CA AGO emails re: POST documents

Shawn Musgrave filed this request with the Office of the Attorney General - California of California .
Tracking #

2019-00489

Est. Completion March 25, 2019
Status
Fix Required

Communications

From: Shawn Musgrave

To Whom It May Concern:

Pursuant to the California Public Records Act, I hereby request the following records:

All emails to and from the below individuals that include the below keywords between January 1, 2019 and the date this request is processed.

Individuals:
Attorney General Xavier Becerra
Deputy Attorney General Michelle M. Mitchell

Keywords:
"Lewis"
"Paladino"
"Commission on Post Officer Standards and Training"
"Commission on POST"
"Investigative Reporting Program"
"Berkeley"

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter.

I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Shawn Musgrave

From: Office of the Attorney General - California

Dear Shawn Musgrave:

Attached please find a letter in response to your Public Records Act Request.

Public Records Coordinator
California Department of Justice
Office of the Attorney General
916.210.6183

CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

  • Musgrave, Shawn (MuckRock) req 02.28.19 resExt 03.12.19 - 2019-00489

From: Office of the Attorney General - California

Dear Shawn Musgrave,

We attempted several times to respond from our Publicrecords@doj.ca.gov email yesterday, but received error messages.

Please confirm you received this email and we will forward our response and production today.

Thank you,

Maria

From: Office of the Attorney General - California

Dear Shawn Musgrave:

Attached please find our response and production to your Public Records Act Request.

Please reply to this email to confirm transmission of this email.

Maria
Acting Public Records Coordinator
California Department of Justice
Office of the Attorney General
916.210.6183

CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

From: Shawn Musgrave

Hello,

Thank you for sending certain records. Before proceeding to subsequent appeal steps, I wanted to ask that your office reconsider its broad invocation of exemptions to withhold documents.

As a preliminary matter, I note that the exemptions invoked — here the deliberative process, attorney work product, and attorney-client privilege exemptions — are all waivable. Your office can release documents (in full or in part) even if they are subject to any of these privileges. Even if these exemptions apply, it is entirely appropriate for your office to release the requested documents given the intense public interest in the decision by the Attorney General's office to imply that reporters might be charged with crimes for possessing certain information released to them by a sister state agency. Media coverage by local and national outlets highlight the public interest in how your office came to the policy determination that such an implication was appropriate and sound.

Furthermore, it seems that your office has overstated the scope of the exemptions so as to withhold documents that are otherwise subject to release. With regard to the deliberative process exemption, certain documents almost certainly exist which should be released in whole or in part notwithstanding their containing certain information that might be described as "deliberative." Per your office's guide to the CPRA (online here: http://ag.ca.gov/publications/summary_public_records_act.pdf), the deliberative process privilege stems from Gov. Code, § 6255. Your office's response to me categorically invokes the deliberative process privilege without fleshing out the necessary balancing test necessary, per the AG CPRA guide, "to determine whether the public interest in maintaining the deliberative process privilege outweighs the public interest in disclosure of the particular information in question." While the letter sent in response to my request enumerates the legal standard and articulates certain magic words, I do not believe it satisfies the burden under Gov. Code 6255 to conduct the balancing test and demonstrate that the balance of public interest weighs against disclosure. Furthermore, the AG CPRA guide provides that "[r]ecords which reflect a final decision and the reasoning which supports that decision are not covered by the deliberative process privilege." Prior to sending the Jan. 29, 2019 letter to Robert Lewis and Jason Paladino, a "final decision" about sending such correspondence was certainly made, but no such document was released in response to my request. At minimum, this document would not be covered by the deliberative process privilege.

Similarly, your office's invocation of the attorney-client and attorney work product exemptions is overbroad and unnecessary, per the AG CPRA guide, given that the "fundamental precept of the CPRA is that governmental records shall be disclosed to the public, upon request, unless there is a specific reason not to do so." Certain of the documents requested herein were certainly prepared by attorneys, and even constituted legal advice to Attorney General Becerra or his deputies. But the animating spirit of the CPRA and similar statutes around the country is to provide the public a means of determining how its representatives are conducting "the people's business," Gov. Code 6250. The invoked exemptions regarding attorney-client and attorney work product are entirely waivable, and appropriately so here given the overriding public interest in understanding how Attorney General Becerra came to the conclusion that reporters might be subject to criminal sanctions.

In light of the above, I ask that your office reconsider its response to this CPRA request. I look forward to your response.

Respectfully,
Shawn Musgrave

From: Office of the Attorney General - California

Dear Shawn Musgrave:

Attached please find our response to your correspondence received by our office on March 30, 2019.

Please reply to this email to confirm transmission of this email.

Maria
Acting Public Records Coordinator
California Department of Justice
Office of the Attorney General
916.210.6183

CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

Files

pages

Close