Judge says government pension records subject to disclosure

The California Supreme Court ruled in 2007 that names and salaries of government employees are public record but did not specifically mention retirees. A Contra Costa judge has now ruled that that records of county’s pension funds must be disclosed. -DB

Metropolitan News-Enterprise
July 15, 2009
By Sherrim M. Okamoto

A county’s pension records are not exempt from disclosure pursuant to the Public Records Act, a Contra Costa Superior Court judge has ruled in what is believed to be the first legal challenge to the release of such data after the California Supreme Court held in 2007 that the names and salaries of government employees are public record.

In wake of the high court’s 2007 ruling on public employee salary disclosure in IFPTE v. Superior Court (2007) 42 Cal. 4th 319, some of the state’s public employee pension systems—including the California Public Employees Retirement System, California State Teachers Retirement System, university and judicial retirement programs—have released, or agreed to release pension information, but others have declined to do so, in part, because the court’s ruling did not specifically include retirees.

On May 5, the Contra Costa County Employees’ Retirement Association—which represents over 18,300 active county employees, retirees, beneficiaries and deferred members—issued a letter informing approximately 450 retirees that it had agreed to release information to the California Foundation for Fiscal Responsibility, a public pension watchdog group.

Public Records Act

The letter stated the retirement board’s belief that it was required to comply with the foundation’s request under the Public Records Act and that it would disclose “the name and monthly pension for each retiree and beneficiary whose gross monthly pension benefits exceeded $8,333 in any month in 2009 where the data is readily accessible.”

One recipient of this letter was retired Contra Costa County Deputy Sheriff Donna Irwin. She filed suit against the county retirement board contending that the release of her pension information was an invasion of privacy and sought a preliminary injunction to block the county agency from complying with the request.

The Howard Jarvis Taxpayers Association, Contra Costa Times, Los Angeles Times, and California Newspaper Publishers Association intervened in the case, arguing that public employee defined benefit plans were matters of public concern as such plans are funded by taxpayer dollars.

Contra Costa Superior Court Judge Barry Baskin agreed in a July 2 ruling denying Irwin’s motion for a preliminary injunction.

Irwin had “not shown why access to pension information is any different from access to salaried information,” Baskin said, adding that the statutory definition of “public record” is broad and intended to cover “every conceivable kind of record that is involved in the governmental process.”

Reasoning that the pension data sought was therefore public record, Baskin concluded that Irwin’s interest in avoiding disclosure was outweighed by the state’s “strong policy in favor of disclosure of public records” and the “strong public interest in knowing how the government spends its money.”

Case Law

In support of his findings, Baskin cited Montana and Colorado cases which permitted disclosure of public pension amounts under similar statutes and emphasized that a “transparent government is the cornerstone of our democracy.”

Marcia Fritz, vice president of the California Foundation for Fiscal Responsibility, told the MetNews yesterday that Contra Costa County had not yet released the requested pension information to her organization, but that data from Marin County was received yesterday pursuant to a similar request.

“We’re optimistic that others will follow,” she said, but “if we don’t get the information from the larger counties, like San Francisco, Orange County, Los Angeles, Sacramento, San Diego, we’re going to have to one by one have to pursue getting the records.”

Tim Bittle, director of legal affairs for the Howard Jarvis Taxpayers Association—which bills itself as California’s oldest and largest nonprofit statewide taxpayer organization—yesterday maintained that the disclosure of public records “is an important thing, all the time,” but the issue regarding pension data was “particularly timely” in light of the current fiscal crisis.

“We’re trying to raise awareness about the public cost of public employee retirement,” he said, maintaining that changes to the pension system were a viable way to save money to help state and local governments balance their budgets.

Counsel for Irwin—Matthew P. Guichard, William L. Portello and Erika Portillo of Concord-based Guichard, Teng & Portello—said that they will not appeal Baskin’s ruling.

But Portello predicted that another privacy challenge was likely down the line because some of the Penal Code’s protections for peace officer information may conflict with the retirement board’s disclosure of data.

“Ultimately its going to end up in a higher court,” he said. “But that’s another fight for someone else another day.”

Educational Purposes

Fritz disputed the need to treat peace officers any differently from other pensioners. “We never ask for any addresses or phone numbers or any information on the status of their retirement,” she insisted, explaining that her group’s purpose in seeking pension data is “to educate and inform the public on the level of benefits,” as “most people have no idea how high these pensions are.”

Portello countered that Irwin, who retired over 18 years ago, was not receiving a pension of public funds, but mostly comprised of monies paid by her election during her employment.

“It’s essentially like a 401(k),” Portello said, opining that a retirement board with the resources for a legal battle was likely to raise the argument that data pertaining to pensioners whose benefits are being funded by withholdings they had made is not public record. “Marin and Contra Costa are the only two taking the position that these are public records,” he said.

The attorney also disclosed that the Contra Costa Times had filed a claim for a writ of mandate and an award of attorney fees against Irwin, and she had responded with a demurrer and anti-SLAPP motion.

“We’ll be seeing how that will shake out in the next month or so,” he said.

The case is Irwin v. Contra Costa County Employees’ Retirement Association, MSC09-01478.

Copyright 2009, Metropolitan News Company