California State Lands Commission, et al. v. Plains Pipeline, L.P., et al.

Case Number

18CV02504

Case Type

Hearing Date / Time

Mon, 09/11/2023 - 10:00

Nature of Proceedings

Motion of defendants to compel production of documents from the office of non-party California State Controller.

Tentative Ruling

California State Lands Commission, et al., v. Plains Pipeline, L.P., et al. (Judge Sterne)

Case No. 18CV02504

Hearing Date: September 11, 2023                                                   

HEARING:              Motion of Defendants to Compel Production of Documents from Non-Party California State Controller’s Office

ATTORNEYS:        For Plaintiff California State Lands Commission: Rob Bonta, Brian D. Wesley, Michael T. Zarro, Robert R. Willis, Matthew C. Heyn, Office of the California Attorney General

                             For Plaintiff Aspen American Insurance Company: David C. Veis, Laura P. Nash, Clyde & Co LLP

                                    For Defendants Plains Pipeline, L.P., Plains All American Pipeline, L.P., Plains GP Holdings, L.P., Plains APP, L.P., Plains All American GP LLP, and PA GP LLC: Henry Weissmann, Daniel B. Levin, Grant A. Davis-Denny, Robyn K. Bacon, Maggie Thompson, Colin A. Devine, Shannon Aminirad, Abraham Dyk, Jeremy A. Lawrence, Allison M. Day, Ruby J. Garrett, Munger, Tolles & Olson LLP; Craig S. Granet, Rimon, P.C.

                                    For Non-Party California State Controller’s Office: Rob Bonta, Paul Stein, Sarah M. Barns, Office of the California Attorney General

                                   

                                   

TENTATIVE RULING:

The motion of defendants to compel production of documents from non-party California State Controller’s Office is denied.

Background:

As summarized by the Court of Appeal, plaintiffs State Lands Commission (the Commission) and Aspen American Insurance Company (Aspen) allege in their first amended complaint (FAC) against defendants Plains Pipeline, L.P., Plains All American Pipeline, L.P., Plains GP Holdings, L.P., Plains APP, L.P., Plains All American GP LLP, and PA GP LLC (collectively, Plains):

“The Commission administers public lands owned by the state, including submerged lands. [Citation.] The Commission leased offshore lands to Venoco, Inc., to operate Platform Holly [(the Leased Lands)]. Oil and gas produced on the platform were pumped to an onshore facility and pipeline operated by Venoco. Several miles later, the oil and gas reached a pump station where, together with oil and gas from three ExxonMobil platforms, they were pumped into the pipeline at issue here, Line 901. Line 901 was owned and operated by Plains. It ran up the coast where it connected to other pipelines.

“Plains operated Line 901 pursuant to a Federal Energy Regulatory Commission (FERC) tariff that applied to ‘[a]ny Shipper desiring to tender crude petroleum for transportation.’ The tariff set rates and permitted Plains to refuse oil that did not meet specified standards. If all the oil submitted for distribution exceeded Plains’ capacity, the total capacity was required to be prorated among the shippers.

“Plains failed to reasonably monitor, maintain, and repair Line 901. Pipeline walls were corroded to as little as 1/16-inch thick. On May 19, 2015, Line 901 ruptured at Refugio State Beach, spilling 140,000 gallons of crude oil onto the beach and into the ocean. Line 901 was shut down and remains closed.

“Because the shutdown eliminated the only feasible method to transport oil and gas from Venoco’s onshore facility to refineries, Venoco stopped production, thus ending its obligation to pay royalties to the Commission. Venoco quitclaimed its lease back to the state. The shutdown of Line 901 caused property damage to the land and its facilities that the Commission was obligated to remediate and repair, including capping wells to prevent future leaks.

“Plains and Venoco had a connection agreement for Line 901, but neither the Commission nor Aspen were parties to the agreement. Aspen paid the Commission $22 million to meet a portion of Venoco’s bonded obligations to maintain the lands safely and to decommission the wells and other structures. Aspen was subrogated to the rights of the Commission against Plains.” (State Lands Commission v. Plains Pipeline, L.P. (2020) 57 Cal.App.5th 582, 584–585 (State Lands Commission).)

On May 18, 2018, plaintiffs filed their original complaint against Plains asserting six causes of action: (1) & (2) negligence; (3) & (4) willful misconduct; (5) interference with prospective economic advantage; and (6) Lempert-Keene-Seastrand Oil Spill Prevention and Response Act Liability (Gov. Code, § 8670.56.5) (OSPRA). On July 27, 2018, plaintiffs filed their operative complaint, the FAC, asserting the same six causes of action.

Plains demurred to the FAC. Before the demurrer was heard, plaintiff voluntarily dismissed the sixth cause of action based upon liability under OSPRA. On January 8, 2019, the court issued its order after hearing sustaining the demurrer to all remaining causes of action of the FAC without leave to amend.

On appeal of the judgment following the sustaining of the demurrer, the Court of Appeal reversed in State Lands Commission. (State Lands Commission, supra, 57 Cal.App.5th at p. 584.) The remittitur from the Court of Appeal was filed in this court on March 17, 2021.

On March 22, 2021, Plains filed its original answer to the FAC generally denying the allegations of the FAC and asserting 24 affirmative defenses. On May 7, 2021, Plains filed its first amended answer (FAA), which also generally denies the allegations of the FAC and asserts 24 affirmative defenses.

On March 15, 2023, Plains served a business records deposition subpoena (the Subpoena) on non-party California State Controller’s Office (CCO). (Dyk decl., ¶ 7 & exhibit 6.)

On May 1, 2023, in response to the Subpoena, the CCO served a privilege log that included the following item (the Email):

“The following document was not produced due to official information and deliberative process privilege:

            “1.       Email exchange between Controller Betty T. Yee and Deputy Controller Anne Baker dated January 25, 2017.

                        “a.       Subject: ‘Some thoughts reVenaco’

                        “b.       Contains deliberative discussion between the State Controller and Deputy Controller.” (Dyk decl., ¶ 8 & exhibit 7.)

On May 25, 2023, following an initial meet-and-confer discussion, the CCO amended its privilege log regarding the Email as to item 1(b):

                        “b.       Contains deliberative discussion between the State Controller and Deputy Controller Anne Baker regarding potential handling of the Venoco Lease Line Adjustment proposal and other energy concerns” (Dyk decl. ¶ 12 & exhibit 10.)

Plains contends that the Email is not privileged and should be produced. The CCO contends that the Email is privileged. Further meet-and-confer discussions failed to resolve this dispute.

On June 20, 2023, Plains filed this motion to compel production of the Email from non-party CCO pursuant to the subpoena. The motion is opposed by the CCO.

Analysis:

The CCO asserts both the deliberative process privilege and the official information privilege as bars to production of the Email. Plains argues that neither privilege applies.

(1)       Deliberative Process Privilege

It is unclear the extent to which the “deliberative process privilege” in California law is an evidentiary privilege, a limitation on discovery, or merely an exception to public records disclosure requirements.

The California Supreme Court explains the application of the deliberative process privilege to the California Public Records Act (Gov. Code, § 7920.000 et seq. [recodifying former Gov. Code, § 6250 et seq.]) (CPRA):

“Although not covered by the specific exemption for ‘preliminary drafts, notes, or ... memoranda’ set forth in [former] section 6254, subdivision (a), the Governor nevertheless contends that disclosure of his appointment schedules and calendars would jeopardize the decisionmaking or ‘deliberative process’ which this exemption was designed to protect. More specifically, he argues that disclosure of the records in question, which identify where, when and with whom he has met, would inhibit access to the broad spectrum of persons and viewpoints which he requires to govern effectively.” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1339, fns. omitted (Times Mirror).)

“While state precedents relating to the deliberative process or ‘executive’ privilege are relatively scarce, federal cases are abundant. The [federal Freedom of Information Act (FOIA)] equivalent to section 6254, subdivision (a) is contained in exemption 5 (5 U.S.C. § 552(b)(5)). As the United States Supreme Court has explained: ‘That Congress had the Government’s executive privilege specifically in mind in adopting Exemption 5 is clear.... The cases uniformly rest the privilege on the policy of protecting the “decision making processes of government agencies”....’ [Citation.]” (Times Mirror, supra, 53 Cal.3d at pp. 1339–1340, fns. omitted.)

The CPRA provides: “An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that 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.” (Gov. Code, § 7922.000; accord, former Gov. Code, § 6255, subd. (a).)

Applying the deliberative process privilege as an aspect of the this “public interest” exception, the Supreme Court in Times Mirror held that the exception applied to preclude disclosure of the Governor’s appointment calendars and schedules on the record then before the court. (Times Mirror, supra, 53 Cal.3d at p. 1345.) Many other courts have applied the deliberative process privilege in the context of public records requests. (E.g., Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733, 789; Labor & Workforce Development Agency v. Superior Court (2018) 19 Cal.App.5th 12, 31; Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 225; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 1144; Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 478.)

Outside of the CPRA context and notwithstanding the inclusion of the word “privilege” in the name, there is support for the proposition that the deliberative process privilege is not an evidentiary privilege or a limitation on discovery. “First and foremost, we are not at liberty to expand the scope of the common law privilege and to apply it in these proceedings to bar discovery would obviously require an expansion. Our Supreme Court has held that evidentiary privileges spring exclusively from our Evidence Code. According to the court, ‘the Legislature has codified, revised, or supplanted any privileges previously available at common law: the courts are no longer free to modify existing privileges or to create new privileges.’ [Citations.] The Evidence Code does not refer to either the mental process or deliberative process privileges. Therefore, we are not free to expand the scope of the privilege to protect documents unrelated to an administrative decision that is currently subjected to direct judicial review.” (RLI Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 437–438 (RLI).)

In RLI, the issue was the discoverability of certain evidence requested by two insurance companies in their administrative rate rollback hearings. (RLI, supra, 51 Cal.App.4th at p. 420.) An insurance company served discovery requests on the California Department of Insurance for certain documents relating to rate rollback results. (Id. at p. 427.) The Department objected on various privilege grounds, but the administrative law judge (ALJ) ordered production of non-attorney-client-privileged documents. (Id. at p. 428.) The Commissioner reviewed the ALJ’s order and directed the ALJ to vacate his order on the grounds that the documents were settlement-related and therefore non-discoverable. (Ibid.) The insurer sought a writ of mandate in the superior court, which was denied. (Ibid.) Finding that no privilege applied, the RLI court issued a writ requiring the trial court to grant the motion to compel under the same constraints as the original ALJ decision. (Id. at p. 439.) The court noted:

“In every instance in which this privilege has been applied or otherwise relied upon in published authority in this state (including but not limited to the decisions cited by the Department), the privilege was used to prevent inquiry into the mental process underlying an administrative decision that was undergoing direct review by a court. That plainly is not the situation here and this distinction renders the doctrine inapplicable.” (RLI, supra, 51 Cal.App.4th at p. 437.)

As noted in RLI, other courts have found the deliberative process privilege to be a limitation on discovery as to matters under direct review. In Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296 (Citizens), the plaintiffs challenged the reapproval by the City of Lodi of a conditional use permit for a proposed shopping center project. (Id. at p. 300.) In the course of litigating the matter in the trial court, the plaintiffs contended that the administrative record improperly excluded documents, including internal agency communications and communications with city consultants. (Id. at p. 304.) The court denied a motion to augment the administrative record as to emails that the trial court determined were protected by the deliberative process privilege (sometimes referred to by the Citizens court as the “deliberative process doctrine”). (Ibid.)

Addressing the deliberative process privilege on appeal, the Citizens court first observed: “ ‘Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.’ [Citation.]” (Citizens, supra, 205 Cal.App.4th at p. 305, quoting Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 540 (Regents).) (Interestingly, Citizens, like San Joaquin County Local Agency Formation Commission v. Superior Court (2008) 162 Cal.App.4th 159 (San Joaquin), discussed below, quotes not from the opinion of the court in Regents, which was authored by Justice Mosk, but instead from the concurring opinion of Justice Brown in Regents without so indicating, which concurring opinion was joined only by Justice Baxter.)

The Citizens court noted the CPRA standard for the deliberative process privilege: “[The plaintiff] is correct the city never established the conditions for creation of the privilege. The city’s explanation in the trial court of why the privilege applies, i.e., to ‘foster candid dialogue and a testing and challenging of the approaches to be taken,’ was simply a policy statement about why the privilege in general is necessary. Indeed, the city’s explanation was similar to one of the policy reasons for the deliberative process privilege enunciated by this court: the privilege ‘ “protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions.” ’[Citation.] While the policy behind the privilege makes sense, invoking the policy is not sufficient to explain the public’s specific interest in nondisclosure of the documents in this case. That policy could apply to almost any decisionmaking process. The city therefore failed to carry its burden to explain what the public’s specific interest in nondisclosure was in this case. [Fn.; citation.] The city also failed to carry its burden to explain why the public’s interest in nondisclosure in this case ‘clearly outweigh[ed]’ the public interest in disclosure. [Citation.] Because the city failed to carry its burden, the court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.” (Citizens, supra, 205 Cal.App.4th at p. 307.)

While the conclusion of the Citizens court was that there was error in the application of the deliberative process privilege, as the above quotation demonstrates, the court’s discussion assumed that the deliberative process privilege was a substantive limitation on discovery.

In San Joaquin, supra, 162 Cal.App.4th 159, the court summarized the case as: “This case presents the issue of whether a disappointed applicant to a local agency formation commission can take the depositions of the commissioners to learn what extra-record information the commissioners had when they denied the application and what additional information they needed to approve the application. Because extra-record evidence is not admissible in an action or proceeding challenging a quasi-legislative administrative decision and because the discovery permitted in this case would violate the deliberative process privilege, we hold such depositions cannot be taken.” (Id. at p. 163.)
 

In San Joaquin, the plaintiff sought noticed the deposition of commissioners, to which the defendant commission moved for a protective order. (San Joaquin, supra,

162 Cal.App.4th at pp. 163, 166.) The protective order was granted in part, but permitted the depositions to go forward. (Id. at p. 166.) On writ review of the discovery order, the court addressed the plaintiff’s argument that the evidence could be used to show agency misconduct:

“Assuming that extra-record evidence would be admissible to show agency misconduct, the [plaintiff] has failed to make a sufficient showing. In Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, a company challenged approval of a landfill project. It sought discovery to show the approval was illicitly influenced by the project proponent. In particular, it sought to depose a man in prison about his illegal activities in regard to the landfill project. The trial court denied the discovery request and the appellate court affirmed. It found that since there was no personal knowledge of the alleged illicit acts, ‘the trial court could reasonably find that Cadiz failed to establish that the requested depositions were reasonably calculated to lead to admissible evidence of agency misconduct.’ [Citation.] The [plaintiff] has made a lesser showing of misconduct here. While the issue of eminent domain was mentioned, all of the commissioners voting against the Application cited a legitimate reason—the lack of information—as the reason for their vote. The District has not established any exception to the rule of [Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 (Western States)] that extra-record evidence is inadmissible.

“In any event, even if an exception to Western States, supra, 9 Cal.4th 559, was established, the information sought under the discovery order falls under the deliberative process privilege. ‘Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.’ ([Regents, supra, 20 Cal.4th at p. 540.]) The privilege rests on the policy of protecting the ‘ “decision making processes of government agencies [.]” ’ (Id. at p. 541.) ‘The key question in every case is “whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” [Citation.]’ ([Times Mirror, supra, 53 Cal.3d at p. 1342.])” (San Joaquin, supra, 162 Cal.App.4th at pp. 170–171, parallel citations omitted.)

“Prohibiting inquiry into thought processes of SJ LAFCO commissioners exercising quasi-legislative powers comports with the separation of powers. In an ordinary mandamus review of a legislative or quasi-legislative decision, courts decline to inquire into thought processes or motives, but evaluate the decision on its face because legislative discretion is not subject to judicial control and supervision.” (San Joaquin, supra, 162 Cal.App.4th at p. 171.)

From this trial court’s perspective, in the absence of definitive, non-conflicting authority, it appears that that the “deliberative process privilege” is not applicable to a civil action not reviewing the result of that deliberative process. (RLI, supra, 51 Cal.App.4th at p. 437.) Under this view of the state of the law, the appropriate analysis is under the official information privilege where the specific interests of the litigant seeking discovery is addressed and balanced. As discussed below, applying the standards of the official information privilege, the court finds that the privilege applies and that the Email is thereby shielded from discovery.

Nevertheless, given the uncertainty that exists, to the extent that the deliberative process privilege may operate to protect the Email from disclosure separate from the official information privilege, the court has considered the balance of interests as articulated for the deliberative process privilege, above, and determined under the facts of this case that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record for the same reasons discussed in the context of the official information privilege, below. In this context, the court notes that the balance of interests favoring nondisclosure more closely aligns with the Supreme Court’s analysis in Times Mirror when the specific litigation interests of Plains is replaced with a more general public interest.

(2)       Official Information Privilege

The official information privilege is found in Evidence Code section 1040, which provides:

“(a)      As used in this section, ‘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.

“(b)      A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply:

            “(1)      Disclosure is forbidden by an act of the Congress of the United States or a statute of this state.

            “(2)      Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

“(c)      Notwithstanding any other law, the Employment Development Department shall disclose to law enforcement agencies, in accordance with subdivision (i) of Section 1095 of the Unemployment Insurance Code, information in its possession relating to any person if an arrest warrant has been issued for the person for commission of a felony.”

“The party claiming a privilege shoulders the burden of showing that the evidence it seeks to suppress falls within the terms of an applicable statute.” (HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 59.) Once the party claiming the privilege makes a prima facie showing of the preliminary facts necessary to support the privilege, “ ‘[t]he party opposing the privilege must bear the burden of showing that the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver. [Citation.]’ [Citation.]” (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 124.)

The Email is an email chain communication on January 25, 2017, between then-Controller of California, Betty Y. Yee, and then-Deputy Controller, Anne Baker, copied to Karen Greene Ross, Yee’s Chief of Staff. (Yee decl., ¶ 4.) Anne Baker was Deputy Controller for Environmental Policy. (Yee decl., ¶ 5.) She managed the environmental policy agenda for the Controller’s Office, and served as a designee to the State Lands Commission, the California Coastal Commission, Pollution Control Financing Authority, Ocean Protection Council, Alternative Energy and Advanced Transportation Financing Authority, and the California Transportation Financing Authority. (Ibid.) Additionally, she served on all bond oversight committees involving environmental policy. (Ibid.) Baker was one of Yee’s closest and most important advisors. (Ibid.)

In the Email, Yee and Baker discussed energy policy decisions Yee was contemplating, including Venoco’s lease line adjustment proposal and future state legislation restricting or banning new off-shore oil drilling. (Yee decl., ¶ 6.) With respect to Venoco, Baker provided Yee with a list of legal and policy considerations bearing on Yee’s decision, and Yee responded to her suggestions

with a detailed summary of her own assessment of the various trade-offs and considerations she had to take into account. (Ibid.)

These communications were confidential and made with an expectation of confidentiality. (Yee decl., ¶ 7.) Confidentiality of candid communications between the Controller and her advisors, including the Email, is and was necessary to ensure complete, candid, and unvarnished advice and recommendations to make environmental policy decisions for the State of California. (Yee decl., ¶¶ 7-8.)

The court finds that the CCO has made a prima facie showing for the application of the official information privilege. “The threshold determination is whether the information … was acquired in confidence.” (Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1128 (Marylander).) The evidence shows that the information, i.e., the confidential communications between Yee and Baker, two high-level state officials, was acquired in confidence and in the course of their duties within the meaning of Evidence Code section 1040, subdivision (a). While the court generally agrees that the official information privilege does not make all intra-departmental communications privileged, at least at the very senior levels of state government, private discussions between policymakers and their advisors are reasonably intended to take place in confidence in order to incentivize a robust discussion of pertinent including information that may be politically or otherwise difficult for those engaging in the discussion if made public. (See Times Mirror, supra, 53 Cal.3d at p. 1345.)

Even confidential information meeting the statutory definition of “official information” is not necessarily privileged from disclosure. Here there is no statutory requirement for confidentiality, so section 1040, subdivision (b)(2) must be met in order for the privilege to apply. Subdivision (b)(2) requires a showing that “[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice ….”

“If the information was acquired in confidence, the trial court next must balance the interests to determine whether the necessity for preserving the confidentiality of the information outweighs the necessity for disclosure in the interest of justice. [Citation.] Implicit in each of these assessments is consideration of the consequences to the litigant of nondisclosure and the consequences to the public of disclosure. Consideration of the consequences to the litigant of nondisclosure involves familiar issues concerning the importance of the information to the fair presentation of the litigant’s case, the availability of the material to the litigant by other means, and the effectiveness and relative difficulty of such other means. [Citation.] Consideration of the consequences to the public involves matters relating to the effect of disclosure on public processes and procedures.” (Marylander, supra, 81 Cal.App.4th at pp. 1128–1129.)

The court has considered, but rejects, the necessity to review the Email in camera for this determination. (See Marylander, supra, 81 Cal.App.4th at p. 1129.) The court is satisfied with that the information now before the court is sufficient for this determination.

As the Supreme Court articulated in Times Mirror in the context of a CPRA claim, there is a strong public interest in nondisclosure of communications as relate to confidential policy discussions between a high-level government policymaker and her advisor. (Times Mirror, supra, 53 Cal.3d at pp. 1339-1344; see also Marylander, supra, 81 Cal.App.4th at p. 1130.) The nondisclosure side of the balance is not fundamentally different as between the litigation context and the CPRA context in that need for confidentiality remains the same and for the same purpose. What changes in the analysis for the official information privilege is the nature of the interest on the other side of the balance. In the CPRA context, the other side of the balance is the public interest. In the litigation context, the other side of the balance is the interests of justice, and in particular a litigant’s need for evidence. (See Marylander, supra, 81 Cal.App.4th at p. 1129.)

In balancing these interests, the court finds that there is a necessity for preserving the confidentiality of the information that strongly outweighs the necessity for disclosure in the interest of justice. The court recognizes Plains’ argument regarding the relevance of the government’s handling of the lease line adjustment proposal. (See Motion, at pp. 19-20.) However, this argument for relevancy is pertinent only to public statements and actions of Yee, not to her personal reasons why she made those statements or actions and not to the advice that led to such statements or advice. After consideration of the evidence and argument of Plains, the court finds the interests of justice in the disclosure of the Email to be slight.

Therefore, taking all of the evidence and arguments of the parties into consideration and balancing the interests as required under section 1040, the court concludes that CCO has met its burden to demonstrate preliminary facts sufficient for the application of the official information privilege and Plains has not met its burden to show the inapplicability of the privilege or an exception thereto. Accordingly, the court sustains the objection to the production of the Email on the grounds of privilege.  Thus, the motion of Plains to compel production will  be denied.