(Super. Ct. No. CV PT08-2337) ORIGINAL PROCEEDINGS in mandate. David W. Reed, Judge.
The opinion of the court was delivered by: Murray , J.
CERTIFIED FOR PUBLICATION
This case presents issues concerning the balancing of public interests in research related to an academic study published by a state entity and the disclosure of documents pertaining to prepublication communications and deliberations relating to that study. Pursuant to the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.),*fn1 The Humane Society of the United States (HSUS) petitions this court for an extraordinary writ (§ 6259, subd. (c))*fn2 directing the trial court to order real party in interest, the Regents of the University of California (the Regents), to disclose records relating to the funding, preparation, and publishing of a study by the University's Agricultural Issues Center (AIC) entitled, Economic Effects of Proposed Restrictions on Egg-laying Hen Housing in California (Economic Effects). We issued an alternative writ.
HSUS contends the trial court improperly created a de facto academic "researcher" exemption with a presumption of nondisclosure, unless the party seeking disclosure can prove "improper influence," and made no effort to segregate exempt information from nonexempt information. The Regents ask that we dismiss the petition on the grounds of untimeliness and inadequate record, in addition to opposing disclosure on the merits.
We conclude that the petition is timely and the record is adequate. Based on the evidence presented here, we conclude that the public interests served by not disclosing the records clearly outweigh the public interests served by disclosure of the records. Accordingly, we deny the petition on its merits and discharge the alternative writ.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2008, HSUS requested all records regarding the funding, preparation, release and publication of Economic Effects, published earlier that month by the AIC. Essentially, HSUS sought production of any records and communications concerning the funding, preparation,*fn3 release and publication*fn4 of Economic Effects; any records and communications concerning Proposition 2 on the November 4, 2008 ballot, The Prevention Of Farm Animal Cruelty Act, which proposed phasing out intensive confinement of egg-laying hens, veal calves, and pregnant pigs on California farms; correspondence or communications with the American Egg Board; and any records of and correspondence concerning university policy on participation in political campaigns by university employees or agents, including correspondence concerning the limitations on such activities.
The Regents' July 30, 2008 response to the HSUS CPRA request, in which the Regents estimated a production date of October 1, 2008 for any nonexempt items, was unsatisfactory to HSUS.
On September 5, 2008, HSUS filed in the trial court a petition for a writ of mandate. (§ 6258.)*fn5 The petition alleged that the study characterized Proposition 2 as having a negative economic effect on California citizens, and the Regents were stalling disclosure of records until after the election.*fn6
After the writ petition was filed, the Regents produced 356*fn7 pages of documents to HSUS, leaving approximately 3,100 pages still at issue. The Regents claimed the withheld pages were exempt from disclosure under three provisions: Government Code section 6255, a "catch-all" exemption balancing public interest in disclosure against public interest in nondisclosure; Government Code section 6254, subdivision (a), which provides a balancing test for preliminary drafts or memoranda not retained in the ordinary course of business; and Government Code section 6254, subdivision (k), which relates to documents privileged as "official information" under Evidence Code section 1040. The Regents claimed a public interest in preserving the privacy of documents, asserting exemption under "the deliberative process privilege," the "official information privilege" and "the researcher's privilege."
The Regents divided the withheld documents into four categories: (1) "raw financial data" provided by egg producers to AIC researchers, (2) drafts of the AIC study and prepublication communications between members of the AIC research team, (3) prepublication communications between members of the AIC research team and members of the AIC Board of Advisors, and (4) communications between members of the AIC research team and outside parties whom the researchers consulted for the study.
In November 2008, the election took place. The ballot pamphlet stated under the "CON" argument for Proposition 2: "Proposition 2 is too RISKY. Californians enjoy safe, local, affordable eggs. A UC Davis study says Proposition 2 eliminates California egg production. Instead, our eggs will come from out-of-state and Mexico. Public health experts oppose Proposition 2 because it THREATENS increased human exposure to Salmonella and Bird Flu. Vote No." (Ballot Pamp., Gen. Elec. (Nov. 4, 2008, argument in opposition to Prop. 2, p. 6.) The voters rejected the "CON" argument and approved Proposition 2 at the November 2008 election. (Health & Saf. Code, § 25991 et seq. (operative Jan. 1, 2015) is the codification of the Proposition 2 initiative.)
The Regents submitted declarations of Daniel A. Sumner, AIC Director and agriculture and resource economics professor at the University of California, Davis (UCD).*fn8 Sumner directed the study and co-authored Economic Effects. In his November 21, 2008 declaration, Sumner described the AIC. The AIC was created by California Assembly Resolution No. 8 in 1985 to research and analyze crucial trends and policy issues affecting agriculture and interlinked natural and human resources. The AIC provides information through studies, conferences and publications. The AIC's audience includes decision makers in agriculture and government, scholars and students, journalists and the general public.
The AIC operates as a unit of the University of California (UC) Division of Agriculture and Natural Resources (ANR), a statewide network of University of California researchers and educators. It is physically located at the UCD campus. The AIC has a director, several associate directors, professional staff and an advisory board. The advisory board, composed of leaders from the agricultural community and other sectors, helps guide the AIC's agenda, maintain a practical orientation for its programs, and communicate with off-campus audiences. In addition to AIC personnel, AIC projects draw on colleagues from other universities and research institutions, as well as government employees and private industry professionals. Among the positive findings of a five-year review of the AIC by a team of academics and members of the agricultural industry appointed by the ANR is the following: "The Center has an outstanding record of interacting with many facets of the agricultural industry in California and the nation, as well as UC academic and Cooperative Extension programs."
Sumner attested that he has 30 years of experience working in research groups. He has been at UCD since 1993. Before that, Sumner served as the Assistant Secretary for Economics at the United States Department of Agriculture, where he was involved in policy formulation and analysis on a range of topics facing agriculture and rural America. He supervised the Department's economics and statistics agencies, and as such, he was responsible for data collection, outlook and economic research. During his academic career, he conducted numerous academic studies. In most cases, he supervised a team of researchers and other staff.
In his October 16, 2008 declaration, Sumner explained that AIC assured confidentiality to the farmers who provided raw financial data as part of the study upon which Economic Effects was based. Sumner further attested that the study was conducted in the same manner as other academic research in his experience. Sumner went on to describe that process.
"At the University of California, and at AIC in particular, the process of research involves trying new ideas and approaches, investigating lines of thinking that do not work out, suggesting ideas that turn out to be wrong, brainstorming and trying out drafts of explanations that turn out to be far from the final exposition of our approach and results. All of this back and forth happens among a team of project participants and with others who may have information and expertise upon which we can draw. Some of this process is undertaken by junior scholars who are relatively new in their research careers and serves as a part of the training process for graduate students, postdoctoral scholars and others. [¶] . . . [¶] . . . For the exchange of ideas, information, analysis, manuscript drafts and reviews to be efficient and effective, we communicate informally, often in jargon or short hand. We do not keep detailed records and pay little attention to how we communicate. There is not a consistent record of our exchanges and no clear thread of the process can be reproduced from remaining records. For example, an idea may be proposed in an email, discussed in a hallway conversation and rejected, with no record of why it is no longer pursued. Many, if not most, of these exchanges would make little sense to those outside the process. That said, for much of what we say and do, it would be easy to misinterpret the communications. [Original italics.] We often provide no details about ideas that are rejected, such as why they were entertained initially and why they were abandoned, for example. Mistakes we make in the process of research can easily be misinterpreted, in hindsight, by those outside the process as negative indicators of the quality of the work or quality of the investigators. In my experience, however, mistakes along the way are part of the research process."
Sumner further attested that communication with those outside the research team who provide data or critiques raises additional issues. "If collaborators outside our teams expected that any communication with University researchers in general, and AIC specifically, may become part of public record, they would be (rightly, in my opinion) much less forthcoming with frank opinions and potentially confidential data. We often informally solicit information and reviews or analysis from outside sources and they respond informally, in short-hand and sometimes with information of a sensitive nature. To work effectively, we have developed a high degree of trust among industries, policy participants, foundations, and other stakeholders related to the issues we consider. Based on my extensive experience, I am certain that that ability to communicate informally would evaporate if outside individuals and groups expected that any communication with our researchers would be likely to be in the public domain."
Regarding communication between researchers and the AIC Board of Advisors, Sumner declared: "We communicate regularly and frankly with members of the AIC Board of Advisors. These individuals offer their time and expertise to guide AIC planning activities, in suggesting research topics and suggesting how we can improve our communication with the broad, non-specialist audience. If private informal communications with Board members were, instead, public communications, it would stifle the advising process and convert what is now a simple, direct and informal process into a time-consuming formal activity that would be much less productive and may well defeat the purpose of the process. . . ."
Sumner noted that as a multidisciplinary research unit of the UC, the AIC is charged with "investigating important issues of public interest" and "routinely studies controversial topics." He opined, "[b]ased on my extensive experience, I am certain that the ability of the AIC to fulfill its mission would be significantly hampered if we had to make public our research-team communications (whether it be our internal communications or our communications with those outside the team, such as the AIC Board of Advisors and those on whom we rely for data or other information for our studies.)."
In his declaration dated November 29, 2008, Sumner added: "More effective supply of objective analysis free from advocacy that is useful in discussions of public issues is the main reason why the public interest is best served by giving the process of our research the confidentiality it requires. Once our research is published, the scrutiny of peers, policy-makers and other consumers of our published work will give our results and methods the kind of vetting that will ensure our work-product meets the highest standards. [¶] . . . Forcing us to reveal all of our sources, and all of the confidential information they provide us, and releasing every detail of our research communications, in search of bias, will only lead to fewer (if any) sources, and fewer communications, and the work we do, and the benefit we strive to confer on the public, all will suffer. Talking with members of industry and gathering data from industry and other stakeholders is a strong positive -- indeed, a necessary -- part of doing applied relevant research. It is not evidence of bias that researchers on relevant topics seek data from entities that have useful information. This is a basic princip[le] of social science and indeed all relevant research . . . ." (Original italics.)
Sumner further attested, "I have been working in research groups for 30 years and, from my personal experience, members of those research groups, including me, have found informal back-and-forth communication extremely valuable. I know this from my personal experience collaborating and from observing the collaboration approaches of my colleagues. As the director of AIC, I know first-hand that our team of researchers uses email to communicate among ourselves and with collaborators all across the state of California and indeed all over the world. For example, I am now collaborating on a research project with co-authors in Korea, Germany, Belgium as well as several at several universities in the United States. My personal experience and judgment is that the quality and quantity of work would be stifled if I were concerned that our informal communications would be made available broadly. [¶] . . . [¶] . . . As to my exchanges with colleagues and those discussing our work, I value frank and direct critiques. . . . I know that the direct comments I have received on the work of my staff would be much more hedged and less clear and direct if those critiques were expected to be public. Furthermore, in my experience, suggestions for improving the research would be less direct and less usefully critical if they were expected to be public where clear and direct critiques might be misinterpreted as rejecting the value of the work overall. I know from personal experience of participating in open discussion in seminars and public forums and receiving written public comments from colleagues that public communication is more circumspect compared to communication that is expected to be kept private."
Sumner also attested that the Economic Effects study was funded solely by UC funds.
In January 2009, the trial court issued a tentative ruling stating it would review "all" of the withheld documents in camera and require disclosure of records related to HSUS's concern about improper influence.
On April 13, 2009, the trial court appointed a special master to review the withheld documents in camera. In an August 18, 2009 order on the Regents' motion to correct the April 13 2009 order of reference, the court wrote, "[HSUS] argues that the Court has improperly limited the Special Master's review of the records. [HSUS] also argues that the Court has improperly delegated the task of balancing the relevant interests in disclosure versus non-disclosure to the Special Master. Not so. The Court has relegated a specific set of tasks to the Special Master, upon the completion of which the Special Master will forward all of the records to the Court." (Original underscoring.) In its August 18, 2009 amended order of reference, the trial court explained the special master's duties: "[HSUS] claims that the egg and/or poultry industry improperly influenced the conduct or result of the study . . . . The Special Master shall review in camera all documents [being withheld] and group the documents into three stacks: (1) documents showing no influence by the egg and/or poultry industry, (2) documents showing improper influence by the egg and/or poultry industry, and (3) documents showing influence (but not improper influence) by the egg and/or poultry industry. [¶] An egg farmer who provides raw data to a researcher, such as data concerning costs of production, would likely affect or influence the results of a study. An egg farmer who provides a researcher the name of a source for particular data or information about innovations or trends within the industry may also influence a study. None of the above conduct, however, constitutes improper influence. [¶] In contrast, a quid pro quo offer is improper influence. An egg farmer's directive that the researcher must interpret the data in a particular manner could constitute improper influence. Additionally, depending upon the particular circumstances, editorial comments by an egg farmer could also constitute improper influence. [¶] A close examination of the facts surrounding the statements made is required to determine whether influence is improper or not. [Fn. omitted.]" (Original underscoring, boldface omitted.)
On April 16, 2010, the special master issued an amended report regarding his review of the documents. He reported that he had reviewed the 3,096 Bates-stamped pages*fn9 and had determined that (1) no documents showed "improper influence"; (2) some documents showed "influence but not improper influence" (including approximately 89 pages of communications with industry, 64 pages of communications with the AIC Board and nine pages of communications among the research team; and (3) all other documents showed "no influence" by the egg and/or poultry industry.
In his amended report, the special master recommended disclosure of documents that showed any influence, not just "improper" influence, and nondisclosure of other documents. In so doing, the special master noted that those documents are not expressly exempt and expressed the opinion that "[the Regents have] not shown that on the facts of this particular case, the public interest served by not disclosing these records clearly outweighs the public interest served by disclosure. [Citation.] On the contrary, these documents provide the underlying basis and rational[e] for the conclusions reached in the AOC 2008 study, and the public interest in transparency would be highly served by disclosure."
In recommending that documents showing "no influence" not be disclosed, the special master stated, "These documents consist of internal communication among University representatives regarding the final work product or study. They do not involve outside influence, but they consist of private internal preliminary discussions, deliberations, drafts and redrafts which should not require disclosure. . . . [B]ecause of the nature of these documents and their questionable relevance, the public interest served by not disclosing them clearly outweighs any interest served by disclosure."
On October 15, 2010, the trial court issued its order granting in part and denying in part HSUS's petition. The trial court ruled that the raw financial data was exempt from disclosure.*fn10 As to the three categories of communications, the trial court rejected the Regents' invocation of the "deliberative process" exemption, because the Regents "failed to show that the categories of records for which it claims an exemption involve the type of decision-making or policy-making involved in the cases respondent cites . . . ." The Regents also failed to demonstrate the existence of a "researcher's privilege" under California law.
Nevertheless, the trial court concluded that the interest in protecting academic research is relevant to a balancing of interests under the "catch-all exemption" of section 6255.*fn11 The court balanced the public interest in encouraging research and the study of important public issues against the public interest in disclosing improper influence over a publicly funded study. "The Court finds that on the facts of this case, except where records show improper influence by the egg and/or poultry industry on the AIC study, the public interest in promoting research and the study of agricultural issues clearly outweighs the public interest served by disclosure of the records at issue [under the catch-all exemption]. [¶] After reviewing the records in camera, the Court cannot conclude that any of the records at issue show improper influence by the egg and/or poultry industry. Rather, where disclosure is ordered herein, the Court found that [the Regents] failed to establish that an exemption applies to a particular document."
Finding no exemption applicable to 28 pages of the documents it reviewed, the trial court ordered disclosure of those documents.*fn12 The court also ordered disclosure of the names of persons contained in the withheld documents, except the names of egg producers. Rather than compelling the Regents to release all of the documents, redacting all but the names, the court permitted the Regents to release a redacted version of the biographical index, showing just the names. The trial court denied disclosure of several documents that did not fall within the scope of the request. The court denied disclosure of all other documents as exempt from disclosure under the catch-all exemption (Gov. Code, § 6255) and/or the (equivalent official information privilege (Gov. Code, § 6254, subd. (k);*fn13 Evid. Code, § 1040).*fn14
In January 2011, HSUS filed in this court its petition for an extraordinary writ of mandate. We issued an alternative writ of mandate in March 2011. The Regents filed a return answering and opposing the writ petition.*fn15
We first discuss and reject the Regents' procedural arguments that the petition is untimely and the record is inadequate for review.
Government Code section 6259, subdivision (c), limits the time for seeking appellate review of a trial court's CPRA ruling. "[A] party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. . . ." Service by overnight delivery extends the time two court days. (Code Civ. Proc., § 1013, subd. (c).) (Fn. 17, post.)
Here, service was by overnight delivery after the trial court had given HSUS an extra 20 days to file the petition. Thus, HSUS had 42 days after service of the notice of entry of the trial court's order within which to file its petition. (The issue presented here relates to the Regents' service of the notice of entry as the trigger for beginning the filing period.)
The Regents argue HSUS's own petition admits untimeliness, because it said service occurred on November 29, 2010, which means the deadline was Monday, January 10, 2011, and HSUS's petition filed January 11 was one day late, depriving this court of jurisdiction.*fn16 HSUS replies it does not admit service on November 29 but used that date to streamline events for us, despite defective service.
The record shows the order issued on October 15, 2010. The Regents' initial proof of service was undated and claimed the Regents served notice of entry of order by overnight delivery, "collected for delivery by the authorized Fed Ex courier at my place of business" on "December 3, 2007" -- three years before the order issued. HSUS's counsel notified the Regents of the defective service and said, "I normally wouldn't make a big deal about it, but I didn't get the Fedex [sic] until December 2nd and there was no dated proof of service, so it put me behind." On December 9, 2010, the Regents faxed a "corrected proof of service" to HSUS despite the absence of a written agreement for service by facsimile as required by Code of Civil Procedure section 1013, subdivision (e), which states in pertinent part, "Service by facsimile transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made. . . ."
The Regents' "corrected proof of service" stated: "On November 24, 2010, I [Barbara Bray] served the attached Notice of Entry of Order by placing a copy thereof in a separate envelope designated by the FedEx carrier with delivery fees provided for thereon for next day delivery, addressed [to the office of HSUS's attorney]. [¶] Following ordinary business practices in our office, the envelope was sealed and placed for collection by FedEx at our office's designated pick-up location on this date, and would, in the ordinary course of business, be retrieved by FedEx for overnight delivery on this date. On December 9, 2010, I learned from FedEx, for the first time, that the FedEx delivery person missed our floor on November 24, 2010, and did not ...