Opinion
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
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; see § 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.
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
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” fist. 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 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
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 the 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)
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)
Specific exemptions from disclosure are enumerated in section 6254. For instance, the Act protects the confidentiality of “[personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” (§ 6254, subd. (c).) In Local 21, supra,
Additionally, as is pertinent here, the Act includes an exemption for “[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 pertaining to privilege.” (§ 6254, subd. (k).) “ ‘[T]his exemption “is not an independent exemption. It merely incorporates other prohibitions established by law.” ’ ” (County of Santa Clara v. Superior Court (2009)
Also relevant is section 6255, subdivision (a), which provides: “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” The first clause relates to the exemption of section 6254, subdivision (k). The second clause is a “broad catchall exemption” that “contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” (Michaelis, Montanari & Johnson v. Superior Court (2006)
II
Section 31532 Does Not Exempt Disclosure
SDCERA contends section 6254, subdivision (k) of the Act exempts from disclosure the names of retirees linked to their benefit amounts because the
SDCERA cites Black’s Law Dictionary’s definition of the adjective “individual,” which is, “Of or relating to a single person or thing, as opposed to a group.” (Black’s Law Dict. (8th ed. 2005) p. 642.) SDCERA asserts that the “connection of a unique retirement benefit amount to a specific individual name plainly constitutes an individual record of that member. Any person would consider his or her individual retirement allowance to be an individual record and would reasonably expect that such information would be kept confidential by the terms of section 31532.”
The trial court did not reveal its reasoning on the statutory issue, but it is one of law subject to our independent review. (Leader v. Cords (2010)
Section 31532 does not define the term “individual records of members.” Contrary to SDCERA’s position, the term does not plainly include records a retirement system creates for purposes of conducting the governmental function of calculating and paying out monthly pension benefits. An ambiguity exists when statutory language is “susceptible of more than one reasonable interpretation.” (Murphy v. Kenneth Cole Productions, Inc. (2007)
The legislative history of section 31532, however, is sparse and does not resolve the ambiguity.
CFFR cites a 1977 Attorney General opinion in which the Attorney General concluded that under section 31532 retiree names and benefit amounts are subject to disclosure by a county controller who used the information to issue warrants. (County Payroll Records as Public Records,
SDCERA asserts the 1955 and 1977 Attorney General opinions are inapplicable because they concern disclosure by a controller rather than by a
In the 1955 opinion, however, the Attorney General concluded that the roll of names and benefit amounts created by a retirement system is not an individual record of a member exempt from disclosure. It explains: “Examples of information guarded by section 20134 are addresses of members and beneficiaries, statements as to age and disability, names of relatives and dependents, retirement option elections and similar matters. Utilizing such guarded information, the Retirement System calculates the monthly payment due each beneficiary. It then makes up and certifies to the Controller a monthly claim, supported by a roll which bears the names of individual payees and the amounts of individual payments. . . . The roll is used by the Controller as the basis for drawing individual warrants in favor of the individual payees. This roll is not ‘data filed by any member or beneficiary, ’ nor is it an ‘individual record. ’ Rather, it is a composite document which is the written act or record of the act of a public officer. [Citation.] Thus the roll is outside the limited class of records guarded by section 20134 and within the larger category of public records. In our view, therefore, the names and amounts shown on the roll are open to public inspection. Consequently, the identical information shown in the Controller’s warrant records is also open to inspection by citizens of the State.” (State Employees’ Retirement Act, supra,
SDCERA cites a 1956 Attorney General opinion, which concluded former section 20134 (currently § 20230) exempted from disclosure by what is now known as CalPERS (California’s Public Employees’ Retirement System) the “amount and detail of calculation of the service or disability retirement allowance payable to a retired person,” and related information. (State Employees’ Retirement System,
SDCERA attempts to distinguish the 1955 and 1977 Attorney General opinions on the ground they pertain to whether information in a controller’s possession is exempt. We find no logic, however, in exempting the roll from disclosure depending on what entity maintains it, and SDCERA offers no cogent reason for such a distinction. Records are either exempt or nonexempt. In Commission on Peace Officer Standards & Training v. Superior Court (2007)
SDCERA asserts the legislative history of former section 20134 shows by analogy that the “individual records of members” language of section 31532 exempts member names and benefit amounts.
We are persuaded the amendment to former section 20134 was a clarification of existing law. Thus, contrary to SDCERA’s assertion, the lack of a similar amendment to section 31532 does not signify the Legislature’s intent to exempt from disclosure the identical records maintained by county retirement systems. We conclude the term “individual records of members” in section 31532 cannot reasonably be interpreted to include the records CFFR seeks, which SDCERA creates and uses to facilitate the periodic payment of pension benefits. The court in SCERS came to the same conclusion for many of the same reasons. (SCERS, supra, 195 Cal.App.4th at pp. 4S4-467.)
in
The Court Correctly Balanced Competing Interests Under Section 6255, Subdivision (a)
Alternatively, SDCERA contends the court erred under section 6255, subdivision (a), by balancing the competing interests in favor of disclosure of retiree names linked to their pension amounts.
Generally, “individuals have a legally recognized privacy interest in their personal financial information.” (Local 21, supra,
We conclude that likewise, public employees lack a reasonable expectation of privacy in an expense the public largely bears after their retirement. In SCERS, supra,
Additionally, in opposition to SDCERA’s motion for reconsideration, Fritz submitted a declaration that states: “Without surnames, petitioners cannot obtain information about a retiree’s employment history, including past employers, past salaries, or years of employment. Without this information it is impossible to determine whether the person’s pension is correctly or unfairly calculated.” The declaration also states, “By comparing pensions to salaries and employment history for named individuals, I have exposed several cases of pension abuse.” The declaration gives the following examples:
“1. Pension spiking: In Contra Costa County, salaried employees were allowed to use overtime credits in lieu of vacation and sick leave, accumulate their ‘unused’ vacation and sick leave, then sell it all back to the County in the year they retired in order to boost their final year’s compensation. As examples, the San Ramon fire chief retired at age 51 with an annual pension of $284,000 even though his final salary was $221,000. The Moraga Orinda fire chief retired at age 50 with an annual pension of $241,000 even though his final salary was $185,000.
“2. Unearned service credits: Because of a deal with CalPERS, which is the retirement system for California's community colleges, K-12 teachers, who are members of the California State Teachers Retirement System . . . can*1244 double their years of service credit by teaching one community college class per trimester (Fall, Spring, Summer) or three classes in the Summer session per year. In other words, a teacher who fills her Summer by teaching three classes at the community college, can retire after 25 years with a pension calculated as if she worked 50 years.
“3. Double dipping: The head of the California Department of Forestry (CDF) was appointed by Governor Schwarzenegger on June 26, 2004, at an annual salary of $108,753. He retired from CDF on December 2, 2005, and then took a job as the fire chief for the City of Beverly Hills. He retired (again) on October 27, 2007—22 months later, and receives a pension of $227,325. He also receives a federal pension from service in the Navy and the U.S. Department.
“4. Excessive compensation: The retired city manager of Vernon receives an annual pension of over $500,000 in a city with fewer than 100 residents.”
The evidence amply supports the court’s finding that CFFR has a legitimate interest in the information and does not seek it merely because it wishes to embarrass top paid retirees or expose them to ridicule. The public is, of course, interested in knowing the total amount of pension payments, but it also has a legitimate interest in knowing how pensions are calculated. The Act’s core purpose is to prevent secrecy in government and contribute significantly to the public understanding of government activities. (City of San Jose v. Superior Court (1999) 74 . Cal.App.4th 1008, 1016-1017 [
SDCERA also asserts the balance tips in favor of retirees’ privacy interests, based on evidence that disclosure could subject them to harm. SDCERA
The Reyes declaration adds: “While the creativity of [criminals] is wide-ranging, there is no question that the ability to easily locate a list of older people with substantial incomes is of enormous value to perpetrators of financial fraud on the elderly and would create windows of opportunity for those persons, and will subject the persons whose identities are disclosed to an increased risk of financial fraud and other criminal activity.” The declaration cautions that some of the information sought will reveal disabilities, and “elderly persons who suffer from disabilities are often more vulnerable than those elderly persons who enjoy relatively good health.”
SDCERA also submitted a declaration by Paul Greenwood, a deputy district attorney for San Diego County who headed an elder abuse prosecution unit, had testified as an expert, and had helped draft elder abuse legislation. The declaration states: “[Criminals scour public records looking for their target victims. Sometimes, the information is gained from obituaries or advertisements placed in newspapers or internet mediums such as Craigslist. Crooks are actively seeking out public information that can identify age and economic resources of a potential victim.” The declaration also states elder abuse is on the rise because of the economy, and, “In my opinion, the disclosure of the identities of retired members of [SDCERA] who receive retirement benefits equal to or greater than $100,000 per year would place these persons at a significantly increased risk of victimization by those persons who prey on the elderly.” CFFR submitted no countervailing evidence.
The court found the declarations constitute substantial evidence of potential harm, a relevant factor in the balancing test under section 6255. (Connell v. Superior Court (1997)
Further, SDCERA presented no evidence of any actual adverse consequences from previous disclosures, another factor we may consider. (Local 21, supra,
SDCERA also argues that the court’s attempt to protect retirees from financial opportunists by ordering CFFR not to publicize retiree names is illusory, and the Act does not allow such an approach. SDCERA asserts that if it is required to disclose the records to CFFR, it is also required as a matter of law to disclose them to any other member of the public who may seek them. We agree with SDCERA’s assessment, but we affirm the court’s order for reasons discussed. As the court wrote in its order denying SDCERA’s motion for reconsideration, “Even if it is true, as contended by SDCERA, that the court overestimated the amount of protection it could lawfully provide to the retirees in the November 2 order, the fact remains that both the statutory language of the [Act] and the decisions interpreting it presuppose that disclosure of public records will be the norm. The burden to overcome this presumption is heavy.”
We also disagree with SDCERA’s assessment that retiree names are immaterial because pension benefits are vested, and thus no amount of
SDCERA’s reliance on Local 21 for the proposition that the Supreme Court has indicated a retiree’s pension benefit information is exempt from disclosure is misplaced. In the portion of Local 21 to which SDCERA refers, the issue was whether statutes applying to peace officers barred disclosure of their salaries. Under Penal Code section 832.7, subdivision (a), an officer’s “personnel records ... or information obtained from these records”. are confidential and shall not be disclosed. As is relevant here, Penal Code section 832.8 defines “personnel records” to include “any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following: [][] (a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. . . .” The union argued “that salary is ‘personal’ because it relates to the individual and because most persons view their salary as a private matter.” (Local 21, supra,
Penal Code section 832.8 also defines the term “personnel records” as including, “Election of employee benefits.” (Pen. Code, § 832.8, subd. (c).) Regarding this exemption, Local 21 added: “Absent unusual circumstances, an employee’s selection of benefits—such as the type of medical insurance, the number of family members covered, and the choice whether to obtain life or disability insurance—reveals information concerning the individual’s personal life and financial decisions but little, if anything, about the operations of the government agency that would not be revealed by making public the types of benefits offered generally by the agency to its employees. The amount of salary paid to a particular individual, on the other hand, does provide information concerning the governmental agency in which the public has a legitimate and traditionally recognized interest.” (Local 21, supra,
The petition is denied. CFFR and Fritz are entitled to costs as the prevailing parties.
Benke, J., and Huffman, J., concurred.
Notes
When appropriate, we refer to CFFR and Fritz together as CFFR.
Further statutory references are also to the Government Code unless otherwise specified.
We do not discuss other arguments SDCERA raised because they are not at issue in this proceeding.
The trial court granted SDCERA’s request that it take judicial notice of the legislative history of section 31532.
PERL (§ 20000 et seq.) “established PERS [(the Public Employees’ Retirement System)], a retirement system for employees of the state and participating local public agencies.” (Khan v. Los Angeles City Employees’ Retirement System (2010)
In concluding the names and benefit amounts of retirees were discoverable from the controller, the 1955 Attorney General opinion explained: “We have reached this conclusion by simple deduction from the express provisions of [former] section 20134. Thus there is no real occasion to explore the legislative intent. We may observe, however, that our conclusion does not negate the Legislature’s apparent objective. If [former] section 20134 prevents disclosure of certain information in the office of the State Employees’ Retirement System [now CalPERS], but leaves the gate ajar at the Controller’s office, it would be self-frustrating.” (State Employees’ Retirement Act, supra,
We grant the requests of CFFR (dated Apr. 8, 2011) and amicus curiae Sacramento County Employees’ Retirement System (dated Mar. 18, 2011) that we take judicial notice of the legislative history of the amendment to former section 20134. We deny the requests of CEFR (dated Mar. 25, 2011) and amici curiae Pacific Legal Foundation and Fullerton Association of Concerned Taxpayers (dated Mar. 23, 2011), and California Newspaper Publishers Association and associated media (dated Apr. 20, 2011), for judicial notice of various secondary materials not before the trial court and irrelevant to our opinion. We grant California Newspaper Publishers Association’s request to the extent it pertains to legislative history materials for the amendment to former section 20134.
Notably, the San Diego County Employees Association supported the amendment.
The issue is also under review in the First District, Division One, Court of Appeal. (See Sonoma Co. Emp. Retirement Assn. v. Superior Court (A130659).)
SDCERA designates this as its primary contention in this proceeding.
In Detroit Free Press, supra, 713 N.W.2d at pages 32-37, the court held that the names of the 20 highest paid police and fire department retirees, along with their pension amounts, were subject to disclosure under a Michigan’s freedom of information act (FOIA). The court construed a FOIA exemption for personnel records of law enforcement agencies as inapplicable. The court also concluded that even if the information fell within the exemption, under a provision of the FOIA requiring a balancing of interests, the exemption should be overruled because the public interest in knowing how its tax dollars were being spent outweighed the officers’ privacy interest. (See also Pulitzer Pub. v. Missouri State Employees’ Retirement System (Mo.Ct.App. 1996)
SDCERA cites City of San Jose v. Superior Court, supra,
SDCERA’s reliance on National Assn, of Retired Federal Employees v. Horner (D.C.Cir. 1989) 279 U.S. App.D.C. 27 [
In Local 21, supra,
CFFR, however, is bound by the court’s order prohibiting its publication of retiree names, because it does not challenge the order, and indeed it invited any arguable error in that component of the order by urging the court to adopt it. (See Estate of Lensch (2009)