Gaea Edde Powell v. County of San Luis Obispo

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

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

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

Powell seeks a writ of mandate directing the County to provide the withheld records pursuant to the California Public Records Act (the CPRA).6 At the hearing on June 3, 2026, the Court directed the County to provide a privilege log and declaration supporting its claim that the responsive communications between the Clerk-Recorder’s Office and the District Attorney’s Office were exempt. It has done so and Powell has filed a supplemental response.

Having reviewed the parties’ submissions, the Court denies Powell’s request for a writ of mandate and her request for an in camera review of the withheld records.

I. THE CALIFORNIA PUBLIC RECORDS ACT

The CPRA “declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (§ 7921.000.) “Hence, ‘all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.’ [Citation.]” (Haynie v. Superior Court (1061) 26 Cal.4th 1061, 1068 (Haynie).) Any statutory exemptions “are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed. [Citation.]” (Rogers v. Superior Court (1993) 19 Cal.App.4th 469,

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

476, fn. omitted; § 7922.000 [“agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division”].)

II. DISCUSSION

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

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

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

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

The attorney-client relationship between the Clerk-Recorder’s Office and County Counsel’s Office is evident, and Cano has confirmed all communications between her office and County Counsel related to legal advice. Such evidence is sufficient to show the requested records are privileged and therefore exempt from disclosure under the CPRA.

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

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

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

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

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

Cano reports she has “exchanged communications and information with the District Attorney investigators and prosecutors involved in [Powell’s] case,” as well as “in the investigation into two other individuals who were investigated, and one criminally charged, for election fraud.” (Id., ¶ 4.) With respect to the responsive records between her office and the District Attorney’s Office, Cano reports all such records “directly relate to the underlying criminal investigations of election fraud.” (Id., ¶ 5.) This assertion is reiterated by Terrence O’Farrell, Chief of the Bureau of Investigations at the District Attorney’s Office.

Chief O’Farrell reports the District Attorney’s Bureau of Investigations conducted three separate investigations concerning possible election and candidate fraud; the three investigations concerned Morrow, Breese, and Powell. (O’Farrell Decl., ¶ 3.) Chief O’Farrell describes the impetus or grounds for each of the investigations and confirms all withheld communications between the District Attorney’s Office and the Clerk-Recorder’s Office were “generated solely for the purpose of, and in furtherance of, one or more of the three criminal investigations” and for no other reason. (O’Farrell decl., ¶¶ 4-9.)

Cano and Chief O’Farrell’s statements are supported by the privilege log which shows the withheld documents span a limited number of days for each investigation and were correspondence between the Clerk Recorder’s Office and District Attorney’s Office.

In her supplemental reply, Powell states, “The issue before the Court is therefore not whether these communications ultimately should or should not be disclosed, but whether Respondents have provided sufficient information for the Court to make that determination without independently reviewing the records themselves.” (Supp. Reply, p. 2, ll. 16-20.) Powell argues the withheld documents could encompass multiple governmental functions. However, Cano and Chief O’Farrell’s declarations clearly state the communications were “directly related to” or “generated solely for the purpose of,” the three criminal investigations.

The Court finds the County has provided sufficient information in Cano and Chief O’Farrell’s declarations and the privilege log for the Court to determine the documents withheld are privileged under section 7923.600. The Court denies Powell’s request for an in camera review.

In light of the total exemption provided by section 7923.600, the Court does not address the catchall exemption in section 7922.000 and the official information privilege in Evidence Code section 1040.

ORDER

The petition for a writ of mandamus seeking to enforce Powell’s September 12 and 16, 2025 public records requests is denied.

The Courtroom Clerk is directed to file the copy of the privilege log lodged with the Court.

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