Gaea Edde Powell v. County of San Luis Obispo

On October 23, 2025, the County responded to the September 12, 2025 request by acknowledging both the Clerk-Recorder’s Office and District Attorney’s Office had responsive records “which are related to a pending criminal investigation or prosecution.” (Pet., Ex. A.) The County cited Government Code sections 7922.000, 7923.000, and 7927.705,5 as well as Evidence Code sections 915 and 1040 as support for withholding the responsive documents.

On November 13, 2025, the County responded to the September 16, 2025 request, which it deemed a revision of the initial September 10, 2025 request. The County reported there were responsive communications between the (1) Clerk-Recorder’s Office and the District Attorney’s Office and (2) the Clerk-Recorder’s Office and Counsel Counsel’s Office. The County, however, withheld the documents citing sections 7922.000, 7923.600, 7927.705, and Evidence Code sections 915, 952, 954, and 1040. (Pet., Ex. B.)

Prior to the three public records requests, the District Attorney’s Office filed a complaint against Powell alleging violations of the Elections Code and Penal Code. (Cano Decl., ¶ 4.) With respect to the responsive records between her office and the District Attorney’s Office, Cano reports all such records “directly relate to the underlying criminal investigations of election fraud.” (Id., ¶ 5.) With respect to information and communications exchanged between her office and County Counsel’s Office, Cano states, “All communications I have with County Counsel relate to legal advice I have sought.” (Id., ¶ 6.)

Powell seeks a writ of mandate directing the County to provide the withheld records pursuant to the California Public Records Act (the CPRA).6 The Court denies the request as to the records between the Clerk-Recorder’s Office and County Counsel’s Office. As for communications and information exchanged between the Clerk-Recorder’s Office and the District Attorney’s Office, more information is needed to determine if all of the withheld records are exempt. The Court is inclined to order a privilege log.

I. THE CALIFORNIA PUBLIC RECORDS ACT

The CPRA “declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (§ 7921.000.) “Hence, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.’ [Citation.]” (Haynie v. Superior Court (1061) 26 Cal.4th 1061, 1068 (Haynie).) Any such statutory exemptions to “are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed. [Citation.]” (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 476, fn. omitted; § 7922.000 [“agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division”].)

5 All references are to the Government Code unless noted otherwise. 6 The CPRA was recodified in 2021. (Stats. 2021, ch. 614, § 2.) Nothing in the recodification “is intended to substantively change the law relating to inspection of public records.” (§ 7920.100 [“The act is intended to be entirely nonsubstantive in effect”].)

II. DISCUSSION

A. Information and Communications Exchanged with the District Attorney’s Office

1. The Law Enforcement Exemption

Subdivision (a) of section 7923.600 provides that subject to certain exceptions, which are inapplicable here, the CPRA “does not require the disclosure of [1] records of complaints to, or investigations conducted by, ... any state or local police agency, or [2] ... any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”

With respect to the latter category, which is applicable here, investigatory files are only exempt “ ‘ “when the prospect of enforcement proceedings [becomes] concrete and definite.” ’ ” (Haynie, supra, 26 Cal.4th at p. 1069 [not extended to first category of records of investigation], quoting Williams v. Superior Court (1993) 5 Cal.4th 337, 356; see also Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 174-177 [“The investigation exemption does not terminate when the investigation terminates”].)

As the County elections official, Cano is “charged with reviewing the qualifications ... [of] candidates for elected public offices ....” (Cano Decl., ¶ 3; § 320 [definition of “elections official”].) In addition, her “office periodically receives information from members of the public regarding alleged irregularities related to” the election process. (Ibid.) When necessary, Cano’s office will forward any information regarding election irregularities to the District Attorney’s Office. (Ibid.)

Cano reports she has “exchanged communications and information with the District Attorney investigators and prosecutors involved in [Powell’s] case,” as well as “in the investigation into two other individuals who were investigated, and one criminally charged, for election fraud.” (Id., ¶ 4.) Presumably, the two other individuals referred to are Michelle Morro and Hunter Breese named in Powell’s September 16, 2026 public records request. 7 With respect to the responsive records between her office and the District Attorney’s Office, Cano reports all such records “directly relate to the underlying criminal investigations of election fraud.” (Id., ¶ 5.) The Court, however, agrees with Powell that additional context is needed to determine whether each withheld document is subject to the section 7923.600 exemption.

First, while documents held by the District Attorney’s Office are generally protected under section 7923.600 considering its law enforcement role, the same is not true for documents held by the Clerk-Recorder’s Office. The County argues “such records should not lose their protection” because they are in the possession of the elections official. (Opp., p. 4, ll. 26-28, p. 10, ll. 11-17.) 7 It may be the County did not specifically name the two individuals referenced in Cano’s declaration due to privacy concerns. The County, however, did not provide any authority supporting the proposition that an individual subject to a criminal investigation is entitled to privacy regarding the existence of the investigation.

The Court is inclined to agree to the extent the Clerk Recorder’s Office was responding to or providing information at the behest of the District Attorney’s Office as part of the latter’s investigation, but the County does not provide any authority on that point.8

Second, documents “that have no legitimate claim to confidentiality” do not become exempt because they have been commingled with an agency’s investigatory materials. (Williams v. Superior Court, supra, 5 Cal.4th at p. 356.) For example, forwarding information regarding election irregularities to the District Attorney’s Office for investigation does not make the prospect of enforcement proceedings “concrete and definite.” On the other hand, documents which exist before the prospect of enforcement proceedings become concrete and definite could gain exemption if they are used as part of the investigatory file.

For example, a routine report in a public file “could gain exemption not because of its content but because of the use to which it was put, that is, when and if it became part of an investigatory file.” (Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 654.) It is unclear where on this spectrum the withheld documents fall.

Third, the County does not provide any information regarding when the prospect of enforcement proceedings became concrete and definite with respect to the three named individuals. Was it at the time the investigation was launched? (See e.g., Office of the Inspector General v. Superior Court (2010) 189 Cal.App.4th 695, 709-710.) If so, when were the various investigations launched? Are there responsive documents which predate the investigation? 9

It appears the law enforcement exemption applies to some of the documents, but perhaps not all. The parties should come prepared to address how best to show the exemption applies to the withheld documents.

2. The Official Information Privilege and the Catchall Exemption

The County next argues the records should be deemed exempt under the catchall exemption in section 7922.000 and the official information privilege in Evidence Code section 1040. Both sections require a balancing test.

Section 7922.000 allows a public entity to withhold documents if “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” “The existence and weight of the public interest in disclosure are conclusions derived from the nature of the information requested. [Citation.]” (Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1012-1013 [“it is the public interest, not the private interest of the requesting party, that is considered”].)

8 The County cites to Williams, supra, 5 Cal.4th 337; however, the quotation used by the County (pp. 361-362) concerns the rule that the exemption does not terminate with the conclusion of the investigation. 9 It is also unclear whether there are responsive documents regarding “any other candidates who ran for office in San Luis Obispo County during this period,” and if so, if the County is arguing those documents are also subject to the law enforcement exemption.

Like section 7922.000, Evidence Code section 1040, subdivision (b)(2) gives a public entity the right to refuse to disclose official information10 when “there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” In such cases, disclosure is against the public interest. (Evid. Code, § 1040, subd. (b)(2).)

The County argues, “The public has a strong interest in preserving the confidentiality of those individuals who provide information to the Elections Official related to election fraud [because] disclosure of any such information would have a chilling effect on those who provide information to the Elections Official or the District Attorney’s Office.” (Opp., p. 5, ll. 13-16; see also Cano Decl., ¶ 2 [information received by the Clerk-Recorder’s Office regarding election irregularities is treated as confidential to avoid “the chilling effect” that disclosing this information would have on those who report issues].) The Court agrees.

A similar issue was addressed in City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, which found “airport noise complainants have a significant privacy interest in their names, addresses, and telephone numbers as well as in the fact that they have made a complaint to their government, and that disclosure of this information would have a chilling effect on future complaints.” (Id. at p. 1023-1024 [applying balancing test in former section 6255, now 7922.000; disclosure would also subject complainants to direct contact by the media and by persons wishing to discourage complaints].) The countervailing public interest in disclosure does not outweigh the public’s interest in encouraging reporting of election fraud.

While the names and personal information of informants may be protected under the official information privilege, the protection does not extend to the remainder of the exchanged information and communications between the Clerk-Recorder’s Office and the District Attorney’s Office. Moreover, it appears third-party informant information could be redacted.

Finally, the County argues third-party privacy rights are also at issue “where individuals were investigated for election fraud.” (Opp., p. 9, ll. 15-17.) The County includes the argument as part of its discussion regarding the balancing of interests. The argument is not sufficiently supported nor is it clear that third parties who are subject to a criminal investigation have a right to privacy as to the existence of an investigation.

To the extent any disclosure must be made, after determination of the application of the law enforcement exemption, the Court orders that information identifying third-party informants be redacted.

10 “Official information” means “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code, § 1040, subd. (a).)

B. Information and Communications Exchanged with County Counsel’s Office

“It is well-settled that a public entity enjoys an attorney-client relationship with its lawyers and the attorney-client privilege protects communications made in the course of that relationship. [Citation.]” (Wood v. Superior Court (2020) 46 Cal.App.5th 562, 576.) The CPRA incorporates the attorney-client privilege. (§ 7927.705 [the CPRA does not require disclosure of records protected by federal or state law, including the Evidence Code].)

The attorney-client privilege set out in Evidence Code section 954 “is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Gordon III v. Superior Court (1997) 155 Cal.App.4th 1546, 1557.) The privilege, however, does not protect every communication between attorney and client. “In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose,” and must occur in the course of the attorney-client relationship. (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 297; Evid. Code, § 952 [confidential communications between client and lawyer].)

Powell argues the attorney-client privilege “does not extend to underlying facts, administrative coordination, or operational communications merely because an attorney is included in the communication.” (Open. Brief, pp. 5-6.) Cano responds that all of the withheld communications between her office and County Counsel “relate to legal advice” she sought to carry out her official duties. (Cano Decl., ¶ 6.)

Unlike the law enforcement exemption discussed above, where additional facts are needed to assess its application, the attorney-client relationship between the Clerk-Recorder’s Office and County Counsel’s Office is evident, and Cano has confirmed all communications between her office and County Counsel related to legal advice. Such evidence is sufficient to show the requested records are privileged and therefore exempt from disclosure under the CPRA.

Powell’s request for a privilege log or an in camera review of these documents is denied.

ORDER

The petition for a writ of mandamus seeking to enforce Powell’s September 12 and 16, 2025 public records requests is denied as to the information and communications exchanged between the Clerk- Recorder’s Office and County Counsel’s Office.

As for communications and information exchanged between the Clerk-Recorder’s Office and the District Attorney’s Office, more information is needed to determine if all of the withheld records are exempt. The parties should come prepared to discuss how best to show the exemption applies to the withheld documents.

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