From: SFSM [mailto:mail@csrsf.com]
Sent: Friday, October 16, 2009 9:53 AM
To: 'SFSM Information Clearinghouse'; 'Pro-SF'; 'Sunshine Posse'
Subject: CalaWare: Proposal for Access to Court Admin Information: 3

From: FeedBlitz [mailto:feedblitz@mail.feedblitz.com]
Sent: Friday, October 16, 2009 2:29 AM
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Subject: CalAware Today - Proposal for Access to Court Admin Information: 3

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.

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.

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. (\u00a7 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

The comparable exemption in the California Public Records Act (Government Code Section 6254
(b)) applies to "(r)ecords pertaining to pending litigation to which the public agency is a party, or to
claims . . ., until the pending litigation or claim has been finally adjudicated or otherwise settled."
Although there is no "or anticipated" language in this provision, courts have read that qualifier into
it, meaning that documents created by an agency in the reasonable expectation of litigation are
covered, but not those created in the ordinary course of business that later become relevant to a
lawsuit or the threat of one: "a document is protected from disclosure only if it was specifically
prepared for use in litigation." City of Hemet v. Superior Court (Press-Enterprise Co.) 37 Cal.App.4th
1411, 1420 (1995).

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 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. A better
place would be under (6) below.

The comparable exemption in the California Public Records Act (Government Code Section 6254
(g)) applies to "(t)est questions, scoring keys, and other examination data used to administer a
licensing examination, examination for employment, or academic examination . . ."

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.

There is no comparable exemption in the California Public Records Act, but an opinion of the
Attorney General illustrates how similar security information\u2014in that case, jail plans and
specifications\u2014might be withheld under a balancing of interests pursuant to Government Code
Section 6255. Opinion No. 90-303 (1990)

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\u2014not dealt with by the Commission\u2014courts 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

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\u2014the "agreement obtained." The reason for this difference is unclear.