OPEN GOVERNMENT -- The rules that are proposed to provide public access to administrative records showing how the judicial branch and its individual courts are run are modeled on those governing other state and local agencies under the California Public Records Act (CPRA).  But there are significantly greater opportunities for secrecy.

California's judicial branch must be credited for embarking on a remarkable transparency initiative unparalleled—so far as is known—in other state court systems in the United States or elsewhere. With no compulsion to do so, it has subjected its own administrative records—heretofore subject to quite limited access for the benefit of court labor organizations—to the same presumptions of openness, access procedures and enforcement processes as have applied to California's executive branch and local government agencies for the past 41 years under the California Public Records Act (CPR).

These rules might well have taken as their model the law that makes administrative records of the legislature—how things are run and done behind the scenes under the Capitol dome—largely unavailable for public scrutiny.  There's an excellent separation of powers case to be made that lawmakers cannot force more sunshine on the courts' business than they are willing to accept for their own.

Accordingly, the court system, the Judicial Council and Chief Justice George, whose role in impelling this undertaking is unmistakeable, are entitled to respect and gratitude for adopting this comprehensive approach to transparency.

That said, there is some remaining work to be done.  An amendment to the Article I, section (3) of the California Constitution approved by more than 83 percent of the voters at the November 2004 election—Proposition 59—states the following:

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 adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

There are a number of instances in the proposed rules where the right of access to records is limited by exemptions that are either significantly broader than those in the CPRA or that have no parallel in that law or how it has been interpreted, or that contain words or phrases creating significant ambiguity as to what effect they would have, or that create cost burdens unknown to the CPRA.

The Judicial Council should publicly debate and make the constitutionally required findings or, if the noted limitations cannot be plausibly anchored to an "interest protected by the limitation and the need for protecting that interest," should remove the limitation.

In the following summary of issues to be addressed, the actual language of the proposed rule is higlighted, and any italics have been added for emphasis.

Compensation: Proposed Rule 10.500 (e) (2) states:

Judicial
administrative records subject to inspection and copying unless exempt
from disclosure under subdivision (f) include . . .
Actual and budgeted employee salary and benefit information, by position classification,
consisting of the number of employees and compensation by
classification, and any document, whether prepared periodically or for
a special purpose, that shows any changes in salaried positions by classification . . . 

The
California Supreme Court has ruled that the actual compensation of
California executive branch and local government employees is, under
the CPRA, public information.  If this language  means that identifiable
court employees’ compensation and raises or bonuses are to be
confidential, this would be the first major departure from CPRA policy
and a likely source of controversy. Judges' salaries have never been secret, but their actual compensation, generously supplemented as it is by Los Angeles County, for example, may or may not be determinable under this provision. Meanwhile tens of thousands of other judicial branch employees may likewise have their actual pay shielded.

Contracts: Proposed Rule 10.500 (e) (2) states:

Judicial
administrative records subject to inspection and copying unless exempt
from disclosure under subdivision (f) include . . .
Copies
of executed contracts with outside vendors and payment information and
policies concerning goods and services provided by outside vendors
without an executed contract . . .

“Executed”
would normally mean fully performed.  Is the intent here to release
contracts only after performance, and not proposed contracts or those
in mid-course of performance?

Audits: Proposed Rule 10.500 (e) (2) states:

Judicial
administrative records subject to inspection and copying unless exempt
from disclosure under subdivision (f) include . . .
Final audit reports . . .
Why
“final?”  Is the intent to give courts or the Administrative Office of
the Court the opportunity to negotiate with or pressure the auditor to
tone down awkward findings or conclusions before a report is “accepted?”

Drafts and Memos: Proposed Rule 10.500 (f) (1) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . 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). But 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.

Personal Privacy: Proposed Rule 10.500 (f) (3) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . 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—behind the scenes lobbying—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. 

Other Confidentiality Rules: Proposed Rule 10.500 (f) (5) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . 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 r
elating
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.

Complaints and Discipline: Proposed Rule 10.500 (f) (7) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . 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).

Appraisals and Estimates: Proposed Rule 10.500 (f) (8) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . 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.

Business Information: Proposed Rule 10.500 (f) (10) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . 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. 

Moreover, 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 this 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.

Management Decision Documentation: Proposed Rule 10.500 (f) (11) and (12) state:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . (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 diverse mix of advisory input, in short,
was held to be 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.

Chargeable Copying Fee: Proposed Rule 10.500 (b) (4) (A) states: 

A judicial branch entity, on request, must provide a copy of a judicial
administrative record not exempt from disclosure if the record is of a
nature permitting copying, subject to payment of the fee specified in
this rule or other applicable statutory fee:

 (i)
A judicial branch entity may impose a fee reasonably calculated to
cover the judicial branch entity’s direct costs of producing a paper or
hard copy of any record; 

 (ii)
A judicial branch entity may impose a fee reasonably calculated to
cover the judicial branch entity’s direct costs of creating a record or
producing an electronic copy of a record as specified in subdivision
(i); and 
(iii) A judicial branch entity may require advance payment of any fee. 

So far, the cost rules closely parallel those in the CPRA, which states in Government Code Section 6253 (b): "Except
with respect to public records exempt from disclosure by express
provisions of law, each state or local agency, upon a request for a
copy of records that reasonably describes an identifiable record or
records, shall make the records promptly available to any person upon
payment of fees covering direct costs of duplication, or a statutory
fee if applicable. Upon request, an exact copy shall be provided unless
impracticable to do so."

Chargeable Processing Fees: Proposed Rule 10.500 (b) (4) (B-D) state:

(B)
When records are requested for other than commercial use, a judicial
branch entity may impose a reasonable standard charge for document
search and review, provided that no charge may be imposed for the first
two hours of search and review time. 

(C)
When records are requested for commercial use, a judicial branch entity
may impose a reasonable standard charge for document search, review,
and duplication.

 (D)
A superior court must provide a copy of the certified judicial
administrative record if the judicial administrative record requested
has been certified by the superior court.

(D)
addresses certification requirements unique to the judicial branch. (B)
and (C) are fundamental departures from the CPRA model in their
requirements for payment for search and review (not just copying) and a
higher fee for not only search and review but also copying if the
records are requested for commercial use.  After Californians Aware,
journalism and court labor groups and legislative representatives
universally and strongly objected to an initial proposal to charge
for search and review, the two-hour free pass was added to
this version (for non-commercial requesters, that is), but this
approach is likely to continue to be controversial.