California Court of Appeals, First District, Second Division
Ordered Filed Date January 14, 2014
Alameda County Super. Ct. No. RG12-613664, Trial Judge: Hon. Evelio Grillo
Attorneys for Petitioner: Crowell & Moring J. Daniel Sharp Michael R. Goldstein Karen J. Petrulakis Margaret L. Wu Charles F. Robinson
Attorneys for Amicus Curiae City of Santa Rosa League of California Cities on City Attorney’s Office behalf of Petitioner: Caroline L. Fowler
No appearance for Respondent.
Attorneys for Real Party In Interest: Ram, Olson, Cereghino & Kopczynski Karl Olson
ORDER MODIFYING OPINION AND DENYING REHEARING
It is ordered that the opinion filed herein on December 19, 2013, be modified as follows: The final sentence on page 28 (“The Regents shall recover its costs.”) is deleted.
There is no change in the judgment. Real Party in Interest’s petition for rehearing is denied.
BRICK, J. [*]
The primary issue in this case is whether a public agency can be required under the California Public Records Act (Gov. Code, § 6250 et seq.) (the Act or the CPRA) to seek records it does not prepare, own, use or retain in the conduct of its business. Real Party in Interest Reuters America LLC (Reuters) filed a petition for writ of mandate in the superior court under the CPRA requesting individual fund information for investments made by the Regents of the University of California (the Regents). The superior court granted the writ and found that the Regents was required to use “objectively reasonable efforts” to obtain from Kleiner Perkins Caulfield & Byers (Kleiner Perkins) and Sequoia Capital (Sequoia) individual fund information for the Regents’s current investments even though the Regents had not prepared, owned, used, or retained this fund information. The trial court also ordered certain information lodged conditionally under seal with the trial court pursuant to California Rules of Court, rule 2.551, as part of the Regents’s opposition to the writ petition under the CPRA, be deemed public rather than returned to the Regents. The Regents seeks a writ of mandate and/or prohibition in this court directing the trial court to set aside the trial court order. We stayed the trial court’s order and issued an order to show cause.
With respect to the first issue, the Regents concedes that the information sought relates to the public’s business. Nonetheless, because it was not prepared, owned, used, or retained by the Regents, we hold that records reflecting such information in the hands of Kleiner Perkins and Sequoia are not “[p]ublic records” within the meaning of the CPRA, section 6252, subdivision (e). With respect to the second issue, we hold that the trial court’s decision to defer ruling on the Regents’s motions to seal until deciding the merits of Reuters’ petition, and consideration of that evidence, did not relieve the trial court of its obligation to return the lodged records, as required by California Rules of Court, rule 2.551(b)(6), upon final conclusion of the case. We accordingly grant the Regents’s petition.
As of October 2012, when this matter was initially heard in the trial court, the Regents owned investment assets of about $71.6 billion, which help pay for employee pensions, student scholarships, research, and other university operations. The Regents sets broad policies; management of the assets is entrusted to the Office of Treasurer with assistance from the consulting firm Cambridge Associates and oversight from the Regents’s Committee on Investments and a separate investment advisory committee.
Since 1979, about two percent of the Regents’s multi-billion dollar investment portfolio has been invested in “private equity, ” which refers to limited partnerships formed and managed by private parties to invest in private companies (sometimes referred to as “funds”). The companies that form funds are often referred to as “private equity firms”; those that focus on start-ups are often referred to as “venture capital firms” or “VCs.”
Until 2003, the Regents received from private equity firms, including Kleiner Perkins and Sequoia, information that enabled it to monitor its private equity investments. This information consisted of annual fund level information, which included information on portfolio companies, i.e., privately held companies in which the fund invested, the amounts of those investments, and other information the private equity firms regarded as confidential business information. Such information was provided to investors like the Regents in confidence.
In 2003, however, the Alameda County Superior Court decided Coalition of University Employees v. The Regents of the University of California (Super. Ct. Alameda County, 2003, No. RG03-089302) (CUE). In CUE, the Regents defended against a CPRA request for, among other things, the internal rate of return for 94 separate private equity funds, by arguing that the information should be treated as exempt from disclosure under the CPRA as trade secrets or as official information. The Regents also argued that pursuant to section 6255 it was justified in withholding the information because the public interest served by not disclosing the records clearly outweighed the public interest served by disclosure. The trial court held that the Regents’s evidence in support of those arguments was insufficient for it to carry its burden of showing why the records should not be produced. This court summarily denied the Regents’s petition seeking review of the CUE decision and the Supreme Court denied a hearing. Importantly for the present case, in CUE there was no dispute that the records requested met the definition of “public records.” (CUE, at p. 122.)
Following the CUE decision Kleiner Perkins stopped providing the Regents with fund specific information for its existing investments and stopped inviting the Regents to participate in new funds. Sequoia did the same until 2010 when it allowed the Regents to invest in Sequoia Capital 2010 LP. So far as the record shows, no further CPRA requests were sent to the Regents seeking alternative investment information until 2012, when the request that led to this litigation was sent.
In the meantime, “[i]n 2004, California voters approved Proposition 59, which amended the state Constitution to provide a right of access to public records.... [A]rticle I, section 3, subdivision (b)(1) provides: ‘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.’ Subdivision (b)(2) provides guidance on the proper construction of statutes affecting this right of access: ‘A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.’ ” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166 (Sierra Club).)
The following year, the Legislature added an additional exemption specifically relating to alternative investments in which public investment funds invest to more than two dozen exemptions already set forth at section 6254 et seq. Section 6254.26 now provides:
“(a) Notwithstanding any provision of this chapter or other law, the following records regarding alternative investments in which public investment funds invest shall not be subject to disclosure pursuant to this chapter, unless the information has already been publicly released by the keeper of the information:
“(1) Due diligence materials that are proprietary to the public investment fund or the alternative investment vehicle.
“(2) Quarterly and annual financial statements of alternative investment vehicles.
“(3) Meeting materials of alternative investment vehicles.
“(4) Records containing information regarding the portfolio positions in which alternative investment funds invest.
“(5) Capital call and distribution notices.
“(6) Alternative investment agreements and all related documents.
“(b) Notwithstanding subdivision (a), the following information contained in records described in subdivision (a) regarding alternative investments in which public investment funds invest shall be subject to disclosure pursuant to this chapter ...