— A budget trailer bill just passed lists several items of
local trial court management information that must be made public, but
the list enfolds a poison pill recognizing, for the first time in
California legislation, the legitimacy of a controversial secrecy

The new language introduced into ABX4 13
(Evans) of the Fourth Extraordinary (budget) Session, generally
addressing the judicial branch, appeared there at the eleventh hour
without committee airing or any debate, as a result of nonpublic
negotiations between lobbyists for the court system and for its
unionized administrative workers.

The provision adds Section 68106.2 to the Government Code, stating:

    (a) Any person shall have the right to obtain the following information under Rule 10.802 of the California Rules of Court:
Baseline budget information that superior courts submit to the
Administrative Office of the Courts after enactment of the annual
Budget Act.

Any other budget and expenditure document of the superior court
pertaining to the administrative operation of the court, including
baseline budgets, quarterly financial statements, reports of revenues,
reports of reserves, however classified, and their classification, and
any document projecting or documenting savings due to unfilled
positions and savings resulting from temporarily closing a court.

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 available pursuant to subdivision (k) of Rule 10.802 of
the California Rules of Court.

Copies of executed contracts with outside vendors and payment
information and policies concerning services provided by outside
vendors without an executed contract. Any material provided under this
paragraph shall be redacted as necessary in accordance with subdivision
(i) of Rule 10.802 of the California Rules of Court.

    (5) Any final audit report.
If the information requested pursuant to subdivision (a) has been
certified by the superior court, copies of the certified documents
shall be provided.

    (c) The provisions of Rule 10.803 of the California Rules of Court shall apply to any petition arising under this section.
    (d) Subdivision (a) shall not apply to information that is part of the deliberative process or adjudicative process unless that information is otherwise made public.
Subdivision (a) shall only apply to information that has already been
created or prepared by, or in the possession of, the court, and does
not require a court to produce or create any new document or data
format to comply with its provisions. Nothing in this subdivision shall
be construed to prevent or limit a court from, in its discretion,
producing or creating a new document or data format, or otherwise
providing additional information.

Nothing in subdivision (a) is intended to limit or restrict public
access to other information that may be obtained under Rule 10.802 of
the California Rules of Court. Nothing in this section is intended to
limit or restrict public access to any information provided for by any
statute, rule, or case law.

    (g) The Judicial Council shall, on or before January 1, 2010, adopt rules of court that provide public access to nondeliberative or nonadjudicative court records, budget and management information.
    (h) This section shall remain in effect until the rules of court providing public access to nondeliberative or nonadjudicative court records, budget and management information are adopted pursuant to subdivision (g).

(Emphasis added)

In its 1991 decision in Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325,
the California Supreme Court used the common law deliberative process
privilege—recognized in federal court decisions under the Freedom of
Information Act—as a basis for denying access to former Governor George
Deukmejian's appointment calendars over a five-year period.  The privilege is explained as needed to keep governmental decisionmakers'
ability to get candid advice from those inside and outside the
government from being hampered by concerns that the advice might be
publicly disclosed. 

Since then the privilege has been repeatedly cited as a basis for
denying access to records shedding light on how controversial policies
were developed or who influenced them, despite the fact that the
privilege is nowhere mentioned as an exemption from disclosure under
the California Public Records Act.  It has been used by the California
Court of Appeal to deny public access to information about those seeking a governor's appointment to fill a vacancy on
a county board of supervisors, as well as phone records of city council
members showing whom they called on official business.

The privilege is commonly applied in practice not only to
pre-decisional advice given to elected officials but also to the paper
trail of policy development among local and state agency staff.  Its
use had become so widespread and reflexive by the turn of the century
that it amounted to one of the principal targets for reform in
Proposition 59, passed on the November 2004 ballot, which added to the
state constitution a statement of the fundamental rights of the public
to scrutinize meetings of official bodies and records of public
officials and public agencies.

While the elected San Diego City Attorney soon took the position that Proposition 59 left Times Mirror "of dubious authority," others not as accountable to the public insist that the privilege is unaffected.

13 would skew the debate towards the latter view. It represents the
first express recognition in California legislation of the privilege as
an exemption from the requirement to disclose—a recognition achieved
entirely by stealth.  Although it refers in this case to court
management information, it will be used to buttress use of the
privilege by state and local agencies governed by the California Public
Records Act as well.

But the secrecy provisions of this bill have a fatal flaw.  One of the mandates of Proposition 59 is that, beginning in Novermber 2004,

A statute, court rule, or other authority . . . that limits the right of access shall be adopted 
findings demonstrating the interest protected by the limitation and the need for
protecting that interest.

ABX4 13 has no such findings and thus could be challenged in court as unconstitutional on its face. The bill has a severability
clause, so the invalidation of the deliberative process language would
not affect the unrelated remainder of the bill, but it would make the
courts reluctant to comply with the management information disclosure
requirements with no deliberative process limitation.  Even if there
were no challenge by litigation, courts should be reluctant to rely on
a secrecy provision adopted in violation of the constitution.

The likely result, one way or the other, would be a return to the
legislature to try to pass these provisions again, this time with the
required findings.  But unlikeABX4 13, however, any such bill would
need to go through the standard "deliberative process" in public hearings
on a normal schedule—not crafted and grafted in the blur of budget