Metropolitan News-Enterprise


Tuesday, September 8, 2009


Page 3


Judge: Suit Over Challenge to Records Release a SLAPP


By STEVEN M. ELLIS, Staff Writer


An action by a group of newspapers against a retired Contra Costa deputy sheriff who filed suit to block release of her pension information was a strategic lawsuit against public participation, a Contra Costa Superior Court judge has tentatively ruled.

Holding that the newspapers’ complaint against Donna Irwin arose from her protected First Amendment activities and was designed to suppress her rights, Contra Costa Superior Court Judge Henry Baskin on Thursday said he would grant Irwin’s motion to strike the action.

The Contra Costa Times, the Los Angeles Times and the California Newspapers’ Association—joined by the Howard Jarvis Taxpayers Association—sought to intervene after Irwin filed suit challenging the Contra Costa County Employees’ Retirement Association’s decision to comply with a public records request.

In a July 2 ruling, Baskin agreed with the would-be interveners’ argument that a county’s pension records are not exempt from disclosure under the Public Records Act, even though he dismissed their petition as untimely.

The controversy arose May 5, when the Contra Costa County Employees’ Retirement Association—which represents over 18,300 active county employees, retirees, beneficiaries and deferred members—issued a letter informing approximately 450 retirees that it had agreed to release information to the California Foundation for Fiscal Responsibility, a public pension watchdog group.

The decision came in the wake of the California Supreme Court’s 2007 ruling supporting disclosure of public employee salary information in IFPTE v. Superior Court 42 Cal. 4th 319.

Some of the state’s public employee pension systems—including the California Public Employees Retirement System, California State Teachers Retirement System, university and judicial retirement programs—have released, or agreed to release, pension information. But others have declined to do so, in part because the Supreme Court’s ruling did not specifically include retirees.

The Contra Costa County Employees’ Retirement Association’s letter indicated the association’s belief that the Public Records Act required compliance with the foundation’s request. The letter advised that disclosure would be made of “the name and monthly pension for each retiree and beneficiary whose gross monthly pension benefits exceeded $8,333 in any month in 2009 where the data is readily accessible.”

Irwin filed suit contending that the release of her pension information was an invasion of privacy, but the newspapers named Irwin as a defendant in a complaint to intervene, arguing that public employee defined benefit plans were matters of public concern not exempt from disclosure insofar as such plans are funded by taxpayer dollars.

Although Irwin moved to strike the complaint and its request for attorney fees under California’s anti-SLAPP statute, Baskin reasoned that the pension data sought was public record and denied Irwin’s request for a preliminary injunction blocking the information’s release.

The judge concluded that Irwin’s interest in avoiding disclosure was outweighed by the state’s “strong policy in favor of disclosure of public records” and the “strong public interest in knowing how the government spends its money.”

However, he ruled Thursday that his previous decision did not moot Irwin’s anti-SLAPP motion and granted the motion, reasoning that Irwin had shown the newspapers’ action arose from protected activity and that the newspapers could not show a possibility of prevailing.

Citing Navellier v. Sletten (2002) 29 Cal.4th 82, he explained:

“Filing a lawsuit is an exercise of a party’s constitutional right to petition for grievances. A claim for relief filed in court is ‘indisputably a statement or writing made before a judicial proceeding.’…Thus, an anti-SLAPP motion lies to strike lawsuits that seek to penalize earlier litigation or to inhibit future litigation….It is hard to imagine a more heavy handed approach to litigation than an unfounded claim for attorneys fees directed to a person with a genuine concern about her privacy.”

The case is Irwin v. Contra Costa County Employees’ Retirement Association, MSC09-01478.


Copyright 2009, Metropolitan News Company