COALITION OF UNIVERSITY EMPLOYEES, et al.,
Petitioners,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
No. RG03 089302
ORDER GRANTING PETITION FOR WRIT OF MANDATE
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.
I. SCOPE OF THE PETITION
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,
651-652.)
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
772-73.)
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
is GRANTED.
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
otherwise.
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.
III. OBJECTIONS TO EVIDENCE
.....[this portion, on pages 19-20, is not copied here].....
IV. CONCLUSION
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