (Id. at p. 291, 109 P.2d 942.) Thus, if the lower court has fundamental jurisdiction of the issue and the parties, the writ may issue if that tribunal acted in excess of its jurisdiction by taking some step beyond its “defined power,” as “where a statute requires a court to exercise its jurisdiction in a particular manner, [or] follow a particular procedure,․” (Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657.)
In Freedom Newspapers, the trial court followed the prescribed statutory procedure for determining the applicability of the public interest exemption of section 6255. As emphasized by the appellate court, the trial court had faithfully attempted to follow the law and had simply reached an arguably incorrect determination. The court could not conclude the trial court erred in ruling the defendant's right to a fair trial exceeded the public's right to know the cost of his defense, and therefore no colorable argument could be made that the court lacked jurisdiction to deny access to the requested records. (Id., 186 Cal.App.3d at p. 1109, 231 Cal.Rptr. 189.)
The same situation does not obtain in the present case. As discussed in detail, infra, the trial court's ruling that “calendars” are “correspondence” and that the requested materials are exempt under section 6255 without benefit of an in camera review as mandated by section 6259, subdivision (a), finds no support in the language of the PRA or the court decisions interpreting that Act. This is not a situation involving a merely arguably incorrect decision. The rulings herein are fundamentally erroneous under the statutory provisions and case law and must therefore be deemed to have been made in excess of jurisdiction. In short, a lower tribunal always exceeds its jurisdiction when, after misinterpreting the governing statute, it either permits what the statute bars or prohibits what the statute authorizes. As we held in People v. Garrett (1987) 192 Cal.App.3d 41, 49, 237 Cal.Rptr. 305, when the challenged judicial order is precluded by the statute under which the court purported to act, then the order is made in excess of the court's jurisdiction.
Freedom Newspapers is distinguishable from this case in yet another important respect. In Freedom Newspapers, the trial court noted the newspaper would eventually have access to the requested materials because the records would be unsealed when the prosecution concluded its case. (Id. 186 Cal.App.3d at p. 1106, 231 Cal.Rptr. 189.) Here, however, the request by the Times is unrelated to any other ongoing action; there is no “later” when the sought records will necessarily be released to the public. Under the Governor's narrow definition of acts taken in excess of jurisdiction, an order denying, or granting, access to public records would be virtually insulated from review. Given the purposes behind the PRA as reflected in the language of the Act itself and as interpreted by the courts, such a position appears to be anomalous. However, since we have determined that the court's actions herein exceeded its jurisdiction, we have no occasion to resolve this dilemma now. Instead, we turn to the issues presented by the trial court's rulings.
Apparently the parties agree the Governor's appointment schedules and calendars meet the definition of “public record” contained in section 6252, subdivision (d): they are writings prepared after January 6, 1975, in the custody of or maintained by the Governor's office. The sole question presented here is whether these materials are exempt from disclosure under either or both the correspondence exemption of section 6254, subdivision (l ) or the public interest exemption of action 6255.5
The Times asserts the trial court erred in ruling the appointment schedules and calendars exempt from disclosure as “correspondence of and to the Governor or employees of the Governor's office[.]” (§ 6254, subd. (l ).) This contention has merit.
In a battle of dictionaries, each party offers a different definition of “correspondence.” The Times, quoting Webster's Ninth New Collegiate Dictionary (1984), p. 293 contends correspondence is “communication by letters; also: the letters exchanged.” Because the appointment schedules and calendars are not a communication by letters, the Times urges, they are not correspondence and not exempt from disclosure.
The Governor purports to rely on Black's Law Dictionary for its definition of correspondence. Black's Law Dict. (5th ed. 1979) p. 311 defines correspondence as the “[i]nterchange of written communications[,]” 6 a definition the Governor asserts is met as “the records in the present case collectively constitute an interchange of written communications among the Governor's scheduling secretary, members of the Governor's senior staff, and the Governor himself, directed toward the purpose of establishing the schedule and timetable upon which the Governor's work day will proceed.”
“[W]here the principal problem of construction concerns the meaning of words used in the statute, we must look first to the words themselves [citation] and must interpret them ‘according to the usual, ordinary import of the language employed in framing them’ [citations.].” (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 43, 127 Cal.Rptr. 122, 544 P.2d 1322.) The definition of correspondence urged by the Governor is much broader than the usually understood meaning of “letters.” Under the Governor's theory, virtually every written item in the Governor's office would be exempt from disclosure as an “interchange of written communications.” Indeed, the only items not falling within this open-ended definition would be notes a writer penned to himself or herself.
Recognizing the problems inherent in this broad definition, the Governor attempts to fine-tune Black's offering by suggesting an alternative definition, also offered to the trial court. “Correspondence,” the Governor asserts, “is written communication that is directed to an identifiable person or persons for the purpose of establishing contact with the recipient, for some identifiable purpose.” We cannot agree.
Preliminarily, we note the proffered definition sounds suspiciously like a “letter.” However, to the extent it applies to other documents by virtue of the phrase “written communication,” it suffers from the same defect as the Black's definition: it simply covers too much. Even the items suggested by the Governor to be nonexempt materials in fact fit his definition of correspondence. For example, a bulletin to state employees is a written communication directed to identifiable persons “for the purpose of establishing contact with the recipient, for some identifiable purpose.” The annual budget the Governor sends to the Legislature also meets this definition, although the Governor asserts otherwise.
Moreover, the Governor's position does not properly reflect the legislative history of the “correspondence exemption,” or the fact that exemptions to the Act must be narrowly construed. (Citizens for a Better Environment v. Department of Food & Agriculture (1985) 171 Cal.App.3d 704, 711, 217 Cal.Rptr. 504; San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d at pp. 772–773, 192 Cal.Rptr. 415.) Prior to 1975, the Act exempted from disclosure all records “[i]n the custody of or maintained by the Governor or employees of the Governor's office employed directly in his office,․” (Stats.1970, ch. 1295, § 1.5, p. 2397.) In 1975, this provision was amended to limit the exemption to correspondence of or to the Governor and his staff. “Where changes have been introduced to a statute by amendment it must be assumed the changes have a purpose[.]” (Louisiana–Pacific Corp. v. Humboldt Bay Mun. Water Dist. (1982) 137 Cal.App.3d 152, 159, 186 Cal.Rptr. 833.) The Legislature's amendment of section 6254, subdivision (l ) narrowed the possible application of this exemption. This legislative change, together with the need to construe exemptions narrowly to reflect the Act's policy favoring disclosure, lead us to conclude the Governor's sweeping definition of “correspondence” cannot be sustained.
For purposes of the PRA, “correspondence” must be defined as “communication by letter,” the Webster's definition urged by the Times. The trial court erred in concluding the Governor's appointment schedules and calendars meet this definition; these items are not exempt from disclosure pursuant to section 6254, subdivision (l ).7
Addition of the Governor's appointment schedules and calendars to the exemptions conferred by section 6254, subdivision (l ) should be addressed to the legislature, not the judiciary.
As an additional basis of exemption from disclosure, the trial court held the Governor's appointment schedules and calendars were within the parameters of the public interest exemption of section 6255. Specifically, the court found the public interest served by not making the records public clearly outweighed the public interest served by disclosure in that (1) disclosure “unduly intrudes upon the necessary privacy of the Governor and those with whom he meets and confers upon issues of state and thereby thwarts the free and candid exchange of ideas and information that is necessary to the executive decisionmaking [sic] process;” and (2) disclosure “constitutes a present and potential threat to the Governor's security and personal safety, which is inimical to the public interest.”
The Times contends both of these findings are erroneous, particularly as the court failed to inspect the documents in camera before reaching these conclusions. We agree.
In support of his claim that the disclosure of appointment schedules and calendars will “thwart the free and candid exchange of ideas,” the Governor cites numerous cases protecting from disclosure documents that contain policy discussions and recommendations or reveal the mental processes of an individual in making policy decisions. (E.g., Environmental Protection Agency v. Mink (1973) 410 U.S. 73, 87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119, 132; Citizens to Preserve Overton Park, Inc., v. Volpe (1971) 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136, 155; City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 772, 122 Cal.Rptr. 543, 537 P.2d 375; Department of Health Services v. Superior Court (1980) 104 Cal.App.3d 80, 84, 163 Cal.Rptr. 414.) These cases are inapposite. The Times seeks only appointment schedules and calendars, not information concerning the advice given or received at scheduled meetings. Because information relating to the content of these meetings is not sought, no threat is posed to the candid exchange of ideas.8
For the same reason, we reject the Governor's contention that the deliberative privilege applies because ”the records themselves are integral to a continuing and ongoing process of executive decision making concerning how the Governor's time is to be utilized.” Times seeks disclosure of the Governor's appointment calendars and schedules. It is not asking that requests for appointments or documents relating to the granting or denying of such requests be disclosed. Also not requested by the Times are the initial judgments exercised by the Governor's scheduling secretary, the discussions between her and senior staff over a draft scheduling proposal and the ”continuing flow of communications between Governor and staff and among staff,” if any paper trail of such thoughts and communications exist. Moreover, the declaration of the Governor's Scheduling Secretary states neither the scheduling memoranda nor the tentative calendars are retained in the Governor's office ”in the ordinary course of business.”
We reiterate that the only request is for the Governor's calendars and appointment schedules. The fact that the Governor and his staff exercise judgment in creating the appointment calendars and schedules does not implicate the deliberative privilege.
The Times has not requested the briefing documents attached to the Governor's schedule as described by the Governor's scheduling secretary. While arguably these documents might contain information material as to the matters discussed or to be discussed at the Governor's meetings, they are not before us and we do not herein determine if they are exempt.
The Times further asserts section 6255 cannot be used to invoke a “deliberative process” exemption, as such an exemption can be claimed only by invoking section 6254, subdivision (a). This provision exempts from disclosure “[p]reliminary drafts, notes, or interagency or intraagency memoranda which are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.” As we have concluded the disclosure of the sought items would not reveal policy discussions, deliberations or decisions, we do not consider this contention of the Times.
The question of whether disclosure of the appointment schedules and calendars would threaten the Governor's security is a serious question which cannot be resolved on the present record. The Times requested calendars and appointment schedules from the Governor's inauguration to the present. At oral argument, the Times stated this request applied to both the final and advance schedules. (See fn. 4, supra.) Release of the sought material would therefore disclose not only past events but upcoming appointments and appearances as well.
In her declaration, the Governor's Scheduling Secretary asserts the schedules she prepares “reflect the timing and details of the Governor's arrivals and departures everywhere he goes in the course of his day, whether in residence in Sacramento or in the course of traveling elsewhere, in or out of California. Necessarily, each of these documents reflect [sic] the daily activity patterns and the habits of the Governor, including the occasions and times during the course of the day when he is likely to be alone. Information contained in these documents concerning travel includes whether and when family members and traveling companions will be with him, the particular aircraft or other means of transportation to be used, names of pilots and drivers, airport gate departures, specific hotel accommodations, automobile and other ground arrangements. This and similar information is identified for the Governor for all travel, whether within California, out-of-state, or in a foreign country.”
The declaration of the Commander of the Dignitary Protection Command of the California State Police reiterates the types of information included in the Governor's schedules and calendars and concludes advance disclosure of this information would pose a security threat because a reader would “know in advance and with relative precision when and where the Governor may be found, those persons who will be with him, and when he will be alone.” The Commander opined the disclosure of schedules and calendars of past events would also pose a threat to the Governor's safety “because perusal of the schedules for past periods will enable the reader to discern characteristics habits and activity patterns followed by the Governor, from which opportunities for access to the Governor's person may be surmised.”
The Times posits that no security risk is posed by the disclosure of calendars and schedules of past events. In opposition, the Governor argues inter alia that release of this information poses a risk of harm to his safety because his schedules contain many details of his activities which may disclose activity patterns followed by the Governor and habits of conduct. These concerns are belied by the actions of the Governor's office, which regularly delivers to newspapers copies of advance “public schedules.” These schedules indicate where the Governor is speaking on particular dates and often provide the location and room number for these appearances as well as the names of others who will be present. For example, on November 10, 1988, the Governor's assistant press secretary released a schedule noting that at 9:30 a.m. on November 15, the Governor would attend a meeting in Washington, D.C. of the Export–Import Bank Advisory Board at the Exim Bank, at 811 Vermont Avenue, Room 1143. As these details have already been released, in ordinary situations the Governor cannot seriously contend that his security is threatened by the release of other information of a similar nature.
The amount of detail released in these public schedules appears to be in inverse proportion to the security risks involved. While considerable detail is given concerning the Governor's activities on the road, the public schedules provide no details on the Governor's office meetings, noting only that a particular day is to be spent in “office appointments.” Presumably security is easier to provide in the Governor's own office than while traveling.
As to the declaration of Commander Williams, the Times further asserts the documents cannot be exempted from disclosure because a security officer speculates that someone reviewing calendars of past events might divine a pattern to the Governor's activities and gain unauthorized access to the Governor. We concur that bare speculation does not support such an inference.
In CBS, Inc. v. Block, supra, 42 Cal.3d 646, 230 Cal.Rptr. 362, 725 P.2d 470, the Supreme Court faced a similar contention. CBS sought to inspect applications and licenses for concealed weapons. The defendants, relying on the general public interest exemption of section 6255, argued the release of information would allow would-be attackers to plan their crimes against licensees. The court rejected this argument, noting “[d]efendants' concern that the release of the information to the press would increase the vulnerability of licensees is conjectural at best. The prospect that somehow this information in the hands of the press will increase the danger to some licensees cannot alone support a finding in favor of nondisclosure as to all. A mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to these records. Moreover, section 6257 specifically provides that ‘[a]ny reasonably segregable portion of a record shall be provided to any person requesting such records after deletion of the portions which are exempt by law.’ Thus, any information on the applications and licenses that indicates times or places when the licensee is vulnerable to attack may be deleted. The fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document. [Citation.]” (42 Cal.3d at pp. 652–653, 230 Cal.Rptr. 362, 725 P.2d 470, footnotes omitted.)
This principal is controlling in this case. Mere conjecture that someone may guess when the Governor may be somewhere by reading past calendars does not “clearly outweigh” the public's interest in disclosure. This is not to say, however, that legitimate safety concerns may not be present. If an evidentiary showing is made that security will be imperiled by the release of all or any part of a document outlining past or upcoming events, release of the document should be denied or the endangering portion deleted. The Times recognizes certain details may properly be withheld. As the Times notes, however, such a determination can be made only after an in camera review. Without examining the materials sought, the trial court cannot evaluate whether security problems might be posed by the release of certain information.
We reject the contention of the Governor that an in camera inspection is unwarranted because the exempt status of the requested records was determinable as a matter of law. The Governor asserts an in camera inspection is to be utilized pursuant to Evidence Code section 915, subdivision (b) only when, as that section provides, “a court is ruling on a claim of privilege ․ and is unable to do so without requiring disclosure of the information claimed to be privileged,․” The Governor further, asserts the claim of privilege on the basis of public interest presumptively establishes a valid exemption which in turn places a burden on the party seeking disclosure to make a showing that the documents sought are either not privileged or a necessity exists for their production.
The Governor errs. The language of section 6255 refutes this claim. Under section 6255, the burden is on the governmental agency or officer to justify withholding any record by demonstrating the record is either expressly exempt by statute or “the public interest served by not making the record public clearly outweighs the interest served by disclosure․” As stated in Braun v. City of Taft, supra, 154 Cal.App.3d at p. 345, 201 Cal.Rptr. 654, “[t]he burden of demonstrating [the] need for nondisclosure is upon the agency claiming the right to withhold the information.” The Governor has failed to meet his burden of establishing that an exemption in fact applies.
As a federal court explained in a similar setting, “In camera inspection in executive privilege cases is appropriate where it appears with reasonable clarity that the party seeking production is entitled to access to some of the materials demanded. Examination in this type of situation enables the separation of what should be disclosed from what should not be revealed.” (Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena (D.C.1966) 40 F.R.D. 318, 331, fns. omitted.) The PRA provides: “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt by law.” (§ 6257.) “[W]here nonexempt materials are not inextricably intertwined with exempt materials and are otherwise reasonably segregable therefrom, segregation is required to serve the objective of the PRA to make public records available for public inspection and copying unless a particular statute makes them exempt. [Citation.] [¶] Undoubtedly, the requirement of segregation casts a tangible burden on governmental agencies and the judiciary. Nothing less will suffice, however, if the underlying legislative policy of the PRA favoring disclosure is to be implemented faithfully.” (Northern Cal. Police Practices Project v. Craig (1979) 90 Cal.App.3d 116, 124, 153 Cal.Rptr. 173.)9
In determination herein, we have properly confined our rulings to the requested appointment schedules and calendars. Our decision does not embrace current or future schedules and calendars and we have not considered such documents.
The matter is remanded to the trial court for an in camera review, segregation of any information posing a legitimate security risk, and disclosure of all nonexempt material. The Times shall recover costs and attorney's fees incurred both in its petition and in proceedings before the trial court. (§ 6259.)
1. All further undesignated statutory references are to the Government Code.
2. “ ‘Writing’ means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.” (§ 6252, subd. (e).)
3. Evidence Code section 915, subdivision (b) provides in relevant part: “When a court is ruling on a claim of privilege ․ and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present․”
4. These declarations outlined the following procedures utilized in preparing the Governor's calendar. After reviewing requests for meetings and appointments, the Governor's scheduling secretary prepares a draft scheduling memorandum which she discussed with four of the Governor's senior staff members. A scheduling memorandum and a tentative month-long calendar are then prepared for the Governor and discussed with him. A finished month-long calendar identifies the Governor's major time commitments for public appearances and private meetings. Copies of this calendar are given to the Governor, a “limited number of members of the Governor's Office,” the Director of Finance, the Governor's Security Director, and the Governor's drivers.Each week, the scheduling secretary prepares a two-week calendar outlining the schedule for the two upcoming weeks. These calendars reflect the information contained in the finished monthly schedule as well as more recently approved appointments and appearances. The schedule for the first week is designated “final,” that for the second is designated “advance.” The “advance” schedule may be modified as other appointments and appearances are added.A complete daily schedule for the next day is delivered to the Governor at the end of each work day. These daily schedules may have attachments such as briefing memoranda. Copies of this schedule are circulated to a number of people, some of whom receive the attachments as well.According to the scheduling secretary, each of the calendars and schedules she prepares is distributed with the understanding they are confidential and should be destroyed once they have been superseded or served their purpose.
5. Several cases cited by both parties are inapposite to the issue presented. For example, in Bureau of Nat. Affairs v. U.S. Dept. of Justice (D.C.1984) 742 F.2d 1484, the court considered whether appointment calendars, phone logs and daily agendas of officials were “agency records” under the Freedom of Information Act, a problem created because that legislation did not define the term “agency records.” Similarly, in Kerr v. Koch (1988) 15 Med.L.Rptr. 1579, a New York trial court confronted the question of whether the appointment calendars of Mayor Ed Koch were “agency records” under New York's statutory provisions. Under the PRA, however, the term “public records” is defined and the parties agree the items at issue are public records. The focus here is entirely different, namely whether either of the claimed exemptions apply.
6. A second definition of correspondence in Black's is “[t]he letters written by a person and the answers written by the one to whom they are addressed.”
7. We do not doubt that letters asking the Governor for an appointment or the Governor's replies to such requests would be exempt from disclosure as “correspondence.” What the Times seeks, however, is not these preliminary requests, but the end product, i.e., the calendars and appointment schedules themselves.
8. In his declaration, the Governor stated, “Because of the frequent sensitivity of many issues that must be dealt with in ․ meetings, it is necessary that the meetings themselves be fundamentally private, so that those present may feel free to express their candid opinions to me and so that I can be assured of the candor of their expressions and the privacy of my own. Routine disclosure of the identities of the persons with whom I meet, and the occasions on which I meet with them, would be counterproductive to the extent that I and those with whom I meet to discuss matters of state must then necessarily anticipate being questioned concerning the substance of these meetings and the opinions expressed by those present. This is so because even if the specific subject of the meeting were not disclosed, speculative inferences concerning the subject matter and the views exchanged, potentially surmised from the identities of those present, would render the free exchange of information and ideas more difficult, thwarting the purpose of open, frank discussion among the participants.”As the Times aptly responded, only through “pure speculation, [can it be assumed] people will refuse to meet with the Governor if the requested documents are disclosed. This speculation rests on the following attenuated assumptions. If the requested documents are disclosed, someone would ask at least some people who meet with the Governor what was discussed; they would be unable to bring themselves to simply say ‘no comment;’ instead, they would blurt out what was discussed; and knowing this fatal weakness, they would choose not to meet with the Governor. Surely, people who meet with the Governor, e.g., lobbyists, other politicians, captains of industry, and labor leaders, are made of sterner stuff.”
9. The Governor suggests the tentative schedules prepared by his scheduling secretary may be exempt from disclosure pursuant to section 6254, subdivision (a). As this court explained, “[T]here are three statutory conditions for exemption [under this provision]: (1) The record sought must be a preliminary draft, note, or memorandum; (2) which is not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding must clearly outweigh the public interest in disclosure. The burden of proof and of persuasion of the existence of each condition [lies with the party invoking the exemption]. [Citation.]” (Citizens for a Better Environment v. Department of Food & Agriculture, supra, 171 Cal.App.3d at pp. 711–712, 217 Cal.Rptr. 504, fn. omitted.)While evidence was introduced regarding the first two conditions, the record is devoid of any evidence relating to the balancing of the public's interests.
CARR, Associate Justice.
PUGLIA, P.J., and SPARKS, J., concur.