The opinion
Filed 7/13/22 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BRANDON RITTIMAN et al.,
Petitioners, A162842
v. (Public Utilities
PUBLIC UTILITIES COMMISSION, Commission Nos.
20597, 20598, 20599 &
Respondent.
20600)
ORDER MODIFYING
OPINION AND
DENYING REHEAR-
ING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 17, 2022, be modified
as follows:
1. On page 16 modify footnote 11 to read as follows:
In some specified instances, an application for rehearing must be
filed within 10 days of issuance of the challenged order or decision.
(Pub. Util. Code, § 1731, subds. (b)(1), (c), (d).) However, the CPUC
seems to agree that the 30-day, rather than the 10-day, period would
1
apply to seeking rehearing of a CPUC resolution affirming the de-
nial of a PRA request.
2. On page 16, delete paragraph beginning with “The commission then
has up to 60 days to either grant or deny an application for rehear-
ing” and replace with:
The commission then has up to 60 days to either grant or deny an ap-
plication for rehearing. (Pub. Util. Code, § 1733, subds. (a) & (b).) If
the commission does not grant or deny an application within 60 days,
the party seeking rehearing may consider the application denied and
seek judicial review. (Ibid.) Whether or not the challenged order or de-
cision is suspended during this time depends on when the application
for rehearing is filed and how quickly the commission acts on the appli-
cation.12 (Ibid.)
12 Public Utilities Code section 1733 provides:
“(a) Any application for a rehearing made 10 days or more before the
effective date of the order as to which rehearing is sought, shall be
either granted or denied before the effective date, or the order shall
stand suspended until the application is granted or denied; but,
absent further order of the commission, the order shall not stand so
suspended for more than 60 days after the date of filing of the
application, at which time the suspension shall lapse, the order shall
become effective, and the application may be taken by the party
making it to be denied.
“(b) Any application for a rehearing made within less than 10 days
before the effective date of the order as to which rehearing is sought,
and not granted for 60 days, may be taken by the party making the
application to be denied, unless the effective date of the order is
extended for the period of the pendency of the application.” (Pub.
Util. Code, § 1733, subd. (a), (b).)
2
3. On page 16, delete paragraph beginning with “Thus, the statutory
times specified by the rehearing statutes—which, not even account-
ing for any rehearing, itself, total at a minimum at least 70 days…”
and replace with the following paragraphs:
If the commission grants the application without “a suspension of
the order involved, the commission shall forthwith proceed to hear
the matter with all dispatch and shall determine the matter within
20 days after final submission” on rehearing.13 (Pub. Util. Code,
§ 1734.) Otherwise, there is no timeframe for rehearing and final
determination.14
Thus, just the application-for-rehearing process for a resolution af-
firming the denial of a PRA request, itself, can take 90 days (30 days
to file an application and 60 days for the commission to act). And if
the commission grants the application, there is no time frame for the
rehearing and disposition process.15 These extended time periods
13 If the commission does not decide the matter within 20-days of
submission, the party that sought rehearing may treat the decision as having
been affirmed. (Pub. Util. Code, § 1734.)
14 In its petition for rehearing, the CPUC states that, in practice, the
20-day period never applies because “when a rehearing is granted, the
relevant holding is always vacated,” acknowledging “there is generally no
defined timeframe for the [c]ommission to conduct a rehearing.”
15 In its petition for rehearing, the commission asserts any rehearing of
a resolution affirming the denial of a PRA request would entail nothing more
than correcting any identified legal errors in the resolution, which it assures
us would not result in any “indefinite delay.” While this may be the CPUC’s
aspirational goal, there is no assurance that will be the case, as the instant
proceeding demonstrates. Moreover, the salient point is that the statutes
3
cannot be squared with the procedural provisions of the PRA man-
dating that agencies respond to requests within a much tighter
timeframe.
4. In inserting footnotes on page 16 (footnotes 12, 13, 14 & 15), the sub-
sequent footnote numbering shall be modified to the correct sequenc-
ing.
Dated:
________________________________
Humes, P. J.
that control the rehearing process impose no time frame for the rehearing of,
and final action on, a resolution affirming the denial of a PRA request.
4
Filed 6/17/22 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BRANDON RITTIMAN et al.,
Petitioners,
A162842
v.
PUBLIC UTILITIES COMMISSION, (Public Utilities
Commission Nos.
Respondent.
20597, 20598, 20599 &
20600)
This original mandamus proceeding brought under the Public Records
Act (PRA) (Gov. Code, §§ 6251 et seq.) presents three questions: (1) Was
petitioner2 required to fully exhaust the administrative remedies set forth in
the Public Utilities Code and in California Public Utilities Commission
(CPUC) General Order 66-D in order to judicially challenge the commission’s
denial of his PRA requests? (2) Has the CPUC’s action on petitioner’s
administrative appeal rendered this writ proceeding moot? (3) Did the
commission properly deny petitioner’s PRA requests on the basis of the
“Governor’s correspondence” exemption (Gov. Code, § 6254 subd. (l)) and/or
the “deliberative process” privilege (id., §§ 6254 subd. (k), 6255, subd. (a))?
We conclude the answer to the first two questions is “no,” and the answer to
2Although there are two named petitioners, Brandon Rittiman and
Tegna, Inc., we use the singular since Rittiman made the PRA requests at
issue and for ease of reference.
1
the third, is “yes.” We therefore sustain the CPUC’s return by way of
demurrer without leave to amend and dismiss this original proceeding.
I. BACKGROUND
In mid-November 2020, petitioner made four PRA requests seeking “all
communications between” CPUC President Marybel Batjer and/or her
“principal executive staff,” and members of the Governor’s staff, since the
date of Batjer’s appointment in mid-August 2019. The requested records
included “all documents, emails, or texts whether made on state-issued or
personal devices.”
Consistent with Government Code section 6253, subdivision (c),3 the
CPUC, on November 30, notified petitioner of its “determination” that the
requested records were statutorily exempt from disclosure under Government
Code section 6254, subdivision (l)—the Governor’s correspondence
exemption4—and would not be made available.
On December 4, in accordance with CPUC General Order 66-D, enacted
pursuant to Government Code section 6253.4, subdivisions (a) and (b)(28),5
3 Government Code section 6253, subdivision (c), provides in pertinent
part: “Each agency, upon a request for a copy of records, shall, within 10 days
from the receipt of the request, determine whether the request, in whole or in
part, seeks copies of disclosable public records in the possession of the agency
and shall promptly notify the person making the request of the determination
and the reasons therefore.”
4 Government Code section 6254 excludes from disclosure “any of the
following records: [¶] . . . [¶] (l) “Correspondence 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.” (Gov. Code, § 6254, subd. (l).)
5 Government Code section 6253.4, subdivision (a) states: “Every
agency may adopt regulations stating the procedures to be followed when
making its records available in accordance with this section.” Subdivision
(b)(28) sets forth a list of government entities, including the CPUC, that must
also “establish written guidelines for accessibility of records,” which must be
2
petitioner sent an e-mail to a CPUC Legal Division attorney appealing the
determination that the requested records are statutorily exempt from
disclosure. His stated ground for appeal was that “correspondence,” as the
term is used in the exemption, must be “narrowly . . . ‘confined to
communications by letter,’ ” citing Times Mirror Co. v. Superior Court (1991)
53 Cal.3d 1325, 1337 (Times Mirror Co.). (Underscoring omitted.) He
therefore requested that the commission provide “all text messages, emails,
and calendar entries.” Although petitioner’s e-mail did not comply with the
commission’s procedural rules for such appeals, the commission
acknowledged receipt of his appeal.
The next step in the CPUC’s internal appeal process requires its legal
division to prepare a draft “Resolution” responding to the issue(s) raised by
the requestor’s appeal. (Gen. Ord. 66-D § 6.1.) As the resolution
subsequently adopted by the commission in this case illustrates, such
resolutions are in the nature of a detailed legal disposition that summarizes
the facts of the particular PRA request and discusses and applies what the
CPUC determines is the applicable law. Draft resolutions are made available
for public review and comment, and acted on by the commission at the next
scheduled board meeting. (Gen. Ord. 66-D § 6.1.) General Order 66-D does
not set forth deadlines for completing and posting of draft resolutions, or for
commission action on a draft resolution.
As of mid-April 2021, the CPUC had not posted a draft resolution on
petitioner’s appeal, and petitioner notified the commission by letter that if a
draft was not before it on April 22, he would deem its lack of action “a
posted and copies of which must be available on request. (Id., § 6253.4, subd.
(b)(28).)
3
constructive denial” of his appeal “and seek judicial review” in the appellate
courts.
In his letter, petitioner advanced a new reason why the Governor’s
correspondence exemption assertedly did not apply. He maintained a
“California’s Court of Appeals has held that [Government Code] section
6254(l) provides confidentiality to a small subset of ‘letters’ and other
correspondence received by the Governor’s Office: it applies only to those
communications sent from individuals, companies, and/or groups who are
outside of the government,” citing to California First Amendment Coalition v.
Superior Court (1998) 67 Cal.App.4th 159, 168 (First Amendment Coalition).
A CPUC attorney responded by letter five days later, apologizing for
the delay in the draft resolution, citing “workload issues.” She anticipated
the draft resolution would be prepared and posted on May 21, for action at
the commission’s June 24 board meeting.
Not seeing a draft resolution on May 21, petitioner e-mailed the same
CPUC attorney on May 24 and 25. The attorney again apologized and stated
the draft would be circulated by July 2 for the commission’s August 4 board
meeting.
Two weeks later, on June 14, petitioner filed the instant mandamus
proceeding. He alleged, given the passage of seven months since the filing of
his administrative appeal, his appeal had been “constructively denied.” He
further maintained the Governor’s correspondence exemption applies solely
to correspondence from private parties and therefore is inapplicable to his
requests for communications between the Commission President and/or her
principle executive staff, and the Governor’s staff. He requested immediate
access to the disputed records.
4
We summarily denied the petition, indicating petitioner had not
exhausted his administrative remedies. The Supreme Court granted review
and transferred the matter back to us with directions to vacate our denial
order and issue an order to show cause (OSC) to the trial court. The high
court corrected its order on November 22, directing that we issue an OSC to
the CPUC. We did so on December 1.
In the meantime, on November 18, the commission adopted Resolution
No. L-612, an 11-page, single-spaced decision, denying petitioner’s
administrative appeal, principally on the basis of the Governor’s
correspondence exemption (Gov. Code, § 6254, subd. (l)), and “deliberative
process” privilege (id., §§ 6254, subd. (k), 62556).
On November 30, petitioner sent an e-mail to several CPUC e-mail
addresses, including that of the person (a legal support supervisor II) who
had served him by e-mail him with a copy of the CPUC’s Resolution,
attaching an “Application for Rehearing.” Petitioner sent a follow up e-mail
asking for confirmation that his prior e-mail had been received, to which the
same person responded, “Confirm receipt.”7 This apparent filing effort was
not done in accordance with CPUC procedural rules, which require either
filing a hard copy with the CPUC docket office or use of a specific e-filing
service, which, upon filing, provides the party with confirmation of filing and
6 “The deliberative process privilege (known as ‘executive privilege’
under federal law) protects materials reflecting deliberative or
decisionmaking processes.” (Wilson v. Superior Court (1996) 51 Cal.App.4th
1136, 1142; see generally Times Mirror Co., supra, 53 Cal.3d at pp. 1339–
1346.)
7 We grant petitioner’s request for judicial notice filed January 14,
2022, of his e-mail (exhibit 5) and the staff person’s reply (exhibit 6). The
request is otherwise denied.
5
docketing. (Cal. Code Regs., tit 20, § 1.13.) Petitioner’s e-mail never made its
way to the docketing office, and apparently petitioner never followed up to
confirm timely filing and docketing.
The CPUC duly filed a return to the OSC in the form of a demurrer,
supported by a memorandum of points and authorities. The commission
advanced three grounds for dismissal of the writ petition: (1) Petitioner failed
to fully exhaust his administrative remedies, specifically by failing to file an
application for rehearing as required by Public Utilities Code section 1731
and General Order 66-D section 6.2. (2) The CPUC’s adoption of Resolution
No. L-612 denying petitioner’s administrative appeal moots this mandamus
proceeding. (3) The commission properly denied petitioner’s PRA requests on
the basis of the Governor’s correspondence exemption and the deliberative
process privilege.
Petitioner filed a reply, taking issue with each of these grounds.
II. DISCUSSION
A. Exhaustion of Administrative Remedies
We first address the CPUC’s claim that since petitioner failed to
exhaust his administrative remedies set forth in the Public Utilities Code,
and specifically the rehearing provisions of Public Utilities Code section 1731,
we lack jurisdiction to consider the merits of petitioner’s challenge to the
denial of his PRA requests and must dismiss his writ petition. Petitioner
maintains, having granted review and transferred the matter to this court,
the Supreme Court has already ruled in his favor on exhaustion and
therefore the issue need not detain us further. He further claims that even if
exhaustion may otherwise be required, he is excused from doing so in this
case given the commission’s delay in acting on his administrative appeal. As
we shall explain, we conclude the administrative remedies set forth in the
6
Public Utilities Code, and specifically section 1731, do not apply to the PRA
and therefore there is no jurisdictional impediment to our review of
petitioner’s challenge to the commission’s determination denying his
requests. We further conclude any non-statutory administrative remedies
must comply with the language and purpose of the PRA and, in this case,
petitioner is excused from exhausting such remedies.
Before taking up the CPUC’s exhaustion argument, we address
petitioner’s assertion that the issue has already been decided in his favor
because the Supreme Court granted review and transferred the matter back
to us with directions to issue an OSC. According to petitioner, “[t]he fact that
the Supreme Court issued the Writ proves, beyond peradventure, that it
necessarily rejected CPUC’s argument that no court has jurisdiction over this
case until Petitioners ‘have exhausted their administrative remedies.’ ”
Petitioner is mistaken as to the import of a grant of review by our high
court. In granting a petition for review, the court decides only to accept the
case and to address one or more of the issues tendered for review—this is not
a decision on the merits of any issue as to which the court grants review.
(See Cal. Rules of Court, rule 8.500(b), (c).) Rather, on granting review, the
court may retain the case on its own docket (for further briefing, oral
argument and decision) or transfer the case back to the Court of Appeal from
which it originated, with directions, for example, in writ proceedings, to issue
an OSC to the lower tribunal (most often the trial court, but in some cases, as
here, another tribunal). (See Cal. Rules of Court, rules 8.516(a) & (b),
8.528(d).) The grant and transfer procedure is commonly used, and it is not a
merits decision. (See id., rule 8.528(d) & (f).)
Nor was the high court’s directive to issue an OSC any kind of merits
determination. (See Cal. Rules of Court, rule, 8.528(d) & (f); see also
7
Clemmons v. Railroad Commission (1916) 173 Cal. 254, 256–258 (Clemmons)
[that high court issued OSC in writ of review proceeding did not foreclose
commission from claiming petitioners’ failure to file a timely application for
rehearing deprived court of jurisdiction to decide the merits].) On the
contrary, issuance of an OSC in a mandamus proceeding makes the matter a
“cause,” requiring the filing of a return and allowing for the filing of a reply,
requiring oral argument unless waived, and requiring disposition by way of a
written decision. (See Cal. Rules of Court, rule 8.487(b); Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1239–1241.)
Thus, whether petitioner was, as the CPUC asserts, required to fully
exhaust the administrative remedies set forth in the Public Utilities Code
and General Order 66-D is squarely before us.
In support of its assertion that petitioner was required to fully exhaust
the administrative remedies set forth in the Public Utilities Code, and
specifically section 1731, the commission cites to the constitutional and
statutory provisions investing it with broad administrative, legislative and
judicial powers, and defining the bounds of judicial review of commission
actions. (See generally People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621,
630; see also Clemmons, supra, 173 Cal. at pp. 256–258 [requiring full
exhaustion]; PegaStaff v. Public Utilities Com. (2015) 236 Cal.App.4th 374,
388–389 (PegaStaff) [requiring full exhaustion].)
These provisions include article XII, section 2, of our constitution which
grants the CPUC the right to “establish its own procedures” “[s]ubject to
statute and due process.” (Cal. Const., art. XII, § 2.) Section 5 of article XII,
in turn, grants the Legislature “plenary power, unlimited by other provisions
of this constitution but consistent with this article, to confer additional
authority and jurisdiction upon the commission, [and] to establish the
8
manner and scope of review of commission action in a court of record. . . .”
(Id., § 5.) Pursuant to this power, the Legislature has enacted a host of
statutes governing procedure in, and judicial review of, matters before the
commission. (Pub. Util. Code, §§ 1701 et seq., 1731 et seq; PegaStaff, supra,
236 Cal.App.4th at pp. 381, 383.) These statutory provisions include Public
Utilities Code section 1701, which states in pertinent part: “All hearings,
investigations, and proceedings shall be governed by this part and by rules of
practice and procedure adopted by the commission. . . .” (Pub. Util. Code,
§ 1701, subd. (a).) Pursuant to this statutory authority, as well as its own
constitutional authority, the CPUC has enacted, by regulation, decision and
general order (such as General Order 66-D), numerous rules of practice and
procedure. (E.g., Cal. Code Regs., tit. 20, § 1.3 et seq.; Gen. Ord. 66-D.)
We are specifically concerned here with Public Utilities Code section
1731, entitled “Judicial review procedures,” which states in pertinent part:
“After an order or decision has been made by the commission, a party to the
action or proceeding . . . may apply for a rehearing. . . . A cause of action
arising out of any order or decision of the commission shall not accrue in any
court to any corporation or person unless the corporation or person has filed
an application to the commission for a rehearing within 30 days after the date
of issuance. . . .” (Pub. Util. Code, § 1731, subd. (b)(1), italics added.) Public
Utilities Code section 1759, in turn, entitled “Jurisdiction,” states in
pertinent part: “No court of this state, except the Supreme Court and the
court of appeal, to the extent specified in this article, shall have jurisdiction
to review, reverse, correct, or annul any order or decision of the commission
or to . . . enjoin, restrain, or interfere with the commission in the performance
of its official duties.” (Id., § 1759, subd. (a).) Such judicial action is typically
by way of writ of review. (Id., § 1756, subd. (a).) However, “[t]he writ of
9
mandamus shall [also] lie from the Supreme Court and from the court of
appeal to the commission in all proper cases as prescribed in Section 1085 of
the Code of Civil Procedure.” (Id., § 1759, subd. (b).)
Our Supreme Court has twice held that these constitutional and
statutory provisions are of true jurisdictional import. In Clemmons, the court
had before it a challenge to a water rate increase approved by the then-
denominated Railroad Commission. (Clemmons, supra, 173 Cal. at p. 255.)
The commission maintained the court could not consider the petitioners’
challenge “because timely application had not been made to the commission
itself for rehearing.” (Id. at p. 256.) Although the petitioners had filed an
application, they had not done so within the prescribed time period. (Id. at
pp. 257–258.)
The high court first explained that its grant of an OSC to the
commission did not preclude it from “continuing to insist” that the court could
not reach the merits of the rate challenge—because “the point goes to the
jurisdiction of the court and it may, therefore, be raised at any stage of the
proceedings.” (Clemmons, supra, 173 Cal. at p. 256.)
The court went on to agree with the commission that it could not
address the merits, citing to the statutory language (now set forth in Pub.
Util. Code, § 1731) that “ ‘[n]o cause of action arising out of any order or
decision . . . shall accrue in any court” in the absence of an application for
rehearing by the commission. (Clemmons, supra, 173 Cal. at p. 257.) This
conclusion, said the court, was “the necessary consequence” of the
constitutional grant of authority to the legislature “to confer powers upon”
the commission and of the legislature’s chosen means of doing so. (Id. at
pp. 256–257.) Since the petitioners had failed to timely file an application for
rehearing, “it follow[ed] that the petitioners [had] lost their right to apply to
10
this court, or to any court in the state, for a review of the action of the
commission.”8 (Clemmons, at p. 257.)
Although Clemmons was decided more than a century ago, the
Supreme Court has never stepped back from its decision in that case. In
Consumers Lobby Against Monopolies v. Public Utilities Commission (1979)
25 Cal.3d 891, 902 (Consumers Lobby),9 the court reiterated it is “required to
deny [an] entire petition [for writ of review] on procedural [i.e., non-merit]
grounds if certain prerequisites to our jurisdiction are not met,” for example,
“if prior to filing in this court the petitioner failed to apply to the commission
for a rehearing.” We, of course, are bound to follow Supreme Court
precedent. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 456.)
In light of Clemmons and its progeny, and in light of the continuing
statutory constraints imposed by the Legislature on judicial challenges to
actions of the CPUC, the commission’s insistence that petitioner was
jurisdictionally required to fully exhaust his administrative remedies, and
specifically, was required to file a timely application for rehearing under
Public Utilities Code section 1731, is understandable.10 (See Shiseido
8 The CPUC continues to require strict compliance with its rules
governing the filing of applications for rehearing. (E.g., In re The Matter of
the Application of San Diego Gas & Electric Company (Cal. P.U.C., Dec. 18,
2014) 2014 WL 7437560 [denying motion to accept late filing of application
for rehearing that was partially, but not fully, electronically transmitted to
the Docket Office by 5:00 p.m.].)
9 Disapproved on another ground in Kowis v. Howard (1992) 3 Cal.4th
888, 896.
10 We recognize that in many other contexts, the courts, including our
Supreme Court, have held exhausting administrative remedies does not go to
a court’s fundamental jurisdiction and therefore failure to exhaust such
remedies can be waived if the defense is not timely raised. (See e.g., Kim v.
11
Cosmetics (America) Ltd. v. Franchise Tax Bd. (1991) 235 Cal.App.3d 478,
487–489 [statutory requirement that claim for refund be filed, enacted
pursuant to Legislature’s constitutionally authorized power to enact refund
procedures, was mandatory and could not be excused under any exception to
the exhaustion doctrine].)
However, the court in Clemmons was not confronted with a second,
later-enacted statutory scheme that by its plain terms is also applicable to
the CPUC. (Gov. Code, § 6253.4, subd. (b)(28); see Public Utilities Com. v.
Superior Court (2016) 2 Cal.App.5th 1260, 1267 [“It is undisputed that the
PRA applies to the CPUC.”].) The task before us, then, is squaring the
apparently fundamental jurisdictional constraints on judicial review set forth
in the Public Utilities Code, with the provisions of the PRA directing
government entities, including the CPUC, to act with all due haste in
handling PRA requests (Gov. Code, §§ 6253, subds. (c) & (d), 6253.4, subd. (c))
and directing courts to do the same in resolving disputes over public records
(id., § 6258).
These two statutory schemes can be harmonized by focusing on the
constitutional authority granted to the Legislature and the CPUC. As we
have recited, the Legislature has been constitutionally bestowed with
“plenary power” to “confer additional authority and jurisdiction upon the
Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1347–1348;
Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 220–223 (Green).)
However, as Clemmons and Consumers Lobby reflect, the Supreme Court has
taken a different view as to the statutory administrative remedies set forth in
the Public Utilities Code. (See also Saffer v. JP Morgan Chase Bank, N.A.
(2014) 225 Cal.App.4th 1239, 1246–1253 [exhaustion of federal statutory
administrative remedies is a fundamental jurisdictional prerequisite to
pursuing claims against the Federal Deposit Insurance Corporation].)
12
commission” and “to establish the manner and scope of review of commission
action in a court of record.” (Cal. Const., art. XII, § 5.) While the CPUC has
also been granted the constitutional power to “establish its own procedures,”
this authority is “[s]ubject to statute and due process.” (Id., § 2.) Given that
the Legislature has expressly made the PRA applicable to the CPUC, we
conclude the PRA represents an exercise of the Legislature’s “plenary power”
over the CPUC, and further conclude that the administrative remedies set
forth in the Public Utilities Code, and specifically, the rehearing requirement
set forth in Public Utilities Code section 1731, do not apply to the PRA and
that the PRA fixes the bounds of the CPUC’s authority to adopt procedures
for PRA requests such as those set forth in General Order 66-D.
A comparison of the procedural provisions of the PRA and the
administrative remedy provisions of the Public Utilities Code reinforces the
validity of these conclusions.
Upon receipt of a PRA request, an agency must, within 10 days,
“determine” whether the request seeks “disclosable” records “in the
possession of” the agency. (Gov. Code, § 6253, subd. (c).) This 10-day period
can, upon notice to the requestor, be extended to 24 days in a limited set of
circumstances specified in the statute. (Id., § 6253, subd. (c)(1)–(4).) Upon
making its determination, the agency “shall promptly notify the person
making the request of the determination and the reasons therefor.”11 (Gov.
Code, § 6253, subd. (c).)
11 Thus, contrary to petitioner’s assertion, an agency is not required to
both make its determination and give the required notice thereof within 10 or
24 days. If the 10-day (or 24-day) period for making a determination included
giving the requisite notification, there would be no reason for the separate
statutory requirement that such notification be given “promptly.” We
generally must “ ‘give meaning to every word in [a] statute and . . . avoid
13
“When the agency dispatches the determination, and if the agency
determines that the request seeks disclosable public records, the agency shall
state the estimated date and time when the records will be made available.”
(Gov. Code, § 6253, subd. (c).) Accordingly, the PRA does not set forth a
specific timeframe for actual production of the requested records. However, it
states generally that an agency “shall make records promptly available” upon
payment of fees associated with their duplication. (Id., § 6253, subd. (b).)
The PRA authorizes any “agency,” which includes the CPUC, to “adopt
regulations stating the procedures to be followed when making its records
available in accordance with this section.” (Gov. Code, § 6253.4, subd. (a).)
In addition, numerous government entities, including the commission, must
“establish written guidelines for accessibility of records” and post such
guidelines and make them available on request free of charge. (Id., § 6253.4,
subd. (b).) The PRA goes on to specify that “[g]uidelines and regulations
adopted pursuant to this section shall be consistent with all other sections of
this chapter and shall reflect the intention of the Legislature to make the
records accessible to the public.” (Id., § 6253.4, subd. (c).)
The PRA additionally spells out the means by which a government
entity’s decision to withhold records can be challenged in court. Government
Code section 6258 provides in pertinent part, “[a]ny person may institute
proceedings for injunctive relief or declarative relief or writ of mandate in any
court of competent jurisdiction to enforce his or her right to inspect or to
constructions that render words, phrases, or clauses superfluous.’ ” (In re
R.C. (2019) 39 Cal.App.5th 302, 307, quoting Klein v. United States of
America (2010) 50 Cal.4th 68, 80.) An agency would be well served, however,
by striving to give the requisite notice by the end of the period for making a
determination, or, at the very least, immediately thereafter.
14
receive a copy of any public record. . . .” It further states, “[t]he times for
responsive pleadings and for hearings 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.” (Ibid.)
As the Supreme Court explained in Times Mirror Co., supra, 53 Cal.3d
at pages 1332–1334, the Legislature amended the PRA in 1984 to allow for
judicial review by way of writ “to speed appellate review.” The sponsors of
the legislation sought “ ‘to correct an injustice they perceived due to . . . the
potential for . . . public agencies to delay the disclosure of public documents’ ”
by exploiting delays in the ordinary appellate process. (Id. at p. 1335; see
Filarsky v. Superior Court (2002) 28 Cal.4th 419, 434–435 [public entity
cannot file declaratory relief action to ascertain its obligation under the PRA,
in part, because such an action would “clearly thwart the Act’s purpose of
ensuring speedy public access” to disclosable records].)
In short, the PRA calls for the handling of record requests and the
resolution of disputes over such requests with alacrity.
The administrative remedies set forth in the Public Utilities Code, and
specifically, the provisions governing rehearing, stand in marked contrast.
Public Utilities Code section 1731 states that “[a]fter an order or decision has
been made by the commission, a party to the action or proceeding, or a
stockholder, bondholder, or other party pecuniarily interested in the public
utility affected may apply for a rehearing in respect to matters determined in
the action or proceeding and specified in the application for rehearing.” (Pub.
Util. Code, § 1731, subd. (b)(1).) It further provides, as we have recited, that
“[a] cause of action arising out of any order or decision of the commission
shall not accrue in any court to any corporation or person unless the
corporation or person has filed an application to the commission for a
15
rehearing.” (Ibid.) Generally, an application for rehearing must be filed
within 30 days of the issuance of the challenged decision or order. 12 (Id.,
§ 1731, subd. (b)(1).)
The commission then has up to 60 days to either grant or deny an
application for rehearing. (Pub. Util. Code, § 1733, subds. (a) & (b).)
Whether or not the challenged order or decision is suspended during this
time depends on when the application for rehearing is filed and how quickly
the commission acts on the application. (Ibid.) If the commission grants the
application without “a suspension of the order involved, the commission shall
forthwith proceed to hear the matter with all dispatch and shall determine
the matter within 20 days after final submission” on rehearing. (Id., § 1734.)
In the absence of suspension, there is no timeframe for rehearing and final
determination.
Thus, the statutory times specified by the rehearing statutes—which,
not even accounting for any rehearing, itself, total at a minimum at least 70
days (10 days to file application for rehearing, 60 days to decide whether to
rehear the matter, 20 days to issue decision on rehearing) and more
commonly at least 110 days (30 days to file application for rehearing, 60 days
to decide whether to rehear the matter, 20 days to issue decision on
rehearing)—cannot be squared with the procedural provisions of the PRA
mandating that agencies respond to requests within a much tighter
timeframe.
In addition, Public Utilities Code section 1756 states in pertinent part
that, “[w]ithin 30 days after the commission issues its decision denying the
12 In some specified instances, an application for rehearing must be
filed within 10 days of issuance of the challenged order or decision. (Pub.
Util. Code, § 1731, subds. (b)(1), (c), (d).)
16
application for a rehearing, or, if the application was granted, then within 30
days after the commission issues its decision on rehearing . . . any aggrieved
party may petition for a writ of review . . . for the purpose of having the
lawfulness of the original order or decision or of the order or decision on
rehearing inquired into and determined.” (Pub. Util. Code, § 1756, subd. (a).)
Thus, an application for rehearing under Public Utilities Code section 1731 is
linked to a writ of review—the means by which decisions of the CPUC are
typically subject to judicial review. (See, e.g., Consumers Lobby, supra,
25 Cal.3d at pp. 901–905; BullsEye Telecom, Inc. v. California Public Utilities
Com. (2021) 66 Cal.App.5th 301, 308–309; San Pablo Bay Pipeline Co., LLC
v. Public Utilities Com. (2015) 243 Cal.App.4th 295, 308–309.)
In contrast, judicial review under the PRA is by way of a complaint for
injunctive or declaratory relief, or a petition for a writ of ordinary mandamus,
not by way of a petition for a writ of review. (Gov. Code, § 6258.)
In sum, the procedural scheme, and specifically the rehearing process,
set forth in the Public Utilities Code is not only entirely different than, it is at
odds with, the procedural provisions of the PRA and the Legislature’s intent
in enacting them.
In concluding that the rehearing requirement set forth in Public
Utilities Code section 1731 and, in turn, the holdings of Clemmons and
Consumers Lobby, do not apply to the PRA, we are not concluding that the
CPUC cannot adopt procedures governing PRA requests that include an
administrative remedy. Rather, any such non-statutory, non-jurisdictional
remedy must comport with the PRA and ensure the expeditious handling of
record requests and timely resolution of disputes over whether records are
disclosable.
17
Assuming for purposes of analysis that the administrative appeal
process available to petitioner could have been implemented in a manner
consistent with the PRA, we turn to whether any exception to the exhaustion
doctrine permitted him to seek judicial review prior to any action by the
commission on his appeal. The delay that occurred here was egregious by
any measure—seven months passed from the time the commission accepted
his administrative appeal until he filed his writ petition. We conclude
petitioner was not required to wait any longer before seeking judicial review.
Indeed, it is well-established that the exhaustion of administrative remedies
is excused where, as here, “the administrative procedure is too slow to be
effective” (City of San Jose v. Operating Engineers Local Union No. 3 (2010)
49 Cal.4th 597, 609 (City of San Jose); Los Angeles County Employees Assn. v.
County of Los Angeles (1985) 168 Cal.App.3d 683, 686–687 [“speedy decision
was necessary and not possible under the relatively elaborate . . . procedures”
set forth in county’s rules and regulations]) and where “ ‘ “the agency
indulges in unreasonable delay.” ’ ”13 (SJCBC LLC v. Horwedel (2011)
201 Cal.App.4th 339, 346; Green, supra, 194 Cal.App.3d at p. 222).
We therefore conclude that, in this case, petitioner is excused from
exhausting administrative remedies.
13 We note, however, that in his administrative appeal, petitioner did
not advance the ground of error he now advances in this writ proceeding—
that the commission misapplied the Governor’s correspondence exemption.
Rather, he raised this asserted error for the first time four months later, in
his letter to the commission complaining about the time it was taking to rule
on his appeal. Accordingly, the commission can hardly be faulted for not
addressing this ground prior to receiving his letter.
18
B. Mootness
We next turn to the CPUC’s assertion that its approval of Resolution
No. L-612 nearly a year after petitioner filed his administrative appeal,
moots this writ proceeding. Petitioner contends otherwise, pointing out that
he has, since the outset of this proceeding, challenged the merits of the
CPUC’s denial of his PRA requests, which this court has not yet addressed.
We agree with petitioner. In his writ petition, he alleged that his
administrative appeal had been “constructively denied” due to the lapse of
time. He additionally alleged that the Governor’s correspondence exemption
does not apply, and he sought a writ compelling the commission to
immediately disclose the requested records, not a writ compelling the CPUC
to act on his administrative appeal. Accordingly, the CPUC’s eventual denial
of his administrative appeal has not mooted the issues tendered by his
petition.
In any case, even if this original proceeding were moot, we would
exercise our discretion to address the merits of the petition. (See In re
Schuster (2019) 42 Cal.App.5th 943, 951–952 [“ ‘if a pending case poses an
issue of broad public interest that is likely to recur, the court may exercise an
inherent discretion to resolve that issue even though an event occurring
during its pendency would normally render the matter moot’ ”].)
C. The Governor’s Correspondence Exemption
We now turn to the substantive issue before us—whether the CPUC
correctly concluded the records petitioner seeks are statutorily exempt from
disclosure under the Governor’s correspondence exemption (Gov. Code, § 6254
subd. (l)) and/or the “deliberative process” privilege (id., § 6254, subd. (k), id.,
§ 6255, subd. (a)). As we shall explain, we conclude the records are
statutorily exempt under the Governor’s correspondence exemption and
19
therefore need not, and do not, consider the applicability of the deliberative
process privilege.
The Governor’s correspondence exemption exempts from disclosure “the
following records: [¶] . . . [¶] (l) Correspondence 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.”14 (Gov. Code, § 6254, subd. (l).)
Petitioner maintains the exemption is “limited exclusively to
correspondence sent to the Governor’s Office ‘by correspondents outside of
government’ ”—in other words, that the exemption applies solely to
correspondence to the Governor and/or his or her staff from private parties.
(Boldface omitted.) Indeed, he claims the California Courts of Appeal have
“thrice” so held. Since the correspondence he seeks—between Batjer and/or
her principle executive staff, and the Governor’s staff—is not correspondence
from a party “outside the government,” petitioner asserts the exemption
necessarily does not apply. (Boldface & capitalization omitted.)
Petitioner is in error as to the state of the case law. No California court
has held that the Governor’s correspondence exemption is limited to
correspondence from private parties.
In First Amendment Coalition, the case on which petitioner primarily
relies, the Court of Appeal addressed the “narrow issue” of whether the
Governor was compelled under the PRA “to disclose the names and
qualifications of applicants for a temporary appointment to a local board of
supervisors.” (First Amendment Coalition, supra, 67 Cal.App.4th at p. 164.)
14 The exemption further provides, “public records shall not to be
transferred to the custody of the Governor’s Legal Affairs Secretary to evade
the disclosure provisions of this chapter.” (Gov. Code, § 6254, subd. (l).)
20
The party requesting records wanted, specifically, the candidates’ application
forms, maintaining a “form” was not “correspondence.” (Id. at p. 168.)
The Court of Appeal disagreed, stating the requestor’s view “would
emasculate the exemption” and the court “was not disposed to so formalistic a
resolution of the issue.” (First Amendment Coalition, supra, 67 Cal.App.4th
at p. 168.) The court concluded the “letters and application forms received by
the Governor’s office from applicants for appointment to the vacant
supervisor position” were exempt. (Id. at p. 169.)
In the course of so concluding, the court stated, “[i]n our view, the
correspondence exemption was intended to protect communications to the
Governor and members of the Governor’s staff from correspondents outside of
government.” (First Amendment Coalition, supra, 67 Cal.App.4th at p. 168.)
This is the language petitioner insists constitutes a holding that the
exemption applies only to correspondence from private parties.
To begin with, looking solely at the language the court employed, the
court did not say the exemption applies solely to correspondence from private
parties. Rather, the court made an affirmative statement that the exemption
does apply to correspondence from private parties—a proposition wholly in
keeping with the statutory language that excludes “[c]orrespondence . . . to
the Governor or employees of the Governor’s office” (Gov. Code, § 6254, subd.
(l)), and a proposition with which we entirely agree. Further, the court’s
statement makes perfect sense given that the correspondence at issue was
correspondence from, and specifically application forms submitted by, private
parties. The court was not called upon to make, nor did it make, any other
pronouncement as to the scope of the exemption.
The appellate court also contrasted the correspondence and
accompanying application forms before it, with the “calendars and scheduling
21
materials” at issue in Times Mirror Co. (First Amendment Coalition, supra,
67 Cal.App.4th at p. 168.) In Times Mirror Co., our Supreme Court
considered whether the Governor’s “daily, weekly and monthly appointment
calendars” were exempt from disclosure under the correspondence exemption
and/or the deliberative process privilege. (Times Mirror Co., supra, 53 Cal.3d
at p. 1329.)
The Governor urged the court to construe “correspondence” to mean
any “written communications,” which would, in turn, embrace any
communications between his scheduling secretary and members of his staff,
which would, in turn, include his personal calendars. (Times Mirror Co.,
supra, 53 Cal.3d at pp. 1329, 1337.)
In rejecting this definition of “correspondence,” the court pointed out
that prior to 1975, the PRA 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,’ ” but in that year, the PRA was
amended to “limit the exemption to correspondence of or to the Governor and
his staff.” (Times Mirror Co., supra, 53 Cal.3d at p. 1337.) “The Governor’s
suggested definition of correspondence,” said the court, was “so broad as to
encompass nearly every document generated by the Governor’s office,
effectively reinstating the original exemption and rendering the 1975
amendment a nullity.” (Ibid.) The court similarly rejected the Governor’s
alternative proposal that “correspondence” be defined as “written
communications ‘directed to an identifiable person or person for the purpose
of establishing contact with the recipient.’ ” (Ibid.) “Even under this
definition,” said the court, “the exception would swallow the rule.” (Ibid.)
The high court therefore concluded the correspondence exemption
“must be confined to communications by letter,” a definition the Governor’s
22
appointment calendars and schedules “plainly” did not meet. (Times Mirror
Co., supra, 53 Cal.3d at p. 1337.) The court went on to conclude the
calendars and schedules came within the “deliberative process privilege” and
were therefore exempt under another provision of the PRA. (Id. at pp. 1339–
1346.)
Notably, nothing in the Supreme Court’s discussion of the Governor’s
correspondence exemption suggests it is limited to correspondence from
private parties. Rather, the court held only that the Governor’s calendars
and schedules were not “correspondence” within the meaning of the PRA.
Accordingly, the fact the First Amendment Coalition court contrasted the
correspondence and applications before it, with the Governor’s “internally
generated” personal calendars and schedules at issue in Times Mirror Co.
(First Amendment Coalition, supra, 67 Cal.App.4th at p. 168), does not
amount to even a hint, let alone constitute a holding, that the Governor’s
correspondence exemption applies only to correspondence from private
parties.
The second case petitioner cites is American Civil Liberties Union of
Northern California v. Superior Court (2011) 202 Cal.App.4th 55 (American
Civil Liberties). In that case, a different division of this court considered
whether the Department of Corrections could withhold the “identities of
approximately 12 pharmaceutical distributors and other entities from which
it sought to obtain sodium thiopental” for use in executions and whether the
department could redact from otherwise disclosable public records,
information not sought by the PRA requests at issue. (Id. at pp. 62, 65.) The
court answered both questions in the negative. (Ibid.) As is immediately
apparent without further discussion, the Court of Appeal was not asked to
decide any issue having to do with the Governor’s correspondence exemption.
23
In the procedural background section of its opinion, the court recited
that the trial court had not allowed the department to “withhold internal
communications” under the Governor’s correspondence exemption “because,
as stated in California First Amendment . . . , that exception is ‘intended to
protect communications to the Governor and members of the Governor’s staff
from correspondents outside of government’ and was therefore inapplicable to
the documents petitioner sought.” (American Civil Liberties, supra,
202 Cal.App.4th at p. 65.) This one-sentence procedural recitation of an
aspect of the trial court’s order that was not challenged on appeal, was not a
holding by the appellate court. Moreover, as we have discussed, California
First Amendment did not hold that the Governor’s correspondence exemption
applies solely to correspondence from private parties.
Petitioner additionally cites to Marylander v. Superior Court (2000)
81 Cal.App.4th 1119 (Marylander). This was not a PRA case at all, but
rather was a writ proceeding challenging a discovery ruling in a civil action.
(Id. at p. 1121.) The petitioner sought the production of memoranda
prepared by officials of the Office of Statewide Health Planning and
Development (OSHPD) that were directed to the Governor and concerned the
financial condition of an entity that had purchased two hospitals with loans
guaranteed by the OSHPD. (Id. at p. 1122.) The trial denied a motion to
compel on the ground the documents came within the Governor’s
correspondence exemption. (Id. at p. 1121.) The appellate court reversed—
not on any ground pertaining to the scope of the exemption, but because PRA
exemptions have no application to civil discovery. As the court explained, “a
party to pending litigation has a stronger and different type of interest in
disclosure.” (Id. at pp. 1125, 1130, italics omitted.) Accordingly, “[t]he
exemptions contained in the Public Records Act simply do not apply to the
24
issue whether records are privileged in pending litigation so as to defeat a
party’s right to discovery.” (Id. at p. 1125.) Thus, to the extent the trial court
had relied on the Governor’s correspondence exemption to foreclose discovery,
the appellate court held it had erred and remanded for the lower court to re-
evaluate the request under the proper discovery standard. (Id. at p. 1129.)
Thus, Marylander has no bearing on the issue before us.15
We therefore turn to the language of the statute, the starting point of
any interpretive analysis. “ ‘ “In construing a statute, our first task is to look
to the language of the statute itself. [Citation.] When the language is clear
and there is no uncertainty as to the legislative intent, we look no further and
simply enforce the statute according to its terms.” ’ ” (Goals for Autism v.
Rosas (2021) 65 Cal.App.5th 1041, 1046 (Goals for Autism), quoting Phelps v.
Stostad (1997) 16 Cal.4th 23, 32 (Phelps); Kaanaana v. Barrett Business
Services (2021) 11 Cal.5th 158, 168 (Kaanaana) [“ ‘If the language is clear,
courts must generally follow its plain meaning unless a literal interpretation
would result in absurd consequences the Legislature did not intend.’ ”].)
The pertinent statutory language exempts from disclosure “the
following records: [¶] . . . [¶] (l) Correspondence 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.” (Gov. Code, § 6254, subd. (l).) Thus, by
its plain terms, this exemption exempts any communication “of,” as well as
“to,” the Governor and his or her staff that qualifies as “correspondence.” The
15 Petitioner also improperly cites to unpublished orders in a case
before another division of this court and in two superior court cases that he
claims follow the “holding” of California First Amendment that the
Governor’s exemption applies only to correspondence from private parties.
These citations are patently improper and we disregard them. (Cal. Rules of
Court, rule 8.1115.)
25
term “correspondence” is not modified or limited in any respect, let alone to
private party correspondence and, further, to correspondence from private
parties. Indeed, we would need to excise existing language from the statute,
as well as read limiting language into it, in order to curtail its scope in the
manner petitioner advocates.
The courts, however, “ ‘ “may not add to or detract from a statute or
insert or delete words to accomplish a purpose that does not appear on its
face or from its legislative history.” ’ ” (Goals for Autism, supra,
65 Cal.App.5th at p. 1046, quoting Freeman v. Sullivant (2011)
192 Cal.App.4th 523, 529.) Rather, “ ‘ “ ‘[w]e are required to give effect to
statutes “according to the usual, ordinary import of the language employed in
framing them.” ’ ” ’ ” (Goals for Autism, at p. 1046, quoting Phelps, supra,
16 Cal.4th at p. 32.) Thus, in Haynie v. Superior Court (2001) 26 Cal.4th
1061 (Haynie), for example, the Supreme Court refused to read into another
PRA exemption (for “[r]ecords of . . . investigations” by a law enforcement
agency (Gov. Code, § 6254, subd. (f))), a “proposed limitation” that found “no
support in the statute.” (Haynie, at pp. 1070–1071.)
Accordingly, in our view, the exemption applies, as it states on its face,
to any correspondence “of and to” the Governor or his or her staff, and the
critical issue is whether a written communication to or from the Governor or
his or her staff, is “correspondence” or some other form of written
communication. (See Times Mirror Co., supra, 53 Cal.3d at pp. 1336–1337
[Governor’s calendars and schedules were not “correspondence”]; First
Amendment Coalition, supra, 67 Cal.app.4th at pp. 167–169 [form
applications submitted to Governor’s office following exchange of letters
between prospective applicants and Governor’s secretary, were
“correspondence”].) Where “ ‘the statutory language is clear and
26
unambiguous, our task is at an end, for there is no need for judicial
construction.’ ” (Webster v. Superior Court of San Bernardino County (2020)
51 Cal.App.5th 676, 680, quoting MacIsaac v. Waste Management Collection
& Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082–1083.)
Even if we were of the view that the language of the exemption is
ambiguous and in need of construction, which we are not, the legislative
history of the exemption reinforces that it should be read and applied as
written.
As our Supreme Court observed in Times Mirror Co., 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.’ ” (Times Mirror Co., supra, 53 Cal.3d at p. 1337.) In that year, the
PRA was amended through legislation (Assem. Bill No. 23 (1975–1976 Reg.
Sess.)) that not only added the Governor’s correspondence exemption but also
established a separate public records act applicable to the Legislature—the
Legislative Open Records Act (LORA) (Gov. Code, § 9071 et seq.). (See
generally The Zumbrun Law Firm v. California Legislature (2008)
165 Cal.App.4th 1603, 1617–1618 (Zumbrun).)
As introduced, Assembly Bill No. 23 (1975–1976 Reg. Sess.) wholly
eliminated the existing PRA exemption for records “[i]n the custody of or
maintained by the Governor or employees of the Governor’s office.” (Assem.
Bill No. 23 (1975–1976 Reg. Sess.) as introduced on Dec. 2, 1974, § 3, p. 7.) In
the second round of amendments to the bill, the exemption was partially
restored to exempt records “[i]n the custody of or maintained by the
Governor’s Legal Affairs Secretary, provided records shall not be transferred
to the custody of the Governor’s Legal Affairs Secretary to evade the
27
disclosure provisions of this chapter. (Id., as amend. Feb. 20, 1975, § 3,
pp. 7–8, italics omitted.)
The language of the exemption was changed to its present form—to
exempt “[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”—in the fourth round of amendments. (Assem. Bill
No. 23 (1975–1976 Reg. Sess.) as amend. April 10, 1975, § 3, pp. 9–10.)
In this same round of amendments, two changes were made to the
LORA that are of significance here. (Assem. Bill No. 23 (1975–1976 Reg.
Sess.) as amend. April 10, 1975, § 1.) The first was a revision to an
exemption that had been added to the LORA in the third round of
amendments, exempting “[p]ersonal correspondence of and to Members of the
Legislature.” (Id., as amend. Mar. 31, 1975, § 1, p. 5.) In the fourth round of
amendments, the word “personal” was deleted, so that the exemption
excluded all “[c]orrespondence of and to individual Members of the
Legislature and their staff.” (Id., as amend. April 10, 1975, § 1, p. 5; Gov.
Code, § 9075, subd. (h).) The second significant change was the addition of an
exemption for all “[c]ommunications from private citizens to the Legislature.”
(Assem. Bill No. 23 (1975–1976 Reg. Sess.) as amend. April 10, 1975, § 1, p. 5;
Gov. Code, § 9075, subd. (j).)
These PRA and LORA exemptions remained in the legislation without
further change and are now codified in the PRA as Government Code section
6254, subdivision (l), and in the LORA as Government Code section 9075,
subdivisions (h) and (j).
28
Nothing in the amendment history suggests the correspondence
exemptions in either the PRA or the LORA are limited to correspondence
from private parties. To the contrary, it is notable that in the LORA, the
Legislature removed the “personal” limitation that had been in an earlier
version of the legislator correspondence exemption, bringing the LORA
correspondence exemption in line with the newly added Governor’s
correspondence exemption. Further, the Legislature added a separate
exemption to the LORA expressly limited to “communications from private
citizens,” evidencing that the Legislature knows how to limit an exemption in
exactly the way petitioner proposes, when it intends to do so. The
Legislature chose not to include any such language in either the LORA
legislator correspondence exemption or the PRA Governor’s correspondence
exemption. (See Kaanaana, supra, 11 Cal.5th 158, 174 [other “enactments
demonstrate[d] that the Legislature knew how to limit the definition of public
work to construction-type work but knowingly eschewed such a limitation in
drafting” the provision at issue]; People v. Murphy (2001) 25 Cal.4th 136, 159
[other statutory provisions demonstrated that when Legislature “wants a
sentence calculated without consideration of some circumstance, it knows
how to use language clearly expressing that intent”].)
Petitioner maintains that the fact the Legislature included a separate
“communications from private citizens to the Legislature” exemption in the
LORA but not in the PRA, “actually proves” the Governor’s correspondence
exemption in the PRA must be so limited. He contends the differences in the
two acts reflect an intent “to treat the Governor’s office differently from the
Legislature,” and therefore, as best we can understand his argument, the fact
that the Legislature provided itself with a separate, additional exemption for
“communications from private citizens” is of no consequence when it comes to
29
determining the Legislature’s intent relative to the Governor’s
correspondence exemption.
To begin with, petitioner’s argument is contrary to the fundamental
principles of statutory construction we have just discussed.
It also fails to take account of the fact that the PRA and the LORA
“correspondence” exemptions are distinctly different from the LORA
“communications from private persons” exemption. The correspondence
exemptions pertain to persons who can and do author and read
correspondence, namely the Governor and his or her staff and individual
legislators and their staff. These exemptions also exempt only a subset of
communications, specifically correspondence. In contrast, the
“communications from private persons to the Legislature” exemption in the
LORA exempts all forms of communications directed to a body politic, namely
the Legislature. Given the large number of constituents and special interest
groups who participate in the legislative process, not only by corresponding
with particular legislators, but also by testifying before legislative
committees and subcommittees, the Legislature’s perceived need for an
exemption for “communications” by “private persons” to the “Legislature” is
understandable. Given the different character of the Governor’s Office, it is
equally understandable that the Legislature would have been of the view
that no similar exemption for communications by private persons to the
Governor’s Office, as a body incorporate, was necessary.
Turning to the bill analyses and committee reports, they, like the
amendment history, reflect no intent that the correspondence exemptions in
either the PRA or the LORA are limited to correspondence from private
parties. (E.g., Legis. Analyst, analysis of Assem. Bill No. 23 (1975–1976 Reg.
Sess.) as amend. April 10, 1975, pp. 2–4 [bill establishes “exceptions
30
respecting the public disclosure of records,” (underscoring omitted) including
“[i]f the document sought is correspondence of and to the Governor or
employees of the Governor’s Office . . .”, and “[c]orrespondence of and to
members of the Legislature”]; Unfinished Business, conc. in Sen. Amend.,
Assem. Bill No. 23 (1975–1976 Reg. Sess.) as amend June 17, 1975 [bill “does
not require disclosure of correspondence of and to the Governor or his
employees or records maintained by the Governor’s Legal Affairs Secretary”].)
The Enrolled Bill Report prepared by the State Water Resources
Control Board /Environmental Quality Agency is particularly illuminating
and made the following comments about the Governor’s correspondence
exemption: “Existing law (the CPRA) exempts from the duty to disclose those
records that are ‘in the custody of or maintained by the Governor or
employees of the Governor’s office employed directly in his office’. This bill
would amend that exemption to read: ‘correspondence 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.’ The effect of this change in lanaguage
is not completely clear. The term ‘correspondence of and to the Governor . . .’
is very broad, but it must be interpreted as describing a class of records less
general than the existing CPRA exemption, viz., records generally that are ‘in
the custody of or maintained by the Governor[.] . . .’ An obvious example of
records that would be exempt under existing law, but probably not exempt
under this bill, would be memoranda physically prepared or dictated by the
Governor for his own record, i.e., not as correspondence to another.”
(Enrolled Bill Report, Environmental Quality Agency, State Water Resources
Control Board, Assem. Bill No. 23 (1975–1976 Reg. Sess.), pp. 1–2.)
The Enrolled Bill Report prepared by the Office of the Secretary
observed: “The provisions of the bill applying to the Legislature are very
31
similar to the existing Public Records Act. Most of the definitions and
exceptions are the same. Subtle but important differences appear in the
exceptions. The bill would exempt legislative memoranda for the
Legislature[16] but not for the Governor. It would exempt preliminary drafts
and notes for the Legislature without the qualification that appears in the
Public Records Act limiting the exception to memoranda which are not
retained in the ordinary course of busines provided that the public interest in
disclosure [sic].[17] This qualification makes the exception for executive
departments and the Governor’s Office very narrow while the simple
exception for legislative offices is extremely broad.” (Enrolled Bill Report,
Office of the Secretary, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 1.)
The report went on to comment that the “problems” presented by the
bill “arise from the differences” in disclosure obligations between “the
Legislative Branch and the Executive Branch. . . . The problem comes in
opening up all records in the Governor’s Office except for correspondence of
and to the Governor or employees to [sic] the Governor’s Office and except for
records in the custody of the Legal Affairs Secretary. This denies to the
Governor’s Office protection which the Legislature has preserved for itself.”
(Enrolled Bill Report, Office of the Secretary, Assem. Bill No. 23 (1975–1976
16 This LORA exemption excludes from disclosure: “Preliminary
drafts, notes, or legislative memoranda, except as provided in Section 9080.”
(Gov. Code, § 9075, subd. (a).) Section 9080 requires legislative committees
to retain records that constitute legislative history materials. (Id., § 9080,
subds. (a) & (b).)
17 The PRA exemption excludes from disclosure: “Preliminary drafts,
notes, or interagency or intra-agency memoranda that are not retained by the
public agency in the ordinary course of business, if the public interest in
withholding the records clearly outweighs the public interest in disclosure.”
(Gov. Code, § 6254, subd. (a).)
32
Reg. Sess.), pp. 2–3.) For example, while the bill exempts “legislative
memoranda,” there is no “similar specific exemption for the Governor’s
Office,” and “a court would probably find that legislative memoranda in the
Governor’s Office would be [a disclosable] public records.” (Id. at p. 3.)
Thus, what the legislative history discloses is that the Legislature
curtailed the formerly broad exemption for all records “[i]n the custody of or
maintained by the Governor or employees of the Governor’s office employed
directly in his office . . .” (Assem. Bill No. 23 (1975–1976 Reg. Sess.) as
introduced Dec. 2, 1974, § 3, p. 7) by limiting the exemption to
“[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.”
(Id., as amend. April 10, 1975, § 3, p. 9, italics omitted.) This was a
significant curtailment of the then existing all-records exemption, and there
is no indication whatsoever in the legislative history that the Legislature
intended to further limit “correspondence” to only that to the Governor’s
office from private parties.
On the contrary, as the Enrolled Bill Reports indicate, the
correspondence exemptions were viewed as being “very broad” (Enrolled Bill
Report, Environmental Quality Agency, State Water Resources Control
Board, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 2), and the issue that
was anticipated would come before the courts is whether a particular writing
sent to, or generated by, the Governor and/or his or her staff is
“correspondence,” as opposed to some other category of written
communication, such as a memorandum dictated by the Governor for his or
her personal use (ibid.), “preliminary drafts and notes” prepared by the
Governor’s Office on pending legislation (Enrolled Bill Report, Office of the
Secretary, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 1), “legislative
33
memoranda” prepared by the Governor’s office (id. at p. 3), or personal
calendars and schedules prepared for the Governor by his or her staff.
(Times Mirror Co., supra, 53 Cal.3d at pp. 1336–1337.)
We therefore conclude, not only in light of the exemption’s plain
language, but also its legislative history, that the Governor’s exemption in
the PRA is not limited, as petitioner advocates, to correspondence from
private parties, but applies to any writing “of and to” the Governor and his or
her staff that qualifies as “correspondence” under the Act. 18 (See Times
Mirror Co., supra, 53 Cal.3d at pp. 1336–1337; First Amendment Coalition,
supra, 67 Cal.App.4th at pp. 168–173.)
Petitioner urges that only his proffered reading of the Governor’s
exemption comports with the directive of article I, section 3 of our state
constitution that “a statute . . . shall be . . . narrowly construed if it limits the
right of access” to public meetings and records. (Cal. Const. art I, § 3, subd.
(b)(2).) Not only was this provision added to our constitution in 2004, long
after enactment of the PRA and the exemptions at issue, but it also expressly
states “[t]his subdivision does not repeal or nullify, expressly or by
implication, any constitutional or statutory exception to the right of access to
18 We are not called on to decide, nor are we deciding, whether the
proviso pertaining to records “in the custody of or maintained by the
Governor’s Legal Affairs Secretary” is limited to correspondence or includes
other public records, as well. (See Enrolled Bill Report, Office of the
Secretary, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 2.; Ibid. [bill “would
also exempt correspondence of and to the Governor or employees of the
Governor’s Office, and records in the custody of or maintained by the
Governor’s Legal Affairs Secretary. The bill provides that public records
shall not be transferred to the custody of the Governor’s Legal Affairs
Secretary in order to evade the disclosure provisions of the bill.” Italics
added.].)
34
public records.” (Id., § 3, subd. (b)(5).) Thus, we properly focus here on the
language and legislative history of the statutory exemption at issue.
The Governor’s correspondence exemption is one of several
exemptions—such as the exemptions for “[p]reliminary drafts, notes, or
interagency or intra-agency memoranda that are not retained by the public
agency in the ordinary course of business” on a sufficient showing of interest
in their nondisclosure (Gov. Code, § 6254, subd. (a)), and “[r]ecords, the
disclosure of which is exempted or prohibited pursuant to” any evidentiary
privilege (id., § 6254, subd. (k)), as well as the “catchall” exemption for
records in specific cases where the interest in nondisclosure “clearly
outweighs” the interest in disclosure (id., § 6255)—that are “grounded in the
unromantic reality of politics” and “rest[] 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.” (Times Mirror Co., supra, 53 Cal.3d at p. 1345, italics
omitted; see Haynie, supra, 26 Cal.4th at p. 1064 [while the PRA furthers the
public’s important interest in access to information, “[a]t the same time, the
act recognizes that certain records should not, for reasons of privacy, safety,
and efficient government operation, be made public”].)
Indeed, as the high court pointed out in Times Mirror Co., the Freedom
of Information Act (FOIA), on which the PRA was modeled, exempts in a
single provision both “ ‘inter-agency and intra-agency memorandums or
35
letters which would not be available by law to a party other than an agency in
litigation with the agency’ ” (Times Mirror Co., supra, 53 Cal.3d at pp. 1338,
1340, fn. 11, italics added), and “Congress’s main concern” in enacting this
provision “was that ‘frank discussion of legal or policy matters’ might be
inhibited if ‘subjected to public scrutiny,’ and that ‘efficiency of Government
would be greatly hampered’ if, with respect to such matters, government
agencies were ‘forced to “operate in a fishbowl.” ’ ” (Id. at p. 1340, quoting
EPA v. Mink (1973) 410 U.S. 73, 87,19 quoting from Sen.Rep. No. 813, 89th
Cong., 1st Sess., p. 9.)
Thus, while petitioner rightly emphasizes the public interest in ready
access to public records, the Legislature has also recognized, and protected,
competing public interests in the robust exchange and deliberative
consideration of information during the governing process in both the
executive and legislative branches. Where the divide should be drawn in
accommodating these varying interests is certainly a fair matter of debate.
But the Legislature has drawn the line as to “[c]orrespondence of, and to the
Governor or employees of the Governor’s office” in no uncertain terms, and
further debate as to the soundness of this accommodation of interests is
properly one had in the legislative, rather than judicial, domain.
We now turn to petitioner’s apparent view that “correspondence” for
purposes of the PRA does not include communications composed or
transmitted by way of e-mail or texts—the sole point raised in his
administrative appeal, but not one he has pressed with any specificity in this
writ proceeding. In Times Mirror Co., after rejecting the Governor’s proffered
19 Superseded by statute on other grounds as stated in C.I.A. v. Sims
(1985) 471 U.S. 159, 189, fn. 5. (conc. opn.).
36
definitions of “correspondence,” the high court, indeed, stated “that for
purposes of the Act, the correspondence exemption must be confined to
communications by letter.” (Times Mirror Co., supra, 53 Cal.3d at p. 1337.)
However, the court made this pronouncement in 1991—during a different
technological era. Correspondence was then still largely formalized and
delivered by mail, or when speed was necessary, by FAX. It is now three
decades later, and we would be ignoring present reality were we to agree with
petitioner’s initial take on the correspondence exemption and conclude it
applies only to correspondence drafted and delivered through now near-
archaic means. (See First Amendment Coalition, supra, 67 Cal.App.4th at
p. 168 [despite “written letter” language of Times Mirror Co., court was “not
disposed to so formalistic a resolution of the issue”].)
The import of the Supreme Court’s holding in Times Mirror Co. is that
there is a qualitative distinction between “communications”—a term “so
broad as to encompass nearly every document generated by the Governor’s
office” (Times Mirror Co., supra, 53 Cal.3d at p. 1337)—and “correspondence,”
and that only records of the latter sort come within the exemption. Thus, the
salient question in the wake of Times Mirror Co., is whether a
communication is fairly characterized as correspondence or some other form
of written communication, such as a calendar or schedule, a private memo
dictated and used solely by the Governor, or a legislative analysis prepared
by and for the use of the Governor’s office.
This brings us to whether our holding as to the scope of the Governor’s
correspondence exemption resolves the instant writ proceeding.
As we have discussed, in his PRA requests petitioner sought only
communications “between” Batjer and/or her senior executive staff, and
certain members of the Governor’s staff.
37
In his administrative appeal, petitioner raised a single objection to the
CPUC’s denial of his requests—that the Governor’s correspondence
exemption “ ‘must be confined to communications by letter,’ ” citing Times
Mirror Co. and requesting that the commission disclose “all texts, emails, and
calendar entries.” Presumably, petitioner included calendar entries in light
of the Supreme Court’s holding in Times Mirror Co. that the Governor’s
calendars and schedules were not “correspondence” and therefore did not fall
within the Governor’s correspondence exemption (but did fall within the
deliberative process privilege). It is not readily apparent, however, nor has
petitioner ever explained, how calendar entries could constitute a
communication “between” Batjer and/or her principal executive staff, and the
Governor’s staff.
It his later letter to the CPUC complaining about the untimely
handling of his administrative appeal, petitioner claimed the Governor’s
correspondence exemption did not apply because it assertedly applied only to
correspondence from private parties. As for Times Mirror Co., petitioner
made only the following brief, nearly incomprehensible comment—that he
had cited “the narrow construction the California Court of Appeals had given
subsection 6254(l) in Times Mirror Co. v. Superior Court, (1991) 53 Cal.3d
1325, 1337.” In any event, other than asserting the correspondence
exemption applied only to correspondence from private parties, petitioner
made no claim that any of the communications he sought did not otherwise
qualify as “correspondence” because they were some other form of written
communication.
In his writ petition, the only assertion petitioner made with respect to
the Governor’s correspondence exemption was that it was limited to
correspondence from private parties. Again, he made no claim that any of the
38
communications he sought did not otherwise qualify as “correspondence”
under the PRA.
Four months later, the CPUC served petitioner with a copy of its draft
resolution, scheduled for action at the next board meeting. He submitted
extensive comments, which as to the Governor’s correspondence exemption,
reiterated the arguments he previously advanced in his correspondence to the
CPUC and in his writ petition filed in this court. That is, he continued to
urge that the Governor’s correspondence exemption applies only to
correspondence to the Governor’s Office from private parties.
The commission’s final resolution addressed and rejected petitioner’s
position as to the scope of the exemption and concluded the exemption
applied to the communications sought “between” Batjer and/or her principle
executive staff and the Governor’s staff. The resolution states, petitioner “is
not seeking internal CPUC communications; nor is he requesting of the
Governor’s Office its internal communications; he is seeking ‘correspondence
of and to the Governor or employees of the Governor’s Office,’ which request
falls squarely under the plain wording of the exception.”
In its return, the CPUC reiterated the points made in its resolution as
to the Governor’s exemption.
In his reply, petitioner continued to maintain, as stated in his
argument heading, that “The ‘Governor’s Correspondence Exemption’ Does
Not Apply to Intergovernmental Communications; It Has Been Judicially
Limited to Correspondence Sent to the Governor’s Office by Private Citizens
‘Outside of Government.’ ” (Boldface omitted.) He thus concluded, “[b]ecause
all of the public records sought by Petitioner Rittiman were exchanged
between two government offices, not sent to the Governor’s office ‘from
correspondents outside of government,’ [Government Code] section 6254(l) . . .
39
does not apply to any of them.” Again, petitioner made no claim that the
records sought do not otherwise qualify as “correspondence” under the
exemption because they are some other kind of written communication.
Thus, as petitioner has presented his case to us, it rises or falls on his
claim that the Governor’s exemption should not be applied according to its
plain terms, but should be judicially rewritten to apply solely to
correspondence from private parties. He has made no claim that the records
he seeks—of “exchanges” between Batjer and/or her principle executive staff,
and the Governor’s staff—do not otherwise qualify as “correspondence” under
the PRA. Since we have rejected his claim as to the scope of the
correspondence exemption, we need not proceed further.20
III. DISPOSITION
The CPUC’s demurrer to the petition for writ of mandate is sustained
without leave to amend on the ground the records petitioner seeks are
exempt from disclosure under the Governor’s correspondence exemption (Gov.
Code, § 6254, subd. (l)). This proceeding is therefore dismissed.
20 We therefore need not, and do not, reach any issue as to the
applicability of the deliberative process privilege.
40
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A162842, Rittiman v. Public Utilities Commission
41
Counsel:
Law Office of Steven D. Zansberg, LLC, Steven David Zansberg for
Petitioner.
David Arthur Urban, Suzanne Solomon, Rachel Ann Peterson, Kathleen Sue
Chovan, Keenan Patrick O’Connor and Christofer Charles Nolan for
Respondent.
42