Does government interest outweigh the public’s right to know?

In a challenge stemming from the state's wildfire liability fund, a San Francisco County judge ordered the attorney general's office to find examples where government interest in non-disclosure outweighs the public's right to know.

Judge Ethan P. Schulman made his move Wednesday after questioning whether a balancing test should be conducted to decide whether public interest outweighs the deliberative process privilege that protects Gov. Gavin Newsom from turning over communications he had with utility stakeholders prior to drafting a controversial wildfire funding bill.

Attorneys Michael J. Aguirre and Maria C. Severson of Aguirre & Severson LLP sued Newsom last fall in an attempt to make public how the state structured a plan to bail out utilities through Assembly Bill 1054, which created a $21.5 billion pot of money to offset liabilities from future wildfires. $13.5 billion of the fund will come from customers. Aguirre v. Gov. Gavin Newsom, Ana Matosantos, CPF-19-516844 (S.F. Super. Ct., filed Sept. 6, 2019).

The lawsuit wants communications Newsom is believed to have had with members of the California Public Utilities Commission, utilities and their lobbyists just before he created AB 1054 which passed July 12, 2019. The governor's office repeatedly argued such exchanges are protected under the deliberative process privilege.

In his tentative ruling issued Monday, Schulman seemingly took Newsom's defense at face value, agreeing the plans were protected. However, after hearing arguments Tuesday from Aguirre and Deputy Attorney General Aaron D. Jones, Schulman withdrew his tentative and asked for more briefing.

While some trial courts have issued rulings grappling with the dispute between the public's interest and the government's privilege, there is no controlling authority or judgment rendered by the state high court or any court of appeal on those issues, Schulman said.

The judge directed parties to submit their best case scenarios and examples by March 18 and warned counsel "not to go over old ground."

Aguirre argued that while it is undisputed Newsom doesn't have to tell everyone what he's doing at all times, it doesn't mean the governor can simply hide records without offering specific details or reasons for doing so. Newsom met with PG&E several times and accepted thousands of dollars from the utility in campaign contributions, leaving the public to question who exactly he is protecting, Aguirre argued.

Furthermore, Newsom had a flurry of meetings with several other third-party individuals during the planning of AB 1054, and the information he likely shared are technically third-party communications and aren't privileged, Aguirre said.

Jones, the deputy AG, argued Newsom is engaged in deliberations for purposes of developing a bill which falls within the protected deliberative process.

"Do we have any authority that tells us that the deliberative process privilege, at least in a more focused case and one involving more compelling interests, can be overcome?" Schulman asked. "If so, what're the contours of that? That's the issue posed here."

Jones acknowledged he wasn't aware of such authorities but said he didn't know of a case where greater public need warrants an exemption. Aguirre's requests aren't narrow. They are sweeping requests seeking all communications from Newsom's office, his staff, advisors and stakeholders over several months of planning such a complex bill, Jones told the judge.

Schulman disagreed, finding Aguirre's request was limited to a particular piece of legislation and crisis California faces from the financial fallout from wildfires.

"This raises serious issues," the judge said. "I'm just not sure how I have much guidance that tells me how to decide them."

Toward the end of the hearing, Jones said he was still unsure what information he should provide to help Schulman make a ruling.

"I'm going to leave it to you to read between the lines, based on my questions today," Schulman told him.