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Perspectives
Public Is Denied Information That Government Has No Right to Hide
By Roger M. Grace
Government’s innate desire to keep matters secret appears to be winning in the perpetual tug-of-war with the public’s right to know.
•Div. Four of this district’s Court of Appeal is undertaking to block access to matters in the public domain.
•The County of Los Angeles classifies as “privileged” the matter of whether a salary is being paid to a higher-up in the District Attorney’s Office who is off work because she’s been charged with multiple felony counts.
•The State Bar has decided to deny potential clients of disciplined lawyers knowledge of ethical breaches committed by the attorneys—even of crimes of which they were convicted—once a few years have passed.
As I see it, Court of Appeal Presiding Justice Brian S. Currey and his cohorts, County Counsel Dawyn Harrison and her underlings, and the State Bar Board of Trustees are acting irresponsibly, and grossly so, in derogation of the public’s interest.
Div. Four
Let’s look at Div. Four. Last week, it handed down an opinion in a case it captions, “G.G. v. G.S.” The opinion, authored by Justice Helen Zukin, is not noteworthy in itself—in fact, it’s unclear why it was ordered to be published given that it merely says that Los Angeles Superior Court Commissioner Dennis F. Hernandez did not apply standards dictated by a 2004 Court of Appeal opinion in deciding whether a domestic violence restraining order (“DVRO”) was to be renewed.
What is, however, noteworthy is the fact that the justices, having decided that in their written opinion, G.G. and G.S. are to be accorded anonymity, also acted to block reference to them by their true names by others—such as news reporters—even though the names were contained in what had been public records.
I’m not talking about the Court of Appeal maintaining secrecy as to identities where pseudonyms were used in the Superior Court. In those instances, the justices, to their discredit, tend to blindly accept uses of “Doe” and “Roe” and initials without questioning the legitimacy of it.
This concerns a situation where all indications are that a case was filed in the Superior Court with the parties identified by their full names; those names were set forth in the notice of appeal; Div. Four, justifiably or not, on Nov. 22, 2023, granted the appellant’s motion to require that the parties identify themselves by initials, only. The justices then acted—and here’s where they clearly went astray—to preclude anyone from seeing existing public filings containing those names.
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Dockets can be searched online by case number—here, B331994—on a court of appeal’s “Appellate Courts Case Information” page on the Judicial Council website. But if you search for B331994 by using this district’s search box, you’ll get the message: “Case Not Found.”
This is no computer glitch. There’s been a conscious decision to render the records a secret. The Clerk’s Office will give out no information on the case, explaining that it may not do so.
The Los Angeles Superior Court has also blocked access to its own docket relating to the case.
Yet, by litigating in her true name in public filings in public courts, petitioner/appellant G.G. surely forfeited any entitlement to anonymity that might otherwise have been accorded to her—arguably legitimately, given her status as a victim. As it is, her identity is a fact that had entered the public domain, and was not legitimately subject to being imperiously snatched from the public by government—that is, by Div. Four.
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From the standpoint of the public, it’s repulsive.
Unjustified use of pseudonyms in Court of Appeal opinions is bad enough; the blocking from view of publicly filed records takes suppression of information to yet a higher level of government mischief (if denominating stooping lower can be considered to be something higher). Persons doing deep searches into available resources—such as litigants in unrelated matters or creditors—are denied information that could be of considerable value to them.
From the standpoint of journalists, it’s oppressive. While “guidelines” promulgated by the Judicial Council, telling of when use of fictional names or initials might be considered, are being treated as commands, with a senseless block-the-true-name craze going on in the courts of appeal, those guidelines plainly do not apply to the news media. Conscientious news organizations, mindful of privacy concerns—which, by tradition, would not report, for example, names of children or rape victims—might well, rationally, see no need to withhold the identities of adult parties who freely litigated in the Superior Court in their true names and perhaps during the entirety of proceedings in the Court of Appeal.
A cardinal journalistic precept, as expressed in the Society of Professional Journalists’s Code of Ethics, is:
“[J]ournalists should: [¶] •Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.”
Yet, Div. Four seeks to thwart the Fourth Estate in making independent calls as to what information, contained in public records, is suitable to convey by converting what has been, appropriately, public information into something that, under its wave of a wand, is secret.
It is for judges to make judicial calls; it’s for journalists to make newsroom decisions. Yet Div. Four seeks to block journalists from exercising their independent judgment as to what public facts to report by removing facts from view, with no findings or explanation or apparent supportable purpose. That’s arrogant over-reaching.
Although the opinion in G.G. v. G.S. appears, on its face, to lack news value, that’s not necessarily so. “G.S.,” against whom a DVRO was obtained, could be, for all anyone knows, a prominent person in whose activities the public has an interest. In light of the facts recited in the opinion, that’s improbable, but the point is that information is being put beyond the reach of journalists—information of potential interest to readers and viewers—by virtue of secrecy orders that conceal what had been public postings.
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There was, in fact, an opinion filed by Div. Four on May 9 in LB. v. S.T. which just might have generated news coverage had the parties been identified other than by initials or, failing that, had there been online access to the Court of Appeal’s docket in the case. The plaintiff/respondent—whom I’ve ascertained to be Lauren Brim—while not hugely famous, is a celebrity of sorts.
Brim is described by Amazon, which sells her books, as “a sex and female empowerment coach and author of ‘The New Rules of Sex Workbook,’ ‘Your Boyfriend’s Hooker,’ and ‘Women Who Love Sex.’ ” Numerous articles about her appear on the Internet. Holding a PhD from UCLA, she’s referred to as a “a doctor of human sexuality.” In addition to providing sexual coaching for couples, the former Radio City Rockette, according to her website, offers online courses that “promote sexual health and education.”
The appellant is Sven Torvald, a dance instructor who performed with the Houston Ballet and put together a documentary on the ballet aired by PBS in 2004. According to IMDb, he “is known for” for appearances in the movies “ Die Hard with a Vengeance (1995), Mighty Aphrodite (1995) and The Last Samurai (2003).”
Last month’s decision was actually “LB. v. S.T. II.” (Div. Four, in an opinion by Justice Audrey B. Collins, reversed an order decreasing the child support being paid by Brim.)
When Div. Four decided the case of “LB. v. S.T. I” on Aug. 25, 2022, at a time when Nora Manella (now retired) was still presiding justice of the division, the docket entries were not concealed, although a filing by Brim was reflected as being one by “Lauren B.” (There, Div. Four, in an opinion by Manella, affirmed an order that Brim pay Torvald $150,000 toward his attorney fees.)
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Brim tells me that she did not request anonymity in the case. She reflects:
“I don’t know why they use initials over the real name. I didn’t think much about it. I know in the court situation with my daughter, it was all hidden from public record because we were unmarried. I was told this is a very old fashion custom for children born out of wedlock. But hiding what goes on in family law is a big part of why there’s no accountability and such corruption.”
Where a party who did not request anonymity is accorded it, without an opportunity for input and with no explanation, it is apt to lead to conjecture as to the reasons and possibly a distorted view of court proceedings.
County Counsel’s Office
Los Angeles Assistant District Attorney Diana Teran, a key advisor to District Attorney George Gascón, has been charged by the Office of Attorney General with 11 felony counts of unauthorized accessing of data in Sheriff Department personnel files and making use of the information obtained. As a result, she’s off the job.
I’m reliably told that it’s county policy not to pay employees who are on a leave of absence pending resolution of criminal charges and that Teran is, nonetheless, being paid.
Is it true? That’s what I asked on May 2 in a request pursuant to the Public Records Act (“PRA”).
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Under Government Code §7922.535(a), a response is due within 10 days—unless, subd (b) says, there are “unusual circumstances,” in which event an extra 14 days may be taken.
I made a simple two-part inquiry. Yet, on May 13, the Office of County Counsel advised, in a letter on behalf of Harrison, signed by Senior Deputy County Counsel Vanessa Evangelista of the Labor & Employment Division, that the county would take an extra 14 days “due to the existence of unusual circumstances.” Evangelista explained that “unusual circumstances include the need to search for, collect, and appropriately review records from several sources.”
Actually, §7922.535(c) says that “unusual circumstances” include “a need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.”
My modest request could not arguably be said to have invoked any such need.
For that office not to proclaim “unusual circumstances” in response to a PRA request is, from what I understand, rare; that is, falsely asserting the existence of such circumstances is common. Lying is as natural for government as barking is for a dog or crying is for a baby.
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Anyway, on May 28, Evangelista advised that no records responsive to the request concerning the existence of a policy were found.
She provided a link to a county website which includes a search box and, if the right words are inserted, it will lead to information that last year, Teran’s total income from the county was $302.177. However, I didn’t ask how much she made last year; I asked: “[I]s it true that Ms. Teran continues to receive a salary?”
As to that matter, Evangelista advised:
“To the extent you seek disclosure of the personnel records of Diana Teran, such records are exempt from disclosure.”
But I did not seek disclosure of Teran’s personnel file; I asked whether she is being paid her salary. It’s highly doubtful that such information would be included in a personnel file and, at any rate, under Government Code §7927.700—cited by Evangelista, so she is aware of it—a disclosure of material in such a file is exempted only where it would constitute an unwarranted invasion of personal privacy.”
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The senior deputy county counsel should know, if she actually doesn’t, that a forthright “yes” or “no” response would not, if it were “yes,” constitute an invasion of privacy. She cited a 2006 California Supreme Court opinion dealing with records that were sought relating to a peace officer’s administrative appeal of discipline and a Court of Appeal decision from that same year concerning a requested disclosure of records relating to misconduct on the part of a public official—but did not address a 2007 state high court opinion that defeats her position.
In International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, it was held, in an opinion by then-Chief Justice Ronald George, that salaries of police officers are not exempt from disclosure under the Public Records Act based on privacy concerns. George wrote:
“The salary information sought by the Newspapers in the present case…is not private information that happens to be collected in the records of a public entity. Rather, it is information regarding an aspect of government operations, the disclosure of which contributes to the public’s understanding and oversight of those operations by allowing interested parties to monitor the expenditure of public funds. The disclosure of such information under the Act does not violate the right of privacy protected by the California Constitution.”
That reasoning applies with equal force to whether or not a salary that is set for a particular government employee is presently being paid to that employee. Indeed, the opinion says that “the public has a strong, well-established interest in the amount of salary paid to public employees.” It says “paid,” not “set.”
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Evangelista also cited Government Code §7922.000. It provides: “An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
Evangelista has made no such demonstration—nor could she.
The public does have a right to know if Teran is being paid while on administrative leave and the Office of County Counsel has behaved in a grossly unreasonable and unprofessional manner in the course of withholding that information.
State Bar of California
The State Bar of California’s Board of Trustees on May 16 approved a plan to expunge all nondisbarment records of discipline after eight years if no intervening discipline took place. To implement that, rule changes and legislation would be required.
Trustees assumed falsity of the adage—validated by objective observations—that “leopards don’t change spots.”
In a May 17 announcement, the State Bar proclaimed:
“In its deliberations, the Board of Trustees considered data on attorney misconduct recidivism and compared practices in other jurisdictions and among regulators of other professions. The recidivism data found that repeated misconduct requiring discipline occurs most often within the first few years after an attorney’s first discipline.”
So, based on “data,” the board determined that potential clients should be deprived of information that they might consider significant, if not determinative, in weighing whether to hire a particular lawyer. This opens the prospect of clients being cheated in the future by lawyers whose services they would not have engaged but for the State Bar’s implied representation that they have squeaky clean records.
How many clients are potentially affected? The State Bar’s announcement acknowledges: “The new expungement policy is expected to affect thousands of attorneys when first implemented and more going forward.”
This renders hypocritical the State Bar’s pretense that in the aftermath of the Girardi scandal—entailing it having spurned complaint after complaint about the then-influential and now-disbarred Thomas Vincent Girardi—it is now keenly devoted to protection of the public from unscrupulous lawyers.
In a May 31 press release accompanying a report of State Bar actions last year, Executive Director Leah Wilson is quoted as commenting that in light of “ the Girardi scandal,” the State Bar has taken “substantive actions to reform Board of Trustees and organizational governance to strengthen ethics and conflicts of interest practices.”
Whatever was accomplished last year, what was done May 16 was not a reform but a relapse.
The State Bar has now, shamefully, committed itself to protecting errant lawyers, at the risk of harm to members of the public. It embraces secrecy over openness and a rewriting of history, deterring future protection against members of the bar who have demonstrated propensities for victimizing clients.
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A 1997 report by the federal “Commission on Protecting and Reducing Government Secrecy,” chaired by U.S. Sen. Daniel Patrick Moynihan, D-New York (now deceased) says:
“It is time for a new way of thinking about secrecy.
“Secrecy is a form of government regulation. Americans are familiar with the tendency to over-regulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation.”
It adds:
“There needs to be some check on the unrestrained discretion to create secrets.”
Secretizers such as Div. Four, Harrison, and the State Bar Board of Trustees, and others in government, must be curbed in their tendencies to deprive the public of access to information to which it is entitled. Sadly, a backlash is lacking. For the most part, the public is content to learn only what government deems fit to convey to it.
Complacency is an implied consent to bullying. Where the public submits to that, democracy becomes a system that just doesn’t work.
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