The Los Angeles Times with a number of other newspapers has sued the California Legislature to secure the office budgets and spending records of lawmakers and legislative committees. The Assembly Rules Committee rejected requests for the records last month saying they were exempt under California’s Public Records Act.

The press wants to find out how party leadership allocates taxpayer resources to legislators. -db

From the Los Angeles Times, August 6, 2011, by Michael J. Mishak.

Full story

Observers are expecting some slippage in enforcing the Brown Act, now that the state Legislature cut the $17 million reimbursement to local governments to cover the costs of enforcement. Monterey County alone is on the hook for $140,000 in Brown Act enforcement.

The county is opposed to a bill by a Watsonville assemblyman to require posting agendas and staff reports on websites because it would be another unfunded mandate. -db

From the Monterey County Weekly, Thursday, May 12, 2011, by Sara Rubin.

Full story

In a case involving predatory lending, The Washington Supreme Court ruled the state attorney general could not release financial records from a mortgage company investigation since federal privacy law pre-empt state public records law. -db

The Reporters Committee for Freedom of the Press
November 8, 2010
By Rosemary Lane

The Washington Supreme Court barred the state’s attorney general’s office from releasing financial and consumer records from a mortgage company investigation, unanimously ruling Thursday that federal privacy laws pre-empt the state Public Records Act.

In 2007, Melissa Huelsman, a lawyer specializing in predatory lending cases, filed a public records request for names, addresses, phone numbers and interest rates relating to the investigation of the Ameriquest Mortgage Co.’s lending practices. Washington’s attorney general’s office had obtained loan files, e-mails and other documents in its inquiry, which resulted in Ameriquest paying a $325 million settlement.

The attorney general’s office was willing to hand Huelsman the records, but Ameriquest sought an injunction. The mortgage company opposed releasing files that it had disclosed to the attorney general’s office, citing federal privacy laws.

A trial court denied Ameriquest’s request, ruling federal law “does not preempt the state’s law on public disclosure of documents,” according to the Supreme Court’s opinion. An appellate court reversed the decision, ruling federal privacy laws do pre-empt the state’s laws.

The Washington Supreme Court affirmed the appellate ruling on the grounds that federal privacy laws prohibit a financial institution from disclosing “nonpublic personal information” to an unaffiliated third party. The attorney general’s office argued the requested records were already available on the public record, through telephone books, websites and recorded mortgage filings, the court opinion said.

However, the court ruled the attorney general’s office cannot disclose the records because of information that could identify customers, and could only release records that do not contain personal identifiers or redacted records if they already existed. The court held that, while the federal privacy law did not prohibit redaction, the state open records law prohibits the attorney general’s office from repackaging the information in response to a request.

Deputy Solicitor General Alan Copsey, counsel for the attorney general’s office, said the decision clears up confusion with federal and state privacy laws.

“It gives us the first opportunity to understand from our state Supreme Court how to look at a federal exemption in the context of a state law,” Copsey said.“This brings that federal exemption within the state act and makes it possible for citizens to work within the state act.”

Copyright 2010 The Reporters Committee for Freedom of the Press     FAC Content Use Policy

Q: Can I request emails from the school district without using an attorney? I want to request emails between the superintendent and other employees, assistant superintendent and union reps, and board members and school employees? Reason: I have seen hard evidence that they are campaigning on school time, using equipment to run campaigning materials and requesting contributions for incumbents during school time. Please let me know.

A: Members of the public can request public records directly without any legal assistance. California’s Public Records Act is designed to allow members of the public inspect documents related to the government’s handling of the public business and does not require much at all in the way of formalities. There is not even a requirement that requests be made in writing (though agencies must respond to written requests in writing, so making your request in writing can be useful, especially if you think the agency is likely to resist disclosure).

The only requirements are that your request “reasonably describe[] an identifiable record or records,” and — if you want copies of the records — that you pay “fees covering direct costs of duplication.” Govt. Code Section 6253.

You can find more information about making requests under California’s Public Records Act, including a sample request letter, at the First Amendment Coalition web site: http://www.firstamendmentcoalition.org/category/resources/access-to-records/.
I hope this information is useful and wish you the best of luck in your efforts.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I cover an unincorporated community that voted in June to incorporate. Voters approved incorporation and also elected a five-member council.  A committee has been formed to raise private funds to put on a celebration on mark the historic occasion. Two elected members of the city council-elect (who will not be sworn in until the day of the celelbration) serve on this committee.

My questions: is this committee considered private? Am I entitled to the financial records of this committee? I have requested the budget for the event, how much has been raised in donations and the names of the major donors but have been denied. A couple of additional facts: no city money is going toward the celebration. Also, although the five council members-elect have not been sworn, they have been meeting as a council-elect since July and making decision (hiring an interim city manager, a city clerk and a city attorney, etc.).

A: The first part of your question involves an analysis of whether the fundraising committee, which, from what I understand, solicits private funds and includes two members of the city council, is a “local agency” under the Public Records Act, thereby making its records subject to the Act.

The PRA applies to public records, which are defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Gov’t Code section 6252(e).

A “local agency” “includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” Gov’t Code section 6252(a).

Section 54952(c) of the Government Code defines a “legislative body” as:

(1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:

(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.

Gov’t Code section 54952(c)(1).

It seems that if the fundraising committee was created by the newly elected city council, it would qualify as an arm of the city council that would likely be considered a “legislative body” under Section 54952(c)(1)(A) for purposes of the Public Records Act. See Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 870 (2001) (under 54952(c)(1), the city took part in creating association to the extent that it helped “bring [it] into existence” to exercise delegated government authority, and therefore the Brown Act applied to association’s meetings).

If the committee was created by the elected legislative body (the city council), which delegated its authority to to the committee to plan and organize the celebration for the city’s incorporation, then arguably this committee would qualify as a “local agency” under the Public Records Act (via the Brown Act), and therefore, records maintained by the committee would be subject to inspection under the Act, unless some exemption applies. Also, although the committee might not be receiving any funds from the city for the celebration itself, it is possible it receives operating funds from the city, in which case, it could also qualify as a “legislative body” under Section 54952(c)(1)(B), given that it counts two city council members among its ranks.

On the other hand, a court that interprets the Act narrowly might find that the committee is not covered by the Act. This was the case in California State University v. Superior Court, where the court found that a nonprofit corporation created pursuant to an Education Code section to provide commercial services to the university was not a “state agency” under the Act. 90 Cal. App. 4th 810, 829-30 (2001).

There could be differences, however, between the committee you describe and a nongovernmental auxiliary organization, that might tip in favor of making the committee subject to the Act. The analysis is necessarily fact specific, but the factors described above, such as whether the committee was created by the city council elect; whether it receives any financial support from the city; or whether it was created purely by private citizens could play into whether the Act applies.

Your second inquiry involves consideration of whether the city council members-elect, who have not been sworn in yet, but have been meeting and making decisions related to city business, are subject to the Brown Act. The Brown Act applies to “legislative bodies,” which include commissions, committees, boards or other bodies of a local agency, “whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.” Gov’t Code § 54952(b).

It seems to me if there was a “charter, ordinance, resolution” or some formal action of a legislative body that led to the incorporation of this previously incorporated area, then the council shouldn’t be able to avoid the Brown Act by saying “we’re not sworn in yet.” Furthermore, these members-elect are acting like a city council, making staffing and other administrative decisions that are within the purview of legislative bodies such as city councils.

The new city’s bylaws probably prescribe how these decisions should be made, i.e., by the city council, and not by a council in waiting. Therefore, to the extent that these individuals are meeting as a city council-elect, and making binding decisions on the city, it would seem appropriate that their meetings be held to the open meeting standards set forth in the Brown Act.

As such, under the Act, “All meetings of the legislative body of a local agency shall be open and public, . . . .” Gov. Code § 54953. The Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” Gov’t Code § 549523.2(a).

It is impossible to say, though, whether a court considering the issue would reach the same conclusion.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Members of the Tulare City Council admitted violations of California’s Public Records Act and the Brown Act, the state’s open meeting law, and the vice mayor resigned as part of the settlement of lawsuits filed against the city and two members of the council. -db

Tulare Advance-Register
October 11, 2010
By Staff

Vice Mayor Phil Vandegrift stepped down from the Tulare City Council as part of a preliminary settlement agreement of three lawsuits levied against the city and two council members alleging violations of California election laws, the Brown Act and the Public Records Act.

Vandegrift, the top vote-getter in the 2008 election, was serving his second turn in the council. He was on the council from 1975 to 1983, completing a four-year tenure as mayor from November 1979 to November 1983.

In a prepared statement, Vandegrift wrote:

“In order to achieve global settlement for all, all had to give something to move our community forward and start the healing for our council and community,” he said. “I found it necessary to do my part and only want what’s best for Tulare and all the wonderful people I had the pleasure to work with and serve.”

Visalia-based attorney Michael Lampe, who filed the lawsuits, said the vice mayor made a tough choice.

“This was no doubt a difficult decision for the vice mayor, but his resignation was in the best interest of both himself and the citizens of Tulare,” Lampe said.

Mayor Craig Vejvoda lamented Vandegrift’s resignation.

“It’s a sad day for Tulare,” he said. “Phil has been a tremendous community servant for 40 years. I will miss him on the Tulare City Council. He has been an active, positive force for most of the citizens of Tulare.”

According to the lawsuit, Vandegrift received $200,000 from a land transaction the city paid to a developer, part of a $5.2 million deal. As part of the lawsuit settlement agreement, Vandegrift resigned but did not admit any wrong doing.

Also, part of the settlement calls for city officials to admit violations of the Brown Act, also known as California’s open meeting laws, and the Public Records Act, Lampe said.

“While we recognize that many of your readers may not view such violations as a serious matter, we will simply note that there are important public policy issues at stake when public agencies fail to follow the law,” Lampe said. “In this regard, we hope that the city has learned a valuable lesson, and that history will not repeat itself.”

Click here for full story.

Copyright 2010 Gannett     FAC Content Use Policy

Q: I am requesting a certified copy of the commonly referred to “Physician’s Notice of Birth” (PNOB) issued by the attending physician of the birth. The town where I was born has my birth certificate on record, but neither the city records office nor the hospital where I was born  claim to have access to the Physician’s Notice.   By law they the physician has to sign such a Notice, how can I access it?

A: The Public Records Act generally provides that “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Gov’t Code Section 6252-6253.

It seems that the information you are seeking is held by a public agency, and therefore is probably covered by the Act unless some exemption applies.

I am not quite sure how a Physicians’ Notice of Birth differs from a birth certificate. In any case, you may find the California Department of Public Health’s website helpful as you consider how to go about requesting your records: http://www.cdph.ca.gov/certlic/birthdeathmar/pages/certifiedcopiesofbirthdeathrecords.aspx.
Also, if you haven’t already done so, you may want to consider putting your request in writing, and ask that the district explain any grounds for denial of your request. You can find additional information regarding the Public Records Act, including sample request letters, on the FAC’s website here: http://www.firstamendmentcoalition.org/category/resources/access-to-records/.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

A Superior Court judge has ordered California State University of Stanislaus to comply with public records laws and release a speakers contract with Sarah Palin. -db

San Francisco Chronicle
August 26, 2010
By Nanette Asimov

California State University at Stanislaus violated public records laws and will have to release the speakers contract with Sarah Palin it had tried to keep secret, a judge has ruled.

The details of Palin’s contract to speak at a June 25 fundraiser for the foundation became national news last spring after foundation officials refused to tell state Sen. Leland Yee, D-San Francisco, how much Palin would be paid. Yee has been trying to change a state law that shields campus foundations from public scrutiny.

The Palin story grew more bizarre in April after students found discarded pieces of the secret contract in a Dumpster on the property of the public university – after university officials told Yee and CalAware, an open-government group, that they didn’t have any of Palin-related documents.

CalAware sued, and in May, the foundation released hundreds of pages of Palin-related paperwork – but not the contract. Among them were e-mails showing that Charles Reed, chancellor of the 23-campus CSU system, favored suppressing the contract to avoid news stories about its contents.

That e-mail, and the finding that the university did possess Palin documents, led Stanislaus Superior Court Judge Roger Beauchesne to order the Turlock campus to release Palin’s contract.

In his Monday ruling, the judge said the contract was used “in the conduct of the public’s business; therefore, said contract is also a public record.”

CSU has yet to receive the judge’s ruling, said spokeswoman Claudia Keith, “We’re perplexed as to how he could have come to that conclusion,” she said. “Nevertheless, we’ll comply with whatever the court has ordered.”

Terry Francke, general counsel for CalAware, said the judge “sided with the public’s right to be informed about how its money is being spent.”

Yee said he also was pleased with the ruling. “The university openly violated a state law.”

Beauchesne’s ruling underscored that the foundation itself remains shielded from the state’s public records laws.

Yee’s SB330, which would overturn that law, was approved by lawmakers and is soon expected to land on the governor’s desk for approval or veto.

Copyright 2010 Hearst Communications Inc.   FAC Content Use Policy

Q: I have read the California Public Records Act and I have been unable to find a statute of limitations. Are you aware of any authorities that indicate how long a plaintiff has to sue under the CPRA?

A: The Public Records Act (“PRA” or the “Act”) does not provide for a statute of limitations for filing suit to enforce the provisions of the Act, and it is not entirely clear what statute of limitations might apply.

If you are considering litigation, however, I recommend that you seek specific legal advice from an attorney. You might consider using FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/
to find an attorney experienced in open records issues.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: What section of California law deals with retention and destruction of public records?

A: California has several statutes addressing document destruction/retention. With respect to city governments, Government Code Section 34090 requires that the city retain any record that is less than two years old:

• Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney, the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required.

• This section does not authorize the destruction of:

(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.

• This section shall not be construed as limiting or qualifying in any manner the authority provided in Section 34090.5 for the destruction of records, documents, instruments, books and papers in accordance with the procedure therein prescribed.  Gov’t Code Section 34090.

Effective January 2010, however, “the legislative body of a city may prescribe a procedure whereby duplicates of city records less than two years old may be destroyed if they are no longer required,” notwithstanding Section 34090. Gov’t Code Section 34090.7.

Other statutory conditions are set forth for destruction of public records by “the city officer having custody” of them:

• Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:

• • (a) The record, paper, or document is photographed, microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.
  • (b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document images.
  • (c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.
  • (d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.

• However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference.

• For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript, exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.   Gov’t Code Section 34090.5.

• With respect to recordings of video monitoring and telephone and radio communications:

• • (a) Notwithstanding the provisions of Section 34090, the head of a department of a city or city and county, after one year, may destroy recordings of routine video monitoring, and after 100 days may destroy recordings of telephone and radio communications maintained by the department. This destruction shall be approved by the legislative body and the written consent of the agency attorney shall be obtained. In the event that the recordings are evidence in any claim filed or any pending litigation, they shall be preserved until pending litigation is resolved.

• • (b) For purposes of this section, “recordings of telephone and radio communications” means the routine daily recording of telephone communications to and from a city, city and county, or department, and all radio communications relating to the operations of the departments.

• • (c) For purposes of this section, “routine video monitoring” means video recording by a video or electronic imaging system designed to record the regular and ongoing operations of the departments described in subdivision (a), including mobile in-car video systems, jail observation and monitoring systems, and building security recording systems.

• • (d) For purposes of this section, “department” includes a public safety communications center operated by the city or city and county.

Cal Gov Code § 34090.6. Newly enacted Section 34090.7 further provides that “video recording media, including recordings of ‘routine video monitoring’ pursuant to Section 34090.6, shall be considered duplicate records if the city keeps another record, such as written minutes or an audio recording, of the event that is recorded in the video medium.

However, a video recording medium shall not be destroyed or erased pursuant to this section for a period of at least 90 days after occurrence of the event recorded thereon.”

Finally, another statute makes it a crime to destroy certain records:

• Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
  • a) Steal, remove, or secrete.
  • b) Destroy, mutilate, or deface.

• • c) Alter or falsify.”

    Gov’t Code Section 6200.

Q:  I manage a small organization that helps teach people to use public records for their protection. Recently we made a request to several municipalities for records of payments made to people doing business with the muni’s.

We sought to discover the names of persons or companies who were paid by the county or city in the previous year, and in order to separate individuals from companies we requested files sorted by tax ID information.  For instance, we asked for the ones who were being paid under corporation tax forms by their tax ID type. In another instance, it was sole proprietors, so we asked for the ones using a social security as their tax ID’s. We re-itierated we were not requesting the ID numbers themselves, but the names of those using that reporting method when receiving compensation.

One muni has denied the request under 1) California Constitution article one section 1 and 2) 6254 of the PRA, section i and K. We are not asking for any personal information other than the names of the persons, amounts paid in a calendar year, branch of the government the payments were made from, and general description of the payment made for people or companies either working for, or contracting with the county/city. Somehow they believe it would be an invasion of privacy to disclose whether the persons/companies in question were operating as individuals, corporations, LLCs, or other entities. I believe we are entitled to this information, and I’m wondering if you can offer any guidance on this matter.

A: From what I understand, you are seeking information related to individuals or corporate entities paid by a public agency during the previous tax year, and are attempting to gather this information by requesting that certain information related to tax status be disclosed to you, though it does not sound like you are necessarily seeking the tax documents themselves.

The Public Records Act exempts from disclosure “[i]Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.” Gov’t Code § 6254(i). Also, certain tax documents are specifically exempted, including income tax returns, certain Franchise Tax Board settlements, business information acquired by the Board of Equalization, and real property ownership statements. Rev. & Taxation Code §§ 19272, 19133, 15619; Gov’t Code § 27280.

Unfortunately, there is little case law interpreting the PRA’s exemption as it relates to tax documents and the information contained therein. If the agency has cited this particular PRA exemption, please keep in mind that there are two requirements that must be met here: (1) that the information was received in confidence, and (2) that disclosure of the information to others would result in unfair competitive disadvantage to the person supplying the information.

Section 6254(k) exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” This apparently is in reference to the California Constitution you cite, which provides that “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. 1, §1 (emphasis added).

It is difficult to imagine how disclosure of the information that you requested would constitute an invasion of privacy for these individuals, especially given that they are being paid with public funds. As the California Supreme Court recognized in a recent case where disclosure of the salaries of individuals earning more than $100,000 per year in a particular municipality was sought, any “cognizable interest that public employees may have in avoiding the disclosure of their salaries” is counterbalanced by the “strong public interest in knowing how the government spends its money. As we have observed in the context of the public’s right of access to court proceedings and documents, public access makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.” International Federation of Professional & Technical Engineers v. Sup. Ct., 42 Cal. 4th 319, 333 (2007).

If, indeed, all you seek are the names of recipients, the amounts paid, and a description of the amounts paid, it is difficult to imagine, especially in light of this case, how that information would constitute an invasion of privacy for the individuals who benefitted from these contracts. If there is any information that would implicate this privacy provision contained in the state constitution, the city could always redact those sections, while still providing you with the information that you requested.

However, one thing to keep in mind is that the PRA is written in terms of records rather than information. So sometimes part of the challenge is to frame your request in terms of documents that are likely to contain the information you are looking for. You may want to word your request with narrow language asking for any document that the city might possess that contains information related to payments to contractors by the city during a certain year.

As a practical matter, you might consider asking for clarification on the grounds for the denial of your request. To the extent that the city is concerned that it might release private information that you are not interested in, you can then tailor your request to make clear that you are only seeking certain information available in those documents, and that other information that is arguably exempt under the PRA may be redacted. The California Constitution requires agencies to construe statutes that limit the right of access narrowly, which supports an argument that any close call under the PRA should be resolved in favor of disclosure.

California Watch
May 5, 2010
By Lance Williams

Is the open government ruckus over Sarah Palin’s speaking fee in Turlock sputtering toward a conclusion?

Terry Francke of Californians Aware, the First Amendment group that is trying to pry loose a copy of Palin’s contract for a speech at CSU Stanislaus, says the university has admitted for the first time that it has “800 or 900” documents about the event in its possession.

He says that’s “utterly at odds” with the university’s initial response to queries that were filed under terms of the Public Records Act, the state’s open records law.

At first, Francke recalls, the university said it didn’t have a single piece of paper about Palin’s June 25 speech on campus.

It referred queries to the CSU Stanislaus Foundation. The foundation, which booked Palin for the event, signed a contract with the former Alaska governor and darling of the tea-party movement agreeing not to disclose how much she’s getting paid.

(Critics suspect it’s more than $100,000.)

The foundation also claims to be exempt from the Public Records Act.

Francke said the university’s claim that it had absolutely no documents about Palin never made much sense.

Then, last month, the university’s claim was badly undercut by its alleged involvement in the so-called shred-a-thon. State Sen. Leland Yee, D-San Francisco, accused CSU officials of shredding public documents about the Palin speech.

Students had come to Yee with shredded documents they said they recovered from a dumpster near the administration building on a “furlough Friday,” when the campus was deserted. The documents included part of Palin’s contract – although not the page that details the fee.

The shredding got the attention of the state attorney general’s office, which launched a probe of the foundation.

Now, Francke says the university has offered to make relevant documents available soon.

Lawyer Kelly Aviles, who is handling the courtroom work for Californians Aware, said she wasn’t optimistic that Palin’s contract would be in the trove.

“I would highly doubt it,” she said. She said she expects the CSU will continue to resist disclosing the contract, and the whole thing will wind up in court after Palin has come and gone.

CSU Stanislaus’ legal fees are being paid by the taxpayers. If Californians Aware wins its lawsuit, state law will require the taxpayers to pay the group’s legal costs as well.

Copyright 2010 California Watch

In hearing arguments about keeping referendum signatures private in a referendum to repeal Washington’s domestic partnership law, several justices appeared unsympathetic to arguments of the attorney opposing making the signatures public. -db

BY PETER SCHEER—As California voters begin the process of selecting the next  Governor of the ungovernable Golden State, the leading candidates owe them a demonstration of their commitment to government transparency.

All politicians are supportive of open-government “in principle;”  the question is whether they are committed in practice. The best test for that is a candidate’s willingness, before an election, to  disclose information about himself that is not legally required to be disclosed–but that voters nonetheless want, with good reason, to see. 

For Republican candidate Meg Whitman, the test will be whether she decides to release her tax returns. For Attorney General Jerry Brown, presumptive democratic  nominee, the test will be whether he opens wide the door to the records of his previous governorships.

Whitman thus far has resisted journalists’ requests for a copy of her tax returns. She is, of course,  within her rights, legally, in doing so. But in 2010 that is not a right on which a candidate can stand and still expect to be competitive in an election for high office.

Voters’ interest in a candidate’s  tax returns is not just voyeuristic. In the case of a wealthy candidate like Whitman, the former CEO of eBay, tax returns can be a window on her character, showing, for example: whether she is generous with charitable contributions and who benefits from her giving (her alma mater? people in need?); whether she has been aggressive in the use of tax shelters to avoid tax; and how her tax rate compares with the rates that most voters pay.

These  data points are both revealing  and a matter of legitimate interest to voters. Disclosing tax returns is part of California’s political culture for governors. Schwarzenegger has released his taxes. So did Gray Davis and Whitman’s fellow eBay millionare, Steve Westly. If Whitman’s tax returns contain information that is embarrassing, all the more reason to release them now, before public attention focuses on the governor’s race. An embarrassing tax return can even be spun positively—for example, as proof that Whitman is a true outsider who never planned to enter politics.

But disclose the returns she must.

As candidate for Governor, Jerry Brown has left a long paper trail. Not just his years as AG or as mayor of Oakland, but also his two terms as Governor from 1975 to 1983. But don’t go looking for the records of his governorship, which are stashed in an archive at University of Southern California in Los Angeles. Under an obscure provision of the Public Records Act (Gov Code section 6268), governors, once they leave office, have the option of locking away their gubernatorial records for a “period of 50 years or the death of the Governor, whichever is later.” 

Jerry Brown has exercised this option, which means that all the public records of his governorship–including the anti-tax groundswell that resulted in Prop 13, Brown’s opposition to the death penalty, his battles with California’s  oil companies over tax and environmental issues, and much more–are exempt from the Public Records Act.

Put aside for a moment the absurdity of California’s 50-year secrecy rule (the records of US presidents, by contrast, are closed off for only 12 years). Brown’s pledge of government transparency can’t be taken seriously as long as he continues to invoke the Public Records Act’s exemption for his gubernatorial records–records which were public while he was governor, which were  paid for by taxpayers, and which are now more than 27 years old.

In fairness to Brown, he is willing to pry open the door to these documents on a case-by-case basis. In response to the First Amendment Coalition’s record request, Brown, through his lawyer, offered to “waive the fifty-year access restriction . . . as to” the organization’s executive director, and he has done the same for several reporters. But the point is that no government official should get to pick and choose who can see public records. Selective access to information and freedom-of-information are mutually exclusive.

The test for Brown is whether, in advance of the election, he will waive–for the public generally–the 50-year exemption for his gubernatorial records, giving access to all (subject, of course, to the exceptions in the law that apply to any public records). Brown can do this with a stroke of the pen, just as he invoked the exemption in the first place. 

If he refuses, voters will not only have reason to doubt Brown’s open-government credentials. They will wonder if there’s something in the archive that he is trying to hide.
——
Peter Scheer is executive director of the First Amendment Coalition

Q: A county supervisor called 911 to report what he described as an assault with several punches thrown at him. The local police department investigated and determined witnesses saw no punches thrown. After some delay, the city attorney has released the police investigative documents. Thus far, they have refused to release transcripts of the phone call(s) to report it. The city attorney is claiming that releasing the transcripts may have a chilling effect on other citizens calling the police. Is there an AG opinion or case law we can guide him to that will explain his error and compel release of the transcripts?

A: We are not aware of a case that specifically says that tapes of 911 calls or similar calls to law enforcement must be released, but there are two cases that touch on the subject

In the first case, the Court of Appeal ordered the City of Fontana to pay attorneys fees under the Public Records Act to an individual to whom the superior court ordered the City to release two tapes of telephone calls between the City’s police department and another law enforcement agency because the City considered portions of the tapes “embarrassing and irrelevant.” Fontana Police Dep’t v. Villegas-Banuelos, 74 Cal. App. 4th 1249, 1251 (1999). Among other things, the Court of Appeal said that the “Appellant was legally entitled to the unedited tapes which Fontana refused to produce until ordered to do so by the trial court.” Id. at 1252.

In the second, decided two years after Fontana, the California Supreme Court held that the PRA did not require the release of certain “records … concern[ing] a citizen’s call to report a possible crime and the depatment’s response thereto.” Haynie v. Superior Court, 26 Cal. 4th 1061, 1064 (2001). The Supreme Court held that the exemption in Government Code section 6254(f) for “records of investigations,” like the exemption in the same section for “records of complaints” to law enforcement, allows law enforcement to withhold the records completely (although they may have to release certain specific information that is in the records, but not the records themselves. Id.; see Willaims v. Superior Court, 5 Cal. 4th 337 (1993).

The agency here could claim that tapes of 911 or similar calls are “records of complaints” or, conceivably “records of investigations” and thus exempt under Haynie. In fact, the California Attorney General has held that “mug shots” are investigative records exempt from the mandatory disclosure requirements of the PRA under Government Code section 6254(f), and thus law enforcement can decide whether to release them or not. 86 Ops. Cal. Atty Gen. 132. It is not inconceivable that the AG or a court might take the same view of 911 tapes like the type you describe.

A Sacramento judge tentatively ruled that the state must hand over Phillip Garrido’s parole records. Garrido has been charged with the kidnap of an 11-year-old girl and keeping her in captivity for 18 years. -db

In Doe v. Reed, the U.S. Supreme Court will weigh the right to privacy under the First Amendment’s protection of freedom of speech and association against the need for open government and transparency in public elections. -DB

A former member of the Watsonville City Council and Planning Commission says that greater transparency is needed in expenditures and city contracts especially in legal and consulting services. -DB

Register-Pajaronian
Opinion
January 16, 2010
By Emilio Martinez

While walking the districts these past few weeks I had some long-term Watsonville residents use the word “corrupt” numerous times when talking about how severely Watsonville has deteriorated in the past 15 years. I don’t know about corruption, but after almost two years on the Planning Commission and a little more than a year on the City Council, I can attest, without a doubt, that political cronyism has reduced Watsonville to a second-class citizen in a predominately first-class neighborhood.

Cronyism, through peer pressure and underhanded tactics, limits some people in office from expressing contradictory views and opinions.

I have to admit, I almost considered being a crony because it’s easier than being treated like Michael Vick at an American Kennel Club convention. But I just couldn’t do it, especially because it was becoming clearly transparent to me that Ralph M. Brown (Act) would spin in his grave if he saw our city government in action. About a year ago when we were amid budget cuts, I asked for copies of invoices submitted by our city attorney.

I wanted to determine if legal expenditures could be reduced. You would have thought I had asked for client-privileged information, which was the very reason cited by our city attorney in recommending to the City Council that they deny my request for these public records.

Oh, OK, you want me to approve your recommendation on how to proceed in a legal matter, but you don’t want me to know how much and what you charged me for? Before that, I was told by our city manager that it would cost the city too much money in staff time and materials to provide me copies. Well, how much did our city pay our city attorney to write that legal opinion? I bet it was more than $70, which is what the city can legally charge to photocopy 200 pages.

On March 19, after being a consistent pain in the ash can, I received a two-page letter from our city clerk. She wrote and cited the Public Records Act, like a seasoned attorney, and included 49 pages of the California Government Code. She let me know that I could receive copies of the invoices, but they would be redacted because “only portions of the invoices which are defined as public records by the Public Records Act are being released.”

Great, let me see them, finally. Well, you wouldn’t believe it, but our city attorney has been approving payment for his own invoices without any oversight, none whatsoever, since probably Day One.

Yep, he stamps and signs his own invoices for approval of payment, then forwards them directly to our city finance director, who then issues our city attorney a check. So, our finance director can see client-privileged information (unlike the council member who approves recommended legal actions) and issues checks to our city attorney without knowing what the City Council approved, as he is not privy to closed-door sessions.

When I brought this fact to the attention of our City Council, the members reconsidered their options with, I assume, the assistance of our city attorney. They finally agreed that I could view the invoices during working hours at the city clerk’s office, under her watch. So, if I was working 8 to 5, let’s say in Salinas, when would I get to see these records?

Elected officials and city staff “working together” is not working in Watsonville. Our city government will not be able to address the escalation of unemployment rates to Depression-era numbers, and increasing gang-related crimes if it does not also “work together” with our citizens. Transparency in expenditures and city service contracts, including consulting services and costs for legal services, is a necessity because governments that are not transparent are usually perceived by citizens as being corrupt. Many of us still recall Measure E, which was the taxpayers’ warning to the city that they did not trust it with their dollars. Measure C knocked the door completely off its hinges, leaving little doubt that taxpayers have little, if any, faith in our local government with their money — and rightfully so.

This recession will hopefully set new standards on how cities conduct business. Transparency and accountability should be taken to a higher level. Election season is around the corner and at least four City Council seats will be available. I hope that those who are planning on running for a seat are willing to put in more time than just television appearances, that they bring some business expertise to the table, and a back bone. Otherwise, expect to be reduced to a crony faster than you can say “Yes” to staff recommendations.

Emilio Martinez is a Watsonville resident and the City Council representative for District 6. The opinions of columnists are not necessarily those of the Register-Pajaronian.

Copyright 2010 News Media Corporation

Nov 6, 2009—In a case filed by the First Amendment Coalition, the Modesto Bee and the California Newspaper Publishers Association, a California Superior Court has ruled that county governments, upon request, must disclose–by name–their retirees’ pension payments.

The Superior Court for Stanislaus County reasoned that the public interest in access to government employees’ pensions outweighs the public interest in protecting the confidentiality of that information.

In 2007 the California Supreme Court ruled that government employees’ salaries–including employee names–are public records that must be disclosed under the Public Records Act.  Since then, governments have split on the issue of access to the pensions of government retirees. Yesterday’s Superior Court decision is the result of litigation undertaken to clarify that pension information must be made public.

To access a copy of the Superior Court’s decision in Modesto Bee v. Stanislaus County Employees’ Retirement Association, go here. FAC and the other petitioners are represented by Karl Olson of Ram & Olson in San Francisco. (Olson is also on FAC’s Board of Directors.)

While acknowledging that a plaintiff had no right to keep pension records private, a Superior Court judge ruled that the plaintiff’s concern about her privacy was legitimate and dismissed a motion for attorney fees brought by media concerns. -DB

Metropolitan News-Enterprise
September 8, 2009
By Steven M. Ellis

An action by a group of newspapers against a retired Contra Costa deputy sheriff who filed suit to block release of her pension information was a strategic lawsuit against public participation, a Contra Costa Superior Court judge has tentatively ruled.

Holding that the newspapers’ complaint against Donna Irwin arose from her protected First Amendment activities and was designed to suppress her rights, Contra Costa Superior Court Judge Henry Baskin on Thursday said he would grant Irwin’s motion to strike the action.

The Contra Costa Times, the Los Angeles Times and the California Newspapers’ Association—joined by the Howard Jarvis Taxpayers Association—sought to intervene after Irwin filed suit challenging the Contra Costa County Employees’ Retirement Association’s decision to comply with a public records request.

In a July 2 ruling, Baskin agreed with the would-be interveners’ argument that a county’s pension records are not exempt from disclosure under the Public Records Act, even though he dismissed their petition as untimely.

The controversy arose May 5, when the Contra Costa County Employees’ Retirement Association—which represents over 18,300 active county employees, retirees, beneficiaries and deferred members—issued a letter informing approximately 450 retirees that it had agreed to release information to the California Foundation for Fiscal Responsibility, a public pension watchdog group.

The decision came in the wake of the California Supreme Court’s 2007 ruling supporting disclosure of public employee salary information in IFPTE v. Superior Court 42 Cal. 4th 319.

Some of the state’s public employee pension systems—including the California Public Employees Retirement System, California State Teachers Retirement System, university and judicial retirement programs—have released, or agreed to release, pension information. But others have declined to do so, in part because the Supreme Court’s ruling did not specifically include retirees.

The Contra Costa County Employees’ Retirement Association’s letter indicated the association’s belief that the Public Records Act required compliance with the foundation’s request. The letter advised that disclosure would be made of “the name and monthly pension for each retiree and beneficiary whose gross monthly pension benefits exceeded $8,333 in any month in 2009 where the data is readily accessible.”

Irwin filed suit contending that the release of her pension information was an invasion of privacy, but the newspapers named Irwin as a defendant in a complaint to intervene, arguing that public employee defined benefit plans were matters of public concern not exempt from disclosure insofar as such plans are funded by taxpayer dollars.

Although Irwin moved to strike the complaint and its request for attorney fees under California’s anti-SLAPP statute, Baskin reasoned that the pension data sought was public record and denied Irwin’s request for a preliminary injunction blocking the information’s release.

The judge concluded that Irwin’s interest in avoiding disclosure was outweighed by the state’s “strong policy in favor of disclosure of public records” and the “strong public interest in knowing how the government spends its money.”

However, he ruled Thursday that his previous decision did not moot Irwin’s anti-SLAPP motion and granted the motion, reasoning that Irwin had shown the newspapers’ action arose from protected activity and that the newspapers could not show a possibility of prevailing.

Citing Navellier v. Sletten (2002) 29 Cal.4th 82, he explained:

“Filing a lawsuit is an exercise of a party’s constitutional right to petition for grievances. A claim for relief filed in court is ‘indisputably a statement or writing made before a judicial proceeding.’

…Thus, an anti-SLAPP motion lies to strike lawsuits that seek to penalize earlier litigation or to inhibit future litigation….It is hard to imagine a more heavy handed approach to litigation than an unfounded claim for attorneys fees directed to a person with a genuine concern about her privacy.”

The case is Irwin v. Contra Costa County Employees’ Retirement Association, MSC09-01478.

Copyright 2009, Metropolitan News Company

University officials claim that a law forcing disclosure financial dealings of nonprofit university foundations serving state institutions would be too costly. Open government advocates say that recent expenditures, illegal or questionable, show the need for disclosure. -DB

Capitol Weekly
August 13, 2009
By Maryam Ali

Free-speech groups are trying to force the state’s public universities to disclose financial relationships worth more than $6.25 billion. At issue are scores of nonprofit foundations linked to the schools. The University of California and the California State University say unveiling the finances would cost millions of dollars in staff time.

The quest for details of the nonprofits’ money – where the money comes from and how it is spent – follows a series of disputed financial transactions at schools across the state.

For example, the Sonoma State University Academic Foundation’s $1.25 million loan to former board member Clem Carinalli has come under scrutiny.  Also last month, Philip Day Jr., former chancellor of City College of San Francisco, faced eight felony counts and one misdemeanor count related to the misappropriation of $150,000 of public money.

University officials estimate that enactment of legislation that would force disclosure would cost $6.6 million and force a commensurate reduction in funds for campus programs and services.

The cost stems from the amount of time that the staff would spend responding to requests submitted under the Public Records Act (PRA), as well as any necessary legal action that they say would cost a minimum of $50,000 per court case.

But one of the Legislature’s foremost critics of UC’s governance is not convinced. Sen. Leland Yee, D-San Francisco, has authored legislation, SB 218, that would force the universities and their nonprofits to disclose their finances.

At stake is big money.

Currently, CSU has 89 auxiliaries or foundations with net operating revenues of $1.25 billion. UC’s annual reports show around $5.01 billion spread throughout 10 primary foundations on each campus and around 250 support groups.

Jim Ewert, legal counsel for the California Newspaper Publisher’s Association and a proponent of the bill, said that the Legislature does not know the details of how that money is being used. “When they’re making determinations as to what should be cut at the CSU or the UC, this is hidden money. They’re not able to make an informed decision.”

Universities and colleges argue that PRA provisions will not make available any new information to the public.

“It is an exercise in futility,” said Geoff O’Neill, assistant vice president of institutional advancement at the UC. “The concern is that it will stifle the ability to discuss issues of great importance to the university due to fear that there’s going to be a PRA report on notes related to the discussion.”

O’Neill said the objective of the bill is unclear since there is no financial information that is not public. In addition to filing yearly tax returns, which are publicly available, all UC foundations have annual audits conducted by an international accounting firm, PriceWaterhouseCoopers. He added that he is unaware of any instance where information requested, related to university activities, has not been provided.

The CSU too said that revenues and expenditures of their auxiliaries are public under current state and federal law. The Humboldt State University Advancement Foundation, for example, post annual financial reports on its website.

“What we’re doing is opening up a whole Pandora’s box of requests without anything really of substance that would be added to the public’s knowledge of what the university is doing,” said O’Neill.

The disclosure problem arises in part when the foundations hold money in between disbursing scholarships. “They are acting like a bank,” said Alice Sunshine, communications director at the California Faculty Association.

In some cases, the foundations are responsible for determining appropriate investment methods for money collected from donations until it is ready to use for their non-profit purpose. Giving out personal loans, Sunshine said does not fit the category. “Outstanding loans from the 90s for a scholarship fund? It’s starting to look really ugly, that’s a favor for a buddy.”

Sunshine said that the lack of openness leaves bad situations brewing until they are circumstantially discovered.

Too many disputes, including Sacramento State University  President Alexander Gonzalez’s low-interest loan in 2007, come to the forefront coincidentally.

In one instance, a reporter following a different money trail at the county tax assessor’s office found links to a university loan. In another, the discovery in a lawsuit brought by a rival cinema complex suing the university found an implicated trustee, and a student reporter following an assignment for class in a library records discovered Gonzalez.

“This isn’t right and we’ve only got a peak under the rug. You take very little public oversight and a billion dollars and put it together and you know it’s just the recipe for things to happen,” Sunshine said.

“We have seen too many incidents of sweetheart contracts and sweetheart deals. Enough is enough. We’ve got to clean this entire system up,” added Yee.

In the 2001 CSU Fresno v. Superior Court case, the court concluded that a nongovernmental auxiliary was not a “state agency.” However, the court said its conclusion was in “direct conflict with the express purposes of the CPRA (California Public Records Act),” to safeguard government accountability, and suggested that the Legislature close the loophole in existing law.

Although the addition of Prop 59 in 2004 set up a framework to analyze ambiguities in public access cases, the argument remains over whether preemptive measures should be taken.

The 2001 Fresno State case surrounding the basketball arena serves as an example of abuse, contends Ewert. Being used for noneducational purposes such as concerts, the arena was assessed at a higher rate. The same association that argued to be exempt from the PRA, then argued that as a public building operated by a public entity, the arena should be exempt from higher prices.

O’Neill said that it is difficult to argue against the concepts of transparency and accountability that surround the bill, especially when the university embraces those values as well. Compensating UC individuals from any of the organizations is however strictly prohibited under UC guidelines, something that would remain unaffected by the bill.

The CSU and UC say they are concerned that the bill stands as a potential barrier to attracting and retaining important volunteers and donors.

Rather than determining whether the clause actually address all concerns, O’Neill said that individuals would be more inclined to donate to a private institution where they do not have to worry about their anonymity. “You just don’t have the assurance that you would if this wasn’t the situation at all.”
The bill was passed in the Senate 35 to 1 and received no opposition in the Assembly.

“Whenever you’re’ taking on the UC and CSU you know you’re taking on a rather powerful lobbying institution,” said Yee referring to the institutions influence in the legislature. “Unfortunately, sometimes their power does in fact outweigh the public interest.”

Copyright 2009 Capitol Weekly

The California Supreme Court ruled in 2007 that names and salaries of government employees are public record but did not specifically mention retirees. A Contra Costa judge has now ruled that that records of county’s pension funds must be disclosed. -DB

Metropolitan News-Enterprise
July 15, 2009
By Sherrim M. Okamoto

A county’s pension records are not exempt from disclosure pursuant to the Public Records Act, a Contra Costa Superior Court judge has ruled in what is believed to be the first legal challenge to the release of such data after the California Supreme Court held in 2007 that the names and salaries of government employees are public record.

In wake of the high court’s 2007 ruling on public employee salary disclosure in IFPTE v. Superior Court (2007) 42 Cal. 4th 319, some of the state’s public employee pension systems—including the California Public Employees Retirement System, California State Teachers Retirement System, university and judicial retirement programs—have released, or agreed to release pension information, but others have declined to do so, in part, because the court’s ruling did not specifically include retirees.

On May 5, the Contra Costa County Employees’ Retirement Association—which represents over 18,300 active county employees, retirees, beneficiaries and deferred members—issued a letter informing approximately 450 retirees that it had agreed to release information to the California Foundation for Fiscal Responsibility, a public pension watchdog group.

Public Records Act

The letter stated the retirement board’s belief that it was required to comply with the foundation’s request under the Public Records Act and that it would disclose “the name and monthly pension for each retiree and beneficiary whose gross monthly pension benefits exceeded $8,333 in any month in 2009 where the data is readily accessible.”

One recipient of this letter was retired Contra Costa County Deputy Sheriff Donna Irwin. She filed suit against the county retirement board contending that the release of her pension information was an invasion of privacy and sought a preliminary injunction to block the county agency from complying with the request.

The Howard Jarvis Taxpayers Association, Contra Costa Times, Los Angeles Times, and California Newspaper Publishers Association intervened in the case, arguing that public employee defined benefit plans were matters of public concern as such plans are funded by taxpayer dollars.

Contra Costa Superior Court Judge Barry Baskin agreed in a July 2 ruling denying Irwin’s motion for a preliminary injunction.

Irwin had “not shown why access to pension information is any different from access to salaried information,” Baskin said, adding that the statutory definition of “public record” is broad and intended to cover “every conceivable kind of record that is involved in the governmental process.”

Reasoning that the pension data sought was therefore public record, Baskin concluded that Irwin’s interest in avoiding disclosure was outweighed by the state’s “strong policy in favor of disclosure of public records” and the “strong public interest in knowing how the government spends its money.”

Case Law

In support of his findings, Baskin cited Montana and Colorado cases which permitted disclosure of public pension amounts under similar statutes and emphasized that a “transparent government is the cornerstone of our democracy.”

Marcia Fritz, vice president of the California Foundation for Fiscal Responsibility, told the MetNews yesterday that Contra Costa County had not yet released the requested pension information to her organization, but that data from Marin County was received yesterday pursuant to a similar request.

“We’re optimistic that others will follow,” she said, but “if we don’t get the information from the larger counties, like San Francisco, Orange County, Los Angeles, Sacramento, San Diego, we’re going to have to one by one have to pursue getting the records.”

Tim Bittle, director of legal affairs for the Howard Jarvis Taxpayers Association—which bills itself as California’s oldest and largest nonprofit statewide taxpayer organization—yesterday maintained that the disclosure of public records “is an important thing, all the time,” but the issue regarding pension data was “particularly timely” in light of the current fiscal crisis.

“We’re trying to raise awareness about the public cost of public employee retirement,” he said, maintaining that changes to the pension system were a viable way to save money to help state and local governments balance their budgets.

Counsel for Irwin—Matthew P. Guichard, William L. Portello and Erika Portillo of Concord-based Guichard, Teng & Portello—said that they will not appeal Baskin’s ruling.

But Portello predicted that another privacy challenge was likely down the line because some of the Penal Code’s protections for peace officer information may conflict with the retirement board’s disclosure of data.

“Ultimately its going to end up in a higher court,” he said. “But that’s another fight for someone else another day.”

Educational Purposes

Fritz disputed the need to treat peace officers any differently from other pensioners. “We never ask for any addresses or phone numbers or any information on the status of their retirement,” she insisted, explaining that her group’s purpose in seeking pension data is “to educate and inform the public on the level of benefits,” as “most people have no idea how high these pensions are.”

Portello countered that Irwin, who retired over 18 years ago, was not receiving a pension of public funds, but mostly comprised of monies paid by her election during her employment.

“It’s essentially like a 401(k),” Portello said, opining that a retirement board with the resources for a legal battle was likely to raise the argument that data pertaining to pensioners whose benefits are being funded by withholdings they had made is not public record. “Marin and Contra Costa are the only two taking the position that these are public records,” he said.

The attorney also disclosed that the Contra Costa Times had filed a claim for a writ of mandate and an award of attorney fees against Irwin, and she had responded with a demurrer and anti-SLAPP motion.

“We’ll be seeing how that will shake out in the next month or so,” he said.

The case is Irwin v. Contra Costa County Employees’ Retirement Association, MSC09-01478.

Copyright 2009, Metropolitan News Company