Recent press reporting suggests that legislators in Sacramento, pressured by state employee unions and retiree associations, may be considering amending the California Public Records Act to exempt from public disclosure the names of CalPERS pensioners linked to their retirement payments -- information that's been open to public scrutiny for the past 28 years.

Californians Aware has issued a caution to one such lawmaker 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.

First, almost all the information in question is already in the public domain as of 2011; see the searchable newspaper database based on CalPERS information at http://www.mercurynews.com/salaries/pensions. Thus only a 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, under the Public Records Act, that anyone could demand its rerelease.

Moreover, the proponents' argument that retirees could be preyed upon as senior citizens if their names were publicly tied to their pensions has been rejected by the Court of Appeal as baseless in three separate decisions statewide dealing with county retirement associations' efforts to keep their members' names and pension amounts confidential.

  • In the Sacramento County case the court stated, "In (its) laudable zeal to protect its members, (the association) 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."

  • In the San Diego County case the court observed, "CalPERS has been releasing the information since 1985 ... Yet, the record here reveals no untoward consequences."

  • And in the Sonoma County case the court stated, "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."

    Finally, 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 facts would provide constitutional grounds for Californians Aware or anyone else to sue for invalidation.

    The political reality 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 voting to pass Proposition 59 in 2004, made open government a constitutional right of Californians on a par with speech.

    The proposal to take pension information dark, moreover, is made with no apparent awareness of the California Supreme Court's unanimous decision only last week citing Proposition 59 as decisive in declaring governmentally maintained geographic information system data open to the public.

    The proponents also seem clueless about the vehement blowback encountered by the Legislature and governor in recent weeks when they sought to unplug key requirements of the Public Records Act.

    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 on those promises.

    Terry Francke is general counsel of Californians Aware, a nonprofit organization established to help journalists and other Californians hold government accountable for its actions.