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By PORAC | December 1, 2019 | Posted in PORAC LDF News


Founding Partner
Messing Adam & Jasmine LLP

Messing Adam & Jasmine LLP

We’ve all watched the feeding frenzy that has occurred since Senate Bill 1421 took effect in January. Much of the mainstream press seems to believe that breaking stories about peace officer misconduct from five, 10 or 15 years ago will somehow turn around the death spiral of print media. Whether it is the Investigative Reporting Program at UC Berkeley or the Washington Post’s discovery that peace officers, given a fair dose of due process, often successfully persuade neutral arbitrators that terminations were unjustified, journalists are convinced that police misconduct sells papers.

It was reassuring, therefore, when on November 6, the Sacramento County Superior Court ruled that CalPERS was not required by the California Public Records Act (CPRA) to disclose information regarding the disability status of retired public employees.
This decision resulted from a writ petition filed in August 2018 by the Nevada Policy and Research Institute (NPRI), a private organization that promotes limited-government policies. The group posts salaries and pension payments for California public employees on the website of its California arm, Transparent California. It is often the source for the annual unveiling (on slow news weeks) of which public employee made the most in overtime for the previous 12 months.
Stories about retired public safety employees abusing disability retirement benefits have also provided media fodder, with the Los Angeles Times running an investigative report in 2018 on officers’ disability claims. NPRI presumably wanted to further its narrative that disability retirement benefits are abused and should be rolled back.

NPRI made its initial CPRA request in 2016, seeking a wide array of information on individuals who receive retirement benefits from CalPERS. Although CalPERS released almost all the information requested, it refused to identify whether individuals’ retirement benefits were received from a service retirement, a disability retirement or an industrial disability retirement. CalPERS based its refusal to publicly disclose the records on statutory exemptions protecting the confidentiality of CalPERS members’ records and safeguarding against “an unwarranted invasion of personal privacy.” (Government Code §§ 20230, 6254(c).)
NPRI’s writ petition against CalPERS asserted that CalPERS’ refusal to release information identifying, by name, which retirees were receiving which type of pension was in violation of the CPRA. Gary Messing and Wendi Berkowitz of Messing Adam & Jasmine LLP represented a coalition of public safety unions that intervened, asserting the rights of their members, to assist CalPERS in fighting the petition.
At stake, from the unions’ perspective, was the individual retirees’ right to privacy. The unions argued that disclosure of the status of a retiree’s pension is essentially equivalent to disclosure of the retiree’s most private medical information, upon which the determination that the individual is disabled is based.

The court ruled that the retirees’ status as disabled or non-disabled is not properly subject to disclosure under the CPRA because it is “data filed with [CalPERS] by any member, retired member, beneficiary or annuitant” and is an “individual record.” In its order denying NPRI’s writ petition, the court agreed with the unions that a retiree’s status as disabled is “private information concerning a person’s medical and/or psychological profile” and that “disclosing which retirees are receiving disability retirement benefits will disclose private medical information.”

In the lawsuit, the NPRI justified its desire to seek the records with its claim that making this information public would help fight disability fraud. The unions argued in response that the end (forced disclosure of private information) did not justify the means, as it would give neighbors or acquaintances of retirees the tools to unfairly accuse and scapegoat retirees who are legitimately collecting disability retirements for “hidden disabilities,” such as Post Traumatic Stress Injury (PTSI).
Although someone suffering from PTSI or a physical disability that is not obvious to the casual observer may appear to be non-disabled (and thus, fair game for identification as a malingerer), the bona fides of the hidden disability are rightfully held in a close circle, limited to the individual, the treating doctor and the retirement board. The unions also argued that knowledge that an individual retiree is disabled is useless in identifying disability fraud without access to the undeniably confidential medical information supporting the disability finding. Although the court did not ultimately rule that the individuals’ right to privacy alone justified withholding the records if they were otherwise public, the court concluded that disability status is not public because of the “individual record” exemption and thus, CalPERS retirees’ disability status is not subject to disclosure.

Though this is a significant victory for public employees, this lawsuit is but one more skirmish in the continuing attack on public employees’ right to privacy. NPRI has publicly stated that it will continue its fight to obtain CalPERS records by appealing the Superior Court’s decision. And, as readers of PORAC Law Enforcement News are aware, SB 1421 came into effect on January 1, allowing the public release of personnel “records” relating to the following:
• The report, investigation or findings of an incident involving the discharge of a firearm at a person by a peace officer
• The report, investigation or findings of an incident in which the use of force by a peace officer against a person resulted in death or in great bodily injury
• A sustained finding that a peace officer engaged in sexual assault involving a member of the public
• Any record relating to a sustained finding of dishonesty by a peace officer relating to the reporting, investigation or prosecution of a crime, or directly relating to the reporting of or investigation of misconduct by another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying or concealing of evidence.

As a result of SB 1421, cities have released to the media, pursuant to CPRA requests, discipline-related records in police officers’ personnel files. These disclosures will continue to occur, given the public’s appetite for stories about officer misconduct.

About the Author
Gary Messing and Wendi Berkowitz of Messing Adam & Jasmine LLP are PORAC-LDF panel attorneys. Gary has been representing peace officer associations for over 40 years. He is a founding partner of the law firm Messing Adam & Jasmine LLP, which predominately represents public sector unions and their members in labor relations. Wendi has been a litigator for 30 years. She has extensive experience as a trial lawyer and negotiator. She joined the firm in 2018.