Californians Aware Audit Report: Public Access to Courts’ Administrative Records

Courts Ready to Share Basic Information on How They’re Run—If Properly Asked

California courts are generally prompt and forthcoming in sharing with the public basic information about how they are administered, including specifics about the pay, benefits, and outside financial interests of judges and key executives. But they could do a better job of informing the public of its right of access to such information. ______________________________________________________________________________

UPDATE: This report earlier stated, “And the Administrative Office of the Courts has been singularly unrevealing.” The statement was based on the apparent failure of the AOC to provide most of the information responsive to our March 2, 2013 request. The AOC contends that it did send a reply email to CalAware with most of the information included on March 29. We have no record of receiving that email, but do not wish to contest AOC’s assurance that it was sent. In any event, the last of the information requested was received at CalAware only on September 5. Thus the initial response—an acknowledgment of receipt—was sent on March 8, making the time for initial response six days, the final message completing the response was sent 52 days after CalAware’ last request clarification and 221 days after the March request.______________________________________________________________________________

This conclusion reflects results of an audit of the trial and appellate court systems throughout the state conducted by Californians Aware throughout 2013, checking how readily and completely they responded to information requests as required under a judicial branch disclosure mandate—Rule of Court 10.500—that went into effect four years ago.

Access to the records of most state and local agencies is governed by the California Public Records Act (CPRA), but that law does not apply to the judicial branch. Instead, the state court system for the first time opened its administrative books to public review with Rule 10.500, whose provisions in most respects parallel those of the CPRA.

(Records of trials and other judicial proceedings—case records—have long been presumed open to the public under common law in California as well as all other states. Rule 10.500 instead applies to records of how the courts are run, at what cost, and the like.)

Records Requested

Superior Courts

To test how well the state’s 58 county-based superior (trial) courts comply with the new rule, CalAware used email addressed to each court’s executive officer to make the following requests, shown in italic.

1. Executive Committee Minutes

Agenda(s) and minutes or action summaries of the meeting(s) of the Court’s executive committee, or the equivalent, for the period October 15 – November 15, 2012.

The larger superior courts are governed by an executive committee, comprising some or all of their judges, in much the same way as a city is governed by a city council. That committee meets periodically to address and decide issues of administration, including but not limited to such matters as budgeting, judicial workload, income and spending, labor relations and so on, as well as the adoption of local rules concerning the management of cases and procedural requirements for parties. In smaller courts with only a handful of judges, these issues are addressed more informally, but an example of the scope of concerns to be dealt with, the Executive Committee of the Los Angeles Superior Court has subcommittees dealing with Civil & Small Claims; Criminal Court Matters; Education; Family Law; Grand Jurors; Judges' Retirement Benefits; Juvenile Departments; Legislation; Mental Health; Personnel and Budget; Probate Departments; Rules; Security; and Trial Jurors.

Although no state law, rule of court or other provision has so far been interpreted as requiring superior court executive committees to meet openly, there is an interesting argument to be made that a 2004 amendment to the state constitution—added by more than 83 percent of the voters via Proposition 59—does exactly that. Article I, Section 3 (b) (1) states simply, “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Emphasis added). The term “public body” might well be applied to superior court executive committees, which although supported in large part by state rather than local funds, also have a great deal to say about local public access to the courts in terms of fees, schedules, facility sites and ease of use.

The mid-October to mid-November span of the minutes’ request was arbitrary— long enough to be likely to capture one or more meetings of any such bodies, but not creating an undue burden of compilation.

Responses in General: See details here See overall responses by county

14 – Have no executive committee4 – No such records created3 – No such regular meetings held13 – Committee did not meet in specified period13 – Provided agenda and minutes for specified period4 – Agenda only provided1 – Agenda, redacted minutes provided1 – Minutes only provided1 – Redacted minutes provided2 – Documents are exempt from disclosure1 – No response to emailed or mailed requests

Most Interesting ResponsesThe San Diego and San Bernardino Superior Courts cited various exemptions from disclosure as the basis for declining to provide access to either agendas or minutes of their executive committee meetings.

San Diego Court Executive Officer Michael M. Roddy wrote:

Any such documents are exempt from disclosure under California Rules of Court, Rule 10.500, including under the official records privilege [Rule 10.500(d)(2) and (f)(5), Evidence Code Section 1040, and Government Code Section 6255)]; the deliberative process exemption [Rule 10.500(d)(2) and (f)(11) and Government Code Section 6255; and the public interest exemption [Rule 10.500(f)(12)]. Such documents are also exempt so long as they deal with adjudicative rather than administrative matters [Rule 10.500(b)(2) and (c)(1)], or other matters specifically exempted by Rule 10.500.

San Bernardino Deputy Court Executive Officer/General Counsel Debra K. Meyers wrote:

The Court has determined that agenda(s) and minutes or action summaries of any meeting(s) of the Court's Executive Committee for the period October 15 - November 15, 2012 are exempt from disclosure pursuant to California Rules of Court, rules 10.500(f) (11) and (12). Subdivision (f)(11) exempts court records that reveal decision-making processes, deliberative processes, evaluations and recommendations. Subdivision (f)(12) exempts records of a court where the public interest served by non-disclosure clearly outweighs the public interest in disclosure.

Pursuant to California Rules of Court, rule 10.605, and the Court's Local Rules, rule 231.1, the purpose of the Court's Executive Committee is to advise the Presiding Judge and assist with internal court management. The Executive Committee is therefore charged with adopting and administering the Court's budget (LR 231.2); and reviewing and approving the Court's organizational structure and reviewing

recommending personnel and administrative polices (LR 231.3-231.4.) Thus, the Court's Executive Committee is a deliberative body and minutes or other records of its discussions, decisions, recommendations and actions are protected from disclosure by rule 10.500(f)(11) of the Rules of Court.

Additionally, it is in the best interest of the Court, and the community it serves, to promote candid and thoughtful discussion during committee meetings; the direct result of which is deliberate and objective actions by the committee. Disclosing the agenda(s) and minutes could inhibit discussion and thereby impact the actions of the committee. For this reason, the agenda(s) and minute(s) are also exempted from disclosure under subdivision (f)(12) of rule 10.500 because the public interest in disclosure is outweighed by the public interest served by non-disclosure.

2. Judges’ Supplemental County Compensation

A record or records showing the dollar value of any supplemental benefits provided to each judge for the calendar year 2012, authorized by SBX2 11 of 2009 to be paid from County funds.

As noted, most of the funds supporting superior courts come from the state. And the state constitution provides that judges’ “compensation” is to be “prescribed” by the Legislature—an attempt to insulate judges from local income sources that might affect their independence of judgment. For example, a county is occasionally sued in a case to be tried in its own courtrooms. Can the plaintiff expect judicial impartiality when the defendant county is paying the assigned judge a virtual bonus in addition to his or her state-determined salary?

Nonetheless, Los Angeles County in recent years supplemented its superior court judges’ salaries in two ways, with a tax-free benefits cafeteria plan that could be cashed out (as ordinary income) at a judge’s discretion, and with a taxable cash payment intended—but not audited—to support professional development activities. According to an appellate court’s summary in 2008,

Currently, the largest component of benefits provided to judges is the county's contribution to its MegaFlex Cafeteria Benefit Plan (MegaFlex). The county pays its salaried employees an amount equal to 19 percent of their monthly salary in the form of a tax-free contribution to MegaFlex. Each employee can use the county's contribution to purchase medical, dental and vision coverage or life and disability insurances. Any portion of the county's contribution that is not used to purchase benefits is paid to the employee as taxable income. The county treats its superior court judges as salaried employees of the county for the purpose of the MegaFlex contributions and thus the county's superior court judges receive MegaFlex contributions equal to 19 percent of their salary.[

In addition to the MegaFlex contributions, the county provides its judges with a professional development allowance (PDA). According to the county, the PDA

permits judges to participate in educational and professional development programs. Each judge is given discretion in the manner in which his or her PDA is expended. In fiscal year 2007 the PDA amounted to $6,876 per judge.

Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630, 636. In Sturgeon, the court of appeal concluded that this local compensation supplement violated the state constitutional rule that judges’ compensation be prescribed by the Legislature. But in hasty reaction four months later, lawmakers passed a bill, SBX2 11—sponsored by the (official) California Judicial Council and the (professional) California Judges Association—that

• authorized continuation of county-paid benefit supplements to those judges already receiving them, or termination of such benefit programs by attrition, or creation of new local benefit programs where they did not already exist;

• called for a report by the Judicial Council to the Legislature by the end of the year “analyzing the statewide benefits inconsistencies”; and

• absolved all persons and government entities from either civil or criminal liability for having given or taken supplemental payments found unlawful in Sturgeon.

Responses in General: See details here See overall responses by county

38 – No county benefits offered

1 – “No responsive records”

1 – No response to this item

3 – Referred to county administration

14 – Summary of county benefits provided

1 – No response to emailed or mailed requests

Most Interesting ResponsesAll but three of those respondent courts receiving county benefit supplements provided enough detail to determine the dollar value of the benefits awarded each judge by name, exactly as requested. But Los Angeles and Orange County Superior Courts provided a description of how the local benefits program works, with no names or individual benefit listings. Sacramento Superior Courts listed the local benefits paid to each of its 21 judges—but identified them only with a number.

3. Judges’ Statements of Economic Interests

The most recently filed FPPC Form 700 Statement of Economic Interests for the permanently assigned judge most recently appointed to the court.

The Political Reform Act of 1974, a California law passed in a statewide ballot measure in reaction to the Watergate scandals, created the Fair Political Practices Commission (FPPC) and began to require periodic disclosures of investment, non-government employment compensation or other income or gifts received by state and local elected and appointed public officials. as well as of key employees with significant influence over government spending decisions. These disclosures are made in periodic reports on FPPC Form 700, typically filed with the employing agency as essentially immediately accessible public records. In the case of judges and other statewide officials, the reports are also posted on the FPPC’s website.

Knowing the outside income of judges is perhaps more important than that of most other public officials, considering the very high stakes left in the hands of one decisionmaker.

Instead of asking for all a court’s judges’ FPPC filings, which could be quite numerous for the larger counties, the sample requested only the most recently filed by the newest judge on each court.

Responses in General: See details here See overall responses by county

Form 700 provided 52

Referred to FPPC website 3

Not due at this point 1

Request garbled 1

No response to emailed 1 or mailed requests

Most Interesting ResponseLos Angeles Superior Court Administrator Gregory C. Drapac stated that this request was for “the name of the judge most recently appointed or elected to the Court,” whereas the actual request wording was “the most recently filed FPPC Form 700 Statement of Economic Interests for the permanently assigned judge most recently appointed to the court.”

4. Court Executive Officers’ Statements of Economic Interests

Your most recently filed FPPC Form 700 Statement of Economic Interests.

The “you” here refers to the court’s Executive Officer, to whom the information request email was addressed. The position’s job description, as prescribed by Rule 10.610 of the Rules of Court, is as follows.

(b) General responsibilities Acting under the direction of the presiding judge, the court executive officer is responsible for overseeing the management and administration of the nonjudicial operations of the court and allocating resources in a manner that promotes access to justice for all members of the public, provides a forum for the fair and expeditious resolution of disputes, maximizes the use of judicial and other resources, increases efficiency in court operations, and enhances service to the public. (c) Duties Under the direction of the presiding judge and consistent with the law and rules of court, the court executive officer must perform the following duties, where they are not inconsistent with the authorized duties of the clerk of the court:

(1) Personnel Provide general direction to and supervision of the employees of the court, and draft for court approval and administer a personnel plan for court employees that complies with rule 10.670. The court executive officer has the authority, consistent with the personnel plan, to hire, discipline, and terminate nonjudicial employees of the court.

(2) Budget Make recommendations to the presiding judge on budget priorities; prepare and implement court budgets, including accounting, payroll, and financial controls; and employ sound budget and fiscal management practices and procedures to ensure that annual expenditures are within the court's budget.

(3) Contracts Negotiate contracts on behalf of the court, in accordance with established contracting procedures and all applicable laws.

(4) Calendar management Supervise and employ efficient calendar and case flow management systems, including analyzing and evaluating pending caseloads and recommending effective calendar management techniques.

(5) Technology Analyze, evaluate, and implement technological and automated systems to assist the court.

(6) Jury management Manage the jury system in the most efficient and effective way.

(7) Facilities Plan physical space needs, and purchase and manage equipment and supplies.

(8) Records Create and manage uniform record-keeping systems, collecting data on pending and completed judicial business and the internal operation of the court, as required by the court and the Judicial Council.

(9) Recommendations Identify problems, recommending procedural and administrative changes to the court.

(10) Public relations Provide a clearinghouse for news releases and other publications for the media and public.

(11) Liaison Act as liaison to other governmental agencies.

(12) Committees Provide staff for judicial committees.

(13) Other Perform other duties as the presiding judge directs.

The Executive Officer thus has the chief administrative—including spending—authority in his or her court, although these officers are virtually unknown to the public in all but

the smallest counties. The Form 700 filings are a significant window on other sources of income they might have that could influence their decisions.

Responses in General: See details here See overall responses by county

Form 700 provided 50

30 days needed to 2produce

None filed 3

No executive officer 1

Exempt from 1Disclosure

No response to emailed 1 or mailed requests

Most Interesting ResponseLos Angeles Superior Court Administrator Gregory C. Drapac stated that

although these documents are public documents, the Los Angeles Superior Court is not the custodian of these documents. Attached is a printout of the procedures of the Secretary of State for inspecting and/or copying public documents for which they are the custodian. These records may also be available from the Fair Political Practices Commission at the following address . . .

Asked if in fact the Court had a copy of the Form 700 which it could provide, he responded that “copies of the Form 700 which the Court has are not official copies and are therefore exempt from disclosure as a part of personnel files. CRC 10.500(f)(2).” That provision exempts from disclosure litigation-related documents. It is 10.500(f)(3) that exempts personal information whose disclosure would constitute an unwarranted invasion of personal privacy, including, but not limited to, records revealing home addresses, home telephone numbers, cellular telephone numbers, private electronic mail addresses, and social security numbers of judicial branch personnel and work electronic mail addresses and work telephone numbers of justices, judges (including temporary and assigned judges), subordinate judicial officers, and their staff attorneys

5. Court Executive Officer’s Professional Background

The résumé or curriculum vitae submitted to support your appointment as Executive Officer.

Not all Executive Officers are appointed on the strength of their experience elsewhere; a fair number have been promoted from within after years of subordinate employment with

the court. But in larger counties in particular they are hired after a competitive job search, and their prior experience and qualifications can be an issue of public interest.

Responses in General: See details here See overall responses by county Résumé provided 40

Internal promotion 12

No longer in files 1

Referred to Administrative 1Office of the Courts

30 days needed to 1produce

No executive officer 1

Exempt from 1disclosure

No response to emailed 1 or mailed requests

Most Interesting ResponseLos Angeles Superior Court Administrator Gregory C. Drapac stated that the executive officer’s “application would be a personnel file within the meaning of CRC 10.500(f)(2), and hence exempt from disclosure.” But CRC 10.500(d)(1) states,

Unless otherwise indicated, the terms used in this rule have the same meaning as under the Legislative Open Records Act (Gov. Code, § 9070 et seq.) and the California Public Records Act (Gov. Code, § 6250 et seq.) and must be interpreted consistently with the interpretation applied to the terms under those acts.

And the Public Records Act’s exemption to protect the privacy of personnel files has been interpreted as inapplicable to “information as to the education, training, experience, awards, previous positions and publications” of public employees, since “such information is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Eskaton Monterey Hospital v. Myers, 134 Cal.App.3d 788, 794 (1982)

6. Court’s Procedures for Public Access to Administrative Records

Any locally adopted Court rule or policy governing public or press access to judicial administrative records.

Rule of Court 10.500(e)(3) provides:A judicial branch entity must make available on its public Web site or otherwise publicize the procedure to be followed to request a copy of or to inspect a judicial administrative record. At a minimum, the procedure must include the address to which requests are to be addressed, to whom requests are to be directed, and the office hours of the judicial branch entity.

If the court makes no effort to publicize the fact that its administrative records are open to public inspection and copying, and how the public can exercise its rights, then the public’s right of access is academic.

Responses in General: See details here See overall responses by county

Referred to court’s website 24

None adopted 23

Policy provided 9

No response 1

No response to emailed 1or mailed requests

7. Number of Days to Initial Response to Request for Records

See details here See overall responses by county

The first response of many was a simple acknowledgment of receipt. Others provided some substantive answers—either a partial or complete response. Forty-five courts—77.5 percent—made an initial response within 10 days

Same day 4

1 day 1

2 days 1

3 days 2

4 days 2

5 days 3

6 days 1

7 days 16

8 days 1

9 days 1

10 days 13

12 days 2

13 days 2

14 days 1

18 days 2

21 days 2

23 days 1

71 days 1

329 days 1

To date 1 (No response)

8. Number of Days to Complete Response to Request for Records

See details here See overall responses by county

Because of some questions and uncertainties on both sides, some responses took some time to be completed. But 23 courts—40 percent—made an initial response within 10 days

Same day 2

2 days 1

3 days 1

5 days 1

6 days 1

7 days 5

8 days 1

9 days 2

10 days 9

11 days 1

12 days 1

13 days 1

14 days 1

15 days 2

16 days 3

17 days 1

18 days 1

20 days 2

21 days 4

22 days 1

23 days 3

25 days 1

27 days 1

28 days 2

32 days 1

43 days 1

70 days 2

71 days 1

108 days 1

138 days 1

166 days 1

329 days 1

To date 1 (No response)

Administrative Office of the Courts

The AOC is the staff agency of the Judicial Council, which is the policy-making body for the California court system. Like the counties’ superior courts, it is subject to Rule of Court 10.500’s rules for access to administrative records, and it also serves as the access provider for administrative records of the state’s courts of appeal.

See UPDATE on page1

Records Requested

Dear AOC,

Please provide copies in electronic format of the following judicial administrative records:

1. Agenda(s) and minutes or action summaries of the 2012 meeting(s) of the following Judicial Council Committees:

• Executive and Planning Committee

• Technology Committee

• Trial Court Budget Working Group

2. The 2012 and 2013 "annual charges" for the following bodies:

• Access and Fairness Advisory Committee

• Court Executives Advisory Committee

• Court Facilities Working Group

• Court Technology Advisory Committee

• Financial Accountability and Efficiency for the Judicial Branch Advisory Committee

• Judicial Service Advisory Committee

• Trial Court Facility Modification Working Group

• Trial Court Presiding Judges Advisory Committee

3. The résumé or curriculum vitae submitted to support the application for appointment of the following officers of the Administrative Office of the Courts:

• Steve Jahr, Administrative Director of the Courts

• Curt Child, Chief Operating Officer

• Jody Patel, Chief of Staff

• Curt Soderlund, Chief Administrative Officer

• Mary Roberts, General Counsel

4. The most recently filed FPPC Form 700 Statement of Economic Interests for each of the officers specified above.

5. Any policy, procedure or guidance, other than a Rule of Court or Judicial Council adopted Standard, governing public or press access to records of judicial proceedings.

6. Any policy, procedure or guidance, other than a Rule of Court or Judicial Council adopted Standard, governing public or press access to judicial administrative records.

7. Agenda(s) and minutes or action summaries of the meeting(s) of the executive committee, or the equivalent, for each appellate court for the period October 15 – November 15, 2012.

8. The résumé or curriculum vitae submitted to support the application for appointment of the chief clerk of each appellate court.

9. The most recently filed FPPC Form 700 Statement of Economic Interests for the chief clerk of each appellate court.

10. The most recently filed FPPC Form 700 Statement of Economic Interests for the most recently appointed justice of each appellate court.