In May 2011, a Court of Appeal clarified for the first time that, like public employee salaries, county retiree names and pension amounts are public records subject to disclosure under the Act. (Sacramento County Employees’ Retirement System (SCERS) v. Superior Court (Third Appellate District, 2011) No. C065730.)
In the SCERS case, the Sacramento Bee and the First Amendment Coalition sought a writ of mandate to compel SCERS to release individually identifiable pension information. SCERS had released pension amounts and departments, but without personally identifying information. One of SCERS main arguments was that section 31532 of the County Employees Retirement Law of 1937, which provides in part that “individual records of members shall be confidential,” mandated protection of that information. The court, however, found that the section protects information provided by a member or on the member’s behalf to SCERS, and not all information pertaining to the member. (This distinction is admittedly not terribly helpful, but the court did place home and email addresses, telephone numbers, and social security numbers in the first category, and names and pension and benefit information in the second.)
SCERS also argued that the information requested by the Bee should be kept private under the Act’s catchall provision. This provision allows a public agency to keep public records confidential if it can show “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.” (Gov. Code sec. 6255(a).) Making such a showing is difficult, but possible.
SCERS claimed that the right to financial privacy, the risk of public disgrace, the risk of financial elder abuse, and the Bee’s alternative methods of collecting pension information all weighed against disclosure of the individual pension information.
The court disagreed. Although the right to privacy encompasses private financial information, public pensions, it stated, are simply not private information. Echoing International Federation, the court invoked the “strong public interest in knowing how the government spends its money.” Concern about subjecting the retirees to public hostility, the court said, “edges in the direction of ‘unsupportable age-based discrimination.'” SCERS was then unable to convince the court that the risk of elder abuse was more than speculative. Finally, the court found irrelevant any ability of the Bee to access the pension information elsewhere.
Ultimately, the court held that information subject to disclosure includes the name, date of retirement, department retired from, last position held, years of service, base allowance, cost of living adjustment, total health allowance and monthly pension benefit of each retiree.
Although the Act attempts to address privacy issues, it can do so only in general terms, and finding the right balance between an individual’s constitutional right to privacy the public’s right to scrutinize the operations of its government is often left finally to the courts. After SCERS, public retirees can join public employees in knowing that their government-funded benefit information will be made available to anyone who requests it.
Jennifer (Jen) Faught is an Oakland-based attorney with the law firm Meyers Nave. She advises cities, special districts and other public entities on a variety of legal issues, including state and federal constitutional matters, local governance, the adoption and collection of fees, and public procurement. She also deals extensively with conflict of interest regulations, open meeting laws, and access to public records and is a frequent presenter of the mandated AB 1234 government ethics training. She can be reached at firstname.lastname@example.org