Sacramento Cnty. Employees' Ret. Sys. v. Superior Court of Sacramento Cnty.

195 Cal.App.4th 440

125 Cal.Rptr.3d 655

39 Media L. Rep. 2112

11 Cal. Daily Op. Serv. 5657

2011 Daily Journal D.A.R. 6805

SACRAMENTO COUNTY EMPLOYEES' RETIREMENT SYSTEM, Petitioner,

v. The SUPERIOR COURT of Sacramento County, Respondent;Sacramento Bee et al., Real Parties in Interest.

No. C065730.

Court of Appeal, Third District, California.

May 11, 2011.

Rehearing Denied June 8, 2011.

James G. Line, Visalia, Nossaman, John Thomas Kennedy, Sacramento, and Stephen N. Roberts, San Francisco, for Petitioner.

Steven P. Rice and Crowell Moring, Irvine, for San Diego County Employees Retirement Association as amicus curiae on behalf of Petitioner.

Mark E. Merin, Sacramento, for Sacramento County Retired Employees Association, as amicus curiae on behalf of Petitioner.

Arias & Lockwood, Christopher Damian Lockwood, San Bernardino, for San Bernardino County Employees' Retirement Association as amicus curiae on behalf of Petitioner.

Neil C. Baker, Santa Rosa, for Sonoma County Employees' Retirement Association, as amicus curiae on behalf of Petitioner.

Julie Wyne, Santa Ana, and David Henry Lantzer, for Board of Retirement of the Orange County Employees Retirement System, as amicus curiae on behalf of Petitioner.

Kathleen Bales–Lange, Visalia, and Barbara Booth Grunwald, Fresno, County Counsel for Tulare County Employees' Retirement Association, as amicus curiae on behalf of Petitioner.

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

No appearance for Respondent.

Ram & Olson, Karl Olson, San Francisco, for Real Parties in Interest.

Trevor A. Grimm, Los Angeles, Jonathan M. Coupal and Timothy A. Bittle, Sacramento, for Howard Jarvis Taxpayers Association, as amicus curiae on behalf of Real Parties in Interest.

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

Davis Wright Tremaine, Thomas R. Burke, Duffy Carolan, San Francisco, and Jeff Glasser, Los Angeles, for California Newspaper Publishers Association, Los Angeles Times Communications LLC, The Associate Press, California Newspapers Partnership, The Record, Hearst Corporation, The New York Times Company, The Press–Enterprise, The Bakersfield Californian, Eagle Newspapers, Daily Republic and Capitol Weekly, as amicus curiae on behalf of Real Parties in Interest.

DUARTE, J.

In this original writ proceeding we discuss the California Public Records Act (Public Records Act) and the County Employees Retirement Law of 1937 (Retirement Law). (Gov.Code, §§ 6251, et seq., 31450, et seq.) ¹

The Public Records Act generally requires public agencies to disclose public records, subject to exemptions. (See International Federation of Professional & Technical Engineers, Local 21, AFL–CIO v. Superior Court (2007) 42 Cal.4th 319, 328–329, 64 Cal.Rptr.3d 693, 165 P.3d 488( International Federation ).) Part of the Retirement Law provides: “Sworn statements and individual records of members shall be confidential and shall not be disclosed to anyone except insofar as may be necessary for the administration of this chapter or upon order of a court of competent jurisdiction, or upon written authorization by the member.” (§ 31532.)

After much public outcry about government pensions, The Sacramento Bee and the First Amendment Coalition (collectively, the Bee ) filed a petition for writ of mandate to compel the Sacramento County Employees' Retirement System (SCERS) to reveal the pension benefits of named retirees. The trial court concluded the amounts of pension benefits were not part of the “individual records of members” (§ 31532) and ordered SCERS to disclose the requested information.

SCERS promptly petitioned this court for a writ of mandate to overturn the disclosure order. (See § 6259, subd. (c).) We stayed that order, and issued an order to show cause. For the reasons detailed below, we shall deny the writ petition.

The California Supreme Court has held that the public has a general right to know the names and salaries of public officials and employees under the Public Records Act. (See International Federation, supra, 42 Cal.4th at pp. 328–340, 64 Cal.Rptr.3d 693, 165 P.3d 488.) The Attorney General, in an opinion cited with approval by the California Supreme Court, has reached a similar conclusion regarding the Retirement Law, finding that the phrase “individual records of members” protected by section 31532 does not embrace the pension amounts of named county retirees. ( County Payroll Records as Public Records, 60 Ops.Cal.Atty.Gen. 110 (1977) ( County Payroll Records ); see International Federation, supra, 42 Cal.4th at p. 331, 64 Cal.Rptr.3d 693, 165 P.3d 488;Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 296, 64 Cal.Rptr.3d 661, 165 P.3d 462 (POST ).)

In this case, we first reject SCERS's claim that a prior suit collaterally estops the Bee from relitigating the scope of section 31532. As we will explain, the law has materially changed since that litigation concluded, and in any event the public interest exception to collateral estoppel applies in this case.

Next, addressing the merits, because exemptions from the general rule of disclosure are construed narrowly, we conclude that pension amounts are not part of the “individual records of members” protected by section 31532. Based on the legislative history of section 31532 and analogous retirement board statutes, we construe that phrase narrowly to mean data filed with SCERS by a member or on a member's behalf, not broadly to encompass all data held by SCERS that pertains to a member. We also conclude that SCERS has not shown the privacy interest served by nondisclosure “clearly outweighs the public interest served by disclosure[.]” (§ 6255, subd. (a).) Nor, for reasons we shall explain, is there cause to remand to the trial court for a hearing on whether each individual's pension benefits should be kept confidential, as suggested by some amici curiae.

Therefore, SCERS must disclose names and corresponding pension benefit amounts of its members. This does not include the members' home or e-mail addresses, telephone numbers or social security numbers.

Much of the briefing by SCERS and its allied amici curiae argues disclosure is bad policy that will expose its members—many of whom are elderly—to unwelcome attention, obloquy, and financial predation. “However, this court does not legislate. [SCERS's] remedy properly lies ‘on the other side of Tenth Street, in the halls of the Legislature.’ ” ( Williams v. California Physicians' Service (1999) 72 Cal.App.4th 722, 731, 85 Cal.Rptr.2d 497.)

Because the trial court properly ordered disclosure of the requested records, we deny SCERS's writ petition in this court, and vacate the stay we previously issued.

BACKGROUND

On April 15, 2010, the Bee filed a petition for writ of mandate under the Public Records Act. (See § 6258.) The Bee contended that on May 6, 2009, it asked SCERS for a list of retirees who received over $100,000 annually, seeking the name of each retiree, the gross amount received, the department from which he or she retired, the last position held, and the date of retirement.

Ten days later, SCERS advised the Bee that it had prepared a list of 221 “retiree amounts” exceeding $8,333 per month “along with the information regarding employing Departments.” The list did not include the names, dates of retirement or last employed position of those retirees. SCERS stated it was withholding the latter information under the authority of section 31532. (See § 6253, subd. (c) [agency normally has 10 days to respond to request].)

In the ensuing months, the Bee made further requests, expanded to include all SCERS members, not just those receiving more than $100,000 per year. Although SCERS provided additional details, including the years of service, dates of retirement and some departmental information about its retirees, SCERS refused to provide the “names or personal identifiers” of members.

The Bee submitted declarations from journalists describing rising public interest in public pensions. According to the declarations,the names of members are sought in order to investigate issues such as cashing out of vacation time or working overtime in the last year of employment, either of which can result in so-called “pension spiking,” instances of “double dipping,” where a person receives a pension and salary, instances of “triple dipping,” where a person receives a pension, salary and unemployment benefits in one year, and other controversial pension practices. The trial court overruled SCERS's objections to these declarations.

The Bee submitted copies of other trial court decisions mandating disclosure of such information,² and documents showing that some county retirement boards provide such information. The trial court overruled SCERS's objections to this material, but found it lacked evidentiary or precedential value.

The Bee also provided copies of a prior Sacramento County Superior Court decision, McClatchy Co. v. County of Sacramento (Super.Ct. Sacramento Co., 2005, No. 04CS01398) (the McClatchy case.) SCERS did not object to judicial notice of the McClatchy case, and sought judicial notice of a memorandum the County of Sacramento had filed in that case.

In opposition to the Bee's request for names, SCERS asserted “the names or personal identifiers” of members were confidential, “constitutionally protected, private financial information[.]” SCERS also asserted the Bee was collaterally estopped from arguing that member names should be disclosed.

SCERS's Chief Executive Officer declared that SCERS “maintains individual records for members, including such personal information as compensation, years of service, age, amount of retirement allowance, addresses,...