San Diego Cnty. Emps. Ret. Ass'n v. Superior Court of San Diego Cnty.

• Decision Date: 28 June 2011
• Docket Number: No. D058962.,D058962.
• Citation: 11 Cal. Daily Op. Serv. 8049,127 Cal.Rptr.3d 479,196 Cal.App.4th 1228,2011 Daily Journal D.A.R. 9605
• Court: California Court of Appeals Court of Appeals
• Parties: SAN DIEGO COUNTY EMPLOYEES RETIREMENT ASSOCIATION, Petitioner, v. SUPERIOR COURT of San Diego County, Respondent; California Foundation for Fiscal Responsibility et al., Real Parties in Interest.

196 Cal.App.4th 1228

127 Cal.Rptr.3d 479

11 Cal. Daily Op. Serv. 8049

2011 Daily Journal D.A.R. 9605

SAN DIEGO COUNTY EMPLOYEES RETIREMENT ASSOCIATION, Petitioner,

v. SUPERIOR COURT of San Diego County, Respondent;California Foundation for Fiscal Responsibility et al., Real Parties in Interest.

No. D058962.

Court of Appeal, Fourth District, Division 1, California.

June 28, 2011.

Duckor Spradling Metzger & Wynne, San Diego, Scott L. Metzger, Robert M. Shaughnessy; Crowell & Moring, Steven P. Rice, Irvine, and Ethan P. Schulman, San Francisco, for Petitioner.

James G. Line, Visalia, for Sacramento County Employees' Retirement System as Amicus Curiae on behalf of Petitioner.

Law Office of Michael A. Conger and Michael A. Conger, Rancho Santa Fe, for California County Retired Employees Association and Retired Employees of San Diego County as Amici Curiae on behalf of Petitioner.

Robert S. Van Der Volgen, Jr., Michael D. Herrera and Christine Roseland for Los Angeles County Employees Retirement Association as Amicus Curiae on behalf of Petitioner.

No appearance by Respondent.

Trevor A. Grimm, Los Angeles, Jonathan M. Coupal and Timothy A. Bittle, Sacramento, for Real Parties in Interest.

Meriem L. Hubbard and Harold E. Johnson, Sacramento, for Pacific Legal Foundation and Fullerton Association of Concerned Taxpayers as Amici Curiae on behalf of Real Parties in Interest.

Ram, Olson, Cereghino & Kopczynski and Karl Olson, San Francisco, for California Newspaper Publishers Association; McClatchy Newspapers; Bloomberg News; San Diego Union–Tribune; First Amendment Coalition; Los Angeles Times Communications; Gannett Co., Inc.; Associated Press; California Aware; The Reporters Committee for Freedom of the Press; Freedom Communications; Reuters; and Center for Investigative Reporting as Amici Curiae for Real Parties in Interest.

McCONNELL, P.J.

San Diego County Employees Retirement Association (SDCERA) seeks a writ of mandate to overturn the trial court's order granting the petition of California Foundation for Fiscal Responsibility (CFFR) and Marcia Fritz ¹ under the California Public Records Act (the Act) ( Gov.Code, § 6250 et seq.) ² to compel the disclosure of the names of retirees who in any month in 2010 received $8,333 or more in pension benefits, the pension amounts, and how they were calculated. SDCERA contends the records are statutorily exempt from disclosure, and alternatively, on balance the interests of retirees in privacy outweigh the public's interest in disclosure. In line with the Third District Court of Appeal's recent opinion in Sacramento County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 125 Cal.Rptr.3d 655( SCERS ), we find no error and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

SDCERA, which administers the retirement system for San Diego County employees, is governed by the County Employees Retirement Law of 1937 (CERL). (§ 31450 et seq.) Annually, SDCERA is required to file with the county auditor's office and the board of supervisors a sworn statement that shows its financial condition and financial transactions for the year. (§ 31597.) SDCERA is also required to “keep records and accounts” on accumulated member contributions and annuity payments to members derived from the contributions. (§§ 31599, 31457.) SDCERA maintains a Web site on which it publishes annual financial reports and data on pension benefit ranges and the number of retirees in each range. The Web site does not reveal the names of retirees or other identifying information.

CFFR is a nonprofit entity that seeks to educate government decision makers and the public on public employee pension benefit issues. Fritz is the vice president of CFFR. In July 2010 CFFR asked SDCERA to disclose the names of retirees whose gross monthly pension benefit exceeded $8,333 in any month in 2010, the gross monthly benefit for each of them, the last employing agency, and the worksheet or other record used to calculate the benefit. SDCERA refused to provide the records.

CFFR then filed a petition for writ of mandate in the superior court, seeking an order compelling SDCERA to disclose the records. In opposition, SDCERA argued it is prohibited from disclosing the records under section 6254, subdivision (k), a provision of the Act, and section 31532, a provision of CERL.³Section 6254, subdivision (k) exempts from disclosure records protected by state or federal law. Section 31532 provides, “Sworn statements and individual records of members shall be confidential and shall not be disclosed....” (Italics added.) In SDCERA's view, the records sought fall within the italicized language.

Alternatively, SDCERA argued that on balance the records are protected under section 6255, subdivision (a), a provision of the Act, because retirees' privacy interests are greater than the public interest in disclosure. SDCERA presented evidence that the majority of top paid retirees strongly object to the disclosure of their names, and expert opinion that the disclosure of their names could expose them to fraudulent activity. SDCERA accused CFFR of seeking the names of retirees to post them on the “$100,000 Club” list on its Web site.

In a tentative ruling, the court granted CFFR's petition in part by ordering the disclosure of first names of retirees, but only the first letter of their surnames. At the November 1, 2010 hearing, CFFR argued SDCERA's evidence on potential crime was immaterial because CFFR would not publish the names of county retirees on its “$100,000 Club” list. CFFR also argued that SDCERA's own evidence showed that opportunists can obtain retiree names and financial information from other sources.

The court asked the parties whether it could make a lawful order prohibiting CFFR from publicizing retiree names, and they answered in the affirmative. CFFR acknowledged, however, that it could not guarantee that the names would not become public in some other manner. CFFR pointed out that once it establishes the records are public records, newspapers may seek them as well. The court took the matter under submission.

On November 2, the court issued an order granting CFFR's petition. The court found that while SDCERA submitted substantial evidence of potential harm to retirees, the evidence did not outweigh the public interest in disclosure. The court found that by accepting public employment, retirees have a reduced expectation of privacy in their overall compensation packages. The order compels SDCERA to disclose the full names of retirees and their pension amounts “with the proviso that neither CFFR nor Fritz may publish the surnames of the SDCERA retirees on any internet page or other publicly available site.” The order also requires SDCERA to disclose for each retiree a computer-generated document, titled “Disability Retirement Calculation Summary Final,” “in redacted form,” to “provide CFFR with the information it needs to check for ‘unearned service credit, unwarranted reclassifications ... and excessive pension amounts due to ... simple miscalculation.’ ” The order requires SDCERA to redact retiree dates of birth, Social Security numbers, and names of financial institutions and “medical programs.”

SDCERA moved for reconsideration under Code of Civil Procedure section 1008. SDCERA now argued the Act did not allow for the disclosure of records on the proviso CFFR not publicize them. SDCERA submitted that the court's question during the hearing as to the propriety of such an order took it by surprise, and “SDCERA now understands that the Order is not authorized” by the Act and “is inconsistent with controlling statutory and case authority which holds that once a particular document has been held to be a public record subject to disclosure under the [Act], it must be made available to any individual who seeks its disclosure.”

In a tentative ruling, the court granted the motion for reconsideration but reaffirmed its November 2, 2010 order. After a hearing, the court confirmed its tentative ruling. Judgment and a peremptory writ of mandate were entered on November 30, 2010. The court stayed enforcement pending SDCERA's petition for writ of mandate to this court.

DISCUSSION

I

Overview of the Act

The California Supreme Court has explained: “Openness in government is essential to the functioning of a democracy. ‘Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.’ [Citation.] In adopting the Act, the Legislature declared that ‘access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.’ (§ 6250.) As a result of an initiative adopted by the voters in 2004, this principle is now enshrined in the state Constitution: ‘The people have the right of access to information concerning the conduct of the people's business, and therefore, ... the writings of public officials and agencies shall be open to public scrutiny.’ (Cal. Const., art. I, § 3, subd. (b)(1).)” ( International Federation of Professional & Technical Engineers, Local 21, AFL–CIO v. Superior Court (2007) 42 Cal.4th 319, 329, 64 Cal.Rptr.3d 693, 165 P.3d 488 (Local 21 ).)

In promulgating the Act, the Legislature balanced a person's right to privacy with the right to know about the government's conduct of business. ( New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1584, 268 Cal.Rptr. 21;§ 6250.) “At the heart of the [Act] is the declaration that ‘every person has a right to inspect any public record, except as hereafter provided.’ (§ 6253, subd. (a).) In other words, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.” ( Williams v. Superior Court (1993) 5 Cal.4th...