Citizens for a Better Environment v. Department of Food & Agriculture

EVANS, Acting P. J.

I respectfully dissent. I view the lengthy discussion in the majority opinion as a camouflage of the simple and straightforward answer to the problem presented. At trial, Jerome Campbell, a pesticide use specialist employed in the pesticide enforcement unit of the Department of Food and Agriculture, testified that he had examined the documents sought by the plaintiffs and found them to be notes, memoranda, preliminary drafts, and opinions of inspectors which would be utilized in preparing final reports; he further testified that those documents would be discarded by the department once the final draft had been published. Government Code section 6254, subdivision (a), provides, “Except as provided in Section 6254.7, nothing in this chapter shall be construed to require disclosure of records that are any of the following: [¶] (a) Preliminary drafts, notes, or interagency or intraagency memoranda which are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.” The language of the section is clear and unambiguous, not needing interpretation or clarification. The uncontradicted testimony of Mr. Campbell clearly places the documentation within the technical ambit of that statute. Moreover, I view the evidence as the trial judge did as establishing that the public interest in withholding the records “clearly outweighs the public interest in disclosure. ”

The Trial Judge Irving Perluss personally examined each document and concluded they should not be disclosed. In his findings, he succinctly and reasonably explained the reasons for exempting the documents from disclosure. My review of the documents compels the same conclusion. I will therefore quote from a portion of Judge Perluss’ findings and adopt them as an integral part of my dissent: “The examined writings were contained in *719two letter-size folders and are variously handwritten, typed, and handwritten on typed or printed forms.

“7. The examined writings were authored by personnel of the Department and the U.S. Environmental Protection Agency who were assigned to teams for inspection and evaluation of pesticide enforcement programs of the Contra Costa and San Francisco departments of Agriculture in 1980, under the provisions of the Federal Insecticide, Fungicide and Rodenticide Act. The writings themselves are preliminary memoranda and notes of the impressions and opinions of the individual inspection and evaluation team members concerning the agriculture departments which they visited. These notes and memoranda reflect the team members’ perceptions and opinions about what they saw and were told, but are not, and were not intended to be, exhaustive records of the inspections or complete evaluations thereof. To the extent that the notes and memoranda refer to things that were seen and heard by the team members, they contain what may be considered factual material. The factual material is inextricably intertwined with opinion. The opinions are based not only on the factual information but are also predicated on omission involving the judgment of the personnel involved as to whether the omissions were or were not appropriate.

“8. The examined writings are maintained by the Department solely as a basis for preparation and eventual publication of reports of the findings of the 1980 evaluations, and will not be retained thereafter in the ordinary course of the Department’s business. No documents in the nature of preliminary drafts of reports, as such, have yet been generated by the Department.

“9. Reports of the Department’s findings on its inspection and evaluations of the county agricultural departments are expected to be prepared by the collective efforts of the team members who visited the respective county departments. In each case, a draft of a written report is to be prepared by one of the team members, who will utilize in the first instance his own recollections and opinions of the inspection in conjunction with the notes and memoranda reflecting the observations, impressions and opinions of himself and his fellow team members. The draft will thereafter be distributed to and reviewed by the several members of the team, who, having access and reference to the writings which are the subject of this action, will discuss the contents of the draft among themselves and with the author, and engage in the correction of information, clarification of data, and refinement of analysis and opinion. The final report which emerges from this consultative process will be the product of collective deliberation and consensus among the team members.

*720“10. By reason of the foregoing facts, the writings which are the subject of this action are clearly implicated in the process of collective consultation and deliberation from which the findings of the Department will issue in the form of a written report. Disclosure of these writings, which contain and reflect the subjective impressions and mental processes of the team members as well as perceptions and impressions of the factual material upon which these processes operate, would be expected to impair the candid internal exchange of opinions and views necessary to the formulation of responsible and balanced positions upon issues with which the Department’s public reports must deal. Unless protected from public disclosure, the information thus exchanged would not flow freely within the Department. Under these circumstances the public interest is far better to be served by withholding these writings than by disclosing them. Thus, the public interest in nondisclosure of these writings clearly outweighs the public interest in their disclosure.”

I deem it worthy of note that the majority opinion infers some ulterior secretive motive behind rational legal analysis which concludes there can be no public interest in nondisclosure. Reason and law patently are to the contrary.

I would affirm the judgment.