Watershed CA Supreme Court decision is major win for government transparency. A stunning end to the media’s 20-year losing streak in high court access cases.

By Peter Scheer

America’s highest courts are justly criticized for avoiding hard issues. The judicial fetish for deciding cases on the narrowest possible grounds yields opinions so limited and unambitious in scope that they often raise more questions, and generate more legal disputes, than they resolve.

Exceptions are the rare court decisions that, by boldly staking out broad and enduring legal principles, sweep away uncertainty about what the law does and doesn’t require, providing much-needed guidance to lower courts and to government agencies. To the short list of such defining cases should now be added a recent California Supreme Court decision, IFPTE, Local 21 v. Superior Court, that affirms the vital link between public access to information and democratic self-government.

In the IFPTE case the Contra Costa Times newspaper had requested records showing the salaries, by name, of all Oakland public employees making more than $100,000 a year. Although the city of Oakland had released this information in past years, it changed policy in the face of pressure from government employee unions (the IFPTE and the union representing police officers), forcing the newspaper to sue Oakland.

The Superior Court and the Appeals Court ruled in favor of the Times, ordering disclosure of the salary information. Despite these court victories, cities and counties across California continued, for the next three years, to refuse news organizations’ requests for employee salaries. They could do so because of confusion created by two older court decisions that, though distinguishable, condoned limits on release of employee salaries.

In the California Supreme Court the Oakland unions argued that public employee salary data are: Exempt from the disclosure requirements of the Public Records Act; rendered confidential by a separate law concerning police personnel files; and protected from disclosure by California’s constitutional right of privacy.

But the Supreme Court would hear none of it. In a decision by Chief Justice Ronald M. George, the Court said that “openness in government is essential to the functioning of a democracy.” Balancing the public interest in release of the salaries with employees’ interest in the privacy of their personal finances, the Court held that the public interest must prevail when the sought-after information relates to the functioning of government.

The Court drew a broad distinction between “private information that happens to be collected in the records of a public entity,” on one hand, and “information regarding an aspect of government operations, the disclosure of which contributes to the public’s . . . oversight of those operations,” on the other. As a general matter, the former may be withheld from the public domain, while information of the latter type must be disclosed.

Significantly, the Court could have—but did not—limit its holding to employees earning over $100,000. While the justices no doubt were impressed by evidence of abuses and mismanagement concentrated at the high end of the public pay scale, they were careful not to ascribe any legal significance to the compensation threshold.

Similarly, the Court could have—but did not—limit its holding to local governments, like Oakland, that have a history of disclosing their employees’ salaries, thus undermining workers’ claims to a “reasonable expectation” of privacy in their government compensation.

And the Court also could have left intact the two appellate decisions that had approved the withholding of employee salary data (Teamsters Local 856 v. Priceless; City of Los Angeles v. Superior Court). Although the cases were distinguishable in various ways, the Court made a point of discrediting their reasoning, thus relegating them to the dustbin of superseded caselaw.

Not content with these incremental steps, Chief Justice George clearly wished to preempt years of further litigation over access to employee salaries. Perhaps he has grown impatient with the self-serving and overwrought claims of government unions. Perhaps he was offended by evidence of nepotism and the gaming of overtime rules, made possible by excessive secrecy. Whatever. The Court in IFPTE (and in a related case, Commission on Peace Officer Training v. Superior Court, involving the release of police officers’ names, employing departments and hire dates) was determined to tie up as many loose ends as possible—and it succeeded.

The IFPTE decision is a vindication of strategic litigation in public access cases. In requesting salaries only for employees with pay stubs in six-figures, San Francisco attorney Karl Olson, who represented the newspaper, gambled that state court judges would have little sympathy for police detectives making more money than they. The judges didn’t have to say what they almost certainly were thinking: “If my salary is a matter of public record, why should overpaid bureaucrats and police officers—some of whom make much more than I do—be allowed to keep theirs secret?” If the newspaper instead had requested all employee salaries, the court hearings would have focused unhelpfully on the privacy interests of entry level custodial workers.

The big loser in the IFPTE case are government unions. Not only did they suffer a resounding legal defeat, but they may also end up having to pay Contra Costa Times’ legal fees (or at least a substantial part of them.) Normally, successful litigants in public access cases receive payment for their attorney’s fees from the government entity they sued—Oakland in the IFPTE case. Oakland, however, wanted to turn over the contested salaries at the end of the proceedings in Superior Court. Release of the records at that stage was blocked by the unions, which, having intervened in the case, proceeded to drag it out through two costly appeals over three years. Clearly, the Times’ attorney’s fees related to those two appeals should be the responsibility of the unions.

For more than two decades, the media have been serial losers in access cases in the California Supreme Court. The watershed IFPTE decision marks a welcome and stunning end to that streak.

Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition.