Court ruling in CalPERS lawsuit threatens to gut California’s public records law

This commentary was first published by the San Diego Union-Tribune

It is going to be much easier for California governments to hide their affairs from the public if the legal standard put forth in a recently issued Sacramento County court ruling is upheld.

Last year, our organization filed a public records lawsuit against CalPERS, the state’s largest public pension system, after the agency refused to disclose records identifying whether a public pension is of either a “service” or “disability” classification.

The requested one-word identifier is something that is routinely released by two dozen other California pension funds, as well as public pension funds in other states like Oregon and New Jersey.

Disclosure of such information would assist in detecting disability fraud, which has cost taxpayers untold millions, while also better informing the public of how the system actually works. Contrary to the claims made by the unions arguing against disclosure, one need not be genuinely disabled to collect a disability pension, and the system explicitly recognizes that those collecting a disability pension can return to employment elsewhere, subject to certain conditions.

In fact, there are around 600 CalPERS members currently collecting disability benefits while continuing to work, and that just reflects those working for governments enrolled with the state retirement system. There are many others who work either in the private sector or for a public employer with a different pension plan, like the former Oakland police officer who has been receiving a CalPERS disability benefit since the age of 31, despite working full-time as an FBI special agent.

Even if this is somehow legal — and the fact that he is still collecting that benefit suggests it is — the taxpayers footing this cost deserve accurate information about how the system really works. The whole point of California’s public records law, after all, is that taxpayers are entitled to see what the government is actually doing, rather than just blindly accepting the narrative put forth by the agency.

Nonetheless, a Sacramento County Superior Court earlier this month sided with CalPERS and declared the requested information to be exempt from disclosure.

But it is how the court reached this conclusion that should alarm all those who believe in a transparent and open government.

California’s public records law generally requires the disclosure of all records that are not otherwise expressly declared confidential by statute.

No statute makes the requested one-word identifier confidential, but medical records and other sensitive information filed by an employee with CalPERS to support their claim of disability are exempt from disclosure pursuant to California Government Code 20230.

In ruling against disclosure, the court held that because CalPERS assigns the pension classification after reviewing an individual’s medical records, disclosing that determination would be “tantamount” to disclosing the underlying medical records.

It is this part of the court’s ruling that could end up gutting California’s public records law.

Adopting this standard — that records of governmental actions are secret if the agency reviewed confidential information in the decision-making process — will allow governments across the state to hide their affairs in secrecy, particularly those records that are of the greatest public interest, like audits or investigations into misconduct.

Imagine trying to get records related to allegations of sexual harassment by government officials. Any such records, even just the final report that simply summarized the investigation’s topline findings, would now be cloaked under a veil of secrecy, merely because the report drew upon other truly confidential records like the detailed interviews between the alleged suspect or victim of the harassment.

In fact, it’s hard to think of any record that wouldn’t be made confidential under this standard. Want to know how long a public employee has been working for your local government agency? Well, that information would require drawing from their confidential personnel file, and, according to this standard, would be tantamount to disclosing the personnel file itself.

Californians were acutely aware of the harm that would come from allowing governments to expand confidentiality provisions far beyond their plain text and intent, which is why 83 percent of voters approved a constitutional amendment in 2004 that requires courts to construe “narrowly” all statutes that limit access to public records.

It is imperative that the Court of Appeals uphold this constitutional mandate and reverse the dangerous precedent established by the trial court, so that Californians’ fundamental right to a transparent and open government is fully protected, as voters intended.

Fellner is executive director of Transparent California — the state’s largest public pay and pension database — where he has made or overseen more than 10,000 public records requests to over 2,500 unique California governments.