Courts Sneak Secrecy Language into Budget Bill

PUBLIC INFORMATION -- A budget trailer bill just passed lists several items of local trial court management information that must be made public, but the list enfolds a poison pill recognizing, for the first time in California legislation, the legitimacy of a controversial secrecy principle.

The new language introduced into ABX4 13 (Evans) of the Fourth Extraordinary (budget) Session, generally addressing the judicial branch, appeared there at the eleventh hour without committee airing or any debate, as a result of nonpublic negotiations between lobbyists for the court system and for its unionized administrative workers.

The provision adds Section 68106.2 to the Government Code, stating:

    (a) Any person shall have the right to obtain the following information under Rule 10.802 of the California Rules of Court:
    (1) Baseline budget information that superior courts submit to the Administrative Office of the Courts after enactment of the annual Budget Act.
    (2) Any other budget and expenditure document of the superior court pertaining to the administrative operation of the court, including baseline budgets, quarterly financial statements, reports of revenues, reports of reserves, however classified, and their classification, and any document projecting or documenting savings due to unfilled positions and savings resulting from temporarily closing a court.
    (3) Budgeted employee salary and benefit information by position classification consisting of the number of employees and compensation by classification, and any document, whether prepared periodically or for a special purpose, that shows any changes in salaried positions by classification available pursuant to subdivision (k) of Rule 10.802 of the California Rules of Court.
    (4) Copies of executed contracts with outside vendors and payment information and policies concerning services provided by outside vendors without an executed contract. Any material provided under this paragraph shall be redacted as necessary in accordance with subdivision (i) of Rule 10.802 of the California Rules of Court.
    (5) Any final audit report.
    (b) If the information requested pursuant to subdivision (a) has been certified by the superior court, copies of the certified documents shall be provided.
    (c) The provisions of Rule 10.803 of the California Rules of Court shall apply to any petition arising under this section.
    (d) Subdivision (a) shall not apply to information that is part of the deliberative process or adjudicative process unless that information is otherwise made public.
    (e) Subdivision (a) shall only apply to information that has already been created or prepared by, or in the possession of, the court, and does not require a court to produce or create any new document or data format to comply with its provisions. Nothing in this subdivision shall be construed to prevent or limit a court from, in its discretion, producing or creating a new document or data format, or otherwise providing additional information.
    (f) Nothing in subdivision (a) is intended to limit or restrict public access to other information that may be obtained under Rule 10.802 of the California Rules of Court. Nothing in this section is intended to limit or restrict public access to any information provided for by any statute, rule, or case law.
    (g) The Judicial Council shall, on or before January 1, 2010, adopt rules of court that provide public access to nondeliberative or nonadjudicative court records, budget and management information.
    (h) This section shall remain in effect until the rules of court providing public access to nondeliberative or nonadjudicative court records, budget and management information are adopted pursuant to subdivision (g).

(Emphasis added)

In its 1991 decision in Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, the California Supreme Court used the common law deliberative process privilege—recognized in federal court decisions under the Freedom of Information Act—as a basis for denying access to former Governor George Deukmejian's appointment calendars over a five-year period.  The privilege is explained as needed to keep governmental decisionmakers' ability to get candid advice from those inside and outside the government from being hampered by concerns that the advice might be publicly disclosed. 

Since then the privilege has been repeatedly cited as a basis for denying access to records shedding light on how controversial policies were developed or who influenced them, despite the fact that the privilege is nowhere mentioned as an exemption from disclosure under the California Public Records Act.  It has been used by the California Court of Appeal to deny public access to information about those seeking a governor's appointment to fill a vacancy on a county board of supervisors, as well as phone records of city council members showing whom they called on official business.

The privilege is commonly applied in practice not only to pre-decisional advice given to elected officials but also to the paper trail of policy development among local and state agency staff.  Its use had become so widespread and reflexive by the turn of the century that it amounted to one of the principal targets for reform in Proposition 59, passed on the November 2004 ballot, which added to the state constitution a statement of the fundamental rights of the public to scrutinize meetings of official bodies and records of public officials and public agencies.

While the elected San Diego City Attorney soon took the position that Proposition 59 left Times Mirror "of dubious authority," others not as accountable to the public insist that the privilege is unaffected.

ABX4 13 would skew the debate towards the latter view. It represents the first express recognition in California legislation of the privilege as an exemption from the requirement to disclose—a recognition achieved entirely by stealth.  Although it refers in this case to court management information, it will be used to buttress use of the privilege by state and local agencies governed by the California Public Records Act as well.

But the secrecy provisions of this bill have a fatal flaw.  One of the mandates of Proposition 59 is that, beginning in Novermber 2004,

A statute, court rule, or other authority . . . that limits the right of access shall be adopted 
with findings demonstrating the interest protected by the limitation and the need for 
protecting that interest.

ABX4 13 has no such findings and thus could be challenged in court as unconstitutional on its face. The bill has a severability clause, so the invalidation of the deliberative process language would not affect the unrelated remainder of the bill, but it would make the courts reluctant to comply with the management information disclosure requirements with no deliberative process limitation.  Even if there were no challenge by litigation, courts should be reluctant to rely on a secrecy provision adopted in violation of the constitution.

The likely result, one way or the other, would be a return to the legislature to try to pass these provisions again, this time with the required findings.  But unlikeABX4 13, however, any such bill would need to go through the standard "deliberative process" in public hearings on a normal schedule—not crafted and grafted in the blur of budget frenzy.