concluding that disclosure of Governor's calendars and schedules would reveal the "substance or direction of the Governor's judgment and mental processes," and that "the public interest in nondisclosure clearly outweighs the public interest in disclosure"
How later courts described this case
- concluding that disclosure of Governor's calendars and schedules would reveal the "substance or direction of the Governor's judgment and mental processes," and that "the public interest in nondisclosure clearly outweighs the public interest in disclosure"
- using terms “executive privilege” and “deliberative process privilege” interchangeably in opinion, Court holds that privilege protects Governor’s appointment calendars and schedules
- holding wholesale production of almost five years of governor’s calendars and schedules not supported by identifiable public interest
- noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably
Written by the judges who cited it.
The opinion
MOSK, J., Dissenting.
—The dissent of Justice Kennard is irrefutable, and I agree completely with her opinion on the law. I write separately only on the issue of public policy.
Secrecy has always been deemed anathema to democratic government. Time and again justices of the Supreme Court have deplored secrecy in government. Justice Frankfurter declared that, “Secrecy is not congenial to truth seeking.” (Anti-Fascist Committee v. McGrath (1951) 341 U.S. 123, 171 [ 95 L.Ed. 817, 854 , 71 S.Ct. 624 ].) Justice Stevens wrote that, “Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny.” (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 19 [ 92 L.Ed.2d 1, 17 , 106 S.Ct. 2735 ].) Justice Douglas quoted Henry Steele Commager, the noted historian: “ ‘The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed *1348 itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.’ ” (EPA v. Mink (1973) 410 U.S. 73, 105 [ 35 L.Ed.2d 119, 142 , 93 S.Ct. 827 ].) Justice Douglas also quoted James Madison: “ ‘A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.’ ” (Id. at p. 110 [ 35 L.Ed.2d at p. 145 ].) Justice Brennan wrote that secrecy “can only breed ignorance and distrust” and that, conversely “free and robust reporting, criticism, and debate can contribute to public understanding ... as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 587 [ 49 L.Ed.2d 683, 714 , 96 S.Ct. 2791 ].) Justice Blackmun declared that information is necessary ‘“to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.’ ” (John Doe Agency v. John Doe Corp. (1989) 493 U.S. 146, 152 [ 107 L.Ed.2d 462, 471 , 110 S.Ct. 471, 475 ].)
Countless similar observations by justices and commentators could be cited. In short, the lessons of history tell us over and over that secrecy in government, except as provided by law, causes lack of public confidence and various other ills. We would do well to heed the words of Justice Brandéis: “sunlight is said to be the best of disinfectants.”
Secrecy is inconsistent with the duty of public officials to keep the public informed of their activities, including the identity of those persons who have access to them. That this is not an unreasonable requirement is made clear on the national scene.
It is common knowledge that the schedule of the President of the United States is released to broadcast and print media by his press secretary every day, in advance of events. In contrast, the daily schedule of the Governor is shrouded in secrecy both before and long after the events have transpired, indeed permanently. It is difficult to rationalize justification for the Governor of this state being more furtive in his scheduling than the President of the United States. Certainly the problems of the state are not more significant, more potentially devastating, than those involving the nation’s security and welfare with which the President is concerned.
It is true that the national media are requested not to release the President’s schedule in advance of events. But, having been advised of the events and appointments, they are free to publish the information immediately *1349 afterwards. Here the petitioner does not seek the Governor’s schedule in advance, but only after the events and appointments have transpired.
Though the majority do not tell us, one must wonder whether under their theory this secrecy in scheduling applies not merely to the Governor but to the entire executive branch of our state government, to secretaries, cabinet officers, chairpersons of boards and commissions. And if it is a prerogative of the executive branch, does it also apply to county executives and local mayors? If we are not to be discriminatory, the secrecy pit is bottomless.
The majority, in their footnote 14, observe that the Commission on Judicial Performance conducts its investigations in confidence, pursuant to a constitutional provision. They make my point: if.there is to be governmental secrecy it must be pursuant to law. There is no statutory or constitutional provision specifically granting the right of secrecy to the Governor.
The conclusion is inescapable, as Justice Kennard declares in her discussion of the applicable law, that the judgment of the Court of Appeal should be affirmed.
Broussard, J., concurred.