A&A: Covered CA contracts exempt from PRA

Q: I thought it odd that contract negotiations with the CA health care exchange are exempt from PRA. Seems like some shady stuff is going on there.

Here’s their legal response:

We cannot release the proposal or the scorecards, as they are exempt from disclosure under California Government Code 100508. We can release the final contract, if you would like. Please let us know what we can do.

A: Under the California Public Records Act, public records are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.  Public records include “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.”  Gov’t Code § 6252(e).

However, the PRA does contain numerous exemptions, and exemptions from other statutes are incorporated into the PRA under Gov’t Code section 6254(k).  Unfortunately, it appears that records related to “[t]he deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the Exchange, entities with which the Exchange is considering a contract,
or entities with which the Exchange is considering or enters into any other arrangement under which the Exchange provides, receives, or arranges services or reimbursement” are exempt from disclosure.  Gov’t Code section 100508.

It is difficult to say, however, whether this specific exemption would reach the proposals and scorecards that you seek.  Unfortunately, there is no case law interpreting this statute as it relates to the PRA.  They are probably interpreting the proposals as the starting point for “negotiations with entities contracting or seeking to contract with the Exchange.”

However, the proposals themselves could also be viewed as a pre-negotiation document – something that bidders submit to indicate to the Exchange they are interested in negotiating for a contract, but not a document that was a negotiating tool from the start.  Given that the PRA’s exemptions are to be interpreted narrowly in favor of disclosure, this seems like a reasonable interpretation.

In addition, despite the decision in one California Supreme Court that held that proposals for an airport lease were exempt during the actual bidding process, it would seem that now that the bidding process is over and the contract has been awarded, those proposals and the scorecard would be subject to disclosure.

In Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065 (2006), the Supreme Court held that the PRA’s “catch-all” exemption, Gov’t Code section 6255, was satisfied such that during the City of Los Angeles’s consideration of various bidders in connection with an airport lease, the proposals themselves were exempt. Id. at 1073-74.

In particular, under 6255, the agency must show that the public interest in nondisclosure strongly outweighs the public interest in disclosure, and must explain, in citing this exemption, exactly how this balance strongly tips in favor of nondisclosure.  The Supreme Court did not hold in this case that the proposals would forever be exempt, but found that, during the city’s selection and negotiation process for the winning bidder, the balancing test was satisfied in favor of nondisclosure because, among other things, competing bidders could use information from the proposals to attempt to outbid each other during the selection process. Id. at 1074.

However, the court clearly indicated that once the selection and negotiation process was over, the proposals would be subject to disclosure. Id. at 1077 (“We conclude the trial court correctly ruled that public disclosure of the competing proposals for the city’s lease project properly could await conclusion of LAWA’s negotiation process.”).

You might want to write back to the agency, letting them know that you do not believe that the proposals and scorecards are subject to the cited exemption (perhaps by pointing out these documents preceded the negotiations themselves), and in any event, ask the agency for more specifics on how the exemption applies to the records that you seek – as is required under Government Code 6253(c).

 Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.