SACRAMENTO, Calif. (CN) – In a win for California’s powerful lobbying industry, a state appeals court ruled Monday that the state’s negotiations with labor unions regarding a 2015 employment law are privileged and can remain hidden from the public.
A Third Appellate District panel in Sacramento overturned a lower court’s order requiring the California Labor & Workforce Development Agency to produce an index identifying the author of records it was withholding from two Fresno farming businesses’ public records request.
The farmers say they were carved out of the state’s law and opened up to lawsuits because of past disputes with the union that crafted and lobbied for the bill. The state then produced highly redacted information in response to the farmers’ public records request seeking communications between the state and the United Farm Workers of America on Assembly Bill 1513.
In a 3-0 decision, the panel said if the development agency were required to release communications with the stakeholders of the labor law, it would jeopardize the state’s ability to have “candid discussions” with lobbyists on future legislative issues.
“The harm in revealing the identities of third parties who communicated confidentially with the agency is that it will tend to dissuade stakeholders on issues subject to future legislative efforts from commenting frankly, or at all, on matters for which only varying viewpoints can provide a more complete picture,” Justice Andrea Hoch wrote for the panel.
At issue is AB 1513, which revamped California labor laws regarding piece-rate compensation and requires employees to be paid for rest and recovery periods. The bill, crafted by Gov. Jerry Brown with labor unions and agricultural businesses, forced farmers to pay back wages to employees like fruit pickers and those paid by the mile driven.
While the bill includes a “penalty relief plan” that allowed business like AT&T a grace period to pay back wages and avoid employment lawsuits, lawmakers excluded Fresno-based Fowler Packing Co. and Gerawan Farming.
The growers’ attorney David Schwarz said the panel’s decision is disastrous to government transparency.
“It’s a big win for lobbyists who prefer secrecy when it comes to cutting deals with state agencies over pending legislation,” Schwarz said in a phone interview. “But a big loss for public transparency and public confidence in our state government.”
Nikki Moore, legal counsel for the California News Publishers Association – which routinely lobbies for transparency bills – says stakeholder identities are regularly disclosed during the legislative process. She called the decision “disconcerting” and noted the panel didn’t mention California’s Proposition 59, a landmark sunshine amendment intended to increase public access to government meetings and communications.
“Assuming that when third parties speak to government they do so with anonymity is terribly troubling and antithetical to the public’s right to know,” Moore said in an email.
The state argued the requested information was shielded by a “catch-all exception” under California’s Public Records Act. The panel sided with the state’s lawyers and agreed that an index log of the withheld information was unnecessary.
“Section 6255 provides a catch-all exemption that allows an agency to withhold records for which ‘on the facts of the particular case the public interest is served by the disclosure of the record,’” the 30-page ruling states.
The panel also rejected the trial court’s stance that the agency waived its attorney-client privilege with state lawyers.
“Here the Legislative Counsel did not disclose attorney work product to a nonclient- the agency was the client for purposes of drafting assistance and advice on AB 1513,” the order states.
The panel also ruled the state can recover legal costs.
The Fresno farmers are still fighting in federal court over being exempted from AB 1513’s “penalty relief plan.” Last December, the Ninth Circuit reversed the Eastern District of California’s dismissal of the farmers’ lawsuit and remanded their equal protection claims to a federal judge.
In July 2016, U.S. District Judge Dale Drozd ruled the Legislature had at least one reasonably conceivable basis for excluding the plaintiffs from the penalty relief plan: the need to balance the concern of increased litigation due to the new law with the desire not to disturb ongoing litigation involving the farmers.
United Farm Workers has been in a longstanding feud with Gerawan over unionization and has had a series of labor disputes with Fowler Packing. An attorney for the union is among the attorneys listed on class actions filed against both growers.
The Labor and Workforce Development Agency did not immediately respond to a request for comment on Monday’s decision.
Schwarz says the petitioners are mulling an appeal to the California Supreme Court, but in the meantime the order creates a “significant carve-out” for lobbyists.
“For journalists, lobbyists and the public in general, the moment that a state agency can claim that its communications with lobbyists are confidential, it throws a veil of secrecy over the substance of the deals that were cut,” Schwarz said.