Partial copy of Court ORDER filed July 24, 2003


No. RG03 089302


     The Petition of Coalition of University Employees, Charles Schwartz, and
San Jose Mercury News (when referred to collectively, "Petitioners") for Writ of
Mandate to Compel Release of Public Records came on regularly for hearing on
June 24, 2003 in Department 31 of the above-entitled Court, the Honorable James
A. Richman presiding.  Petitioners Coalition of University Employees and Charles
Schwartz appeared by Karl Olson, petitioner San Jose Mercury News appeared by
Judy Alexander, and Respondent The Regents of the University of California
("Respondent") appeared by Jerome B. Falk.

     The Court has considered all the papers filed in connection with the
motion, including the amicus curiae briefs submitted by National Venture Capital
Association and the AARP, and the arguments of counsel, and, good cause
appearing, HEREBY ORDERS that the petition is GRANTED to the extent set
forth below.


     Preliminarily, the Court notes that there is some ambiguity as to the scope
of the records sought by Petitioners.  On the one hand, the petition filed April 1, 2003
requests that the Court order Respondents to produce "all reports, documents and
other public records showing the performance of private equity investments made
by UC, including but not limited to documents showing the internal rate of return
('IRR')...."  (Emphasis added; Petition 7:5-9.)   On the other hand, Petitioners'
original Public Records Act request sought specifically "all documents showing
the internal rate of return of any private equity investments which have been made
by the University of California."  (Petition, Exh. A, Item 10.)  And Petitioners'
Memorandum of Points and Authorities in Support of Petition is similarly narrow
in scope, focusing only on the IRRs and the minutes and/or tapes of portions of
certain meetings. 1
1 The meetings involved are "the January and March 2000 meetings of the UC Regents' Committee
on Investments and the Board of Regents where they deliberated on the so-called Wilshire
Associates Investment Strategy Study ...," and "the October 29, 2002 and November 13, 2002
meetings of the Committee on Investments and Board of Regents, respectively, concerning the
'Implementation of Multiple Active Investment Management Programs,' ...." (Petition for Writ of
Mandate, Exh. A).

     Given that the focus of both the legal briefing and Petitioners' arguments at
hearing was on the narrower subset of records, the Order is limited to the IRRs and
the minutes and tapes.

     II.      ANALYSIS

     A.     The General Rules

     The Public Records Act ("PRA") is set forth at Government Code §§6250
et seq. 2  The PRA was enacted against a "background of legislative impatience
2 Unless otherwise noted, all statutory references are to the Government Code.
with secrecy in government..." (San Gabriel Tribune v. Superior Court (1983) 143
Cal.App.3d 762, 771-772, hereinafter "San Gabriel"), "passed for the explicit
purpose of 'increasing freedom of information' by giving the public 'access to
information in possession of public agencies' [Cit.].  Maximum disclosure of the
conduct of governmental operations was to be promoted by the Act (53
Ops.Cal.Atty.Gen. 136, 143 (1970).)"  (CBS, Inc. v. Block (1986) 42 Cal.3d 646,

     The PRA defines "public records" as "any writing containing information
relating to the conduct of the public's business prepared, owned, used, or retained
by any state or local agency regardless of physical form or characteristics."
(§6252(e).)  San Gabriel quotes with approval an even broader definition of the
Attorney General, that "public record" is "intended to cover every conceivable
kind of record that is involved in the governmental process and will pertain to any
new form of record-keeping instrument as it is developed.  Only purely personal
information unrelated to 'the conduct of the public's business' could be considered
exempt from this definition, i.e., the shopping list phoned from home, the letter to
a public officer from a friend which is totally void of reference to governmental
activities.'" (San Gabriel, 143 Cal.App.3d at 774.)

     Generally speaking, all public records are subject to disclosure, and the
burden is on the agency resisting disclosure to demonstrate why the records should
not be made public.  (New York Times Co. v. Superior Court (1990) 218
Cal.App.3d 1579, 1584; Braun v. City of Taft (1984) 154 Cal.App.3d 332,345.)
Section 6253(b) puts it this way: "[e]xcept with respect to public records exempt
from disclosure by express provisions of law, each state or local agency, upon a
request for a copy of records that reasonably describes an identifiable record or
records, shall make the records promptly available to any person ..."  And such
exemptions from disclosure "are construed narrowly to ensure maximum
disclosure of the conduct of governmental operations." (New York Times v.
Superior Court, supra, 218 Cal.App.3d at 1585; San Gabriel, 143 Cal.App.3d at

     Respondent does not dispute that the records requested meet the definition
of "public records."  Rather, Respondent argues that the IRRs and the minutes and
tapes are exempt from disclosure under various provisions of law.  The Court is
not persuaded.

     B.    The IRRs Are Not Exempt From Production

.....[this portion, on pages 5-15,  is not copied here] .....

     1.    The Setting

     2.    The IRRs Are Not Exempt as Trade Secrets, or Under the "Catch-
All" Exemption


     3.    The IRRs Are Not Exempt As Official Information

     In sum, to the extent the Petition seeks production of the IRRs, the Petition

     C.  The Minutes and/or Tapes of the Meetings

     The second category of records at issue are the minutes and/or tapes of
certain meetings held in January and March 2000 and October and November
2002. (See fn. 1 ante.)  These, Respondent argues, are records of properly closed
meetings, and thus not public records subject to disclosure under Government
Code §11126.1.

     Respondent is correct, to the extent that Government Code §11126.1
provides that "[t]he minute book [of a closed session meeting of a state body] ... is
not a public record subject to inspection pursuant to the California Public Records
Act."  However, the question remains as to whether the meetings at issue were
properly closed.  Respondent argues that they were, relying on two parts of
Education Code §92032(b), which provides that "[t]he Regents of the University
of California may conduct closed sessions when they meet to consider or discuss:
... (4) [m]atters involving the purchase or sale of investments for endowment and
pension funds ... [or] (7) [m]atters concerning the appointment, employment,
performance, compensation, or dismissal of university officers or employees,
excluding individual regents other than the president of the university."

     As to subsection (4), Respondent argues that the meetings were properly
closed in that they involved discussions about matters involving the purchase or
sale of investments, e.g., whether the University of California should switch from
internal to external management of public equity investments and whether the
University should adopt certain asset allocation formulas.  Petitioners urge the
Court to adopt a narrower reading of subsection (4), that meetings are properly
closed only when they include discussions regarding the purchase or sale of
particular specific investments, rather than investment strategy in general.  The
Court agrees with Petitioners.

     It cannot be gainsaid that the general rule is that meetings of the UC
Regents are to be open to the public.  (See Cal. Const., Art. IX, §9(g).)  Thus, and
in the light of the policy set forth in the preamble to the Bagley-Keene Open Meeting
Act (Section 11120), the cases recognize that any exemptions to the open meeting
laws must be construed narrowly, to favor openness and disclosure.  (See, e.g.
Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 908 [personnel exception to
Brown Act construed narrowly]; Bollinger v. San Diego Civil Service Comm.
(2001)  71 Cal.App.4th 568, 573 [personnel exception to open meeting law
construed narrowly, and sunshine law construed liberally in favor of openness].)

     The legislative history behind Education Code § 92032(b)(4) demonstrates
that that exemption was designed, at least in part, to prevent the speculative price
movements that could result if word of future specific investment plans became
known to the public.  In other words, if the public became aware that the
University was planning to buy or sell 100,000 shares of a particular stock, that
news alone could be meaningful.  However, the Court finds nothing in the
authorities cited by Respondent, or in any other authority, to suggest that the
exception in subsection (4) should be construed so broadly as to permit the closing
of any meeting in which any discussion whatsoever about investments takes place.
The Court rejects Respondent's argument, at least to the extent that the meetings
should have been closed in their entirety.

     And while there might -- and the Court emphasizes might -- have been
some aspects of those meetings that could invoke Education Code § 92032(b)(4),
such would not justify withholding records related to past meetings where action
has already been taken.  Here the regents are withholding minutes and tapes of
meetings in the year 2000 (when the published agenda identified the topic as
"Wilshire Associates Asset Allocation Study") and the fall of 2002 (when the
University adopted a "Multiple Manager Equity Investment Strategy.")  There is
simply no basis for keeping deliberations about an issue which occurred in the year
2000 secret from the public, especially as the central document under discussion
has long since been released publicly.  A similar conclusion follows with respect to
the October and November 2002 meetings, where the agenda topic was
"Implementation of Multiple Active Investment Management Programs," as the
investment transactions discussed have been completed and the University has
released "Item 603X," the 31-page background document for that meeting.
Education Code § 92032(b)(4) does not avail Respondents.

     Likewise the Court would reject Respondent's argument that the October
and November 2002 meetings were properly closed in their entirety under
subsection (7) of Education Code §92032(b), unless Respondent could
demonstrate that the meetings contained discussions regarding the performance
and/or dismissal of university employees, i.e., the University's internal equity staff.
The Court concludes Education Code §92032(b)(7) did not justify closing the
meetings at issue, at least not in their entirety, and that the minutes and/or tapes of
those meetings should also be produced unless Respondent can demonstrate

     In this regard, Respondent is ordered to perform an initial review of the
minutes and tapes, to determine if there are any references to individual employees
or any other matters that Respondent believes would violate the privacy rights of
its employees.  If there are, Respondent shall redact such material and within 30
days of this Order lodge the redacted records with the Court for in camera review,
following which the Court will issue a further Order.  Meanwhile, all other records
will be produced.

     In conclusion on this issue, the petition is GRANTED to the extent it seeks
production of the minutes and/or tapes of the January and March 2000 and October
and November 2002 meetings, subject to the qualification set forth above.

     D.   Future Relief

     To the extent the Petition seeks injunctive relief governing records to be
produced in the future and/or the opening of future meetings (see Petition for Writ
of Mandate, Prayer at ¶¶1,5) the Petition is DENIED.


.....[this portion, on pages 19-20, is not copied here].....


     For each, and all, of the reasons set forth above, the Court concludes that
the balancing of interests compels production of the IRRs and the minutes and
tapes of the meetings in issue, and the Petition for Writ of Mandate is GRANTED
to the extent set forth above.

     Petitioners' counsel to prepare a Judgment in accordance with this Order.

Dated:  JUL 24 2003

[signed]   James A. Richman
Judge of the Superior Court