Californians Aware has asked California's Chief Justice to defer action on a proposal to treat requesters for judicial branch administrative information based on their need to know. Set for consideration at today's (Friday,  December 14) meeting of the California Judicial Council—policy-maker for the state's court system—is a recommendation that requests for information that do not specify particular public records be treated differently depending on who is asking.

The rationale for the proposal is that while budget reductions have led to increasing staff shortages, there is also an increasing rate of queries as to how the court system is run involving why certain decisions were made or actions taken. Such queries often amount to demands for explanations, analysis or other responses that would require the creation of new records to fulfill, or that involve policy motives that staff either does not know or feels it above their pay grade to speculate about.

Three years ago the Judicial Council adopted Rule of Court 10.500, for the first time stating the presumption that the public is entitled to view or copy the judicial branch's administrative records, as distinguished from records of court proceedings, which have been presumed public as a matter of common law for many years.  But 10.500, like its counterpart pertaining to executive branch and local government documents, the California Public Records Act, does not require the creation of new records or the compiling of lists or reports. Nonetheless, the authors of tomorrow's recommended action—which unlike most potentially controversial measures was not put out for public comment—contend that many information requests ask for answers rather than access to records, and need to be accommodated by new guidance from the Council.

The recommended policy set for action shortly after noon states:

Procedure
When (state court system headquarters) staff receives a request for records or information, they shall follow the process set forth below.
I. Identify the Type of Request
Requests will generally fall into four categories:
• Requests for judicial administrative records under rule 10.500 of the California Rules of Court
• Requests for basic programmatic or process information not embodied in judicial administrative records
• Requests for information that requires an explanation, discussion of policymaking, or is otherwise inappropriate for staff to answer
• Hybrid requests seeking both judicial administrative records and information
Once the type of request is identified, follow the process specified below for the particular type of request.
II. Responding to Requests for Judicial Administrative Records Under Rule 10.500
EXAMPLES:
• Please provide any and all documents related to the financing and/or lease terms of the under-construction Long Beach Courthouse between the AOC; Long Beach Judicial Partners, their entities, affiliates or successors; and/or the State of California.
• Please provide a copy of the report called “Surveying the Future: California’s Attitudes Toward the Court System” that was published by the Commission on the Future of California’s Courts.
Staff should handle these according to the AOC policy for responding to requests for judicial administrative records: http://intranet.jud.ca.gov/reference/index.cfm?pg=referenceList&ref_catid=46
III. Responding to Requests for Basic Programmatic or Process Information not Embodied in Judicial Administrative Records
EXAMPLES:
• How far in advance of his or her preferred starting date for serving on assignment should a retiring judge submit his or her application to the Assigned Judges Program?
• How long does it typically take to process a compensation claim for a panel attorney in the Court-Appointed Counsel Program?
Because the nature of the basic programmatic/process information will vary from Office to Office, staff should handle these according to the policy of their Office or Division.
IV. Responding to Requests for Information not Embodied in Judicial Administrative Records That Requires an Explanation, Discussion of Policymaking, or is Otherwise Inappropriate for Staff to Answer
EXAMPLES:
• Why was the decision made to implement the Voluntary Separation Incentive Program (VSIP) for AOC employees?
• Why are judicial officers not afforded priority treatment with respect to requests for records made under rule 10.500 of the California Rules of Court?
First, identify the requester according to the following five (5) categories and then respond accordingly:
• Judicial officers
• Members of Judicial Council advisory committees, task forces, and working groups
• Media
• Executive and legislative branch staff
• General public
A. Judicial officers
- Refer to Director of Court Operations Special Services Office, who will consult with Chief’s appointee(s) to determine whether request is within the regular scope of judicial business
o If “yes,” appropriate staff will be notified and should respond
o If “no,” refer to Chief’s appointee(s)
B. Members of Judicial Council committees, etc.
- Is request from or on behalf of committee chair?
o If “yes,” respond
o If “no,” continue below
- Refer to Director of Court Operations Special Services Office, who will consult with Chief’s appointee(s) and/or committee chair to determine whether request is within the regular scope of committee business
o If “yes,” appropriate staff will be notified and should respond
o If “no,” refer to Chief’s appointee(s)
C. Media
- Refer to Office of Communications for evaluation and response as appropriate
D. Executive and legislative staff
- Refer to Office of Governmental Affairs for evaluation and response as appropriate
E. General public
- If the request appears to presents a legitimate issue or otherwise be appropriate for response, refer to Director of Court Operations Special Services Office, who will consult with Chief’s appointee(s) to determine whether to respond. Otherwise, a response is not necessary.
V. Responding to Hybrid Requests Seeking Both Judicial Administrative Records and Information
EXAMPLES:
• Please provide a list of every AOC employee whose compensation increased in FY 2011–12 and an explanation as to why each listed employee received his or her increase.
• It has been reported that, at a public meeting, the Administrative Director of the Courts said X. Please provide a transcript or audio recording of the Administrative Director’s complete remarks at that meeting and provide all facts on which the Administrative Director made the statement X.
Staff should make every effort to parse these as follows:
• To the extent the request seeks judicial administrative records, that portion of the request should be handled according to the AOC policy on rule 10.500: http://intranet.jud.ca.gov/reference/index.cfm?pg=referenceList&ref_catid=46
• To the extent the request seeks information not contained in judicial administrative records, it should be handled as described in sections III and IV above.

CalAware General Counsel on Wednesday—when it first learned of the proposal—sent the following letter to the Chief Justice, who chairs the Judicial Council.

December 12, 2012

The Honorable Tani G. Cantil-Sakauye                                            Chief Justice of California

RE:  Judicial Council Meeting of Friday, December 14: Agenda Item X

 Dear Chief  Justice Cantil-Sakauye,

Californians Aware, a nonprofit, nonpartisan public interest organization concerned to protect and advance open government and public information policies and practices in California, asks that the Judicial Council defer the action recommendation proposed under agenda item X for Friday’s meeting.

The proposal calls for a complex, nuanced and somewhat subjective spectrum of authorized responses or (non-responses) to requests for information about judicial branch administration that are required to be given response—or not—under Rule of Court 10.500, governing access to judicial administrative records.

Before approving the recommended procedures, we urge the Judicial Council to direct AOC staff to consider, evaluate and report back on a far simpler approach.  That approach will do nothing to solve the problem of reduced staff resources, but should at least make the work somewhat simpler in the sense of simplifying the decisional tree.

It should also permit dispensing with an apparent discretionary filter under which “Who’s asking?” can make a definite difference inconsistent with Rule 10.500’s declared aim to provide access comparable, by and large, to that of the California Public Records Act (CPRA), under which the requester’s identity or purpose are not to be factors considered in making a disclosure decision. Clearly judges may need specific information for practical and official purposes in doing their jobs; those requests are understandably to be given priority outside the Rule 10.500 scheme.

But otherwise, categorically qualifying and properly submitted requests (including those from judges) that reflect a general civic, policy or even political perspective should not be sliced, diced and pigeonholed for better or less better response depending on who the requester is.

Much of the problem that the recommendation identifies is one familiar to CPRA processors: a request for explanation, justification, qualitative or quantitative analysis, listing, etc. that calls on the agency, in effect, to create a new record. This issue is addressed in Rule 10.500 (e) (1) (B): "Nothing in this rule requires a judicial branch entity to create any record or to compile or assemble data in response to a request for judicial administrative records if the judicial branch entity does not compile or assemble the data in the requested form for its own use or for provision to other agencies."

But usually this kind of request can be recast into one which seeks records reflecting or addressing the subject matter of interest, for example treating the question, "Why does the AOC need an employee in China?" as "Please provide any record or records documenting the decision to have an AOC representative in China."  Most requests or queries that do not literally ask for records, in other words, can be converted fairly easily into those that do, and fulfilled accordingly, or declined, either because those records are exempt from disclosure under the Rule, or because they do not exist.  The latter situation should be extremely rare: if something about how the branch is or has been run is being researched or questioned, it almost certainly has a documentary history. The records constituting that history can be provided, allowing the requester to draw his or her own conclusions.

A phrasing commonly used by public agencies in answering CPRA-based queries is that the agency has located “records responsive to your request,” meaning that the records are not necessarily those specified in the request but do contain information of the kind that seems to be sought.  In fact often requesters cannot specify precisely the records whose contents will best answer their concerns.  As the Court of Appeal has pointed out,

"Unquestionably, public records must be described clearly enough to permit the agency to determine whether writings of the type described in the request are under its control. (The CPRA) compels an agency to provide a copy of nonexempt records upon a request ‘which reasonably describes an identifiable record, or information produced therefrom . . .’ However, the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought. Thus, writings may be described by their content. The agency must then determine whether it has such writings under its control and the applicability of any exemption. An agency is thus obliged to search for records based on criteria set forth in the search request."  California First Amendment Coalition v. Superior Court, 78 Cal.Rptr.2d 847, 849 (1998).

Accordingly, Californians Aware requests that the Judicial Council defer approval of the recommended policy pending consideration of the approach suggested here, specification of the kind of request(s) that it could not accommodate, and the reasons why.

 

 

 

 

 

Terry Francke

General Counsel