LCCN Files Suit Against Pico Rivera to Turn Over Documents

City refuses to turn over e-mails requested under the California Public Records Act

By Brian Hews

In a strange legal maneuver, the city of Pico Rivera and its law firm, Alavarez, Glasmen, and Colvin (AGC), have refused to turn over documents to Los Cerritos Community News (LCCN) requested under the California Public Records Act pertaining to a contract awarded by the city to a local firm.

AGC indicated that the city is “not permitted to disclose” thirty four pages due to the “deliberative process privilege” established by Government Code Section 6255, citing Wilson v. Superior Court (1996) 51 Cal. App. 4^th 1136.

The deliberative process privilege (known as ‘executive privilege’ under federal law) protects materials reflecting deliberative or decision-making processes. The key question in every case is “whether the disclosure of materials would expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”

LCCN consulted with its attorneys on the matter and answered the city’s  refusal, with several cases cited for disclosure, but the city continued to withhold the documents.

LCCN’s attorneys wrote, “The documents requested in the present case are primarily email communications between a company that participated in the City of Pico Rivera’s competitive public bidding process and public officials of the City.  The request seeks documents generated prior to the public hearing and decision of the City Council.  You (Pico Rivera) have asserted that such communications, which are ordinarily not permitted at all in a competitive public bid situation, are subject to the deliberative process privilege.   According to Government Code §6255 all communications that were distributed to a majority of the members of the Council by any bidder for consideration prior to the public hearing are disclosable public records and are not subject to the deliberative process privilege.

The city indicated in their second refusal letter that they had released all documents requested because LCCN had requested the documents prior to the public hearing.

But at the time of the second letter the contract had been awarded to the local firm effectively voiding the deliberative process privilege.

LCCN’s attorney’s cited the fact that the award of the contract was complete and that the exemption set forth in Government Code Section 6255 did not apply because it was overridden by the provisions of Government Code 54957.5 and applicable case law which states,  “Notwithstanding section 6255 … agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act, and shall be made available upon request without delay “There is simply no legal basis for withholding the requested documents,” said LCCN attorneys. But the city still refused.

LCCN has hired Kelly Aviles to file the Petition for Writ of Mandate, which seeks a court order compelling Pico Rivera to comply with its obligations under the California Public Records Act. Aviles said, “The City’s withholding of these documents is not permitted under the CPRA.  The City’s justification is based on the “deliberative process privilege.”  However, the Courts have already determined that documents related to the competitive bidding process are disclosable under the CPRA.  While the City claims that the release of these predecisional documents would discourage candid agency discussion, we believe that withholding the documents keeps the public from knowing vital information about how its elected representatives are conducting its business.  Given the numerous scandals relating to public corruption that have occurred throughout our state, we feel strongly that secrecy has no place in our government.”