Public Records Act Decision Could Mean More Government Secrecy, Undermine Transparency

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Los Angeles, CA — A recent decision in a public records case brought by Consumer Watchdog against the California Department of Insurance could encourage more government secrecy and undermine transparency, according to the non-profit consumer group.
Consumer Watchdog’s lawsuit alleged that Insurance Commissioner Lara and the Department of Insurance violated the Public Records Act (“PRA”) by failing to search for records related to a pay-to-play scandal involving insurance companies with business pending before the agency.
Under the court decision, an agency need not follow up on evidence of additional records discovered in the course of its own search and it would be more difficult for the public to access records they are not already aware of.
Download the decision here.

“The Court’s ruling will likely embolden government officials to shield government records from the public view and raises serious questions about the state’s Public Records Act that may need to be addressed by the Legislature or at the ballot box,” said Consumer Watchdog Litigation Director Jerry Flanagan. “Access to information concerning the conduct of the people’s business is a fundamental right of every person in this state and is a critical weapon in the fight against government corruption.”

In the wake of statewide news reports of the pay-to-play scandal, Consumer Watchdog filed two PRA requests with the Department in July 2019 seeking communications and meeting records.
Since Consumer Watchdog could not know all the individuals who Lara and agency staff might have been meeting or communicating with, the group sought records related to “any individuals employed by or representing” the insurance companies involved in the scandal.  The Department of Insurance argued it was unreasonable to require the agency to search for individuals not specifically named in a PRA request.
“The public shouldn’t be required to have a crystal ball to divine the names of the lobbyists government officials are meeting with behind closed doors,” said Flanagan. “By their very nature government records contain information that the public is not aware of.”
The Department’s own records demonstrate that agency officials were on notice that two individuals—Jamie Sahara and Eric Serna—were representing the companies involved in the pay-to-play scandal. Over the course of the lawsuit, it also became clear that the Department was on notice that at least two other individuals—former Assembly Speaker Fabian Núñez and former Assembly Member Rusty Areias—also likely communicated with Commissioner Lara or staff of the Department on behalf of Applied during the relevant time period. 
Despite this clear evidence, the Department failed to search for additional records related to these four individuals.  

“Under such a narrow reading of the law, the public would not have the tools to investigate important matters of public policy,” said Flanagan. “The California Department of Insurance is the largest state agency in the country and is responsible for regulating the $310 billion insurance industry in California. The public needs transparency to ensure that insurance companies are not receiving special favors from regulators that make coverage more costly.”
Since the Department did not conduct an adequate search for records, the public still does not know the totality of who was involved in efforts to improperly influence the agency’s decision making. 
The court partially granted relief in Consumer Watchdog’s lawsuit, ordering the agency to produce a public record in an unredacted format and requiring the agency to submit two other records to the Court for a determination of whether they should be provided to Consumer Watchdog.

The lawsuit, Consumer Watchdog v. Ricardo Lara et al., Case No. 20STCP00664, was litigated in Los Angeles Superior Court. 

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Jerry Flanagan
Jerry Flanagan
Jerry Flanagan is Consumer Watchdog's Litigation Director. Flanagan leads Consumer Watchdog’s litigation efforts in the areas of health insurance coverage and access to treatments. He has over 20 years experience working in public interest and health care policy, legislation and litigation.

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