OPEN GOVERNMENT – This is the first 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.

Division 3. Judicial Administration Rules Applicable to All Courts
Rule 10.500.  Public access to judicial administrative records
 (a) Intent
The Judicial Council intends by this rule to implement Government Code section 68106.2(g), added by Senate Bill X4 13 (Stats. 2009, ch. 22), which requires the adoption of a rule of court that provides public access to nondeliberative or nonadjudicative court records, budget and management information.  This rule clarifies and expands the public’s right of access to judicial administrative records and must be broadly construed to further the public’s right of access.

The emphasized language echoes the rule added to the California Constitution by Proposition 59, the open government amendment, to the effect that statutes and court rules that declare a public right of access to government meetings and records must be given a broad interpretation, and those limiting access must be interpreted narrowly.

 (b) Application

 (1) This rule applies to public access to nondeliberative and nonadjudicative court records, budget, and management information relating to the administration of the courts.

“Nonadjudicative,” as indicated in the definitions section below, means records other than those filed in or generated by trials or other proceedings in particular civil or criminal proceedings.  “Nondeliberative” is a much fuzzier term, depending on what records are considered “deliberative.” This is possibly the most troublesome issue in the proposed rules, and will be addressed in segment three later this week.

 (2) This rule does not modify existing law regarding public access to adjudicative records.

So all the case law (and some statutes) concerned with open or closed courtroom doors, sealed trial records etc. remains the same.

 (3) This rule does not restrict the rights to disclosure of information otherwise granted by law to a recognized employee organization.

This is probably a placeholder looking to potential future statutes or rules that might purport to give judicial branch unions access to information not available to the general public.  There are no such laws now, and if there were they would be of dubious validity.

 (4) This rule does not affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state, nor limit or impair any rights of discovery in a criminal case. 

If you are suing, being sued or being prosecuted, your right to information from the opposing party will be unaffected by these rules.

(c) Definitions

As used in this rule:
 (1) “Adjudicative record” means any writing prepared for or filed or used in a court proceeding or the judicial deliberation process.

This undefined term probably refers, for example, to either notes made by a single judge in his or her private consideration of a motion, a judgment or sentence, or some other matter open to his or her discretion, or to the record of any discussion by a multi-justice review panel such as an intermediate appellate court or the California Supreme Court.

(2) “Judicial administrative record” means any writing containing information relating to the conduct of the people’s business that is prepared, owned, used, or retained by a judicial branch entity regardless of the writing’s physical form or characteristics, except an adjudicative record.  

In other words, any information about how the courts are run as opposed to the cases they decide.

(3) “Judicial branch entity” means the Supreme Court, each Court
of Appeal
, each superior court, the Judicial Council, and the Administrative Office of the Courts.

Notably not included here are three other judicial branch entities: the State Bar of California, the Commission on Judicial Appointments and the Commission on Judicial Performance

(4) “Judicial branch personnel” means justices, judges (including temporary and assigned judges), subordinate judicial officers, members of the Judicial Council and its advisory bodies, and directors, officers, employees, volunteers, and agents of a judicial branch entity.  
 (5) “Person” means any natural person, corporation, partnership, limited liability company, firm, or association.

 (6) “Writing” means any handwriting, typewriting, printing, photographing, photocopying, electronic mail, fax, and every other means of recording on any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, regardless of the manner in which the record has been stored.

The inclusive “writing” definition is taken verbatim from the California Public Records Act (Government Code Section 6252 (g)), which applies to all state and local government agencies other than the Legislature and the judicial branch.  The CPRA serves as the model—or at least point of departure—for most of these rules.

(d) Construction of rule

Unless otherwise indicated, the terms used in this rule have the same meaning as under the Legislative Open Records Act (beginning with Gov. Code, § 9070) and the California Public Records Act (beginning with Gov.  Code, § 6250) and must be interpreted consistently with the interpretation applied to the terms under those acts. This rule does not require the disclosure of a record if the type of record would not be subject to disclosure under those acts.

This provision probably adds more confusion than clarity.  Ordinarily statutes and court decisions deal with particular records rather than “types” of records.  Does this mean, for example, that because the Legislative Open Records Act flatly exempts records of fuel or lubricant purchases by lawmakers (to keep the public from learning where state cars or cars using state credit cards are driven) will protect judges as well, even though these rules do not contain such an exemption?

(e) Public access

 (1) Access

A judicial branch entity must allow inspection and copying of judicial administrative records unless the records are exempt from disclosure under this rule or by law.  Nothing in this rule requires a judicial branch entity to create a record or to list, compile, or assemble data in response to a request for judicial administrative records if the judicial branch entity does not list, compile, or assemble the data in the requested form for its own use or for provision to other agencies. Extracting or compiling data loaded from extractable fields in a single database using software already owned or licensed by the judicial branch entity does not constitute the creating of a record or the compilation or assemblage of data.

The emphasized sentence is the conventional rule applicable to paper records under the California Public Records Act.  The sentence after it, applicable to electronic databases, is comparable to the CPRA rule in Government Code Section 6253.9, which among other things provides that “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 . . . (t)he request would require data compilation, extraction, or programming to produce the record."

If a judicial administrative record contains information that is exempt from disclosure and the exempt portions are reasonably segregable, a judicial branch entity must allow inspection and copying of the record after deletion of the portions that are exempt from disclosure. A judicial branch entity is not required to allow inspection or copying of the portion of a writing that is a judicial administrative record unless that portion is reasonably segregable from the portion that constitutes an adjudicative record.  

These provisions are comparable to the CPRA rule in Government Code Section 6253 (a): “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”

 (2) Examples

Judicial administrative records subject to inspection and copying unless exempt from disclosure under subdivision (f) include, but are not limited to, the following: 

(A) Budget information submitted to the Administrative Office of the Courts after enactment of the annual Budget Act;
 (B) Any other budget and expenditure document pertaining to the administrative operation of the courts, including quarterly financial statements and statements of revenue, expenditure, and reserves;  (C) Actual an
d 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 (C) here 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.

(D) 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?

(E) Final audit reports; and

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?”

(F) Employment contracts between judicial branch entities and their employees.

This is the CPRA requirement in Government Code Section 6254.8, which states: “ Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to (any exemptions from disclosure)." The California Supreme Court has concluded that this provision applies only to literal written agreements between public agencies and the personnel they hire by contract.

Next segment: Procedures for requesting and providing access.