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American Civil Liberties Union of Northern California v. the Superior Court of San Francisco County

December 20, 2011


Trial Court: San Francisco Superior court Trial Judge: Hon. Charlotte Walter Woolard (San Francisco County Super. Ct. No. CPF-101-510882)

The opinion of the court was delivered by: Kline, P.J.


This petition for writ of mandamus presents two issues, both arising under the California Public Records Act (Gov. Code, § 6250 et seq.)*fn1 (PRA): (1) whether the California Department of Corrections and Rehabilitation (CDCR) may withhold the names of the pharmaceutical companies and others from which it sought to acquire a prescription drug used by the state in executing condemned inmates; and (2) whether CDCR can delete information from disclosed documents on the ground it is not responsive to petitioner's PRA request. The trial court answered both questions in the affirmative. We shall reverse the rulings.


California executes condemned inmates pursuant to a three-drug lethal injection protocol (15 Cal. Code Regs., § 3349 et seq.), which replaced a similar protocol previously found flawed by federal and state courts under the Eighth Amendment and the California Administrative Procedure Act. (Morales v. Tilton (N.D.Cal. 2006) 465 F.Supp.2d 972; Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729.) The first drug injected under the new protocol, sodium thiopental, is a barbiturate sedative intended to render the inmate unconscious and anesthetize him from the pain resulting from the two subsequently injected drugs, pancuroniam bromide, a neuromuscular blocking agent that induces paralysis, and potassium chloride, which causes cardiac arrest. (Morales v. Tilton, at p. 975.)

Shortly before the effective date of the new protocol, September 29, 2010, a death row inmate scheduled to be executed on that date intervened in a federal proceeding challenging the new protocol and sought a stay of execution. The district court issued a conditional stay order directing the inmate to make an election whether to be executed by the three-drug protocol or by injection of sodium thiopental only. The inmate declined to make the election and instead filed a motion in the Ninth Circuit to stay execution. (Morales v. Cate (9th Cir. 2010) 623 F.3d 828.) In the course of explaining why the district court's unilateral decision to provide the inmate the one-drug option was "improper," the Ninth Circuit observed that there was a dispute whether the state has a sufficient supply of sodium thiopental to implement the one-drug option, and that the state had advised the court "that its current supply of sodium thiopental has an expiration date of October 1, 2010." (Id. at p. 831.)

On October 7, 2010, after petitioner learned that CDCR had obtained a new supply of sodium thiopental, it sent the department a PRA request for documents and other materials pertaining to its acquisition and use of the drug, including documents indicating "how much the state paid for the newly acquired sodium thiopental, how payment was made and from what account," from whom the department most recently acquired the drug, "[a]ll communications, internal or external, regarding efforts by CDCR to obtain sodium thiopental between August 1, 2010, and today," and "[a]ll documents relating to attempts by the CDCR to acquire sodium thiopental, successful or unsuccessful," during that period.

CDCR responded that the PRA request would be "partially denied," explaining that some of the requested materials were "protected by the attorney-client privilege, attorney work product, or were specifically prepared for CDCR's use in pending litigation" and therefore exempt from disclosure pursuant to specified provisions of the PRA and other statutes, or "would impose an unwarranted invasion of personal privacy, personnel records, or records deemed 'protected information' " by a federal protective order. Citing Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 (Times Mirror), CDCR also stated in the letter that it would not provide "records protected by the deliberative process privilege," explaining that the PRA "allows CDCR to withhold information if nondisclosure of the records requested would outweigh the public interest in releasing the documents." According to CDCR, "[r]eleasing records that would expose CDCR's decision making process would discourage candid discussion, and thereby undermine the agency's ability to perform its functions."

Though CDCR's statement that the PRA request would be "partially denied" implied some disclosure would be made, the letter provided no documents or other materials nor indicated whether and when any would be provided. Petitioner therefore commenced a writ proceeding in the San Francisco Superior Court on November 17, 2010. On November 30, after a hearing, the trial court directed CDCR to produce all records requested by petitioner "other than those records [the CDCR] in good faith believes may lawfully be withheld under the PRA." CDCR was also directed to provide petitioner with a list of all withheld documents and an explanation why it believed such documents exempt from disclosure.

On December 10, 2010, in response to the order to produce, CDCR sent petitioner's counsel a "PRA Log" listing 1,121 documents, many of which had been withheld or redacted, and indicating which of nine possible reasons explained why a particular document had been withheld or redacted. (See discussion, post, at pp. 28-29.) CDCR disclosed approximately 980 pages of documents. Roughly 200 of these pages consisted solely of documents published by the federal government, including three copies of the DEA Practitioners Manual and blank forms relating to federal drug laws. Of the 780 remaining pages, all but 115 pages were redacted, some quite heavily. CDCR withheld approximately 120 documents, which fell into one or more of five categories: "confidential attorney-client communications or attorney work product, and records relating to pending litigation"; communications with [the] Governor or his staff"; "other documents reflecting [a] deliberative process"; "employee names, [email] addresses and titles"; and "records identifying pharmaceutical companies, other potential sources of sodium thiopental, and their employees."

On February 1, 2011, the court issued an order authorizing CDCR to withhold three categories of information: (1) "the names of pharmaceutical companies and other businesses and individuals, and the names of these companies' employees, the CDCR contacted in connection with its efforts to obtain sodium thiopental"; (2) "the names of CDCR and other California state employees who were not decisionmakers in CDCR's efforts to obtain sodium thiopental"; and (3) "the names of the members of the execution team, including the physician(s) on this team." The only one of the three categories challenged by the petition for writ of mandate filed in this court on February 7, 2011, is the first, and only insofar as it pertains to disclosure of the names of pharmaceutical companies and other businesses and individuals CDCR contacted in order to acquire sodium thiopental. The petition does not contest the rulings that CDCR may withhold the names of employees of the pharmaceutical companies and others it contacted in order to acquire sodium thiopental, the names of state employees who lacked decision making authority, and the names of the execution team, and we therefore do not address those rulings. The effect of the challenged rulings was to allow CDCR to withhold the identities of approximately 12 pharmaceutical distributors and other entities from which it sought to obtain sodium thiopental.

The order did not allow CDCR to withhold internal governmental communications under section 6254, subdivision (l), the Governor's correspondence exception to disclosure, because, as stated in California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 168, that exception is "intended to protect communications to the Governor and member's of the Governor's staff from correspondents outside of government" and was therefore inapplicable to the documents petitioner sought.

The order also declared that "[w]hether CDCR may lawfully redact particular documents as 'non-responsive' will depend on a review of those documents to determine whether they are responsive to the [petitioner's] PRA request. The court will conduct an in camera review of documents or excerpts of documents that CDCR has withheld on the basis that they are non-responsive to the [petitioner's] PRA request."

After conducting in camera review, the court determined which of the information CDCR had redacted from documents could be withheld and which had to be produced. Two of the challenged redactions approved by the court deleted information from emails between CDCR employees solely on the ground that the deleted information was "not responsive" to petitioner's PRA request.

Finally, the order addressed the fact that CDCR had inadvertently failed to redact one disclosure of the name of a British pharmaceutical broker it had contacted to arrange for the acquisition of sodium thiopental. Petitioner claimed that although CDCR provided the information unintentionally, petitioner obtained it lawfully and therefore had a right to publish it under the First Amendment. Because it suspected CDCR's omission was unintentional, and "out of an abundance of caution," petitioner itself redacted this information from the documents it posted on its website pending judicial resolution of its claim. The trial court rejected petitioner's argument, stating in its order that "CDCR may 'take back' information about the identity of the pharmaceutical distributor that CDCR inadvertently provided on December 7, 2010, which [petitioner] redacted before making the documents public on its website."

The petition before us seeks an order directing respondent superior court to enter an order requiring CDCR to produce (1) information concerning actual or potential sources of sodium thiopental, and (2) unredacted versions of documents that were produced but redacted on the grounds that the deleted information was "not responsive" to petitioner's PRA request, and directing respondent court to vacate its order that CDCR may "take back" information about the identity of the pharmaceutical distributor that CDCR inadvertently provided in December 2010.


Our review of a trial court's rulings on questions arising under the PRA or the First Amendment is de novo; the trial court's factual determinations will be upheld if supported by substantial evidence. (Times Mirror, supra, 53 Cal.3d 1325, 1336; San Jose Mercury News, Inc. v. Criminal Grand Jury (2004) 122 Cal.App.4th 410, 415; CBS Broadcasting Inc. v. Superior Court (2001) 91 Cal.App.4th 892, 906.) As the petition before us is for writ of mandamus, the evidence we consider is only that submitted to the trial court. (Campbell v. Superior Court (2008) 159 Cal.App.4th 635, 647.)

In analyzing the availability of any exemption from disclosure available under the PRA, "we accept the trial court's express and factual determinations if supported by the record, but we undertake the weighing process anew. (Connell v. Superior Court [(1997)] 56 Cal.App.4th [601,] 612.) As our high court has explained, 'although a reviewing court should weigh the competing public interest factors de novo, it should accept as true the trial court's findings of the "facts of the particular case" [citation], assuming those findings are supported by substantial evidence.' (Michaelis, Montanari & Johnson v. Superior Court [(2006)] 38 Cal.4th [1065,] 1072.)" (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1323, italics added.)

Endorsing the proposition "that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state" (§ 6250), the Legislature enacted the PRA "for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.' [Citation.] Legislative policy favors disclosure. [Citation.] 'All public records are subject to disclosure unless the Public Records Act expressly provides otherwise.' [Citations]" (County of Santa Clara v. Superior Court, supra, 170 Cal.App.4th at pp. 1319-1320; accord, Williams v. Superior Court (1993) 5 Cal.4th 337, 346.)*fn2

"Despite the strong legislative policy favoring access, 'the public's right to disclosure of public records is not absolute. In California, the Act includes two exceptions to the general policy of disclosure of public records: (1) materials expressly exempt from disclosure pursuant to section 6254; and (2) the "catchall exception" of section 6255, which allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.' (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1017, fns. omitted.) But 'unless exempted, all public records may be examined by any member of the public, often the press, but conceivably any person with no greater interest than idle curiosity.' (Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1125.)" (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, ...

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