Last week, I wrote about Judge Woolard's decision to order the California Public Employees Retirement System to disclose documents to the First Amendment Coalition about a real estate investment. This isn't the first time that CalPERS has tangled with the First Amendment Coalition. A few years ago, the First Amendment Coalition sued CalPERS in an effort to obtain disclosure of CalPERS' records relating some of its other investments.
Ultimately, a legislative compromise was worked out in the form of SB 439 (Simitian) which added a new section to the Public Records Act in the form of Government Code ยง 6254.26. That statute excepts from disclosure specified records regarding "alternative investments" in which public investment funds invest. An "alternative investment" is an investment in a private equity fund, venture fund, hedge fund, or absolute return fund. Interestingly, the legislature didn't tackle defining "venture fund" or "hedge fund". Perhaps, the legislature agreed with Justice Stewart: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . .".
There is no exception if the public investment fund has publicly released the information and there are exceptions to the exception for a long list of items. Moreover, items that are excepted from the exception are not considered trade secrets.