Concurring.—I agree with the reasoning and result of the majority opinion which correctly resolves the statute of limitations questions. I write separately to address another significant question not directly presented by the parties here. Tim Molloy’s action rests on allegations that the Governor, an ex officio member of the Board of Regents of the University of California (Regents), conducted premeeting telephone conferences with a quorum of the Regents and secured their agreement to vote for the resolutions presented at that meeting. The underlying issue in this case is whether substantive discussions of official matters—whether conducted by telephone, letter, electronic mail, or face-to-face—among the members of a state government body subject to the Bagley-Keene Open Meeting Act (Gov. Code, § 11120 et seq.; hereafter all statutory references are to the Government Code) violate the statute’s injunction that “[a]ll meetings of a state *538body shall be open and public . . . (§ 11123.) The Bagley-Keene Open Meeting Act (the Act) does not, however, define “meeting.”
In a handful of opinions, the Courts of Appeal have held that, at least as used in the Ralph M. Brown Act (§ 54950 et seq. [the open meeting law governing local agencies] (hereafter the Brown Act)), the term “meeting” “comprehends informal sessions at which a legislative body commits itself collectively to a particular future decision concerning the public business.” (Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 102 [214 Cal.Rptr. 561] (Stockton).) The seminal case is Justice Friedman’s opinion in Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 47-51 [69 Cal.Rptr. 480] (Guild), a Brown Act decision that is the grandfather of California’s modem open meeting jurisprudence. There, newspaper journalists sued to enjoin the county board of supervisors from attending, en masse and in the midst of a strike by public employees, informal luncheons at the Elks Club where county counsel and the officers of the public employees labor union also appeared (and from which plaintiffs were barred).
“[The Brown Act open meeting provision] is unequivocal in its central thrust upon official sessions for the transaction of official business, but somewhat ambiguous as it encounters peripheral gatherings or conversations among board members where public business is a topic,” the court wrote. (Guild, supra, 263 Cal.App.2d at p. 47.) Affirming injunctive relief against the lunches, the court held that the statute’s openness requirement was “a deliberate and palpable expression of the act’s intended impact,” and comprehends both “deliberation and action as dual components of the collective decision-making process . . . [which] . . . cannot be split off and confined to one component only, but rather comprehends both and either.” (Ibid.) The ban on “secret” deliberations extends to committee meetings, the court ruled, since by “the specific inclusion of committees and their meetings, the Brown Act demonstrates its general application to collective investigatory and consideration activity stopping short of official action.” (Id. at p. 49, fn. omitted.)
In a passage that has become a shibboleth in the case law, the Guild court wrote that “[i]n this area of regulation, as well as others, a statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic premeeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry *539and discussion stage, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. . . . Construed in the light of the Brown Act’s objective, the term ‘meeting’ extends to informal sessions or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting.” (Guild, supra, 263 Cal.App.2d at pp. 50-51, fn. omitted; see also Stockton, supra, 171 Cal.App.3d at pp. 100-102 [serial telephone conversations among board members constituted a “meeting” and violated Brown Act]; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231 [175 Cal.Rptr. 292] [closed session with prospective contractor was “meeting” despite absence of commitment]; Frazer v. Dixon Unified School Dist. (1993) 18 Cal.App.4th 781, 791-794 [22 Cal.Rptr.2d 641] [quorum of school board present to discuss district business was engaged in “collective acquisition and exchange of facts” and was thus a “meeting”]; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 376 [20 Cal.Rptr.2d 330, 853 P.2d 496] [“concerted plan to engage in collective deliberation” serially would violate the open meeting requirement] (dictum); see also 216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal.App.4th 860, 876-878 [68 Cal.Rptr.2d 492] [meetings between incumbent and newly elected supervisors were not “meeting[s]” within Brown Act since Act did not apply to supervisors-elect].)
Without faulting the result in Guild or cases relying on it, this formulation may be overbroad, encouraging later analyses to overlook the degree to which such broad restrictions may present formidable constitutional difficulties, and the fine but critical distinctions between the proper reach of open meeting legislation and the contending values that make up the foundation for the common law’s “deliberative process” privilege. For example, in Stockton, supra, 171 Cal.App.3d at page 98, the court, relying on the analysis in Guild, held in substance that “a series of nonpublic telephone conversations, each between a member of the governing body of a local agency and its attorney, for the commonly agreed purpose of obtaining a collective commitment or promise by a majority of that body concerning public business, constitutes a ‘meeting’ within the purview of [the Brown Act],” thus violating the statute.
Whether the Legislature intended such a broad definition of meeting is unclear. The Brown Act defines a meeting to include “any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” (§ 54952.2, subd. (a).) It prohibits the use of “direct communication, personal intermediaries, or technological devices” employed by a majority of *540members “to develop a collective concurrence as to action to be taken on an item.” (§ 54952.2, subd. (b).) The Brown Act defines “action taken” as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” (§ 54952.6.)
The provisions of the Bagley-Keene Open Meeting Act are more ambiguous. The Act declares the legislative intent that the deliberations of state agencies be “conducted openly” (§ 11120), specifies notice and agenda requirements, and authorizes a judicial action to determine whether an action taken in violation of these provisions is null and void. (§§ 11120, 11123, 11125, 11130.3.) The definition of “action taken” (§ 11122) is identical to the Brown Act, but “meeting” is not defined and a provision prohibiting use of direct communication, personal intermediaries or technological devices to develop a collective concurrence is not included in the Act. Nevertheless, the Legislature arguably intended these provisions to be congruent with Brown Act requirements and plaintiffs here assumed they are.
However, it is not clear the Legislature’s commitment to openness requires so deep an intrusion into the deliberative process of the executive branch. Indeed, substantial impairment of the essential function of a coequal branch of government would be prohibited. Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated. The case law origins of what Wright, Miller and Marcus call “the governmental” or “deliberative process” privilege (8 Wright et al., Federal Practice & Procedure (1994) § 2019, pp. 296-312; 26A Wright et al., Federal Practice & Procedure (1992) § 5680, pp. 125-157) have been codified in the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552 et seq.), section 5 of which exempts from disclosure “intra- and inter-agency memoranda” not ordinarily civilly discoverable. In Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338 [283 Cal.Rptr. 893, 813 P.2d 240] (Times Mirror), this court held that the “legislative history and judicial construction of the FOIA . . . ‘serve to illuminate the interpretation of its California counterpart,’ ” the Public Records Act (§ 6250 et seq.).
Underlying both public records statutes is an antecedent evidentiary privilege protecting from compelled disclosure opinions, recommendations, and *541advice of government policy makers and their aides. The justification for that evidentiary limitation is the “recognition of] a need for claims of privilege when confidentiality is necessary to ensure frank and open discussion . . . .” (United States v. Weber Aircraft Corp. (1984) 465 U.S. 792, 802 [104 S.Ct. 1488, 1494, 79 L.Ed.2d 814].) As the court wrote in NLRB v. Sears, Roebuck & Co. (1975) 421 U.S. 132, 150 [95 S.Ct. 1504, 1516, 44 L.Ed.2d 29], the cases “uniformly rest the privilege on the policy of protecting the ‘decision making processes of government agencies’ [citations]; and focus on documents ‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ [Citation.]” “The point,” the Sears court went on to note, “is that the ‘frank discussion of legal or policy matters’ in writing might be inhibited if the discussion were made public; and that the ‘decisions’ and ‘policies formulated’ would be the poorer as a result. [Citation.] As a lower court has pointed out, ‘there are enough incentives as it is for playing it safe and listing with the wind,’ [citation] . . . (Ibid.)
In Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena (D.C. 1966) 40 F.R.D. 318, a widely quoted district court opinion, Judge Robinson wrote: “Nowhere is the public interest more vitally involved than in the fidelity of the sovereign’s decision- and policy-making resources. ffl] . . . [^] To the extent that such communications may later be scrutinized by others, the communicative process itself becomes embarrassed .... Freedom of communication vital to fulfillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure .... [Government, no less than the citizen, needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning.” (Id. at p. 325, fn. omitted.)
These considerations, fundamental to the operations of government, justify a presumptive privilege for executive communications. As this court put it in Times Mirror. “The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it.” (53 Cal.3d at p. 1345; see also State ex rel. Atty. Gen. v. First Judicial (1981) 96 N.M. 254 [629 P.2d 330, 333-334]; Killing-ton, Ltd. v. Lash (1990) 153 Vt. 628 [572 A.2d 1368]; Hamilton v. Verdow (1980) 287 Md. 544 [414 A.2d 914, 10 A.L.R.4th 333]; Nero v. Hyland (1978) 76 N.J. 213 [386 A.2d 846]; Doe v. Alaska Superior Ct., Third Jud. Dist. (Alaska 1986) 721 P.2d 617.)
The public has a right to know what decisions government officials make and to have officials articulate fully the basis on which they act. To the *542extent officials seek to evade public scrutiny altogether, to avoid public discussion, to forge a majority in advance of public hearings on an issue, or to hide improper influences such as personal or pecuniary interest, public opprobrium is appropriate. The only question is whether the indirect public right to information about government activities justifies rules of engagement so stringent that the executive decisionmaking function is unreasonably impaired. There is a point beyond which open meeting requirements may effectively paralyze informed and efficient decisionmaking.
Judicial construction of the state’s open meeting statutes suggesting that “serial” discussions among board members are “meetings” (and thus subject to statutory sanction) runs directly counter to a substantial and long-standing body of state and federal case law supporting the qualified privilege of confidentiality for discussions among government policy makers short of agreement and official action. Case law upholding a common law privilege of confidentiality for premeeting, prevote discussions that do not extend to a collective commitment are founded on important, even vital, commonsense notions of effective government. They recognize the indispensable value of candid, unrestrained, nonpublic debate and discussion, where final collective agreement and action on official matters occurs publicly and in compliance with statutory “sunshine” provisions.
Whatever the Legislature’s intent, the public need for access to information must be balanced against the public’s right to the efficient administration of public bodies. Most sunshine laws explicitly recognize that “the administrative process cannot be conducted entirely in the public eye.” (FCC v. ITT World Communications, Inc. (1984) 466 U.S. 463, 469 [104 S.Ct. 1936, 1940, 80 L.Ed.2d 480] [discussing the Sunshine Act (5 U.S.C. § 552b(b))].) “ ‘[I]nformal background discussions [that] clarify issues and expose varying views’ are a necessary part of an agency’s work. [Citation.] The Act’s procedural requirements effectively would prevent such discussions and thereby impair normal agency operations without achieving significant public benefit.” (466 U.S. at pp. 469-470 [104 S.Ct. at p. 1940], fns. omitted.)
“Inherent in an executive position is the duty to make rational decisions and to take responsibility for the consequences. Important decisions should not be made casually, but informal information may be as important as formal procedure in reaching the correct result, whether the decision needs to be rational, representative, or efficient.” (Hispanic Educ. Com. v. Houston Ind. Sch. Dist. (S.D.Tex. 1994) 886 F.Supp. 606, 610.) “[I]t is the duty of public officials to persuade each other in an attempt to resolve issues, and it *543makes little sense to suggest that they may listen to a group of nonmembers on important matters but not to their colleagues, who may be more expert on the subject than any other persons.” (Moberg v. Independent Sch. Dist. No. 281 (Minn. 1983) 336 N.W.2d 510, 517.) Yet, that is the acknowledged effect of defining meeting so broadly as to preclude members of multimember bodies from engaging in any collective inquiry related to an issue within their jurisdiction.
Such a militant view of public access comes at a high price. The normal kind of give-and-take between agency members that is the essence of collegial decisionmaking is deemed illegal. Investigating, factfinding, or brainstorming among any combination of members that could constitute a quorum—even when those contacts occur seriatim—is considered a violation of the open meeting laws. In short, collegial bodies are prohibited from behaving collegially and their members may be publicly pilloried for conducting themselves in a manner that—in any other contex—would be considered supremely rational.
It thus seems evident that the demand for openness in the conduct of government decisionmaking may sometimes be at odds with the perceived value of confidentiality to effective policy deliberations, and that fine lines must sometimes be drawn by the courts in order to promote the signal values of both. It may well be that the course of judicial construction of the Bagley-Keene Open Meeting Act and the Brown Act has failed to keep that line true by glossing the open meeting statutes in ways that intrude too deeply into areas where confidential deliberations have their greatest value. A case can be made, in short, that neither of California’s open meeting acts was meant to trump the established privilege from disclosure for opinions, recommendations, advice and like materials that form part of the predecisional policymaking process among senior government officials.
Arguably, the only way to reconcile these contending values would be to take a more objective view of open meeting requirements, i.e., by concluding that the requirements of these acts are met if the members of an agency or board act at a properly noticed public meeting and their votes are publicly recorded. Almost unanimously, the cases and commentaries on the open meeting acts distinguish informal, functional “meetings,” composed of a quorum of a board, from gatherings, whether face-to-face or constructively, of less than a quorum. That distinction is helpful because it attempts to distinguish between predecisional discussions among less than a quorum of board members and the informal, “functional meeting” at which secret decisions are crystallized “to a point just short of ceremonial acceptance.” *544(Guild, supra, 263 Cal.App.2d at p. 50.) Unfortunately, the distinction is so fact-bound that any allegation, no matter how speculative or inferential, creates the potential for contentious and intrusive litigation for its resolution, a contingency that may be worse than “pushing] beyond debatable limits in order to block evasive techniques.” {Ibid.) In short, if government policy makers must subject themselves to lawsuits and onerous discovery as the only means of establishing their compliance with the open meeting statutes, then openness in government is achieved only at the expense of effective decisionmaking. The real impact of an expansive construction of these laws is to put a premium on ignorance.
At oral argument, counsel for the plaintiffs spoke eloquently on behalf of openness in government and the public’s right to know. When asked why he sought to obtain a judicial declaration that the Act had been violated even though the time for rescinding the board’s action was long past, counsel said candidly that he thought the embarrassment of such a determination would be salutary. In his view, subjecting officials to the discipline of public humiliation provides sufficient justification for extending the statute of limitations in these cases. But, if public officials are to be pilloried, they ought to be guilty of some serious malfeasance or impropriety. As things stand, they can be convicted of conversation—the kind of conversation we would ordinarily want to encourage.
The ringing rhetoric of the open meeting acts jibes poorly with political reality. Taken to its logical extreme, openness may actually diminish the number and quality of public exchanges, increase divisiveness, and limit the flow of relevant information and the depth of critical collective scrutiny. (Note, Facilitating Government Decision Making: Distinguishing Between Meetings and Nonmeetings Under the Federal Sunshine Act (1988) 66 Tex. L.Rev. 1195, 1211.) The Constitutional Convention was not an open meeting, and although Madison took voluminous notes, he would not permit them to be published during his lifetime. “ ‘Nobody can say what sort of constitution would have emerged if the convention had been open to the public. . . . [But, had] Madison’s notes been published before the states held their ratifying conventions, the Constitution would never have been adopted. The dialogue contained far too much that would have been seized upon by demagogues.’ ” (O’Brien, The First Amendment and the Public’s “Right to Know” (1980) 7 Hastings Const.L.Q. 579, 592-593 (O’Brien), quoting Brant, The Constitution and the Right to Know, Mass Media and the Law (1970) 73, 76.)
“ ‘The case for democracy does not require that the citizen be familiar with all the bits and pieces of expert knowledge. He cannot be, in any case, *545and we do Mm individually and the people collectively no credit if we believe that the political claims of democracy can be maintained oMy by telling lies that exaggerate the ability of the citizen. . . . Vindicating the “public’s right to know” does not require that all specialized, private, and relatively inaccessible information be “made public.” It demands, rather, that the public have access to those facts necessary for public judgment about public things ....’” (O’Brien, supra, 7 Hastings ConstX.Q. at p. 612, quoting Bathory & McWilliams, Political Theory and the People’s Right to Know, in Government Secrecy in Democracies (GaMoor ed. 1977) pp. 3-21.)
Neither the Legislature nor the judiciary has been required to open every level of its deliberations to the public. Traditionally, the public has had access to governmental information tMough politically accountable decisionmaking. Thus, appellate courts continue to consult with their colleagues in confidential conferences; legislators may speak freely in the caucus without being required to disclose their comments. The executive branch should enjoy a similar flexibility. In this case, the Regents did hold a public meeting—one that lasted more than 12 hours. The public had a full opportunity to voice its opinions and the Regents’ votes, and the basis for them, were part of the public record. Media coverage was extensive. It is difficult to see why more openness would be needed to permit the people to “retain control over the instruments they have created.” (§ 11120.)
Baxter, L, concurred.