CalPERS-300x200As reported by the Sacramento Bee's Jon Ortiz, CalPERS has put a hold on plans to launch an Internet database showing the names, pension amounts and other related information of its 1.6 million members, after a group claiming to represent the retirees threatened litigation to block the disclosures.  The group also apparently plans to seek an exemption from disclosure under the California Public Records Act for the names of retirees linked to their pension amounts.

CalAware today sent Assembly Member Roger Dickinson (D-Sacramento), who reportedly is considering authorship of such a bill, the following message.

RE: Proposed amendment to make state retirees' names and/or pensions confidential.

Dear Assembly Member Dickinson,

At least one recent press report suggests that you may be considering introducing a proposed amendment to the California Public Records Act exempting from public disclosure the names of CalPERS pensioners associated with their retirement payments. We would like to caution you about the futility of such legislation, which would add no protection for most pensioners and which, to pass constitutional muster, would have to adopt findings demonstrating necessity, when all the proponents' announced rationales for such secrecy have been argued to the appellate courts and found unpersuasive.

1. Almost all the information in question is already in the public domain as of 2011; see the searchable newspaper database at http://www.mercurynews.com/salaries/pensions. Only a very small percentage of pensioners (the most recent) would be made anonymous by new legislation, since even if the newspaper-published data were taken down, the fact of its prior release by CalPERS would mean that anyone could demand its re-release from CalPERS.  See Government Code Section 6254.5. And of course the newspaper could transfer its database to others even if it decided to take it offline.

2. The argument that retirees could be preyed upon as senior citizens if their names were publicly tied to their pensions has been repeatedly rejected by the Court of Appeal as baseless; see, e.g.,
Sacramento County Employees' Retirement System v. Superior Court (2011), 195 Cal. App. 4th 440, 469. "In SCERS's laudable zeal to protect its members, SCERS edges in the direction of 'unsupportable age-based stereotyping.' . . . Simply because many retirees are elderly does not mean they are too frail to weather disclosure of their individual pensions."
San Diego County Employees Retirement Assn. v. Superior Court (2011), 196 Cal. App. 4th 1228, 1246. "CalPERS has been releasing the information since 1985 . . . Yet, the record here reveals no untoward consequences."
Sonoma County Employees Retirement Assn. v. Superior Court (2011), 198 Cal. App. 4th 986, 1006. "With regard to the claimed special vulnerability of elderly persons to financial predation, we note our ruling will not result in the release of home addresses, telephone numbers, or e-mail addresses of retirees and beneficiaries."

3. Any legislative limiting of access to government information must, pursuant to Proposition 59 of 2004, embody findings "demonstrating" the need for such secrecy;  any such finding not supported by substantial evidence—but by merely conclusory declaration—would provide constitutional grounds for Californians Aware or anyone else to sue for invalidation.

The truth is that to provide the perception of a service premium to their dues-paying members or clients, lobbyists for this or that interest group with an insider's financial stake in the status quo increasingly seek to use litigation, legislation or both to reduce the amount of publicly available information about state and local government activities and benefits.  These efforts are made in the face of the more than 83 percent of the voters who in 2004 made open government a constitutional right on a par with speech.

The current proposals, moreover, are made with no apparent awareness of the California Supreme Court's unanimous decision only this week citing the open government right as decisive in declaring governmentally maintained GIS-formatted data open to the public.  These proponents also seem not to have noticed the vehement blowback encountered by the Legislature and Governor in recent weeks in seeking to downgrade key requirements of the Public Records Act to optional status.

These groups do their members no favors in raising their hopes of protection from imagined threats of exploitation when, whether through lawsuits or legislative action, they cannot possibly deliver.  And they do members of the Legislature no service in wasting their time and tarnishing their credibility in the process.

Cordially,

Terry Francke
Californians Aware