In a resounding victory for public access to state government documents, a Sacramento judge has rejected efforts by the California State Assembly to keep secret records reflecting its internal budgeting and spending of taxpayer money.

In Dec. 2011, Judge Timothy Frawley held that the Legislative Open Records Act (LORA), a little-interpreted 36-year-old law, provides broad access to the Legislature's documents, and further held that the Assembly's refusal to provide records in response to requests from two news organizations was unjustified. The Assembly chose not to challenge Judge Frawley's ruling, and agreed to pay attorneys' fees and costs incurred by the La Cañada Valley Sun, the Los Angeles Times, and the Sacramento Bee in bringing the lawsuit. More than 15,000 pages of materials were provided initially after the ruling.

The dispute started in the fall of 2011, when the Newspapers requested copies of records that would show how the Assembly allocates money to individual Members, and how the Members spend their allocated funds. The requests were made after one Assembly Member claimed that party leaders were using legislators' budgets as a form of political patronage, rewarding legislators for voting along party lines, and punishing Members who did not follow directives from party leadership. The Assembly largely rejected the Newspapers' requests, claiming that the records were exempt from disclosure under LORA. The Newspapers then filed suit.

LORA Creates a Presumption of Access

LORA was enacted in 1975 as part of broad state-wide legislation designed to increase the public's access to important government information. In language similar to that used in California's Public Records Act, LORA's preamble recognizes that "access to information concerning the conduct of the people's business by the Legislature is a fundamental and necessary right of every citizen in this state." Consequently, the Sacramento Court found that LORA "reflects a strong presumption in favor of public access to legislative records" which is "subject only to the specific exemptions set forth in the Act."

Evaluating the Newspapers' requests, the Court found that the records sought "indisputably contain information relating to the conduct of the public's business," because they "all reflect how Assembly money is budgeted and spent, which is critical to an understanding of the Legislature's operations."

In what the Court noted was "a somewhat ironic twist," the Assembly argued that a law dedicated to "Open Records" should be construed narrowly in a way that "significantly restricts the public's right to inspect legislative records." The Assembly also argued that the separation of powers doctrine forbade the Court from enforcing LORA. The Court rejected both arguments.

Exemptions in LORA Must Be Construed Narrowly

The Court agreed with the Newspapers that cases interpreting the California Public Records Act inform the interpretation of LORA. Applying well-established law under the CPRA, the Court rejected the Assembly's claims that the documents sought were exempt from disclosure as "correspondence" or "preliminary drafts," and found that the materials were not protected under the common-law deliberative process privilege.

With respect to the correspondence exemption, the Court rejected the Assembly's argument that the exemption "applies to all internal and external written communications of legislators and staff." Instead, the Court held that the correspondence exemption narrowly applied only to "external (third-party) communications by letter to members of the Legislature and their staff, to insure that individuals and entities outside the Legislature would not be chilled in their ability to communicate with their elected representatives." The Court found that the Assembly's interpretation was overly broad, because "it would, in effect, shield every written communication within the Assembly, and it would allow any Assembly member or staff to shield any record in his or her possession simply by "passing" it to any other member or staff person." Because that exemption would "clearly swallow the rule of public access," it "cannot have been the Legislature's intent."

The Court also rejected the claim that the budget documents were "preliminary drafts"; as the Court explained, "[t]he fact that an approved budget could be modified again at some later point in time does not render it a 'preliminary' writing." Again, the Court pointed out that the Legislature's broad reading of the exemption would mean that "virtually every document related to the Assembly's business would be exempt from disclosure, since virtually every document could, at least in theory,

…be modified at some later point in time." Accordingly, the Court held that the preliminary drafts exception to the law does not
apply to documents that "represent a final decision to allocate funds or modify an Assembly member's office budget."

Finally, the Court rejected the Assembly's claim that the documents were exempt from disclosure under the common law deliberative process privilege. "The key question when the deliberative process privilege is invoked," the Court wrote, "is whether the disclosure of materials would expose the decision-making process in such a way as to discourage candid discussion within the government and thereby undermine the government's ability to perform its functions." The Court concluded that "the strong public interest in disclosure outweighs any reasons for keeping the records secret."

Judgment Is Entered and Records Released

The Assembly chose not to appeal the Court's decision. Given the volume of materials, the Newspapers and the Assembly agreed to a rolling production schedule, and the initial production of more than 15,000 pages was made on Jan. 6, 2012. The Court's final judgment was entered on Jan. 10, 2012.

Davis Wright Tremaine attorneys Kelli Sager, Rochelle Wilcox, and Jonathan Segal represented the La Cañada Valley Sun, the Los Angeles Times and McClatchy Newspapers before the Superior Court.