California assembly ordered to release budget data

The Superior Court of California for the county of Sacramento entered an order Friday ruling that the California assembly – the lower house of the state legislature – must release budget-related records to news organizations under the state’s Legislative Open Records Act.

Rochelle Wilcox, attorney for the Los Angeles Times and a partner at Davis Wright Tremaine LLP, said the records, once released, will “provide a lot of information about how the assembly actually allocates funds.”

In August 2011, the Los Angeles Times and The Sacramento Bee jointly filed a petition for writ of mandamus, asking the court to compel the assembly to comply with the state Legislative Open Records Act, after the assembly denied their July 2011 requests for records related to assembly members’ and committees’ budgets and expenditures, including budgets, old staff rosters, and personnel transaction reports.

Their requests followed assemblyman Anthony Portantino’s allegations that assembly members were using budget allocations to control party members’ votes. He also claimed that in an effort to hide individual members’ expenses, assembly leaders attributed them to committees, then refused to release complete details of committee expenditures.

The assembly unsuccessfully argued that three exemptions to the Legislative Open Records Act – which creates a presumption of public access to legislative records – applied to the withheld records: those protecting the legislature’s preliminary writings, the deliberative process, and correspondence with legislative members and their staff.

The court rejected the assembly’s argument that the documents qualified as “preliminary drafts, notes, or legislative memoranda” because they were not “preliminary.” The records were approved budget allocations, said the court, not merely draft or proposed budgets.

The court also rejected application of the deliberative process privilege, which protects communications made prior to a decision and that reveal deliberative communications, such as “advice, opinions, and recommendations,” rather than mere facts. Here, said the court, the records were neither generated prior to a decision nor did they contain deliberative communications.

“[E]ven if the requested records might indicate some deliberative process on the part of the members with regard to their individual budgets,” said the court, “the court is persuaded that the strong public interest in disclosure outweighs any reasons for keeping the records secret.”

Finally, the court ruled the Act’s exemption for “[c]orrespondence of and to individual Members of the Legislature and their staff” did not apply. The assembly argued that the court should interpret that exemption broadly to include “all internal and external written communications of legislators and staff,” but the court disagreed, finding that the exemption applies only to external communications.

“[T]o interpret the term ‘correspondence’ as broadly as the Assembly suggests would permit the Legislature to shield any document from public view simply by transmitting it to any Assembly member and/or his staff,” said the court. “Such an exemption would clearly swallow the rule of public access, rendering the adoption of the Open Records Act a largely futile act.”

Assembly speaker John Pérez and rules committee chair Nancy Skinner issued a written statement saying, “The Assembly has followed the same practices since the passage of the Legislative Open Records Act in 1975. The Court today has given a different interpretation of how LORA should be implemented.”

It is not yet known whether the legislature will appeal the order.