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.),
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.
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,
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.)
After the writ petition was filed, the Regents produced 356
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
The Regents submitted declarations of Daniel A. Sumner, AIC director and agriculture and resource economics professor at the University of California, Davis (UCD).
The AIC operates as a unit of the University of California's (UC) Division of Agriculture and Natural Resources (ANR), a statewide network of UC 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 the 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
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...."
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
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
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.
Finding no exemption applicable to 28 pages of the documents it reviewed, the trial court ordered disclosure of those documents.
We first discuss and reject the Regents' procedural arguments that the petition is untimely and the record is inadequate for review.
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.
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
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 pick up this, and several other scheduled packages. I am informed by FedEx, and on that basis believe, that this package was not picked up by FedEx until November 29, 2010." (Boldface omitted.)
HSUS responded that there was no written agreement for service by facsimile, and the corrected proof of service was defective because it contained hearsay and showed the package was neither hand delivered nor deposited at a facility maintained by FedEx, as required by Code of Civil Procedure section 1013.
Based on the history of the dispute, including HSUS's objection to the facsimile transmission as proof of service, it is clear HSUS, believing timeliness was not an issue, was willing to overlook the service defects. We conclude HSUS has not conceded service on November 29.
We also decline to use the Regents' corrected proof of service to fix the date triggering the filing period, because it was defective and contains hearsay. The Regents sent the corrected proof of service by facsimile despite the absence of a written agreement, as required by Code of Civil Procedure section 1013, subdivision (e). Thus, the service was defective on this ground alone.
Overlooking the facsimile service requirement, the Regents cite case law for the proposition that defects in proof of service are inconsequential, but the cited cases are inapposite. Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265 [135 Cal.Rptr.2d 654, 70 P.3d 1067], cited by the Regents, held the statutory requirement of serving notice of entry of judgment is satisfied by timely serving a copy of the file-stamped judgment. (Id. at p. 1267.) The court in Palmer said that, to start the time within which to file a motion for new trial or a judgment notwithstanding the verdict, it is not necessary to serve a separate document entitled "`notice of entry of judgment.'" (Id. at pp. 1267-1268.) However the court noted that a proof of service accompanied the conformed copy of the judgment. (Id. at p. 1268.) The proof of service was not the issue in Palmer. The issue and holding in Palmer is not analogous here.
The Regents also cite Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211 [112 Cal.Rptr.2d 556], in which the court held proof of service of the rejection of a tort claim did not require personal knowledge and was
The Regents also rely on In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92 [95 Cal.Rptr.2d 113], in which the court held that a typographical error on the notice of entry of judgment was inconsequential where the party did not bring the matter to the attention of opposing counsel or the court. (Id. at pp. 114-115.) Here, HSUS did bring the defects to the Regents' attention.
Finally, the Regents cite National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614 [206 Cal.Rptr. 696], in which the court held an affidavit attesting to hand delivery to the person in charge of opposing counsel's office sufficed, where the appellants did not dispute the accuracy but argued the record failed to show the person was counsel's agent. (Id. at pp. 618-619.) No such showing was required. (Ibid.) Again, this case is not analogous. Here, there was no hand delivery and accuracy of the proof of service is disputed.
Nor can we conclude the notice was "delivered to" the FedEx carrier. To do so would require that we accept the hearsay statement indicating that the carrier actually picked up the envelope. The Regents offer no theory on how we can accept as true the hearsay statements of some unnamed representative of FedEx, and we see none. We agree with HSUS. We must disregard the hearsay statements contained in the corrected notice. (See In re Behymer (1933) 130 Cal.App. 200, 203-204 [19 P.2d 829] [affidavit for publication of summons was invalid because it contained hearsay statements establishing diligence].)
We conclude HSUS's petition is timely.
The Regents argue HSUS failed to provide a record adequate for review because the record does not contain transcripts of the "approximately ten hearings" or the "approximately 40 briefs" filed in the trial court. We conclude the absence of these items does not preclude review here.
California Rules of Court, rule 8.486(b) says: "(1) A petition that seeks review of a trial court ruling must be accompanied by an adequate record, including copies of: [¶] ... [¶] (D) A reporter's transcript of the oral proceedings that resulted in the ruling under review. [¶] ... [¶] (3) If a transcript under (1)(D) is unavailable, the record must include a declaration by counsel or, if the petitioner is unrepresented, the petitioner: [¶] (A)
Here, as the Regents point out, the record does not include briefs HSUS may have filed in the trial court. HSUS's attorney did submit a declaration which did not explain the absence of transcripts
The Regents take issue with the summary provided by HSUS's counsel, arguing the trial court did properly examine each document, as reflected in the trial court's order stating, "Applying the above findings and conclusions to each document [the Regents] withheld from disclosure and after careful review of the documents and considering the parties' arguments, the competent evidence submitted in support thereof, the Special Master's amended report, and whether any reasonably segregable portion of a document should be disclosed, the Court orders ...." (Italics added.)
The Regents argue HSUS omits other trial court documents, "such as some of the declarations that were presented to the trial court," and the court's earlier rulings. However, the Regents append earlier rulings and declarations to the preliminary opposition they filed in this court, and they fail to state whose declarations are missing or why it matters.
HSUS contends that we should review de novo the trial court's balancing of interests, which it contends was based on the trial court's creation of an "erroneous `improper influence' standard." HSUS further asserts that the trial court's "findings" regarding improper influence are "irrelevant."
"In analyzing the availability of [the CPRA's catchall exemption under section 6255 (fn. 11, ante)], we accept the trial court's express and implied factual determinations if supported by the record, but we undertake the weighing process anew. [Citation.] ... `[A]lthough a reviewing court should
Yet, the people's right to know is not absolute. The CPRA provides for specific exemptions (§ 6254)
Before addressing the merits, we must first address objections related to evidence the trial court considered in the balancing analysis. HSUS contends the trial court, which granted in part HSUS's motion to strike portions of Sumner's October 16, 2008 declaration, erred in denying HSUS's motion to strike other portions of the declaration.
HSUS essentially complains Sumner merely "speculated" that disclosure would make it harder for the AIC to gather information for future studies. We do not view Sumner's statements as "speculation," but rather as admissible expert opinion grounded upon his 30 years of experience as a governmental and academic researcher. It is axiomatic that a witness qualified to testify as an expert may offer an opinion related to a subject that "is sufficiently beyond common experience that the opinion ... would assist the trier of fact" (Evid. Code, § 801, subd. (a)), and is "[b]ased on matter (including his [or her] special knowledge, skill, experience, training, and education) perceived by or personally known to the witness ... whether or not admissible, that is of a
HSUS relies on an Attorney General opinion (81 Ops.Cal.Atty.Gen. 383 (1998)) that says speculation is not a basis for denying disclosure. As reflected in that opinion, the Attorney General was asked whether senior citizens' claims for parcel tax exemptions levied by a school district are subject to public inspection. Balancing the interests, the Attorney General concluded that the claims must be disclosed. Regarding the interests on the nondisclosure side of the balance, the Attorney General observed, "if the information in question is not disclosed, the rights of privacy of the senior citizens in the district would be protected. Arguably, they would not be subject to unwanted solicitations directed to them due solely to their having surpassed the age of 65. Such speculation, however, is not a basis for denying disclosure under the terms of section 6255." (81 Ops.Cal.Atty.Gen., supra, at p. 387.) Thus, the privacy concern noted by the Attorney General was nothing more than an unsubstantiated fear, not supported by evidence.
The two cases upon which the Attorney General relied involved similar privacy concerns that also were not supported by evidence. In CBS, the court held that the catchall exemption of the CPRA did not apply, rejecting the notion that the vulnerability of gun licensees would be increased if their concealed weapons permit applications were made available to the public and concluding that such concerns were merely "conjectural at best." (CBS, supra, 42 Cal.3d at p. 652; see id. at p. 649.) In New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579 [268 Cal.Rptr. 21] (New York Times Co.), the court held that the catchall exemption did not apply to a request for the names and addresses of water customers who exceeded their water rationing allocation. The water district had asserted that publication of the names could expose the individuals to verbal or physical harassment. (New York Times Co., supra, 218 Cal.App.3d at p. 1581.) Quoting CBS, the court observed, "`[a] mere assertion of possible endangerment does not "clearly outweigh" the public interest in access to these records.'" (New York Times Co., supra, 218 Cal.App.3d at p. 1585.) The court reasoned, "the record contains no evidence
California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810 [108 Cal.Rptr.2d 870] (CSU, Fresno), a case cited by HSUS, is also inapposite. There, the court compelled the university to disclose documents containing the identities of donors who, upon making donations to a university-affiliated foundation, obtained licenses to use luxury suites in a new campus arena. The court reasoned that the university's arguments for nondisclosure were speculative and not supported by competent evidence. "[A]ny claims by the University that donations will be canceled are speculative, supported only by inadmissible hearsay. Statements by University personnel that disclosure of the licensees will `likely' have a chilling effect on future donations, resulting in a `potential' loss of donations, are inadequate to demonstrate any significant public interest in nondisclosure.... [¶] ... There is no admissible evidence in the record that any license agreements will be canceled if licensee names are disclosed to the public. Any genuine concerns of donor withdrawals should have been presented with competent evidence...." (CSU, Fresno, supra, 90 Cal.App.4th at p. 835; see id. at p. 834.)
Here, in contrast to CBS, New York Times Co., and CSU, Fresno, there is competent evidence. That evidence is Sumner's expert opinion, which is grounded in his extensive experience in academic research. Consequently, we disagree with HSUS's assertion that Sumner's statements amount to the "exact speculation" found insufficient in CSU, Fresno. It was not speculation for a person of Sumner's credentials, with 30 years of research experience, to declare that academic researchers communicate informally, often in jargon or shorthand, trying new ideas, investigating lines of thinking that do not work out, suggesting ideas that turn out to be wrong, and brainstorming in informal ways open to misinterpretation. Furthermore, based on Sumner's experience and his description of the process, it is not speculation for him to opine that disclosure of communications would fundamentally impair the academic research process for the AIC. Similarly, it was not speculative for Sumner to attest that the advisory board and persons outside the research team provide data, advice, and/or critiques informally, in shorthand and sometimes with information of a sensitive nature. And, given Sumner's experience, it is not speculation for him to opine that, if these persons expected their communications to be public, they would be less forthcoming with data and frank opinions. The trial court was well within its discretion as the evidentiary gatekeeper to overrule HSUS's objection to this evidence (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 [149 Cal.Rptr.3d 614, 288 P.3d 1237]) and consider this evidence in its section 6255 balancing analysis.
Contending that Sumner is "only legally able to speak for himself in his declaration," HSUS implies it was necessary for the Regents to submit declarations from all the researchers involved in the Economic Effects study. We disagree. Additional declarations by other researchers would affect only the weight of the opinions offered by Sumner, not their admissibility. (See Eubanks, supra, 53 Cal.4th at p. 140; Sundlee, supra, 70 Cal.App.3d at pp. 484-485; accord, Fulcher, supra, 136 Cal.App.4th at p. 54.)
HSUS argues Sumner's claims about promises of confidentiality are irrelevant because they related only to providers of raw financial data, and HSUS does not challenge the ruling regarding that data. HSUS nevertheless goes on to argue that courts have held promises of confidentiality are insufficient to deny CPRA disclosure. We need not address these arguments, because we do not base our decision on promises of confidentiality.
HSUS fails to persuade us to disregard any portions of Sumner's declarations, other than those stricken by the trial court.
We now turn to HSUS's arguments on the merits.
HSUS makes a number of related arguments regarding the trial court's section 6255 balancing analysis. HSUS argues that although the trial court acknowledged there is no academic research exemption in California, it effectively adopted the Regents' argument for a categorical exemption for all research-related documents concerning agricultural issues unless the person
HSUS's arguments fail because the underlying premise — that the trial court improperly adopted a categorical exemption, shifted the burden, and failed to apply the section 6255 balancing test to the content of each document — is flawed. That is not what the trial court did. Although the court did order the documents divided into categories (no influence, influence, and improper influence), the trial court did apply the balancing test to each document. This is reflected in the trial court's August 2009 amended order of reference, in which the trial court emphasized that it would closely examine "the facts surrounding the statements made" in each document and its October 2010 order granting the writ petition in part, which stated with respect to the 3,100 pages, "Applying the above findings and conclusions to each document [the Regents] withheld from disclosure and after careful review of the documents and considering the parties' arguments, the competent evidence submitted in support thereof, the Special Master's amended report, and whether any reasonably segregable portion of a document should be disclosed, the Court orders [disclosure of 28 pages of specified documents] ...." (Italics added.)
Moreover, the content of some of the records disclosed pursuant to the court's October 2010 order — documents HSUS considers to be damning to the Regents — confirms that the trial court did what it said it had done. For example, HSUS's brief in this court says "Documents disclosed after the October 2010 hearing and order demonstrate that an Agribusiness Executive with Bank of America was involved in the funding of the study, and review of drafts, contrary to The Regents' claims."
HSUS views these documents as evidence of improper influence, whereas the trial court stated it found no documents showing improper influence but instead ordered disclosure of these documents for the express reason that it found no exemption applied. The trial court's reasoning, although not stated, is apparent. No exemption applies to a document which suggests a bank may have contributed or offered to contribute funding to a study. It was therefore not necessary for the trial court to conclude such documents might show improper influence. All such documents would have been disclosed by the trial court, not because they could be stretched to fit HSUS's argument of bias in the study, but because such documents are not exempt.
That the trial court did separately consider each document is further shown by HSUS's rule 8.486(b)(3)(A) summary of the hearing, in which HSUS's counsel stated, "I further objected to Judge Reed's tentative on the basis that he developed the `improper influence' standard not based on the content of the documents, but on general policies, and then he looked at the documents to see if the `improper influence' standard was met; instead of engaging in the public interest balancing based on the actual content of each document. Judge Reed did not agree with my argument." (Italics added.)
We accordingly reject HSUS's claim that the trial court created a categorical exemption.
As indicated in our discussion of HSUS's evidentiary challenge to Sumner's declaration, Sumner's description of the academic research process and this study's conformance to that process support a conclusion that disclosure of the communications would fundamentally impair the academic research process. Moreover, as Sumner alluded, the public would suffer because the "quantity and quality" of the AIC's academic research on important issues of public interest would be adversely affected.
We are not the first court to recognize the chilling effect disclosing prepublication research communications could have on academic research or the negative impact such disclosure would have to the quantity and quality of studies and reports produced for the public by that research. Two federal courts have noted these public interests as well.
The court in Dow Chemical Co. v. Allen (7th Cir. 1982) 672 F.2d 1262 (Dow Chemical), recognized these public interests in the context of a subpoena for various research materials concerning an ongoing toxicity study conducted by a university. The study involved certain chemicals in an herbicide manufactured by Dow Chemical, which was defending in an herbicide cancellation proceeding. (Dow Chemical, supra, 672 F.2d at pp. 1265-1266.) The court held that researchers' interest in academic freedom could properly figure into the legal calculation of whether to order disclosure of the researchers' notes, reports, working papers, and raw data. (Id.
In Cusumano v. Microsoft Corp. (1st Cir. 1998) 162 F.3d 708 (Cusumano), the court held that Microsoft was not entitled to production of academic research materials, which it wanted to use in defending an antitrust case. (Cusumano, supra, at p. 710.) Reasoning that academic researchers are like journalists, the court observed that if academic research materials were freely subject to subpoena, researchers' sources likely would refuse to confide in them. (Id. at p. 714.) The court further noted, "Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses." (Ibid.)
As noted by HSUS, Dow Chemical was a discovery case, not a public records case. So too was Cusumano. We think this distinction is without significance in the context of this CPRA case because we consider both cases only for the proposition that the interests advanced by the Regents here are recognized legitimate public interest concerns. Consequently, like the trial court, we factor those concerns into the section 6255 catchall balancing in this case.
Because HSUS implies that Southwest rejects consideration of the interests asserted here in public records request cases, we note several important distinctions. First, the FOIA request in Southwest was for data, not prepublication thoughts, conversations, and back and forth exchanges of ideas between researchers. In Southwest, the FOIA request related to data utilized in a government report on the status of the goshawk, as a threatened or endangered species. (Southwest, supra, 170 F.Supp.2d at p. 936.)
Second, the researchers in Southwest were not academic researchers like Sumner and the AIC team, and the district court had no occasion to consider the impact disclosure might have on academic research and the public's interest in the quality and availability of academic publications. Indeed, this distinguishing fact was not lost on the district court in Southwest as the court noted, "Reynolds is not a private researcher in academia; rather, his work is paid for by the government and conducted for public purposes." (Southwest, supra, 170 F.Supp.2d at pp. 942-943.) And, as the court further noted, there was no showing that disclosure of the data would be burdensome. (Id. at p. 943.) Reynolds was the government's leading researcher involved in studies of the northern goshawk. His research assisted the United States Fish and Wildlife Service in determining whether the goshawk should be listed as a threatened or endangered species. (Id. at p. 936.) Data that is the result of research done for a governmental entity to inform and support an official decision of that entity may very well present a different set of interests than those presented in the academic setting where prepublication communications are at issue.
HSUS relies on cases involving third parties who gave information to a governmental entity. In the cited cases, the courts held that those people had a reduced expectation of privacy due to acceptance of government benefits, such as public employment. (E.g., SCERS, supra, 195 Cal.App.4th at p. 468 [public salary information is an aspect of government operations, the disclosure of which contributes to the public's understanding and oversight of those operations by allowing interested parties to monitor the expenditure of public funds].) These cases are of no help to HSUS.
HSUS also cites authority holding that voluntary entry into the public sphere diminishes one's privacy interests. However, one of the cases cited is an unpublished opinion and hence not citable as precedent.
At oral argument, HSUS cited this court's decision in Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296 [140 Cal.Rptr.3d 459]. That case involved a CEQA (California Environmental Quality Act; Pub. Resources Code, § 21000 et seq.) challenge in which the trial court applied the deliberative process privilege to exclude from the administrative record e-mails between the city's staff and its consultants regarding preparation of the revised EIR (environmental impact report). (205 Cal.App.4th at p. 305.) The city had asserted the privilege should be applied because it was necessary to "`foster candid dialogue and a testing and challenging of the approaches to be taken'" in the context of the preparation of an EIR. (Citizens for Open Government, supra, 205 Cal.App.4th at p. 306.) This court held that the city's mere reliance on the policy of why the "privilege in general is necessary" was insufficient to explain the public's specific interest in nondisclosure. (Id. at p. 307.) "The city therefore failed to carry its burden to explain what the public's specific interest in nondisclosure was in this case." (Ibid., original italics.) In contrast, in the instant case, the Regents supported their assertion with expert opinion evidence and explained specific interests in nondisclosure, including preventing a diminution in the quantity and quality of studies from which the public benefits. The trial court reviewed each document here with that evidence in mind. Citizens for Open Government is of no help to HSUS.
The evidence here supports a conclusion that disclosure of prepublication research communications would fundamentally impair the academic research process to the detriment of the public that benefits from the studies produced by that research. The trial court accommodated that interest by examining the documents for potential improper influence, which would weigh on the disclosure side of the balance.
This court has previously discussed how to weigh that general public interest in the balance. "`If the records sought pertain to the conduct of the people's business there is a public interest in disclosure. The weight of that
As the court put it in County of Santa Clara and City of San Jose, "the issue is `whether disclosure would contribute significantly to public understanding of government activities.'" (County of Santa Clara, supra, 170 Cal.App.4th at p. 1324, quoting City of San Jose, supra, 74 Cal.App.4th at p. 1018.) Thus, in assigning weight to the general public interest in disclosure, courts should look to the "nature of the information" and how disclosure of that information contributes to the public's understanding of government.
However, the evidence here suggests an alternative to achieve the goal of ensuring accurate conclusions based on sound methodology. As the Regents point out, a published report itself states its methodology and contains facts from which its conclusions can be tested. As noted by Sumner, published academic studies are exposed to extensive peer review and public scrutiny that assure objectivity. Here, given the public interest in the quality and quantity of academic research, we conclude that this alternative to ensuring sound methodology serves to diminish the need for disclosure. Moreover, given that the prepublication written communications are in jargon and involve midstream thinking, some of which was by junior researchers and some of which were supplemented during the research process with undocumented oral conversations, we conclude that the value of these documents to evaluate the conclusions and methodology is minimal.
HSUS argues some of the documents disclosed after the October 7, 2010 hearing demonstrate grounds to question the study's funding and conclusions. Therefore, production of all the other documents (or at least the documents
HSUS claims the trial court reviewed the documents with an eye toward only disclosing documents that showed "improper influence" and that "improper influence" is an arbitrary and unworkable standard. The trial court's decision to look for "improper influence" in the documents must be examined in the context of HSUS's arguments. Based on the record before us, we conclude that HSUS framed the balancing test by focusing the court on "improper influence." This was noted by the trial court in its August 2009
In the August 2009 amended reference order, the trial court wrote, "Petitioner claims that the egg and/or poultry industry improperly influenced the conduct or result of the study ...." (Italics added.) Citing HSUS's supplemental opening brief, HSUS's response to the Regents' supplemental brief, and a declaration filed by HSUS, the trial court wrote in its October 2010 order, "[HSUS] seeks the production of records that show that the egg and/or poultry industry improperly influenced the AIC study."
As we have noted, the trial court disclosed documents consisting of 28 pages it found to be nonexempt. In our view, even under the public interest focus HSUS advocated in the trial court, there was no need to determine whether a document showed "improper influence" if the document was not potentially exempt. And the evidence suggests that is exactly what the trial court did. It ordered the disclosure of 28 pages of documents, for the reason that the Regents "failed to establish that an exemption applies." Thus, contrary to HSUS's contentions here, the trial court was not myopically focused on disclosing only documents that showed "improper influence."
Moreover, we see HSUS's focus on the trial court's labels as an argument over semantics which is conflated into an assertion about what the court did or did not do in its balancing analysis. The labels are not controlling. As evidenced by the examples the trial court gave of "improper influence" and "influence" in its August 2009 amended reference order, we conclude that, in essence, what the trial court did was simply to distinguish between "influence" in its coercive connotation
In support of the argument that the trial court should have ordered disclosure of the documents that showed any influence on the study, HSUS argues that, in other contexts, California authorities deplore influence on or by public agents without adding the modifier "improper." However, the authorities cited by HSUS do contain modifiers that connote improprieties. (§§ 15626, subd. (c) [no member of the State Board of Equalization who has received a contribution from a party shall attempt to use his or her official position to influence the decision], § 3560, subd. (c) [legislative intent to provide a system of higher education with academic freedom and insulation from political influence]; Ed. Code, § 66607 [university shall be independent of political and sectarian influence]; Stockton Plumbing & Supply Co. v. Wheeler (1924) 68 Cal.App. 592, 602 [229 P. 1020] [public officer should be free from any influence other than that which may directly grow out of the obligations he owes to the public at large].)
HSUS also relies on the UC Davis Policy and Procedure Manual, contending that nowhere in that publication is there a reference to "improper influence." HSUS cites language from the manual, implying that even the perception of "influence" is prohibited. But HSUS apparently overlooks the import of the language it cites, which states that principal investigators and key personnel are responsible for "[c]onducting the sponsored research or educational activity in a manner that will avoid a perception that the project could be influenced or biased by conflicts of interest." (Italics added.) The manual defined conflict of interest as "a situation that occurs when the conduct of research could be compromised or appear to be compromised by a related financial interest of the principal investigator or key personnel." Contrary to HSUS's assertion that no reference is made to "improper influence," we read the italicized phrase as clearly referencing the type of influence the manual seeks to address, and it can hardly be argued that influence that is the result of a conflict of interest is not a form of improper influence.
Here, the trial court adopted an interpretation of "influence," pursuant to which some documents would weigh heavily in favor of CPRA disclosure
HSUS asserts here that the public has an interest in documents that would reveal violations of university policy and state law concerning prohibitions against political campaign activity. However, the record does not reflect that HSUS asserted in the trial court this public interest theory. As we have noted, we are without transcripts and HSUS's trial court briefs in which this public interest theory would logically have been asserted. Moreover, no mention is made of it in counsel's rule 8.486(b)(3)(A) declaration. The record before us reflects only the trial court's observation in its August 2009 amended reference order and October 2010 order on the petition that HSUS's trial court briefing indicated HSUS was seeking "records that show that the egg and/or poultry industry improperly influenced the AIC study." (Italics added.) Indeed, the HSUS's original CPRA request did not expressly request documents that might reflect violations of university policy or California law; it merely requested records pertaining to university practices, policies and regulations concerning participation in political campaigns.
We recognize we have discretion whether to consider new issues, and appellate courts often do so if the issue involves legal questions of public interest. (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810 [12 Cal.Rptr.2d 510].) "`There are many situations where appellate courts will consider [matters raised for the first time on appeal]. They will often be considered where the issue relates to questions of law only. [Citations.] Appellate courts are more inclined to consider such tardily raised legal issues where the public interest or public policy is involved. [Citations.] And whether the rule shall be applied is largely a question of the appellate court's discretion.' [Citations.]" (Ibid.; see Avalos v. Perez (2011) 196 Cal.App.4th 773, 776-777 [127 Cal.Rptr.3d 106] [appellate court has discretion to consider new issues where public interest is involved].) Here, although this new theory involves a public interest, it does not involve a pure question of law, because HSUS is challenging the trial court's review of individual documents. We decline to consider HSUS's new public interest theory related to disclosure of political campaign prohibition violations.
Even if we were to consider this theory on the record before us, we would reject it. Documents reflecting political campaign prohibition violations would have been nonexempt. That the trial court disclosed 28 pages of nonexempt documents suggests to us that the court would have disclosed documents reflecting political campaign prohibition violations had such documents existed.
In its replication, HSUS belatedly asserts that the trial court limited its review to influence by the egg and poultry sector instead of looking for evidence of influence by other sectors of agriculture and banks. As we have discussed, the court actually did provide the communications from a Bank of America executive who apparently represents the bank's interest in agriculture, after concluding those communications were nonexempt. Based on that disclosure, we are confident that if the trial court had come across documents in its page-by-page in camera review that were either not exempt or that reflected improper influence from some other source, it would have disclosed them.
In its replication, HSUS argues for the first time that the trial court and the Regents failed to explain why the trial court disregarded the special master's recommendation for disclosure of all documents showing simple "influence."
HSUS argues the trial court never attempted to segregate and redact nondisclosable information from disclosable information. We disagree.
Here, after production of the 356 pages of documents, the trial court reviewed each of the 3,100 remaining pages and ordered disclosure of an additional 28 pages. The court also ordered disclosure of names of persons contained within the withheld documents (other than the names of egg producers) and ordered these names could be produced in a redacted copy of the biographical index rather than ordering redaction of all the nondisclosed documents to delete all but the names. The trial court indicated in its order that it had considered "whether any reasonably segregable portion of a document should be disclosed." On the record before us, we reject HSUS's bald assertion that it is "unimaginable" that every line of text in the withheld documents is so vital to promoting research that it cannot be segregated and disclosed.
HSUS argues in its petition there is no compelling reason to withhold e-mail headers. It contends that the headers would show "the names of individuals, email addresses, who they were corresponding with, and on what dates." The Regents responded that the absence of a hearing transcript makes it impossible to determine whether HSUS raised this point in the trial court and that counsel for the Regents has no recollection e-mail headers were discussed. For the first time, as far as we can tell from the record, HSUS asserts in its replication that disclosure of the e-mail headers would benefit the public by creating a timeline of when the Regents were in contact with
We note that counsel did mention the e-mail headers in his rule 8.486(b)(3)(A) summary, stating that he argued to the trial court that "at a minimum [the trial court] should release all the names and email headers on the documents because they have nothing to do with promoting research." The record does not show, however, that counsel asserted there was a public interest in creating a timeline. For the reasons we declined to consider HSUS's new political campaign prohibition violation public interest theory, we decline to consider this theory as well.
HSUS's petition for a peremptory writ of mandate and/or prohibition is denied. Having served its purpose, the alternative writ of mandate is discharged. The parties shall bear their own costs in this writ proceeding. (§ 6259, subd. (d); rule 8.493(a)(1)(A).)
Nicholson, Acting P. J., and Butz, J., concurred.
Nor does HSUS direct our attention to its motion to strike anywhere in the record on appeal. We nevertheless address the evidentiary challenges on the merits.
In an e-mail to Sumner dated April 11, 2008, Gallagher wrote: "Egg leaders called and have grave concern on progress of study ... [¶] let me know how I can help. [¶] thanks." (Original ellipses.)
In an e-mail to Sumner dated May 14, 2008, Gallagher wrote: "They hoped for a draft today ... any chance? [¶] Sorry to bug you but I know they will call." (Original ellipses.)
In an internal e-mail dated October 11, 2008, from Sumner to Lynnette Temple, UCD information practices coordinator, Sumner wrote: "These two emails between Joy and me do not deal with our report but our conversation about the draft pro and con arguments about the initiative. Discuss please."
