Freedom Foundation Argues Important Public Records’ Case Before CA Court of Appeals

Freedom Foundation Argues Important Public Records’ Case Before CA Court of Appeals

Freedom Foundation Argues Important Public Records’ Case Before CA Court of Appeals

The Freedom Foundation’s two-year quest to hold the state of California to at least the minimum standards for transparency demanded by the law reached a milestone on Wednesday as its argument finally reached the Court of Appeals.

Since March 2020, the California Department of Human Resources has consistently withheld vital public records from the Freedom Foundation, insisting these documents are somehow exempt from disclosure.

The Freedom Foundation had submitted a standard public records request to Cal HR seeking the names, hire dates, salaries and work emails and addresses of public employees in a certain set of bargaining units in California.

When the agency refused to comply, the Freedom Foundation filed suit in Superior Court, which ruled last April that Cal HR didn’t even need to provide redacted documents and had no obligation to explain why it could withhold the information in total.

The Freedom Foundation makes no secret of its intention to use the data so it can inform the employees of their First Amendment right to decline union membership and dues/fees. Under the California Public Records Act of 1968, the information is considered a matter of public information and the state must provide it to anyone making a lawful request.

Public disclosure is the baseline. The law assumes any information held by the government is public unless there is a good reason why it shouldn’t be.

But the burden of proof is on the government, not the requester.

Instead, Cal HR dragged its feet for more than two years, claiming it either didn’t have the information or, if it did, it was covered by a collective bargaining exemption.

Both of these arguments are preposterous.

First, to think that Cal HR doesn’t have access to the names or salaries of public employees boggles the mind. Obviously, this is exactly the kind of information the agency needs to conduct its human resources business.

Moreover, even if Cal HR doesn’t have the information at a given time, it can easily obtain it from the California State Controller.

In fact, under the Public Records Act, it mustget the information from the State Controller, because every state agency is required to produce the public records a citizen requests. It cannot simply abrogate that responsibility by pointing to another state agency.

Further, the collective bargaining exemption cited by Cal HR was intended to protect the confidential thought processes that go into negotiating with a union; it was not intended to protect literally anythingrelated to collective bargaining.

To think that a public agency can avoid its duty to be transparent simply by claiming the information is somehow proprietary is outrageous. Clearly, the agency’s actions are being directed by unions that fear losing members and dues if the Freedom Foundation is permitted to contact them.

And those fears are quite justified. But it’s the job of Cal HR to follow the law, not protect a labor union from its own dissatisfied members.

Now that oral arguments have been completed, the Freedom Foundation is awaiting a ruling on whether it can obtain basic public records from Cal HR.

There is certainly no valid argument to suggest we can’t.

Litigation Counsel
Shella Alcabes is a knowledgeable and creative litigator with over ten years of experience in commercial litigation. Ms. Alcabes joined Freedom Foundation because of her love of liberty and to fight for the protection of First Amendment rights. After graduating law school, Ms. Alcabes practiced for several years at one of the country’s preeminent firms, Morrison & Foerster LLP, in Los Angeles, and then made the cross-country move to a boutique litigation and bankruptcy firm in New York. At Morrison & Foerster LLP, Ms. Sadovnik handled multi-million and billion dollar cases including labor disputes with a large grocery store chain and the infamous Apple v. Samsung patent infringement case. She was also responsible for handling all aspects of complex commercial litigation, including conducting trial in Federal Court and drafting and arguing appellate briefs in the California Supreme Court, the Appellate Division of New York and the Second Circuit Court of Appeals. Ms. Alcabes received her B.A. from Stanford University and a J.D. from Loyola Law School of Los Angeles, where she was on the Loyola Law School Law Review. Ms. Alcabes was born in Ukraine and immigrated to the United States with her family when she was six years old. She is fluent in Russian, and proficient in both Hebrew and French. In her time off, she enjoys playing peek-a-boo with her toddler and Bar-B-Queuing with her husband.