An excellent article on our CalPERS lawsuit was published today by the Orange County Register. The article puts the issue of disability fraud in context, and provides a great overview of our lawsuit and its potential implications.
If you are not familiar with the case, you should read their article first in order to better understand the context of the following analysis.
I am going to discuss briefly only the legal aspects of the case, which is a tiny example of a much larger trend: the judiciary’s increasing reluctance to perform their constitutional role of ensuring government follows the law.
The California Constitution was amended in 2004 to declare access to public records a necessary and fundamental right. To further this right of access, the Constitution requires that:
A statute, court rule, or other authority shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.
We made a public records request to CalPERS for records documenting the type of pension received by a member. For example, whether Joe Smith received a “service” pension or a “disability” pension.
In holding that the requested one-word pension type identifier was confidential, the district court cited California Government Code Section 20230.
The relevant part of that statute declares that “Data filed with the board by any member, retired member, beneficiary, or annuitant is confidential.”
As a matter of basic statutory interpretation, the data we requested is not made confidential pursuant to this statute, as it is data created by CalPERS, rather than data filed by a CalPERS member.
So how did the Court justify making pension type secret?
“The Court also finds that identifying which retirees are receiving disability retirement benefits is tantamount to disclosing information provided by those retirees and their physicians to CalPERS to support the claim of disability, which, again, is made confidential by section 20230.”
As a factual matter, this claim is false.
Disclosing that Joe Smith is receiving a disability pension is not the same as disclosing copies of his medical records and other files provided to document the disability. The former tells you nothing about the nature of the disability, the latter tells you everything. These categories of information, as a matter of basic reality, are in no way equivalent.
Furthermore, this kind of reasoning is explicitly prohibited by the 2004 amendment to the California Constitution.
Applying a statute that makes confidential only information filed by a member to encompass other, additional categories of information is, by definition, a broad interpretation of that statute.
In other words, there is no way to comply with the California Constitution and interpret Section 20230 narrowly, and still reach the result that it makes secret additional categories of information beyond just “data filed with the CalPERS board by a member.”
For our system of government to have legitimacy, courts must faithfully follow the rules set forth in the Constitution. We hope the 3rd District Court of Appeal will do just that.