Court of Appeal Strictly Applies CPRA “Public Records” Definition; Agencies Not Required to Seek Outside Information
On December 19, 2013, the California Court of Appeal held that a public agency is not required under the California Public Records Act (“CPRA”) to seek records it does not prepare, own, use, or retain in the conduct of its business. In Regents of the University of California v. Superior Court, the Court of Appeal overturned a trial court decision requiring the University of California (“UC”) to use “objectively reasonable efforts” to obtain individual investment fund information from private equity firms with which UC had made investments.
In 2011, the news agency Reuters requested individual fund information regarding UC’s investments with three private equity firms. UC administrators made clear that, other than information disclosed about one fund prior to 2003, and other information already available on UC’s website, UC had no additional individual fund data. In response, in January 2012, Reuters filed a petition for a writ of mandate requesting the fund information. In February 2013, the trial court issued an order finding that, although UC did not prepare, own, use, or retain individual investment fund information, UC had an obligation to make reasonable efforts to obtain the information.
The Court of Appeal disagreed with the trial court’s decision. As the appellate court explained, UC has no obligation to obtain the information sought by Reuters because the information does not qualify as a “public record” under the plain language of the CPRA. If the document is not “prepared, owned, used, or retained” by the public agency, it is not a public record, even though the document may contain information relating to the conduct of the people’s business. Further, although the private equity firms may hold information of interest to the public, the firms themselves are not engaged in the public’s business and therefore are not subject to the CPRA.
In its decision, the Court further noted that the outcome would not excessively frustrate the CPRA’s purpose of enhancing governmental transparency; the individual fund information would become subject to the CPRA in the future if UC determined that it must obtain particular individual fund information to perform its fiduciary duty of prudently monitoring its investments.
For more information about this case, please contact Ruthann G. Ziegler at 800.464.3559.