Proposal for Access to Court Admin Information: 3

OPEN GOVERNMENT
– This is the third of four segments analyzing the proposed new rules
on public access to the administrative records of the California court
system.  The proposals are open for public comment now through October
29, and the final product, to be adopted by the California Judicial
Council, will take effect January 1.

Our overview comments appeared here last week.  The following shows the actual language
of the first rule, followed by any comments on meaning or effect. Any
links or italics in the text of the rules are inserted for explanatory
purposes and are not part of the rule.


(f) Exemptions

Nothing in this rule requires the disclosure of judicial administrative records that are any of the following:

 (1) Preliminary writings, including drafts, notes, working papers, and inter–judicial branch entity or intra–judicial branch entity memoranda, if the public interest in withholding those records clearly outweighs the public interest in disclosure; 

The comparable exemption in the California Public Records Act (Government Code Section 6254 (a)) is decidedly tighter, applicable only to "(p)reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure." The single appellate decision interpreting this section concluded: "The second condition of section 6254, subdivision (a) is that the
records be documents which are not retained by the Department in the ordinary course of business.
If preliminary materials are not customarily discarded or have not in
fact been discarded as is customary they must be disclosed. (§ 6254,
subd. (a).) Thus, the agency controls the availability of a forum for
expression of controversial views on policy matters by its policy and
custom concerning retention of preliminary materials." 
Citizens for A Better Environment v. Department of Food and Agriculture, 171 Cal. App. 3d 704, 714 (1985). Thus under this rule, every "preliminary" document in the adminiistrative files of the judicial branch would be subject to withholding in the public interest, as decided by the courts.

 (2) Records pertaining to pending or anticipated claims or litigation to which a judicial branch entity or judicial branch personnel is a party, until the pending litigation or claim has been finally adjudicated or otherwise resolved;

The comparable exemption in the California Public Records Act (Government Code Section 6254 (b)) applies to "(r)ecords pertaining to pending litigation to which the public agency is a party, or to claims . . ., until the pending litigation or claim has been finally adjudicated or otherwise settled." Although there is no "or anticipated" language in this provision, courts have read that qualifier into it, meaning that documents created by an agency in the reasonable expectation of litigation are covered, but not those created in the ordinary course of business that later become relevant to a lawsuit or the threat of one: "a document is protected from disclosure only if it was specifically prepared for use in litigation." City of Hemet v. Superior Court (Press-Enterprise Co.) 37 Cal.App.4th 1411, 1420 (1995).  

 (3) Personnel, medical, or similar files, or other personal information the disclosure of which would constitute an unwarranted invasion of personal privacy, including but not limited to records revealing home addresses, home telephone numbers, cellular telephone numbers, private e-mail addresses, and social security numbers of judicial branch personnel; and work e-mail addresses and work telephone numbers of justices, judges, subordinate judicial officers, and their staff attorneys;

The comparable exemption in the California Public Records Act (Government Code Section 6254 (c)) applies simply to "(p)ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." This rule's emphasis on withholding home contact information for judges is understandable, as well as all employees' Social Security numbers.  A number of statutes already make such information confidential and therefore exempt from disclosure under the CPRA.  The drafters of this rule believe that work contact information for those involved in the adjudication of cases also needs confidentiality to prevent improper ex parte contacts by the parties. That is a consideration not arising under the California Public Records Act, but whether it should be addressed under the rubric of "personal privacy" is doubtful. A better place would be under (6) below.

 (4) Test questions, scoring keys, and other examination data used to develop, administer, and score examinations for employment, certification, or qualification;   

The comparable exemption in the California Public Records Act (Government Code Section 6254 (g)) applies to "(t)est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination . . ."

(5) Records the disclosure of which is exempted or prohibited under state or federal law, including provisions of the California Evidence Code relating to privilege, or by court order in any court proceeding;

 The comparable exemption in the California Public Records Act (Government Code Section 6254 (k)) applies to "(r)ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." The italicised phrase in the proposed exemption is unclear unless it purports to make court information summarily exempt from disclosure by court order. That effect would obviously undermine these rules entirely by giving any court a veto over release of its own records, with no need to justify the secrecy.

(6) Records the disclosure of which would compromise the security of a judicial branch entity or the safety of judicial branch personnel;

There is no comparable exemption in the California Public Records Act, but an opinion of the Attorney General illustrates how similar security information—in that case, jail plans and specifications—might be withheld under a balancing of interests pursuant to Government Code Section 6255. Opinion No. 90-303 (1990)

(7) Records related to complaints regarding or investigations of justices, judges (including temporary and assigned judges), and subordinate judicial officers;

 There is no comparable exemption in the California Public Records Act.  Complaints against judges are processed and adjudicated by the Commission on Judicial Performance, which is not subject to these proposed rules and which is required to keep raw complaints confidential until formal proceedings commence. California Constitution Article 18, section (j). As for "subordinate judicial officers" generally—not dealt with by the Commission—courts interpreting the CPRA have held that ordinary (non law enforcement) employees have no
privacy rights preventing the release of complaints against them that appear "well founded," including but not limited to those that have prompted a confirming investigation and discipline. American Federation of State, County and Municipal Employees v. Regents of the University of California, 80 Cal.App.3d 913 (1978), Bakersfield City School District v. Superior Court (Bakersfield Californian), 118 Cal.App.4th 1041 (2004)

(8) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the judicial branch entity relative to the acquisition of property or to prospective public supply and construction contracts, until all of the property has been acquired or the relevant contracts have been executed. This provision does not affect the law of eminent domain; 

The comparable exemption in the California Public Records Act (Government Code Section 6254 (h)) applies to "the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision." Use of the term "executed" in the proposed rule suggests a longer delay, namely, no disclosure until the contract has been performed, rather than until the contract has been formed—the "agreement obtained."  The reason for this difference is unclear.

 (9) Records related to activities governed by Government Code sections 71600 et seq. and 71800 et seq. that reveal deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy or that provide instruction, advice, or training to employees who are not represented by employee organizations under those sections. Nothing in this subdivision limits the disclosure duties of a judicial branch entity with respect to any other records relating to the activities governed by the employee relations acts referred to in this subdivision; 

This provision exempts the paperwork created in the course of negotiations with employee bargaining units. The comparable exemption in the California Public Records Act (Government Code Section 6254 (p)) applies to "records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) ofDivision 4, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under these chapters. disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this subdivision."

 (10) Records containing trade secrets or privileged or confidential commercial and financial information. For purposes of this rule: 
 (A) “Trade secret” means any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information that is not patented, that is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or a service having commercial value, and that gives its user an opportunity to obtain a business advantage over competitors that do not know or use it;

(B) “Privileged information” refers to material that falls within recognized constitutional, statutory, or common law privileges;

(C) “Confidential information” means: 

(i) For information involuntarily submitted to the judicial branch entity, information the disclosure of which would (1) impair the judicial branch entity’s ability to obtain necessary information in the future or (2) cause substantial harm to the competitive position of the person from whom the information was obtained; 

(ii) For information voluntarily submitted to the judicial branch entity, the kind of information that would customarily not be released to the public by the person from whom it was obtained;

There is no express general exemption for either trade secrets or proprietary information in the California Public Records Act.  Government Code Section 6254 (k) exempts information that is privileged under the Evidence Code, which has the following sections:

1060. If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

1061.  (a) For purposes of this section . . .
     (1) "Trade secret" means "trade secret," as defined in subdivision (d) of Section 3426.1 of the Civil Code, or paragraph (9) of subdivision (a) of Section 499c of the Penal Code.

The Civil and Penal Code provisions identically define “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: "derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy
."  Thus the proposed rule embodies a looser definition of what is a trade secret, lacking the italicized criterion.  As for "confidential information," this category refers to information that is not privileged, but whose release would somehow make it harder for the judicial entity to get similar information in the future (despite its being involuntariy submitted, i.e. compelled by law) or would cause the commercial submitter "substantial harm," or even information that the voluntary submitter would not normally release to the public, i.e. virtually any information not issued in a press release.  The vague and overbroad categories of "confidential information" should not be necessary as an exemption in this rule.  There is a legal privilege—again, acting as a CPRA exemption under Government Code Section 6254 (k)—in Evidence Code Section 1040, which states:

(a) As used in this section, "official information" means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.
(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding.  In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

This privilege for official information acquired in confidence has been repeatedly interpreted by the courts as requiring essentially the same balancing of interests as under the CPRA's Government Code Section 6255. In other words, what the proposed rule means by "confidential information" that is per se protected could be withheld under the official information privilege only if the court concluded that the public interest in nondisclosure outweighed the public interest in disclosure. It is not clear why the judicial branch needs such a level of secrecy—one that finds no parallel in the CPRA.

 (11) Records the disclosure of which would expose a judicial branch entity’s or judicial branch personnel’s decision-making process so as to discourage candid discussion within the entity or the judicial branch and thereby undermine the entity’s ability to perform its function, unless the public interest served by disclosure of the record clearly outweighs the public’s interest in withholding the record; or

 (12) If on the facts of the specific request for records the public interest served by withholding the record clearly outweighs the public interest served by disclosure of the record. 

These two exemptions find their parallel in court interpretations of the CPRA's Government Code Section 6255, which states: "The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." In other words, even where an agency cannot point to any exemption from disclosure in the CPRA, it may withhold certain information if, given the realities of the situation, the public interest in not releasing the information "clearly" overrides the public interest in having it be known.  This "catchall" or wild card exemption, as invoked in reported appellate cases to date, has been successful in justifying withholding of information seven times, partially successful twice, and unsuccessful 14 times.  In one of the successful instances, the California Supreme Court held that the public's interest in effective decision-making by government officials outweighed its interest in understanding the influences brought to bear on such decision-making.  In particular, the court concluded that a disclosure of who had met with a governor (as reflected in his appointment calendar) over a five-year period would endanger the quality of the governor's decisions by deterring people from seeking to meet with him in the future and thus reducing the quantity or quality, or both, of the information and advice he relied on.  Preserving the governor's rich mix of advisory input, in short, was more important than public awareness of where that input came from.  This decision, in Times Mirror Co. v. Superior Court (State of California), 53 Cal.3d 1325 (1991), has been followed in three lower appellate cases since, and its frequently-called deliberative process "privilege"—not one recognized in the Evidence Code—is increasingly seized on by public agencies for withholding all kinds of communications and other documents from disclosure under the CPRA—down to memos and e-mails among city staff members.  It is safe to say that if Section 6255 is a wild card for secrecy in the CPRA, the deliberative process rationale is the wildest play of that card—so far, a sure trump.  These rules could get the benefit of its effects under (12) above alone.  Why (11) is necessary as a codification of a particular case (Times Mirror Co.) decided under the rule in (12) is unclear, unless to give the courts the most express and emphatic authority for avoiding public scrutiny of the sources, influences and factors contributing to decisions on how the judicial branch is run.

(g) Computer software; copyrighted materials
 (1) A computer mapping system, graphic system, program, software, or source code developed by a judicial branch entity or used by a judicial branch entity for the storage or manipulation of data is not a judicial  administrative record.

 (2) A judicial branch entity is not required to duplicate records under this rule in violation of any copyright. 

(3) The status of a writing as a judicial administrative record is not affected because the writing is stored in a computer.

The comparable exemption in the California Public Records Act (Government Code Section 6254.9) states:

(a) Computer software developed by a state or local agency is not itself a public record under this chapter. The agency may sell, lease, or license the software for commercial or noncommercial use.

(b) As used in this section, "computer software" includes computer mapping systems, computer programs, and computer graphics systems.

(c) This section shall not be construed to create an implied warranty on the part of the State of California or any local agency for errors, omissions, or other defects in any computer software as provided pursuant to this section.

(d) Nothing in this section is intended to affect the public record status of information merely because it is stored in a required by this chapter.

(e) Nothing in this section is intended to limit any copyright protections.

It is not clear why the italicized provisions are not included in the proposed rule.

 (h) Waiver of exemptions
 (1) Disclosure of a judicial administrative record that is exempt from disclosure under this rule or provision of law by a judicial branch entity or judicial branch personnel acting within the scope of their office or employment constitutes a waiver of the exemptions applicable to that particular record.  
 (2) This subdivision does not apply to disclosures:
 (A) Made through discovery proceedings;
 (B) Made through other legal proceedings or as otherwise required by law;
 (C) Made to another judicial branch entity or judicial branch personnel for the purposes of judicial branch administration;
 (D) Within the scope of a statute that limits disclosure of specified writings to certain purposes; or
 (E) Made to any governmental agency or to another judicial branch entity or judicial branch personnel, if the material will be treated confidentially.

The comparable exemption in the California Public Records Act (Government Code Section 6254.9) states, in pertinent part:

Notwithstanding any other provisions of the law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law. Forpurposes of this section, "agency" includes a member, agent, officer, or employee of the agency acting within the scope of his or her membership, agency, office, or employment. This section, however, shall not apply to disclosures:

(a) Made pursuant to the Information Practices Act (commencing with Section 1798 of the Civil Code) or discovery proceedings.
(b) Made through other legal proceedings or as otherwise required by law.
(c) Within the scope of disclosure of a statute which limits disclosure of specified writings to certain purposes.
(d) Not required by law, and prohibited by formal action of an elected legislative body of the local agency which retains the writings.
(e) Made to any governmental agency which agrees to treat the disclosed material as confidential. Only persons authorized in writing by the person in charge of the agency shall be permitted to obtain the information. Any information obtained by the agency shall only be used for purposes which are consistent with existing law.

 (i) Availability in electronic format 
 (1)
A judicial branch entity, on request, must make a copy of a judicial
administrative record that is not exempt from disclosure under this
rule available in an electronic format, provided that:

 (A) No law prohibits disclosure;
 (B) The record already exists in the requested electronic format; and
 (C)
The disclosure does not jeopardize or compromise the security or
integrity of the original record or of any proprietary software in
which it is maintained.

 (2)
If in order to comply with (i)(1) the judicial branch entity would be
required to produce a copy of the record and the record is produced
only at otherwise regularly scheduled intervals, or if the judicial
branch entity agrees to perform data compilation or extraction to
produce a record in response to a request, the requester will bear the
cost of producing a copy of the record, including the cost to construct
a record and to produce a copy of the record.

The comparable California Public Records Act provision is Government Code Section 6253.9, which states:

(a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall make that information available in an electronic format when requested by any person and, when applicable, shall comply with the following:


(1) The agency shall make the information available in any regularly
scheduled intervals. proprietary software in which it is maintained.

(2) Each agency shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.

(b) Notwithstanding paragraph (2) of subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies:

(1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.

(2) The request would require data compilation, extraction, or programming to produce the record.

(c) Nothing in this section shall be construed to require the public agency to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format.

(d) If the request is for information in other than electronic format, and the information also is in electronic format, the agency may inform the requester that the information is available in electronic format.

(e) Nothing in this section shall be construed to permit an agency to make information available only in an electronic format.

(f) Nothing in this section shall be construed to require the public agency to release an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any any proprietary software in which it is maintained.

(g) Nothing in this section shall be construed to permit public access to records held by any agency to which access is otherwise restricted by statute.

Next segment: Records retention, access enforcement and conclusions.

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