In Sacramento County Employees’ Retirement System v. The Superior Court of Sacramento County, (— Cal.Rptr.3d —-, Cal.App. 3 Dist., May 11, 2011), a court of appeal considered whether a county employees’ retirement system was required to disclose pension benefit amounts of retirees pursuant to a request under the Public Records Act. The court of appeal held the requested information was not exempt from disclosure under the Public Records Act and must be disclosed.
In May 2010, The Sacramento Bee and the First Amendment Coalition (collectively, “Bee”) asked Sacramento County Employees’ Retirement System (“SCERS”) to provide a list of its retirees who receive over $100,000 annually in retirement benefits. The Bee sought the name of each retiree, the department the retiree worked in when he or she retired, the date of retirement, the last position held, and the gross amount of benefits the retiree receives. SCERS responded that it had prepared a list of retirement amounts that exceeded $8,333 per month and information regarding employing departments. SCERS did not put on the list the names, dates of retirements, or last employed positions of the retirees. SCERS asserted that it did not have to include the information it withheld because the County Employees Retirement Law protects that information from disclosure.
The Bee made additional requests for information from SCERS in which it sought information regarding all members, not just the retirees receiving over $100,000 per year. SCERS provided additional information such as departmental information, years of service, and dates of retirement, but it “refused to provide the ‘names or personal identifiers’ of members.”
The Bee filed a petition for writ of mandate under the Public Records Act. The trial court granted the Bee’s petition and ordered SCERS to disclose “‘the pension benefits retirees received from SCERS in calendar year 2009,’ including the name of each recipient, the date of retirement, the department retired from, the last position held, years of service, base allowance, cost of living adjustment, total health allowance and monthly benefit.” SCERS filed a petition for writ of mandate in the court of appeal.
The court of appeal denied SCERS’s petition for writ of mandate. The court held that SCERS must disclose not only the names but the corresponding pension benefit amounts of SCERS’s members. However, the court found that SCERS does not have to disclose its members’ social security numbers, e-mails addresses, home addresses, or telephone numbers.
Generally, the Public Records Act requires public agencies to disclose public records because “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Here, there is no dispute that the individual pensions are public records. The Act provides that “[m]ost records may be inspected during regular office hours, and copies may be obtained upon payment of costs.” The Act exempts some records from disclosure but the burden is on the agency attempting to deny access to show that a public record is exempt from disclosure. Statutory exemptions to the Act must be construed narrowly.
SCERS asserts the County Employees Retirement Law, specifically Government Code section 31532, prohibits disclosure of the records requested by the Bee. Section 31532 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.” The court rejected this argument finding that “pension amounts are not part of the ‘individual records of members’ protected by section 31532.’”
The Public Records Act exempts from disclosure those “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law.” The court found that “SCERS correctly contends this incorporates the confidentiality rule provided by section 31532, but the parties dispute the scope of the confidentiality rule.” The court concluded “the term ‘individual records,’ as used in section 31532, refers to information provided by a member or on the member’s behalf (such as medical reports), to SCERS, and not all records that pertain to or relate to a member.”
SCERS keeps records that pertain to a member that are not provided by the member or on the member’s behalf. The court found that the phrase “individual records of members” does not equal “any information that pertains to a member.” Where a member provides purely personal information “such as a home address or spouse’s name,” this information falls within the member’s individual record. However, “the records of how much money is given to the member by the retirement board, and how that amount was calculated (years of service, position held, date of retirement, and so forth) would not.”
Section 31532’s confidentiality provision “protects information provided by a member or on the member’s behalf to SCERS” but it does not protect “all information held by SCERS that pertains to or relates to the member.” The Supreme Court previously “held that the public has a general right to know the names and salaries of public officials and employees under the Public Records Act.” The court of appeal concluded that a confidential record “does not include the name, date of retirement, department retired from, last position held, years of service, base allowance, cost of living adjustment, total health allowance and monthly pension benefit of each retiree.” Accordingly, the court held the trial court did not err in concluding the information requested by the Bee was not protected from disclosure by the confidentiality provision of section 31532.
The court rejected SCERS’s argument that the Bee is collaterally estopped from relitigating the scope of section 31532. The Bee had previously sued the County of Sacramento (“County”) seeking disclosure of information about retiree pensions. At the time the Bee brought the lawsuit against the County, two prior “published cases had found that public employees had a right of privacy in their salary information.” The court relied on those two cases and ordered “County to disclose some pension information but not individual pensions.” SCERS claimed that the Bee cannot relitigate the scope of section 31532 based on the previous decision regarding disclosure of pension information. The court of appeal rejected SCERS’s claim of collateral estoppel because (1) there has been a material change in the law as a result of the Supreme Court’s holding that salary information of public employees is not confidential; and (2) the doctrine of “collateral estoppel will not be applied to ‘foreclose the relitigation of an issue of law covering a public agency’s ongoing obligation to administer a statute enacted for the public benefit and affecting members of the public not before the court.’”
The Public Records Act also contains a “catchall provision,” which “provides that an agency may ‘justify withholding any record by demonstrating . . . 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.’” SCERS made four arguments that the catchall provision should apply to the Bee’s request for disclosure. SCERS first asserts that its members have a right to financial privacy. The court agreed that Californians do have a right to privacy in regard to their private financial affairs. Although a citizen does not lose the right to privacy in regard to private financial affairs when he or she becomes a public employee, public salary information is not private information but information regarding government operations. The disclosure of public salary information does not violate the Public Records Act and the court found “the same can be said for public pensions.” Public pension information is not private financial information.
SCERS also asserts that its members would be subject to strong public criticism if the pension information is disclosed. SCERS claims the retirees will be harmed “by exposing them to public hostility, particularly in their golden years.” The court stated, “Simply because many retirees are elderly does not mean they are too frail to weather disclosure of their individual pensions.” The court found that SCERS’s claim that disclosure will bring unwelcome attention to retirees is not a compelling reason to forbid disclosure.
SCERS claims its members might become victims of financial abuse, including financial elder abuse, if the pension information is disclosed. The court rejected this argument finding that personal information such as telephone numbers, social security numbers, home addresses, and e-mail addresses are confidential and do not have to be disclosed. The court recognized that some persons may be able to link retirees to addresses or telephone numbers but the court found “that possibility does not materially advance SCERS’s claim that releasing individual information will endanger retirees.”
Finally, SCERS asserts the Bee has alternative methods to collect the information about public pensions. The court stated, “Whether data is disclosable does not turn on who requests it.” The court rejected all four arguments under the catchall provision and held “that SCERS has not shown the privacy interest served by nondisclosure ‘clearly outweighs the public interest served by disclosure.’”
The court also rejected the argument that retirees are entitled to individual notice before information about their pension is revealed. SCERS did “not contend that its members have varying claims to privacy.” There was also no claim that there was any reason to protect a special class of county retirees. The individual notice claim was grounded “on the assumption that individual pensions are personal, confidential, information.” As discussed above, the court rejected the argument that the information is confidential. The Supreme Court has rejected a claim that disclosing public salaries requires that each employee’s privacy interests must be considered. However, a California court of appeal previously ordered a hearing to determine whether undercover peace officers may face special danger if their information is disclosed. Here, the court of appeal found there was “[n]o similar colorable claim for treating a special class of retirees differently than other retirees.” Therefore, the court found it did not need to remand the case for individual notice of the disclosure of the pension information.
The court held SCERS is required to disclose the names and corresponding amount of benefits received by its members. SCERS, however, does not have to disclose its members’ home addresses, e-mail addresses, or telephone or social security numbers, and does not have to give its members individual notice. The court ordered SCERS to pay the Bee’s costs and attorney fees.
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Jeffrey L. Massey | 916.321.4500