The Public Records Act As Applied To FCERA Presentation to the FCERA Board of Retirement October 20, 2010 Jeffrey R. Rieger Reed Smith, LLP

2 California Constitution Art. 1, Sec. 3(b)  “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”  “A statute, court rule, or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”  “Nothing [above] supersedes or modifies the right of privacy … or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy.”

3 Public Records Act -- Basic Principles  Gov’t Code §§ 6250 et seq.  Works in conjunction with other statutes (Brown Act, CERL, Code of Civil Procedure)  Applies to all state and local agencies in California, including FCERA  Identity of requestor, and purpose and form of request do not matter  Applies to hard copy and electronic documents  Must respond promptly -- response generally due in 10 days

4 Public Records Act -- Basic Principles  General rule is that public documents are open to inspection  Many exceptions exist, but most are directed to very specific types of documents or agencies -- not many apply to FCERA  A “catch all” exception requires a balancing of interests, but this exception rarely applies  Agency must assist with location of documents, but …  Agency does not have to create new records

5 As Applied To FCERA  Most FCERA documents are subject to inspection  Exceptions  “Privileged” -- Attorney/Client, Trade Secrets, etc.  “Member Records” -- Gov’t Code §31532  “Alternative Investments”  Incomplete negotiations for some transactions  “Catch All” – to be used sparingly

6 FCERA’s Policy  Passed in 2003, amended in 2010  Guidance to staff; information to members and the public  Includes provisions for providing notice to members  Includes provisions for enabling communications with members while protecting members’ contact information

7 Recent Controversy  Media and other groups are seeking (and publishing) information regarding the amount of members’ benefits  Balance between members’ privacy and public’s right to know  Balance between Public Records Act and Gov’t Code §31532  California Supreme Court decisions and Attorney General opinions tip balanced in favor of public’s right to know  Some CERL systems take a more restrictive approach than FCERA  So far, the systems that have taken a more restrictive approach have lost whenever challenged in court  Successful plaintiffs entitled to attorneys fees (successful defendants only entitled to fees if the case is deemed “frivolous”)