Court Orders Disclosure Of Venture Capital Fund Performance

California’s analog to the Freedom of Information Act is the Public Records Act, Government Code § 6250 et seq. In enacting the the Public Records Act, the legislature quite properly found and declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Of course, there are countervailing values as well. For example, an individual’s right to privacy guaranteed by Article I, Section 1 of the California Constitution. In furtherance of this value, the legislature has enacted the Information Practices Act, Civil Code § 1798 et seq.

When two private parties interact, they can generally contract for confidentiality. It becomes more complicated, however, when the government enters into transactions with private parties. While those parties may not be directly subject to the Public Records Act, they may find that their supposedly private information is. This was illustrated by the ruling this week by Superior Court Judge Evelio Grillo in Reuters America LLC v. The Regents of the University of California, Alameda Super. Ct. Case No, RG12-613664 (Feb. 4, 2013). Judge Grillo ordered the U.C. Regents to use objectively reasonable efforts to obtain fund performance information for the venture capital funds in which its retirement plan invests. He found that “public records” include “writings related to the conduct of the people’s business over which government agencies have actual or constructive possession”.