1

Filed 7/13/22 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

BRANDON RITTIMAN et al.,

Petitioners,

v.

PUBLIC UTILITIES COMMISSION,

Respondent.

 A162842

 (Public Utilities 

Commission Nos. 

20597, 20598, 20599 & 

20600)

ORDER MODIFYING 

OPINION AND 

DENYING REHEARING 

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 17, 2022, be modified 

as follows: 

1. On page 16 modify footnote 11 to read as follows:

In some specified instances, an application for rehearing must be 

filed within 10 days of issuance of the challenged order or decision. 

(Pub. Util. Code, § 1731, subds. (b)(1), (c), (d).) However, the CPUC 

seems to agree that the 30-day, rather than the 10-day, period would 
2

apply to seeking rehearing of a CPUC resolution affirming the denial of a PRA request.

2. On page 16, delete paragraph beginning with “The commission then 

has up to 60 days to either grant or deny an application for rehearing” and replace with: 

The commission then has up to 60 days to either grant or deny an application for rehearing. (Pub. Util. Code, § 1733, subds. (a) & (b).) If 

the commission does not grant or deny an application within 60 days, 

the party seeking rehearing may consider the application denied and 

seek judicial review. (Ibid.) Whether or not the challenged order or decision is suspended during this time depends on when the application 

for rehearing is filed and how quickly the commission acts on the application.12 (Ibid.) 

12

 Public Utilities Code section 1733 provides:

“(a) Any application for a rehearing made 10 days or more before the 

effective date of the order as to which rehearing is sought, shall be 

either granted or denied before the effective date, or the order shall 

stand suspended until the application is granted or denied; but, 

absent further order of the commission, the order shall not stand so 

suspended for more than 60 days after the date of filing of the 

application, at which time the suspension shall lapse, the order shall 

become effective, and the application may be taken by the party 

making it to be denied.

“(b) Any application for a rehearing made within less than 10 days 

before the effective date of the order as to which rehearing is sought, 

and not granted for 60 days, may be taken by the party making the 

application to be denied, unless the effective date of the order is 

extended for the period of the pendency of the application.” (Pub.

Util. Code, § 1733, subd. (a), (b).)
3

3. On page 16, delete paragraph beginning with “Thus, the statutory 

times specified by the rehearing statutes—which, not even accounting for any rehearing, itself, total at a minimum at least 70 days...” 

and replace with the following paragraphs:

If the commission grants the application without “a suspension of 

the order involved, the commission shall forthwith proceed to hear 

the matter with all dispatch and shall determine the matter within 

20 days after final submission” on rehearing.13 (Pub. Util. Code,

§ 1734.) Otherwise, there is no timeframe for rehearing and final 

determination.14 

Thus, just the application-for-rehearing process for a resolution affirming the denial of a PRA request, itself, can take 90 days (30 days 

to file an application and 60 days for the commission to act). And if 

the commission grants the application, there is no time frame for the 

rehearing and disposition process.15 These extended time periods 

13

 If the commission does not decide the matter within 20-days of 

submission, the party that sought rehearing may treat the decision as having 

been affirmed. (Pub. Util. Code, § 1734.) 

14

 In its petition for rehearing, the CPUC states that, in practice, the 

20-day period never applies because “when a rehearing is granted, the 

relevant holding is always vacated,” acknowledging “there is generally no 

defined timeframe for the [c]ommission to conduct a rehearing.”

15

 In its petition for rehearing, the commission asserts any rehearing of 

a resolution affirming the denial of a PRA request would entail nothing more 

than correcting any identified legal errors in the resolution, which it assures 

us would not result in any “indefinite delay.” While this may be the CPUC’s 

aspirational goal, there is no assurance that will be the case, as the instant 

proceeding demonstrates. Moreover, the salient point is that the statutes 
4

cannot be squared with the procedural provisions of the PRA mandating that agencies respond to requests within a much tighter 

timeframe. 

4. In inserting footnotes on page 16 (footnotes 12, 13, 14 & 15), the subsequent footnote numbering shall be modified to the correct sequencing.

Dated: 

________________________________

Humes, P. J.

that control the rehearing process impose no time frame for the rehearing of, 

and final action on, a resolution affirming the denial of a PRA request.
1

Filed 6/17/22 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

BRANDON RITTIMAN et al.,

Petitioners,

v.

PUBLIC UTILITIES COMMISSION,

Respondent.

 A162842

 (Public Utilities 

Commission Nos. 

20597, 20598, 20599 & 

20600)

This original mandamus proceeding brought under the Public Records 

Act (PRA) (Gov. Code, §§ 6251 et seq.) presents three questions: (1) Was 

petitioner2 required to fully exhaust the administrative remedies set forth in 

the Public Utilities Code and in California Public Utilities Commission 

(CPUC) General Order 66-D in order to judicially challenge the commission’s 

denial of his PRA requests? (2) Has the CPUC’s action on petitioner’s 

administrative appeal rendered this writ proceeding moot? (3) Did the 

commission properly deny petitioner’s PRA requests on the basis of the 

“Governor’s correspondence” exemption (Gov. Code, § 6254 subd. (l)) and/or

the “deliberative process” privilege (id., §§ 6254 subd. (k), 6255, subd. (a))? 

We conclude the answer to the first two questions is “no,” and the answer to 

2

 Although there are two named petitioners, Brandon Rittiman and 

Tegna, Inc., we use the singular since Rittiman made the PRA requests at 

issue and for ease of reference.
2

the third, is “yes.” We therefore sustain the CPUC’s return by way of 

demurrer without leave to amend and dismiss this original proceeding.

I. BACKGROUND

In mid-November 2020, petitioner made four PRA requests seeking “all 

communications between” CPUC President Marybel Batjer and/or her 

“principal executive staff,” and members of the Governor’s staff, since the 

date of Batjer’s appointment in mid-August 2019. The requested records 

included “all documents, emails, or texts whether made on state-issued or 

personal devices.” 

Consistent with Government Code section 6253, subdivision (c),3 the 

CPUC, on November 30, notified petitioner of its “determination” that the 

requested records were statutorily exempt from disclosure under Government 

Code section 6254, subdivision (l)—the Governor’s correspondence 

exemption4—and would not be made available. 

On December 4, in accordance with CPUC General Order 66-D, enacted 

pursuant to Government Code section 6253.4, subdivisions (a) and (b)(28),5

3

 Government Code section 6253, subdivision (c), provides in pertinent 

part: “Each agency, upon a request for a copy of records, shall, within 10 days 

from the receipt of the request, determine whether the request, in whole or in 

part, seeks copies of disclosable public records in the possession of the agency 

and shall promptly notify the person making the request of the determination 

and the reasons therefore.” 

4

 Government Code section 6254 excludes from disclosure “any of the 

following records: [¶] . . . [¶] (l) “Correspondence of and to the Governor or 

employees of the Governor’s office or in the custody of or maintained by the 

Governor’s Legal Affairs Secretary.” (Gov. Code, § 6254, subd. (l).) 

5 Government Code section 6253.4, subdivision (a) states: “Every 

agency may adopt regulations stating the procedures to be followed when 

making its records available in accordance with this section.” Subdivision 

(b)(28) sets forth a list of government entities, including the CPUC, that must 

also “establish written guidelines for accessibility of records,” which must be 
3

petitioner sent an e-mail to a CPUC Legal Division attorney appealing the 

determination that the requested records are statutorily exempt from 

disclosure. His stated ground for appeal was that “correspondence,” as the 

term is used in the exemption, must be “narrowly . . . ‘confined to 

communications by letter,’ ” citing Times Mirror Co. v. Superior Court (1991) 

53 Cal.3d 1325, 1337 (Times Mirror Co.). (Underscoring omitted.) He 

therefore requested that the commission provide “all text messages, emails, 

and calendar entries.” Although petitioner’s e-mail did not comply with the 

commission’s procedural rules for such appeals, the commission 

acknowledged receipt of his appeal. 

The next step in the CPUC’s internal appeal process requires its legal 

division to prepare a draft “Resolution” responding to the issue(s) raised by 

the requestor’s appeal. (Gen. Ord. 66-D § 6.1.) As the resolution 

subsequently adopted by the commission in this case illustrates, such 

resolutions are in the nature of a detailed legal disposition that summarizes 

the facts of the particular PRA request and discusses and applies what the 

CPUC determines is the applicable law. Draft resolutions are made available 

for public review and comment, and acted on by the commission at the next 

scheduled board meeting. (Gen. Ord. 66-D § 6.1.) General Order 66-D does 

not set forth deadlines for completing and posting of draft resolutions, or for 

commission action on a draft resolution. 

As of mid-April 2021, the CPUC had not posted a draft resolution on 

petitioner’s appeal, and petitioner notified the commission by letter that if a 

draft was not before it on April 22, he would deem its lack of action “a 

posted and copies of which must be available on request. (Id., § 6253.4, subd. 

(b)(28).)
4

constructive denial” of his appeal “and seek judicial review” in the appellate 

courts. 

In his letter, petitioner advanced a new reason why the Governor’s 

correspondence exemption assertedly did not apply. He maintained a 

“California’s Court of Appeals has held that [Government Code] section 

6254(l) provides confidentiality to a small subset of ‘letters’ and other 

correspondence received by the Governor’s Office: it applies only to those 

communications sent from individuals, companies, and/or groups who are 

outside of the government,” citing to California First Amendment Coalition v. 

Superior Court (1998) 67 Cal.App.4th 159, 168 (First Amendment Coalition). 

A CPUC attorney responded by letter five days later, apologizing for 

the delay in the draft resolution, citing “workload issues.” She anticipated 

the draft resolution would be prepared and posted on May 21, for action at 

the commission’s June 24 board meeting. 

Not seeing a draft resolution on May 21, petitioner e-mailed the same 

CPUC attorney on May 24 and 25. The attorney again apologized and stated 

the draft would be circulated by July 2 for the commission’s August 4 board 

meeting. 

Two weeks later, on June 14, petitioner filed the instant mandamus 

proceeding. He alleged, given the passage of seven months since the filing of 

his administrative appeal, his appeal had been “constructively denied.” He 

further maintained the Governor’s correspondence exemption applies solely 

to correspondence from private parties and therefore is inapplicable to his 

requests for communications between the Commission President and/or her 

principle executive staff, and the Governor’s staff. He requested immediate 

access to the disputed records. 
5

We summarily denied the petition, indicating petitioner had not 

exhausted his administrative remedies. The Supreme Court granted review 

and transferred the matter back to us with directions to vacate our denial 

order and issue an order to show cause (OSC) to the trial court. The high 

court corrected its order on November 22, directing that we issue an OSC to 

the CPUC. We did so on December 1. 

In the meantime, on November 18, the commission adopted Resolution 

No. L-612, an 11-page, single-spaced decision, denying petitioner’s 

administrative appeal, principally on the basis of the Governor’s 

correspondence exemption (Gov. Code, § 6254, subd. (l)), and “deliberative 

process” privilege (id., §§ 6254, subd. (k), 62556). 

On November 30, petitioner sent an e-mail to several CPUC e-mail 

addresses, including that of the person (a legal support supervisor II) who 

had served him by e-mail him with a copy of the CPUC’s Resolution, 

attaching an “Application for Rehearing.” Petitioner sent a follow up e-mail 

asking for confirmation that his prior e-mail had been received, to which the 

same person responded, “Confirm receipt.”7 This apparent filing effort was 

not done in accordance with CPUC procedural rules, which require either 

filing a hard copy with the CPUC docket office or use of a specific e-filing 

service, which, upon filing, provides the party with confirmation of filing and 

6

 “The deliberative process privilege (known as ‘executive privilege’ 

under federal law) protects materials reflecting deliberative or 

decisionmaking processes.” (Wilson v. Superior Court (1996) 51 Cal.App.4th 

1136, 1142; see generally Times Mirror Co., supra, 53 Cal.3d at pp. 1339–

1346.) 

7

 We grant petitioner’s request for judicial notice filed January 14, 

2022, of his e-mail (exhibit 5) and the staff person’s reply (exhibit 6). The 

request is otherwise denied. 
6

docketing. (Cal. Code Regs., tit 20, § 1.13.) Petitioner’s e-mail never made its 

way to the docketing office, and apparently petitioner never followed up to 

confirm timely filing and docketing. 

The CPUC duly filed a return to the OSC in the form of a demurrer, 

supported by a memorandum of points and authorities. The commission 

advanced three grounds for dismissal of the writ petition: (1) Petitioner failed 

to fully exhaust his administrative remedies, specifically by failing to file an 

application for rehearing as required by Public Utilities Code section 1731 

and General Order 66-D section 6.2. (2) The CPUC’s adoption of Resolution 

No. L-612 denying petitioner’s administrative appeal moots this mandamus 

proceeding. (3) The commission properly denied petitioner’s PRA requests on 

the basis of the Governor’s correspondence exemption and the deliberative 

process privilege. 

Petitioner filed a reply, taking issue with each of these grounds. 

II. DISCUSSION

A. Exhaustion of Administrative Remedies

We first address the CPUC’s claim that since petitioner failed to 

exhaust his administrative remedies set forth in the Public Utilities Code, 

and specifically the rehearing provisions of Public Utilities Code section 1731, 

we lack jurisdiction to consider the merits of petitioner’s challenge to the 

denial of his PRA requests and must dismiss his writ petition. Petitioner 

maintains, having granted review and transferred the matter to this court, 

the Supreme Court has already ruled in his favor on exhaustion and 

therefore the issue need not detain us further. He further claims that even if 

exhaustion may otherwise be required, he is excused from doing so in this 

case given the commission’s delay in acting on his administrative appeal. As 

we shall explain, we conclude the administrative remedies set forth in the 
7

Public Utilities Code, and specifically section 1731, do not apply to the PRA

and therefore there is no jurisdictional impediment to our review of 

petitioner’s challenge to the commission’s determination denying his 

requests. We further conclude any non-statutory administrative remedies 

must comply with the language and purpose of the PRA and, in this case, 

petitioner is excused from exhausting such remedies.

Before taking up the CPUC’s exhaustion argument, we address 

petitioner’s assertion that the issue has already been decided in his favor 

because the Supreme Court granted review and transferred the matter back 

to us with directions to issue an OSC. According to petitioner, “[t]he fact that

the Supreme Court issued the Writ proves, beyond peradventure, that it 

necessarily rejected CPUC’s argument that no court has jurisdiction over this 

case until Petitioners ‘have exhausted their administrative remedies.’ ” 

Petitioner is mistaken as to the import of a grant of review by our high 

court. In granting a petition for review, the court decides only to accept the 

case and to address one or more of the issues tendered for review—this is not 

a decision on the merits of any issue as to which the court grants review. 

(See Cal. Rules of Court, rule 8.500(b), (c).) Rather, on granting review, the 

court may retain the case on its own docket (for further briefing, oral 

argument and decision) or transfer the case back to the Court of Appeal from 

which it originated, with directions, for example, in writ proceedings, to issue 

an OSC to the lower tribunal (most often the trial court, but in some cases, as 

here, another tribunal). (See Cal. Rules of Court, rules 8.516(a) & (b), 

8.528(d).) The grant and transfer procedure is commonly used, and it is not a 

merits decision. (See id., rule 8.528(d) & (f).)

Nor was the high court’s directive to issue an OSC any kind of merits 

determination. (See Cal. Rules of Court, rule, 8.528(d) & (f); see also
8

Clemmons v. Railroad Commission (1916) 173 Cal. 254, 256–258 (Clemmons)

[that high court issued OSC in writ of review proceeding did not foreclose 

commission from claiming petitioners’ failure to file a timely application for 

rehearing deprived court of jurisdiction to decide the merits].) On the 

contrary, issuance of an OSC in a mandamus proceeding makes the matter a 

“cause,” requiring the filing of a return and allowing for the filing of a reply, 

requiring oral argument unless waived, and requiring disposition by way of a 

written decision. (See Cal. Rules of Court, rule 8.487(b); Lewis v. Superior 

Court (1999) 19 Cal.4th 1232, 1239–1241.)

Thus, whether petitioner was, as the CPUC asserts, required to fully 

exhaust the administrative remedies set forth in the Public Utilities Code 

and General Order 66-D is squarely before us.

In support of its assertion that petitioner was required to fully exhaust 

the administrative remedies set forth in the Public Utilities Code, and 

specifically section 1731, the commission cites to the constitutional and 

statutory provisions investing it with broad administrative, legislative and 

judicial powers, and defining the bounds of judicial review of commission 

actions. (See generally People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 

630; see also Clemmons, supra, 173 Cal. at pp. 256–258 [requiring full 

exhaustion]; PegaStaff v. Public Utilities Com. (2015) 236 Cal.App.4th 374, 

388–389 (PegaStaff) [requiring full exhaustion].)

These provisions include article XII, section 2, of our constitution which 

grants the CPUC the right to “establish its own procedures” “[s]ubject to 

statute and due process.” (Cal. Const., art. XII, § 2.) Section 5 of article XII, 

in turn, grants the Legislature “plenary power, unlimited by other provisions 

of this constitution but consistent with this article, to confer additional 

authority and jurisdiction upon the commission, [and] to establish the 
9

manner and scope of review of commission action in a court of record. . . .” 

(Id., § 5.) Pursuant to this power, the Legislature has enacted a host of 

statutes governing procedure in, and judicial review of, matters before the 

commission. (Pub. Util. Code, §§ 1701 et seq., 1731 et seq; PegaStaff, supra, 

236 Cal.App.4th at pp. 381, 383.) These statutory provisions include Public 

Utilities Code section 1701, which states in pertinent part: “All hearings, 

investigations, and proceedings shall be governed by this part and by rules of 

practice and procedure adopted by the commission. . . .” (Pub. Util. Code, 

§ 1701, subd. (a).) Pursuant to this statutory authority, as well as its own 

constitutional authority, the CPUC has enacted, by regulation, decision and 

general order (such as General Order 66-D), numerous rules of practice and 

procedure. (E.g., Cal. Code Regs., tit. 20, § 1.3 et seq.; Gen. Ord. 66-D.) 

We are specifically concerned here with Public Utilities Code section 

1731, entitled “Judicial review procedures,” which states in pertinent part: 

“After an order or decision has been made by the commission, a party to the 

action or proceeding . . . may apply for a rehearing. . . . A cause of action 

arising out of any order or decision of the commission shall not accrue in any 

court to any corporation or person unless the corporation or person has filed 

an application to the commission for a rehearing within 30 days after the date 

of issuance. . . .” (Pub. Util. Code, § 1731, subd. (b)(1), italics added.) Public 

Utilities Code section 1759, in turn, entitled “Jurisdiction,” states in 

pertinent part: “No court of this state, except the Supreme Court and the 

court of appeal, to the extent specified in this article, shall have jurisdiction 

to review, reverse, correct, or annul any order or decision of the commission 

or to . . . enjoin, restrain, or interfere with the commission in the performance 

of its official duties.” (Id., § 1759, subd. (a).) Such judicial action is typically 

by way of writ of review. (Id., § 1756, subd. (a).) However, “[t]he writ of 
10

mandamus shall [also] lie from the Supreme Court and from the court of 

appeal to the commission in all proper cases as prescribed in Section 1085 of 

the Code of Civil Procedure.” (Id., § 1759, subd. (b).)

Our Supreme Court has twice held that these constitutional and 

statutory provisions are of true jurisdictional import. In Clemmons, the court 

had before it a challenge to a water rate increase approved by the thendenominated Railroad Commission. (Clemmons, supra, 173 Cal. at p. 255.) 

The commission maintained the court could not consider the petitioners’ 

challenge “because timely application had not been made to the commission 

itself for rehearing.” (Id. at p. 256.) Although the petitioners had filed an 

application, they had not done so within the prescribed time period. (Id. at

pp. 257–258.) 

The high court first explained that its grant of an OSC to the 

commission did not preclude it from “continuing to insist” that the court could 

not reach the merits of the rate challenge—because “the point goes to the 

jurisdiction of the court and it may, therefore, be raised at any stage of the 

proceedings.” (Clemmons, supra, 173 Cal. at p. 256.)

The court went on to agree with the commission that it could not 

address the merits, citing to the statutory language (now set forth in Pub. 

Util. Code, § 1731) that “ ‘[n]o cause of action arising out of any order or 

decision . . . shall accrue in any court” in the absence of an application for 

rehearing by the commission. (Clemmons, supra, 173 Cal. at p. 257.) This 

conclusion, said the court, was “the necessary consequence” of the 

constitutional grant of authority to the legislature “to confer powers upon” 

the commission and of the legislature’s chosen means of doing so. (Id. at 

pp. 256–257.) Since the petitioners had failed to timely file an application for 

rehearing, “it follow[ed] that the petitioners [had] lost their right to apply to 
11

this court, or to any court in the state, for a review of the action of the 

commission.”8 (Clemmons, at p. 257.) 

Although Clemmons was decided more than a century ago, the 

Supreme Court has never stepped back from its decision in that case. In 

Consumers Lobby Against Monopolies v. Public Utilities Commission (1979) 

25 Cal.3d 891, 902 (Consumers Lobby),

9 the court reiterated it is “required to 

deny [an] entire petition [for writ of review] on procedural [i.e., non-merit] 

grounds if certain prerequisites to our jurisdiction are not met,” for example, 

“if prior to filing in this court the petitioner failed to apply to the commission 

for a rehearing.” We, of course, are bound to follow Supreme Court 

precedent. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 456.) 

In light of Clemmons and its progeny, and in light of the continuing 

statutory constraints imposed by the Legislature on judicial challenges to 

actions of the CPUC, the commission’s insistence that petitioner was 

jurisdictionally required to fully exhaust his administrative remedies, and 

specifically, was required to file a timely application for rehearing under

Public Utilities Code section 1731, is understandable.10 (See Shiseido 

8

 The CPUC continues to require strict compliance with its rules 

governing the filing of applications for rehearing. (E.g., In re The Matter of 

the Application of San Diego Gas & Electric Company (Cal. P.U.C., Dec. 18, 

2014) 2014 WL 7437560 [denying motion to accept late filing of application 

for rehearing that was partially, but not fully, electronically transmitted to 

the Docket Office by 5:00 p.m.].) 

9

 Disapproved on another ground in Kowis v. Howard (1992) 3 Cal.4th 

888, 896.

10

 We recognize that in many other contexts, the courts, including our

Supreme Court, have held exhausting administrative remedies does not go to 

a court’s fundamental jurisdiction and therefore failure to exhaust such 

remedies can be waived if the defense is not timely raised. (See e.g., Kim v. 
12

Cosmetics (America) Ltd. v. Franchise Tax Bd. (1991) 235 Cal.App.3d 478, 

487–489 [statutory requirement that claim for refund be filed, enacted 

pursuant to Legislature’s constitutionally authorized power to enact refund 

procedures, was mandatory and could not be excused under any exception to 

the exhaustion doctrine].) 

However, the court in Clemmons was not confronted with a second, 

later-enacted statutory scheme that by its plain terms is also applicable to 

the CPUC. (Gov. Code, § 6253.4, subd. (b)(28); see Public Utilities Com. v. 

Superior Court (2016) 2 Cal.App.5th 1260, 1267 [“It is undisputed that the 

PRA applies to the CPUC.”].) The task before us, then, is squaring the 

apparently fundamental jurisdictional constraints on judicial review set forth 

in the Public Utilities Code, with the provisions of the PRA directing 

government entities, including the CPUC, to act with all due haste in 

handling PRA requests (Gov. Code, §§ 6253, subds. (c) & (d), 6253.4, subd. (c)) 

and directing courts to do the same in resolving disputes over public records

(id., § 6258). 

These two statutory schemes can be harmonized by focusing on the 

constitutional authority granted to the Legislature and the CPUC. As we 

have recited, the Legislature has been constitutionally bestowed with 

“plenary power” to “confer additional authority and jurisdiction upon the 

Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1347–1348; 

Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 220–223 (Green).) 

However, as Clemmons and Consumers Lobby reflect, the Supreme Court has 

taken a different view as to the statutory administrative remedies set forth in 

the Public Utilities Code. (See also Saffer v. JP Morgan Chase Bank, N.A. 

(2014) 225 Cal.App.4th 1239, 1246–1253 [exhaustion of federal statutory 

administrative remedies is a fundamental jurisdictional prerequisite to 

pursuing claims against the Federal Deposit Insurance Corporation].) 
13

commission” and “to establish the manner and scope of review of commission 

action in a court of record.” (Cal. Const., art. XII, § 5.) While the CPUC has 

also been granted the constitutional power to “establish its own procedures,” 

this authority is “[s]ubject to statute and due process.” (Id., § 2.) Given that 

the Legislature has expressly made the PRA applicable to the CPUC, we 

conclude the PRA represents an exercise of the Legislature’s “plenary power” 

over the CPUC, and further conclude that the administrative remedies set 

forth in the Public Utilities Code, and specifically, the rehearing requirement 

set forth in Public Utilities Code section 1731, do not apply to the PRA and 

that the PRA fixes the bounds of the CPUC’s authority to adopt procedures 

for PRA requests such as those set forth in General Order 66-D. 

A comparison of the procedural provisions of the PRA and the 

administrative remedy provisions of the Public Utilities Code reinforces the 

validity of these conclusions.

Upon receipt of a PRA request, an agency must, within 10 days, 

“determine” whether the request seeks “disclosable” records “in the 

possession of” the agency. (Gov. Code, § 6253, subd. (c).) This 10-day period 

can, upon notice to the requestor, be extended to 24 days in a limited set of 

circumstances specified in the statute. (Id., § 6253, subd. (c)(1)–(4).) Upon 

making its determination, the agency “shall promptly notify the person 

making the request of the determination and the reasons therefor.”

11

 (Gov. 

Code, § 6253, subd. (c).)

11

 Thus, contrary to petitioner’s assertion, an agency is not required to 

both make its determination and give the required notice thereof within 10 or 

24 days. If the 10-day (or 24-day) period for making a determination included 

giving the requisite notification, there would be no reason for the separate 

statutory requirement that such notification be given “promptly.” We 

generally must “ ‘give meaning to every word in [a] statute and . . . avoid 
14

“When the agency dispatches the determination, and if the agency 

determines that the request seeks disclosable public records, the agency shall 

state the estimated date and time when the records will be made available.” 

(Gov. Code, § 6253, subd. (c).) Accordingly, the PRA does not set forth a 

specific timeframe for actual production of the requested records. However, it 

states generally that an agency “shall make records promptly available” upon 

payment of fees associated with their duplication. (Id., § 6253, subd. (b).) 

The PRA authorizes any “agency,” which includes the CPUC, to “adopt 

regulations stating the procedures to be followed when making its records 

available in accordance with this section.” (Gov. Code, § 6253.4, subd. (a).) 

In addition, numerous government entities, including the commission, must 

“establish written guidelines for accessibility of records” and post such 

guidelines and make them available on request free of charge. (Id., § 6253.4, 

subd. (b).) The PRA goes on to specify that “[g]uidelines and regulations 

adopted pursuant to this section shall be consistent with all other sections of 

this chapter and shall reflect the intention of the Legislature to make the 

records accessible to the public.” (Id., § 6253.4, subd. (c).) 

The PRA additionally spells out the means by which a government 

entity’s decision to withhold records can be challenged in court. Government 

Code section 6258 provides in pertinent part, “[a]ny person may institute 

proceedings for injunctive relief or declarative relief or writ of mandate in any 

court of competent jurisdiction to enforce his or her right to inspect or to 

constructions that render words, phrases, or clauses superfluous.’ ” (In re 

R.C. (2019) 39 Cal.App.5th 302, 307, quoting Klein v. United States of 

America (2010) 50 Cal.4th 68, 80.) An agency would be well served, however, 

by striving to give the requisite notice by the end of the period for making a 

determination, or, at the very least, immediately thereafter. 
15

receive a copy of any public record. . . .” It further states, “[t]he times for 

responsive pleadings and for hearings in these proceedings shall be set by the 

judge of the court with the object of securing a decision as to these matters at 

the earliest possible time.” (Ibid.) 

As the Supreme Court explained in Times Mirror Co., supra, 53 Cal.3d 

at pages 1332–1334, the Legislature amended the PRA in 1984 to allow for 

judicial review by way of writ “to speed appellate review.” The sponsors of 

the legislation sought “ ‘to correct an injustice they perceived due to . . . the 

potential for . . . public agencies to delay the disclosure of public documents’ ” 

by exploiting delays in the ordinary appellate process. (Id. at p. 1335; see 

Filarsky v. Superior Court (2002) 28 Cal.4th 419, 434–435 [public entity 

cannot file declaratory relief action to ascertain its obligation under the PRA, 

in part, because such an action would “clearly thwart the Act’s purpose of 

ensuring speedy public access” to disclosable records].) 

In short, the PRA calls for the handling of record requests and the 

resolution of disputes over such requests with alacrity. 

The administrative remedies set forth in the Public Utilities Code, and 

specifically, the provisions governing rehearing, stand in marked contrast. 

Public Utilities Code section 1731 states that “[a]fter an order or decision has 

been made by the commission, a party to the action or proceeding, or a 

stockholder, bondholder, or other party pecuniarily interested in the public 

utility affected may apply for a rehearing in respect to matters determined in 

the action or proceeding and specified in the application for rehearing.” (Pub. 

Util. Code, § 1731, subd. (b)(1).) It further provides, as we have recited, that 

“[a] cause of action arising out of any order or decision of the commission 

shall not accrue in any court to any corporation or person unless the 

corporation or person has filed an application to the commission for a 
16

rehearing.” (Ibid.) Generally, an application for rehearing must be filed 

within 30 days of the issuance of the challenged decision or order.12 (Id.,

§ 1731, subd. (b)(1).) 

The commission then has up to 60 days to either grant or deny an 

application for rehearing. (Pub. Util. Code, § 1733, subds. (a) & (b).) 

Whether or not the challenged order or decision is suspended during this 

time depends on when the application for rehearing is filed and how quickly 

the commission acts on the application. (Ibid.) If the commission grants the 

application without “a suspension of the order involved, the commission shall 

forthwith proceed to hear the matter with all dispatch and shall determine 

the matter within 20 days after final submission” on rehearing. (Id., § 1734.) 

In the absence of suspension, there is no timeframe for rehearing and final 

determination. 

Thus, the statutory times specified by the rehearing statutes—which,

not even accounting for any rehearing, itself, total at a minimum at least 70 

days (10 days to file application for rehearing, 60 days to decide whether to 

rehear the matter, 20 days to issue decision on rehearing) and more 

commonly at least 110 days (30 days to file application for rehearing, 60 days 

to decide whether to rehear the matter, 20 days to issue decision on 

rehearing)—cannot be squared with the procedural provisions of the PRA 

mandating that agencies respond to requests within a much tighter 

timeframe. 

In addition, Public Utilities Code section 1756 states in pertinent part 

that, “[w]ithin 30 days after the commission issues its decision denying the 

12

 In some specified instances, an application for rehearing must be 

filed within 10 days of issuance of the challenged order or decision. (Pub. 

Util. Code, § 1731, subds. (b)(1), (c), (d).) 
17

application for a rehearing, or, if the application was granted, then within 30 

days after the commission issues its decision on rehearing . . . any aggrieved 

party may petition for a writ of review . . . for the purpose of having the 

lawfulness of the original order or decision or of the order or decision on 

rehearing inquired into and determined.” (Pub. Util. Code, § 1756, subd. (a).) 

Thus, an application for rehearing under Public Utilities Code section 1731 is 

linked to a writ of review—the means by which decisions of the CPUC are 

typically subject to judicial review. (See, e.g., Consumers Lobby, supra, 

25 Cal.3d at pp. 901–905; BullsEye Telecom, Inc. v. California Public Utilities 

Com. (2021) 66 Cal.App.5th 301, 308–309; San Pablo Bay Pipeline Co., LLC 

v. Public Utilities Com. (2015) 243 Cal.App.4th 295, 308–309.) 

In contrast, judicial review under the PRA is by way of a complaint for 

injunctive or declaratory relief, or a petition for a writ of ordinary mandamus, 

not by way of a petition for a writ of review. (Gov. Code, § 6258.) 

In sum, the procedural scheme, and specifically the rehearing process,

set forth in the Public Utilities Code is not only entirely different than, it is at 

odds with, the procedural provisions of the PRA and the Legislature’s intent 

in enacting them. 

In concluding that the rehearing requirement set forth in Public 

Utilities Code section 1731 and, in turn, the holdings of Clemmons and 

Consumers Lobby, do not apply to the PRA, we are not concluding that the 

CPUC cannot adopt procedures governing PRA requests that include an

administrative remedy. Rather, any such non-statutory, non-jurisdictional 

remedy must comport with the PRA and ensure the expeditious handling of 

record requests and timely resolution of disputes over whether records are 

disclosable.
18

Assuming for purposes of analysis that the administrative appeal 

process available to petitioner could have been implemented in a manner 

consistent with the PRA, we turn to whether any exception to the exhaustion 

doctrine permitted him to seek judicial review prior to any action by the 

commission on his appeal. The delay that occurred here was egregious by 

any measure—seven months passed from the time the commission accepted 

his administrative appeal until he filed his writ petition. We conclude 

petitioner was not required to wait any longer before seeking judicial review. 

Indeed, it is well-established that the exhaustion of administrative remedies 

is excused where, as here, “the administrative procedure is too slow to be 

effective” (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 

49 Cal.4th 597, 609 (City of San Jose); Los Angeles County Employees Assn. v. 

County of Los Angeles (1985) 168 Cal.App.3d 683, 686–687 [“speedy decision 

was necessary and not possible under the relatively elaborate . . . procedures” 

set forth in county’s rules and regulations]) and where “ ‘ “the agency 

indulges in unreasonable delay.” ’ ”

13 (SJCBC LLC v. Horwedel (2011)

201 Cal.App.4th 339, 346; Green, supra, 194 Cal.App.3d at p. 222). 

We therefore conclude that, in this case, petitioner is excused from 

exhausting administrative remedies.

13

 We note, however, that in his administrative appeal, petitioner did 

not advance the ground of error he now advances in this writ proceeding—

that the commission misapplied the Governor’s correspondence exemption. 

Rather, he raised this asserted error for the first time four months later, in 

his letter to the commission complaining about the time it was taking to rule 

on his appeal. Accordingly, the commission can hardly be faulted for not 

addressing this ground prior to receiving his letter. 
19

B. Mootness

We next turn to the CPUC’s assertion that its approval of Resolution 

No. L-612 nearly a year after petitioner filed his administrative appeal,

moots this writ proceeding. Petitioner contends otherwise, pointing out that 

he has, since the outset of this proceeding, challenged the merits of the 

CPUC’s denial of his PRA requests, which this court has not yet addressed.

We agree with petitioner. In his writ petition, he alleged that his 

administrative appeal had been “constructively denied” due to the lapse of 

time. He additionally alleged that the Governor’s correspondence exemption 

does not apply, and he sought a writ compelling the commission to 

immediately disclose the requested records, not a writ compelling the CPUC 

to act on his administrative appeal. Accordingly, the CPUC’s eventual denial 

of his administrative appeal has not mooted the issues tendered by his 

petition.

In any case, even if this original proceeding were moot, we would 

exercise our discretion to address the merits of the petition. (See In re 

Schuster (2019) 42 Cal.App.5th 943, 951–952 [“ ‘if a pending case poses an 

issue of broad public interest that is likely to recur, the court may exercise an 

inherent discretion to resolve that issue even though an event occurring 

during its pendency would normally render the matter moot’ ”].)

C. The Governor’s Correspondence Exemption 

We now turn to the substantive issue before us—whether the CPUC 

correctly concluded the records petitioner seeks are statutorily exempt from 

disclosure under the Governor’s correspondence exemption (Gov. Code, § 6254 

subd. (l)) and/or the “deliberative process” privilege (id., § 6254, subd. (k), id., 

§ 6255, subd. (a)). As we shall explain, we conclude the records are 

statutorily exempt under the Governor’s correspondence exemption and 
20

therefore need not, and do not, consider the applicability of the deliberative 

process privilege.

The Governor’s correspondence exemption exempts from disclosure “the 

following records: [¶] . . . [¶] (l) Correspondence of and to the Governor or 

employees of the Governor’s office or in the custody of or maintained by the 

Governor’s Legal Affairs Secretary.”14 (Gov. Code, § 6254, subd. (l).) 

Petitioner maintains the exemption is “limited exclusively to 

correspondence sent to the Governor’s Office ‘by correspondents outside of 

government’ ”—in other words, that the exemption applies solely to 

correspondence to the Governor and/or his or her staff from private parties. 

(Boldface omitted.) Indeed, he claims the California Courts of Appeal have 

“thrice” so held. Since the correspondence he seeks—between Batjer and/or 

her principle executive staff, and the Governor’s staff—is not correspondence 

from a party “outside the government,” petitioner asserts the exemption 

necessarily does not apply. (Boldface & capitalization omitted.) 

Petitioner is in error as to the state of the case law. No California court

has held that the Governor’s correspondence exemption is limited to 

correspondence from private parties.

In First Amendment Coalition, the case on which petitioner primarily 

relies, the Court of Appeal addressed the “narrow issue” of whether the 

Governor was compelled under the PRA “to disclose the names and 

qualifications of applicants for a temporary appointment to a local board of 

supervisors.” (First Amendment Coalition, supra, 67 Cal.App.4th at p. 164.) 

14

 The exemption further provides, “public records shall not to be 

transferred to the custody of the Governor’s Legal Affairs Secretary to evade 

the disclosure provisions of this chapter.” (Gov. Code, § 6254, subd. (l).) 
21

The party requesting records wanted, specifically, the candidates’ application 

forms, maintaining a “form” was not “correspondence.” (Id. at p. 168.) 

The Court of Appeal disagreed, stating the requestor’s view “would 

emasculate the exemption” and the court “was not disposed to so formalistic a 

resolution of the issue.” (First Amendment Coalition, supra, 67 Cal.App.4th 

at p. 168.) The court concluded the “letters and application forms received by 

the Governor’s office from applicants for appointment to the vacant 

supervisor position” were exempt. (Id. at p. 169.) 

In the course of so concluding, the court stated, “[i]n our view, the 

correspondence exemption was intended to protect communications to the 

Governor and members of the Governor’s staff from correspondents outside of 

government.” (First Amendment Coalition, supra, 67 Cal.App.4th at p. 168.) 

This is the language petitioner insists constitutes a holding that the 

exemption applies only to correspondence from private parties. 

To begin with, looking solely at the language the court employed, the 

court did not say the exemption applies solely to correspondence from private 

parties. Rather, the court made an affirmative statement that the exemption 

does apply to correspondence from private parties—a proposition wholly in 

keeping with the statutory language that excludes “[c]orrespondence . . . to 

the Governor or employees of the Governor’s office” (Gov. Code, § 6254, subd. 

(l)), and a proposition with which we entirely agree. Further, the court’s 

statement makes perfect sense given that the correspondence at issue was 

correspondence from, and specifically application forms submitted by, private 

parties. The court was not called upon to make, nor did it make, any other 

pronouncement as to the scope of the exemption.

The appellate court also contrasted the correspondence and 

accompanying application forms before it, with the “calendars and scheduling 
22

materials” at issue in Times Mirror Co. (First Amendment Coalition, supra, 

67 Cal.App.4th at p. 168.) In Times Mirror Co., our Supreme Court

considered whether the Governor’s “daily, weekly and monthly appointment 

calendars” were exempt from disclosure under the correspondence exemption 

and/or the deliberative process privilege. (Times Mirror Co., supra, 53 Cal.3d 

at p. 1329.)

The Governor urged the court to construe “correspondence” to mean 

any “written communications,” which would, in turn, embrace any 

communications between his scheduling secretary and members of his staff, 

which would, in turn, include his personal calendars. (Times Mirror Co., 

supra, 53 Cal.3d at pp. 1329, 1337.) 

In rejecting this definition of “correspondence,” the court pointed out 

that prior to 1975, the PRA exempted from disclosure “all records ‘[i]n the 

custody of or maintained by the Governor or employees of the Governor’s 

office employed directly in his office,’ ” but in that year, the PRA was 

amended to “limit the exemption to correspondence of or to the Governor and 

his staff.” (Times Mirror Co., supra, 53 Cal.3d at p. 1337.) “The Governor’s 

suggested definition of correspondence,” said the court, was “so broad as to 

encompass nearly every document generated by the Governor’s office, 

effectively reinstating the original exemption and rendering the 1975 

amendment a nullity.” (Ibid.) The court similarly rejected the Governor’s 

alternative proposal that “correspondence” be defined as “written 

communications ‘directed to an identifiable person or person for the purpose 

of establishing contact with the recipient.’ ” (Ibid.) “Even under this 

definition,” said the court, “the exception would swallow the rule.” (Ibid.) 

The high court therefore concluded the correspondence exemption 

“must be confined to communications by letter,” a definition the Governor’s
23

appointment calendars and schedules “plainly” did not meet. (Times Mirror

Co., supra, 53 Cal.3d at p. 1337.) The court went on to conclude the 

calendars and schedules came within the “deliberative process privilege” and 

were therefore exempt under another provision of the PRA. (Id. at pp. 1339–

1346.) 

Notably, nothing in the Supreme Court’s discussion of the Governor’s 

correspondence exemption suggests it is limited to correspondence from 

private parties. Rather, the court held only that the Governor’s calendars 

and schedules were not “correspondence” within the meaning of the PRA. 

Accordingly, the fact the First Amendment Coalition court contrasted the

correspondence and applications before it, with the Governor’s “internally 

generated” personal calendars and schedules at issue in Times Mirror Co.

(First Amendment Coalition, supra, 67 Cal.App.4th at p. 168), does not 

amount to even a hint, let alone constitute a holding, that the Governor’s 

correspondence exemption applies only to correspondence from private 

parties.

The second case petitioner cites is American Civil Liberties Union of 

Northern California v. Superior Court (2011) 202 Cal.App.4th 55 (American 

Civil Liberties). In that case, a different division of this court considered 

whether the Department of Corrections could withhold the “identities of 

approximately 12 pharmaceutical distributors and other entities from which 

it sought to obtain sodium thiopental” for use in executions and whether the 

department could redact from otherwise disclosable public records, 

information not sought by the PRA requests at issue. (Id. at pp. 62, 65.) The 

court answered both questions in the negative. (Ibid.) As is immediately 

apparent without further discussion, the Court of Appeal was not asked to 

decide any issue having to do with the Governor’s correspondence exemption. 
24

In the procedural background section of its opinion, the court recited 

that the trial court had not allowed the department to “withhold internal 

communications” under the Governor’s correspondence exemption “because, 

as stated in California First Amendment . . . , that exception is ‘intended to 

protect communications to the Governor and members of the Governor’s staff 

from correspondents outside of government’ and was therefore inapplicable to 

the documents petitioner sought.” (American Civil Liberties, supra,

202 Cal.App.4th at p. 65.) This one-sentence procedural recitation of an 

aspect of the trial court’s order that was not challenged on appeal, was not a 

holding by the appellate court. Moreover, as we have discussed, California 

First Amendment did not hold that the Governor’s correspondence exemption 

applies solely to correspondence from private parties.

Petitioner additionally cites to Marylander v. Superior Court (2000) 

81 Cal.App.4th 1119 (Marylander). This was not a PRA case at all, but 

rather was a writ proceeding challenging a discovery ruling in a civil action. 

(Id. at p. 1121.) The petitioner sought the production of memoranda 

prepared by officials of the Office of Statewide Health Planning and 

Development (OSHPD) that were directed to the Governor and concerned the 

financial condition of an entity that had purchased two hospitals with loans 

guaranteed by the OSHPD. (Id. at p. 1122.) The trial denied a motion to 

compel on the ground the documents came within the Governor’s 

correspondence exemption. (Id. at p. 1121.) The appellate court reversed—

not on any ground pertaining to the scope of the exemption, but because PRA 

exemptions have no application to civil discovery. As the court explained, “a 

party to pending litigation has a stronger and different type of interest in 

disclosure.” (Id. at pp. 1125, 1130, italics omitted.) Accordingly, “[t]he 

exemptions contained in the Public Records Act simply do not apply to the 
25

issue whether records are privileged in pending litigation so as to defeat a 

party’s right to discovery.” (Id. at p. 1125.) Thus, to the extent the trial court 

had relied on the Governor’s correspondence exemption to foreclose discovery, 

the appellate court held it had erred and remanded for the lower court to reevaluate the request under the proper discovery standard. (Id. at p. 1129.) 

Thus, Marylander has no bearing on the issue before us.15

We therefore turn to the language of the statute, the starting point of 

any interpretive analysis. “ ‘ “In construing a statute, our first task is to look 

to the language of the statute itself. [Citation.] When the language is clear 

and there is no uncertainty as to the legislative intent, we look no further and 

simply enforce the statute according to its terms.” ’ ” (Goals for Autism v. 

Rosas (2021) 65 Cal.App.5th 1041, 1046 (Goals for Autism), quoting Phelps v. 

Stostad (1997) 16 Cal.4th 23, 32 (Phelps); Kaanaana v. Barrett Business 

Services (2021) 11 Cal.5th 158, 168 (Kaanaana) [“ ‘If the language is clear, 

courts must generally follow its plain meaning unless a literal interpretation 

would result in absurd consequences the Legislature did not intend.’ ”].)

The pertinent statutory language exempts from disclosure “the 

following records: [¶] . . . [¶] (l) Correspondence of and to the Governor or 

employees of the Governor’s office or in the custody of or maintained by the 

Governor’s Legal Affairs Secretary.” (Gov. Code, § 6254, subd. (l).) Thus, by 

its plain terms, this exemption exempts any communication “of,” as well as 

“to,” the Governor and his or her staff that qualifies as “correspondence.” The 

15

 Petitioner also improperly cites to unpublished orders in a case 

before another division of this court and in two superior court cases that he 

claims follow the “holding” of California First Amendment that the 

Governor’s exemption applies only to correspondence from private parties. 

These citations are patently improper and we disregard them. (Cal. Rules of 

Court, rule 8.1115.) 
26

term “correspondence” is not modified or limited in any respect, let alone to 

private party correspondence and, further, to correspondence from private 

parties. Indeed, we would need to excise existing language from the statute, 

as well as read limiting language into it, in order to curtail its scope in the 

manner petitioner advocates. 

The courts, however, “ ‘ “may not add to or detract from a statute or 

insert or delete words to accomplish a purpose that does not appear on its 

face or from its legislative history.” ’ ” (Goals for Autism, supra, 

65 Cal.App.5th at p. 1046, quoting Freeman v. Sullivant (2011) 

192 Cal.App.4th 523, 529.) Rather, “ ‘ “ ‘[w]e are required to give effect to 

statutes “according to the usual, ordinary import of the language employed in 

framing them.” ’ ” ’ ” (Goals for Autism, at p. 1046, quoting Phelps, supra, 

16 Cal.4th at p. 32.) Thus, in Haynie v. Superior Court (2001) 26 Cal.4th 

1061 (Haynie), for example, the Supreme Court refused to read into another

PRA exemption (for “[r]ecords of . . . investigations” by a law enforcement 

agency (Gov. Code, § 6254, subd. (f))), a “proposed limitation” that found “no 

support in the statute.” (Haynie, at pp. 1070–1071.) 

Accordingly, in our view, the exemption applies, as it states on its face,

to any correspondence “of and to” the Governor or his or her staff, and the 

critical issue is whether a written communication to or from the Governor or 

his or her staff, is “correspondence” or some other form of written

communication. (See Times Mirror Co., supra, 53 Cal.3d at pp. 1336–1337 

[Governor’s calendars and schedules were not “correspondence”]; First 

Amendment Coalition, supra, 67 Cal.app.4th at pp. 167–169 [form 

applications submitted to Governor’s office following exchange of letters 

between prospective applicants and Governor’s secretary, were 

“correspondence”].) Where “ ‘the statutory language is clear and 
27

unambiguous, our task is at an end, for there is no need for judicial 

construction.’ ” (Webster v. Superior Court of San Bernardino County (2020) 

51 Cal.App.5th 676, 680, quoting MacIsaac v. Waste Management Collection 

& Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082–1083.)

Even if we were of the view that the language of the exemption is 

ambiguous and in need of construction, which we are not, the legislative 

history of the exemption reinforces that it should be read and applied as 

written. 

As our Supreme Court observed in Times Mirror Co., prior to 1975, the 

“Act exempted from disclosure all records ‘[i]n the custody of or maintained 

by the Governor or employees of the Governor’s office employed directly in his 

office.’ ” (Times Mirror Co., supra, 53 Cal.3d at p. 1337.) In that year, the 

PRA was amended through legislation (Assem. Bill No. 23 (1975–1976 Reg. 

Sess.)) that not only added the Governor’s correspondence exemption but also 

established a separate public records act applicable to the Legislature—the 

Legislative Open Records Act (LORA) (Gov. Code, § 9071 et seq.). (See 

generally The Zumbrun Law Firm v. California Legislature (2008) 

165 Cal.App.4th 1603, 1617–1618 (Zumbrun).) 

As introduced, Assembly Bill No. 23 (1975–1976 Reg. Sess.) wholly 

eliminated the existing PRA exemption for records “[i]n the custody of or 

maintained by the Governor or employees of the Governor’s office.” (Assem.

Bill No. 23 (1975–1976 Reg. Sess.) as introduced on Dec. 2, 1974, § 3, p. 7.) In 

the second round of amendments to the bill, the exemption was partially 

restored to exempt records “[i]n the custody of or maintained by the 

Governor’s Legal Affairs Secretary, provided records shall not be transferred 

to the custody of the Governor’s Legal Affairs Secretary to evade the 
28

disclosure provisions of this chapter. (Id., as amend. Feb. 20, 1975, § 3, 

pp. 7–8, italics omitted.) 

The language of the exemption was changed to its present form—to 

exempt “[c]orrespondence of and to the Governor or employees of the 

Governor’s office or in the custody of or maintained by the Governor’s legal 

affairs secretary, provided public records shall not be transferred to the 

custody of the Governor’s legal affairs secretary to evade the disclosure 

provisions of this chapter”—in the fourth round of amendments. (Assem. Bill 

No. 23 (1975–1976 Reg. Sess.) as amend. April 10, 1975, § 3, pp. 9–10.) 

In this same round of amendments, two changes were made to the 

LORA that are of significance here. (Assem. Bill No. 23 (1975–1976 Reg. 

Sess.) as amend. April 10, 1975, § 1.) The first was a revision to an 

exemption that had been added to the LORA in the third round of 

amendments, exempting “[p]ersonal correspondence of and to Members of the 

Legislature.” (Id., as amend. Mar. 31, 1975, § 1, p. 5.) In the fourth round of 

amendments, the word “personal” was deleted, so that the exemption 

excluded all “[c]orrespondence of and to individual Members of the 

Legislature and their staff.” (Id., as amend. April 10, 1975, § 1, p. 5; Gov. 

Code, § 9075, subd. (h).) The second significant change was the addition of an

exemption for all “[c]ommunications from private citizens to the Legislature.” 

(Assem. Bill No. 23 (1975–1976 Reg. Sess.) as amend. April 10, 1975, § 1, p. 5; 

Gov. Code, § 9075, subd. (j).) 

These PRA and LORA exemptions remained in the legislation without 

further change and are now codified in the PRA as Government Code section 

6254, subdivision (l), and in the LORA as Government Code section 9075, 

subdivisions (h) and (j). 
29

Nothing in the amendment history suggests the correspondence 

exemptions in either the PRA or the LORA are limited to correspondence 

from private parties. To the contrary, it is notable that in the LORA, the 

Legislature removed the “personal” limitation that had been in an earlier 

version of the legislator correspondence exemption, bringing the LORA

correspondence exemption in line with the newly added Governor’s 

correspondence exemption. Further, the Legislature added a separate 

exemption to the LORA expressly limited to “communications from private 

citizens,” evidencing that the Legislature knows how to limit an exemption in 

exactly the way petitioner proposes, when it intends to do so. The 

Legislature chose not to include any such language in either the LORA 

legislator correspondence exemption or the PRA Governor’s correspondence 

exemption. (See Kaanaana, supra, 11 Cal.5th 158, 174 [other “enactments 

demonstrate[d] that the Legislature knew how to limit the definition of public 

work to construction-type work but knowingly eschewed such a limitation in 

drafting” the provision at issue]; People v. Murphy (2001) 25 Cal.4th 136, 159 

[other statutory provisions demonstrated that when Legislature “wants a 

sentence calculated without consideration of some circumstance, it knows 

how to use language clearly expressing that intent”].)

Petitioner maintains that the fact the Legislature included a separate 

“communications from private citizens to the Legislature” exemption in the 

LORA but not in the PRA, “actually proves” the Governor’s correspondence 

exemption in the PRA must be so limited. He contends the differences in the 

two acts reflect an intent “to treat the Governor’s office differently from the 

Legislature,” and therefore, as best we can understand his argument, the fact 

that the Legislature provided itself with a separate, additional exemption for 

“communications from private citizens” is of no consequence when it comes to 
30

determining the Legislature’s intent relative to the Governor’s 

correspondence exemption. 

To begin with, petitioner’s argument is contrary to the fundamental 

principles of statutory construction we have just discussed.

It also fails to take account of the fact that the PRA and the LORA 

“correspondence” exemptions are distinctly different from the LORA 

“communications from private persons” exemption. The correspondence 

exemptions pertain to persons who can and do author and read 

correspondence, namely the Governor and his or her staff and individual

legislators and their staff. These exemptions also exempt only a subset of 

communications, specifically correspondence. In contrast, the 

“communications from private persons to the Legislature” exemption in the 

LORA exempts all forms of communications directed to a body politic, namely 

the Legislature. Given the large number of constituents and special interest 

groups who participate in the legislative process, not only by corresponding 

with particular legislators, but also by testifying before legislative 

committees and subcommittees, the Legislature’s perceived need for an 

exemption for “communications” by “private persons” to the “Legislature” is 

understandable. Given the different character of the Governor’s Office, it is 

equally understandable that the Legislature would have been of the view 

that no similar exemption for communications by private persons to the 

Governor’s Office, as a body incorporate, was necessary. 

Turning to the bill analyses and committee reports, they, like the 

amendment history, reflect no intent that the correspondence exemptions in 

either the PRA or the LORA are limited to correspondence from private 

parties. (E.g., Legis. Analyst, analysis of Assem. Bill No. 23 (1975–1976 Reg. 

Sess.) as amend. April 10, 1975, pp. 2–4 [bill establishes “exceptions 
31

respecting the public disclosure of records,” (underscoring omitted) including 

“[i]f the document sought is correspondence of and to the Governor or 

employees of the Governor’s Office . . .”, and “[c]orrespondence of and to 

members of the Legislature”]; Unfinished Business, conc. in Sen. Amend., 

Assem. Bill No. 23 (1975–1976 Reg. Sess.) as amend June 17, 1975 [bill “does 

not require disclosure of correspondence of and to the Governor or his 

employees or records maintained by the Governor’s Legal Affairs Secretary”].) 

The Enrolled Bill Report prepared by the State Water Resources 

Control Board /Environmental Quality Agency is particularly illuminating 

and made the following comments about the Governor’s correspondence 

exemption: “Existing law (the CPRA) exempts from the duty to disclose those

records that are ‘in the custody of or maintained by the Governor or 

employees of the Governor’s office employed directly in his office’. This bill 

would amend that exemption to read: ‘correspondence of and to the Governor 

or employees of the Governor’s Office or in the custody of or maintained by 

the Governor’s legal affairs secretary.’ The effect of this change in lanaguage

is not completely clear. The term ‘correspondence of and to the Governor . . .’

is very broad, but it must be interpreted as describing a class of records less 

general than the existing CPRA exemption, viz., records generally that are ‘in 

the custody of or maintained by the Governor[.] . . .’ An obvious example of 

records that would be exempt under existing law, but probably not exempt 

under this bill, would be memoranda physically prepared or dictated by the 

Governor for his own record, i.e., not as correspondence to another.” 

(Enrolled Bill Report, Environmental Quality Agency, State Water Resources 

Control Board, Assem. Bill No. 23 (1975–1976 Reg. Sess.), pp. 1–2.) 

The Enrolled Bill Report prepared by the Office of the Secretary 

observed: “The provisions of the bill applying to the Legislature are very 
32

similar to the existing Public Records Act. Most of the definitions and 

exceptions are the same. Subtle but important differences appear in the 

exceptions. The bill would exempt legislative memoranda for the 

Legislature[16] but not for the Governor. It would exempt preliminary drafts 

and notes for the Legislature without the qualification that appears in the 

Public Records Act limiting the exception to memoranda which are not 

retained in the ordinary course of busines provided that the public interest in 

disclosure [sic].[17] This qualification makes the exception for executive 

departments and the Governor’s Office very narrow while the simple 

exception for legislative offices is extremely broad.” (Enrolled Bill Report, 

Office of the Secretary, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 1.)

The report went on to comment that the “problems” presented by the 

bill “arise from the differences” in disclosure obligations between “the 

Legislative Branch and the Executive Branch. . . . The problem comes in 

opening up all records in the Governor’s Office except for correspondence of 

and to the Governor or employees to [sic] the Governor’s Office and except for 

records in the custody of the Legal Affairs Secretary. This denies to the 

Governor’s Office protection which the Legislature has preserved for itself.” 

(Enrolled Bill Report, Office of the Secretary, Assem. Bill No. 23 (1975–1976 

16

 This LORA exemption excludes from disclosure: “Preliminary 

drafts, notes, or legislative memoranda, except as provided in Section 9080.” 

(Gov. Code, § 9075, subd. (a).) Section 9080 requires legislative committees 

to retain records that constitute legislative history materials. (Id., § 9080, 

subds. (a) & (b).) 

17 The PRA exemption excludes from disclosure: “Preliminary drafts, 

notes, or interagency or intra-agency memoranda that are not retained by the 

public agency in the ordinary course of business, if the public interest in 

withholding the records clearly outweighs the public interest in disclosure.” 

(Gov. Code, § 6254, subd. (a).) 
33

Reg. Sess.), pp. 2–3.) For example, while the bill exempts “legislative 

memoranda,” there is no “similar specific exemption for the Governor’s 

Office,” and “a court would probably find that legislative memoranda in the 

Governor’s Office would be [a disclosable] public records.” (Id. at p. 3.) 

Thus, what the legislative history discloses is that the Legislature 

curtailed the formerly broad exemption for all records “[i]n the custody of or 

maintained by the Governor or employees of the Governor’s office employed 

directly in his office . . .” (Assem. Bill No. 23 (1975–1976 Reg. Sess.) as 

introduced Dec. 2, 1974, § 3, p. 7) by limiting the exemption to 

“[c]orrespondence of and to the Governor or employees of the Governor’s office 

or in the custody of or maintained by the Governor’s legal affairs secretary.”

(Id., as amend. April 10, 1975, § 3, p. 9, italics omitted.) This was a 

significant curtailment of the then existing all-records exemption, and there 

is no indication whatsoever in the legislative history that the Legislature 

intended to further limit “correspondence” to only that to the Governor’s 

office from private parties. 

On the contrary, as the Enrolled Bill Reports indicate, the 

correspondence exemptions were viewed as being “very broad” (Enrolled Bill 

Report, Environmental Quality Agency, State Water Resources Control 

Board, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 2), and the issue that 

was anticipated would come before the courts is whether a particular writing 

sent to, or generated by, the Governor and/or his or her staff is

“correspondence,” as opposed to some other category of written 

communication, such as a memorandum dictated by the Governor for his or 

her personal use (ibid.), “preliminary drafts and notes” prepared by the 

Governor’s Office on pending legislation (Enrolled Bill Report, Office of the 

Secretary, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 1), “legislative 
34

memoranda” prepared by the Governor’s office (id. at p. 3), or personal 

calendars and schedules prepared for the Governor by his or her staff. 

(Times Mirror Co., supra, 53 Cal.3d at pp. 1336–1337.)

We therefore conclude, not only in light of the exemption’s plain 

language, but also its legislative history, that the Governor’s exemption in 

the PRA is not limited, as petitioner advocates, to correspondence from 

private parties, but applies to any writing “of and to” the Governor and his or 

her staff that qualifies as “correspondence” under the Act.18 (See Times 

Mirror Co., supra, 53 Cal.3d at pp. 1336–1337; First Amendment Coalition, 

supra, 67 Cal.App.4th at pp. 168–173.)

Petitioner urges that only his proffered reading of the Governor’s 

exemption comports with the directive of article I, section 3 of our state 

constitution that “a statute . . . shall be . . . narrowly construed if it limits the 

right of access” to public meetings and records. (Cal. Const. art I, § 3, subd. 

(b)(2).) Not only was this provision added to our constitution in 2004, long 

after enactment of the PRA and the exemptions at issue, but it also expressly 

states “[t]his subdivision does not repeal or nullify, expressly or by 

implication, any constitutional or statutory exception to the right of access to 

18

 We are not called on to decide, nor are we deciding, whether the 

proviso pertaining to records “in the custody of or maintained by the 

Governor’s Legal Affairs Secretary” is limited to correspondence or includes 

other public records, as well. (See Enrolled Bill Report, Office of the 

Secretary, Assem. Bill No. 23 (1975–1976 Reg. Sess.), p. 2.; Ibid. [bill “would 

also exempt correspondence of and to the Governor or employees of the 

Governor’s Office, and records in the custody of or maintained by the 

Governor’s Legal Affairs Secretary. The bill provides that public records 

shall not be transferred to the custody of the Governor’s Legal Affairs 

Secretary in order to evade the disclosure provisions of the bill.” Italics 

added.].)
35

public records.” (Id., § 3, subd. (b)(5).) Thus, we properly focus here on the 

language and legislative history of the statutory exemption at issue.

The Governor’s correspondence exemption is one of several 

exemptions—such as the exemptions for “[p]reliminary drafts, notes, or 

interagency or intra-agency memoranda that are not retained by the public 

agency in the ordinary course of business” on a sufficient showing of interest 

in their nondisclosure (Gov. Code, § 6254, subd. (a)), and “[r]ecords, the 

disclosure of which is exempted or prohibited pursuant to” any evidentiary 

privilege (id., § 6254, subd. (k)), as well as the “catchall” exemption for 

records in specific cases where the interest in nondisclosure “clearly 

outweighs” the interest in disclosure (id., § 6255)—that are “grounded in the 

unromantic reality of politics” and “rest[] on the understanding that if the 

public and the Governor were entitled to precisely the same information, 

neither would likely receive it. Politics is an ecumenical affair; it embraces 

persons and groups of every conceivable interest: public and private; popular 

and unpopular; Republican and Democratic and every partisan stripe in 

between; left, right and center. To disclose every private meeting or 

association of the Governor and expect the decisionmaking process to 

function effectively, is to deny human nature and contrary to common sense 

and experience.” (Times Mirror Co., supra, 53 Cal.3d at p. 1345, italics 

omitted; see Haynie, supra, 26 Cal.4th at p. 1064 [while the PRA furthers the 

public’s important interest in access to information, “[a]t the same time, the 

act recognizes that certain records should not, for reasons of privacy, safety, 

and efficient government operation, be made public”].) 

Indeed, as the high court pointed out in Times Mirror Co., the Freedom 

of Information Act (FOIA), on which the PRA was modeled, exempts in a 

single provision both “ ‘inter-agency and intra-agency memorandums or 
36

letters which would not be available by law to a party other than an agency in 

litigation with the agency’ ” (Times Mirror Co., supra, 53 Cal.3d at pp. 1338, 

1340, fn. 11, italics added), and “Congress’s main concern” in enacting this

provision “was that ‘frank discussion of legal or policy matters’ might be 

inhibited if ‘subjected to public scrutiny,’ and that ‘efficiency of Government 

would be greatly hampered’ if, with respect to such matters, government 

agencies were ‘forced to “operate in a fishbowl.” ’ ” (Id. at p. 1340, quoting 

EPA v. Mink (1973) 410 U.S. 73, 87,19 quoting from Sen.Rep. No. 813, 89th 

Cong., 1st Sess., p. 9.)

Thus, while petitioner rightly emphasizes the public interest in ready 

access to public records, the Legislature has also recognized, and protected, 

competing public interests in the robust exchange and deliberative 

consideration of information during the governing process in both the 

executive and legislative branches. Where the divide should be drawn in 

accommodating these varying interests is certainly a fair matter of debate. 

But the Legislature has drawn the line as to “[c]orrespondence of, and to the 

Governor or employees of the Governor’s office” in no uncertain terms, and 

further debate as to the soundness of this accommodation of interests is 

properly one had in the legislative, rather than judicial, domain.

We now turn to petitioner’s apparent view that “correspondence” for 

purposes of the PRA does not include communications composed or 

transmitted by way of e-mail or texts—the sole point raised in his 

administrative appeal, but not one he has pressed with any specificity in this 

writ proceeding. In Times Mirror Co., after rejecting the Governor’s proffered 

19

 Superseded by statute on other grounds as stated in C.I.A. v. Sims

(1985) 471 U.S. 159, 189, fn. 5. (conc. opn.).
37

definitions of “correspondence,” the high court, indeed, stated “that for 

purposes of the Act, the correspondence exemption must be confined to 

communications by letter.” (Times Mirror Co., supra, 53 Cal.3d at p. 1337.) 

However, the court made this pronouncement in 1991—during a different 

technological era. Correspondence was then still largely formalized and 

delivered by mail, or when speed was necessary, by FAX. It is now three 

decades later, and we would be ignoring present reality were we to agree with 

petitioner’s initial take on the correspondence exemption and conclude it 

applies only to correspondence drafted and delivered through now neararchaic means. (See First Amendment Coalition, supra, 67 Cal.App.4th at 

p. 168 [despite “written letter” language of Times Mirror Co., court was “not 

disposed to so formalistic a resolution of the issue”].) 

The import of the Supreme Court’s holding in Times Mirror Co. is that

there is a qualitative distinction between “communications”—a term “so 

broad as to encompass nearly every document generated by the Governor’s 

office” (Times Mirror Co., supra, 53 Cal.3d at p. 1337)—and “correspondence,”

and that only records of the latter sort come within the exemption. Thus, the 

salient question in the wake of Times Mirror Co., is whether a

communication is fairly characterized as correspondence or some other form 

of written communication, such as a calendar or schedule, a private memo 

dictated and used solely by the Governor, or a legislative analysis prepared 

by and for the use of the Governor’s office. 

This brings us to whether our holding as to the scope of the Governor’s 

correspondence exemption resolves the instant writ proceeding. 

As we have discussed, in his PRA requests petitioner sought only 

communications “between” Batjer and/or her senior executive staff, and 

certain members of the Governor’s staff. 
38

In his administrative appeal, petitioner raised a single objection to the 

CPUC’s denial of his requests—that the Governor’s correspondence 

exemption “ ‘must be confined to communications by letter,’ ” citing Times 

Mirror Co. and requesting that the commission disclose “all texts, emails, and 

calendar entries.” Presumably, petitioner included calendar entries in light 

of the Supreme Court’s holding in Times Mirror Co. that the Governor’s 

calendars and schedules were not “correspondence” and therefore did not fall 

within the Governor’s correspondence exemption (but did fall within the 

deliberative process privilege). It is not readily apparent, however, nor has 

petitioner ever explained, how calendar entries could constitute a 

communication “between” Batjer and/or her principal executive staff, and the 

Governor’s staff.

It his later letter to the CPUC complaining about the untimely 

handling of his administrative appeal, petitioner claimed the Governor’s 

correspondence exemption did not apply because it assertedly applied only to 

correspondence from private parties. As for Times Mirror Co., petitioner 

made only the following brief, nearly incomprehensible comment—that he 

had cited “the narrow construction the California Court of Appeals had given 

subsection 6254(l) in Times Mirror Co. v. Superior Court, (1991) 53 Cal.3d 

1325, 1337.” In any event, other than asserting the correspondence 

exemption applied only to correspondence from private parties, petitioner 

made no claim that any of the communications he sought did not otherwise 

qualify as “correspondence” because they were some other form of written 

communication.

In his writ petition, the only assertion petitioner made with respect to 

the Governor’s correspondence exemption was that it was limited to 

correspondence from private parties. Again, he made no claim that any of the 
39

communications he sought did not otherwise qualify as “correspondence”

under the PRA. 

Four months later, the CPUC served petitioner with a copy of its draft 

resolution, scheduled for action at the next board meeting. He submitted 

extensive comments, which as to the Governor’s correspondence exemption, 

reiterated the arguments he previously advanced in his correspondence to the 

CPUC and in his writ petition filed in this court. That is, he continued to 

urge that the Governor’s correspondence exemption applies only to 

correspondence to the Governor’s Office from private parties.

The commission’s final resolution addressed and rejected petitioner’s 

position as to the scope of the exemption and concluded the exemption 

applied to the communications sought “between” Batjer and/or her principle 

executive staff and the Governor’s staff. The resolution states, petitioner “is 

not seeking internal CPUC communications; nor is he requesting of the 

Governor’s Office its internal communications; he is seeking ‘correspondence 

of and to the Governor or employees of the Governor’s Office,’ which request 

falls squarely under the plain wording of the exception.” 

In its return, the CPUC reiterated the points made in its resolution as 

to the Governor’s exemption. 

In his reply, petitioner continued to maintain, as stated in his 

argument heading, that “The ‘Governor’s Correspondence Exemption’ Does 

Not Apply to Intergovernmental Communications; It Has Been Judicially 

Limited to Correspondence Sent to the Governor’s Office by Private Citizens 

‘Outside of Government.’ ” (Boldface omitted.) He thus concluded, “[b]ecause 

all of the public records sought by Petitioner Rittiman were exchanged 

between two government offices, not sent to the Governor’s office ‘from 

correspondents outside of government,’ [Government Code] section 6254(l) . . . 
40

does not apply to any of them.” Again, petitioner made no claim that the 

records sought do not otherwise qualify as “correspondence” under the 

exemption because they are some other kind of written communication.

Thus, as petitioner has presented his case to us, it rises or falls on his 

claim that the Governor’s exemption should not be applied according to its 

plain terms, but should be judicially rewritten to apply solely to 

correspondence from private parties. He has made no claim that the records 

he seeks—of “exchanges” between Batjer and/or her principle executive staff, 

and the Governor’s staff—do not otherwise qualify as “correspondence” under 

the PRA. Since we have rejected his claim as to the scope of the 

correspondence exemption, we need not proceed further.

20

III. DISPOSITION

The CPUC’s demurrer to the petition for writ of mandate is sustained 

without leave to amend on the ground the records petitioner seeks are 

exempt from disclosure under the Governor’s correspondence exemption (Gov. 

Code, § 6254, subd. (l)). This proceeding is therefore dismissed. 

20

 We therefore need not, and do not, reach any issue as to the 

applicability of the deliberative process privilege. 
41

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A162842, Rittiman v. Public Utilities Commission
42

Counsel: 

Law Office of Steven D. Zansberg, LLC, Steven David Zansberg for 

Petitioner.

David Arthur Urban, Suzanne Solomon, Rachel Ann Peterson, Kathleen Sue 

Chovan, Keenan Patrick O’Connor and Christofer Charles Nolan for 

Respondent.