Regardless of what they say to the contrary, government agencies are in the business of withholding information from the public (or, what amounts to the same thing, disclosing only that information that the agencies want the public to have). This tight-fistedness about information is written into government’s DNA.
But some efforts to withhold information are more dangerous to democracy than others. The most dangerous are government lying (about the existence of documents, for example), particularly in circumstances where officials lie with impunity. Almost as dangerous, but less obviously so, are situations in which government agencies restructure the way they do business for the sole purpose of gaining legal cover to deny requests for information.
Example: Government officials who use use their private email account, forgoing their official dot-gov account, to send and receive emails about government business. Bypassing normal communications channels, which permit the securing and archiving of government information, serves no purpose other than to enable the official to refuse requests under FOI laws (and to delete communications that are public records).
This ruse has become widespread among local government officials in California. The practice is currently being tested in an appeal from a lawsuit (Ted Smith v. City of San Jose) against the city of San Jose. (Disclosure: FAC has filed an amicus brief in this case.)
Another example: Local governments that hire a law firm not primarily for legal advice or legal representation, but to perform the nonlegal function of management consulting, typically on a specific transaction. Why would government officials do that? Certainly not to save money or to get superior business or technical advice.
No, a local government would do this so that all communications with its advisers, all information exchanged with them, and all expert reports or analyses commissioned for the city’s use in deciding whether to go forward with a transaction, and selling that decision to voters, can be characterized—fairly or not— as covered by the attorney-client privilege. That label effectively immunizes all records from FOI laws.
A lawsuit against Claremont, California (State Water Co. v. City of Claremont), involving the use of eminent domain to acquire a private water company, raises similar issues about the scope of the attorney-client privilege.
One more example: The University of California Endowment, an $11.23 billion fund that is used to help pay for employee pensions, student scholarships, research, and other university operations.
UC’s endowment fund is required to honor requests under California’s Public Records Act for information about the financial performance of its investments–including its investments in venture capital funds (and other so-called “alternative investments”). This requirement was established in separate lawsuits against UC and CalPERS, the state employees pension fund, in 2003. (Disclosure: FAC was a party in the CalPERS lawsuit).
While the release of performance data (specifically, the funds’ returns on investment) is not an issue for most UC investments (whose profits and losses are public information anyway), some of the endowment’s high-rolling venture capital investments —specifically, VC funds managed by Sequoia Capital and Kleiner Perkins Caufield & Byers—regard even the most basic performance information about their individual funds as trade secrets. Literally.
To keep the performance information under wraps, Sequoia and Kleiner Perkins after 2003 stopped providing UC with fund-specific information about UC’s existing investments. Thus cut off from essential financial reporting (that presumably continued to flow to the VCs’ private clients investing in the same funds), what did UC do? You might have expected it to resist—to protest the information blackout and the problems it created for UC’s monitoring of its investments. In fact, UC increased its investment in Sequoia’s funds.
The VCs’ restriction on financial reporting to UC, and UC’s acquiescence in that arrangement, had only one purpose: the circumvention of the PRA. And regrettably, the strategy has worked.
Reuters, the news organization, filed suit against UC for records on the financial performance of UC’s investments with Sequoia and Kleiner Perkins. (Disclosure: FAC joined an amicus brief supporting Reuters). Ruling for UC, the appeals court held that UC’s obligation to disclose public records extends only to records in its possession. UC can’t be required to obtain the records from its investment partners, Sequoia and Kleiner Perkins, the Court said. (Regents of the University of California v. Superior Court.)
The success of legal strategems for blocking access to information is troubling, to say the least. The original promise of the PRA–of using information about government to hold government accountable–is thwarted when public officials, instead of listening to voters, listen to lawyers selling work-arounds to the PRA. –PETER SCHEER