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Court Rules Private Fund Data Are Not Public Records

Private equity and venture capital funds like public pension fund money but they don't necessarily like the consequences of having the government as an investor.  As noted in this post, this was illustrated  by Superior Court Judge Evelio Grillo's ruling earlier this year in Reuters America LLC v. The Regents of the University of California, Alameda Super. Ct. Case No. RG12-613664 (Feb. 4, 2013).  That case involved the efforts by a news publication to obtain individual fund information for investments made by the Regents of the University of California.  When the Regents refused to provide the information pursuant to the California Public Records Act, Gov. Code, § 6250 et seq., the publication filed a petition for a writ of mandate.  Judge Grillo granted the writ and found that the Regents were required to use “objectively reasonable efforts” to obtain from Kleiner Perkins Caulfield & Byers and Sequoia Capital individual fund information for the Regents's current investments even though the Regents had not prepared, owned, used, or retained this fund information.

The First District Court of Appeal reversed Judge Grillo last week in Regents of the University of California v. Superior Court, 2013 Cal. App. LEXIS 1021 (Cal. App. 1st Dist. Dec. 19, 2013).  In an opinion by Judge Brick of the Alameda Superior Court (assigned pursuant to Cal. Const. Art. VI, § 6), the Court held unless a writing is related “to the conduct of the public's business” and is “prepared, owned, used, or retained by” a public entity, it is not a public record under the Public Records Act, and its disclosure would not be governed by the Act.

Why Politicians Make And Break Promises

In an earlier post, I mentioned Lucius Sergius Catilina, known to history as Catiline.  In 64 B.C.E., Catiline ran for the consulship against Marcus Tullius Cicero.  Although Cicero ultimately won the election, the battle was hard-fought.  Cicero's younger brother, Marcus, decided that his sibling needed some help and so wrote a letter of advice on how to campaign.  This letter, known as the Commentariolum Petitionis, contains many bon mots worthy of the most hard-boiled of modern campaign advisor, including the following:

Id, si promittas, et incertum est et in diem et in paucioribus; sin autem neges, et certe abalienes et statim et plures.  . . . praesertim cum multo magis irascantur iis qui negent, quam ei quem vedeant ea ex causa impeditum, ut facere quod promisit cupiat is ulloo modo possit.

Therefore, if you should promise, the consequence is uncertain both in time and in fewer cases; however, if you ever refuse, you should certainly and instantly alienate many people. . . . especially when many more are angered by someone who refuses to promise, than someone they see, having been prevented by some impediment, wishes to do what he promised if he were only able in any way.

Quintus Tullius Cicero, Commentariolum Petitionis, ¶ 48 (my translation).  If you are interested in reading Marcus' letter, a fun translation was recently issued by Philip Freeman under the title "How to Win An Election".

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30172DBAB0084D3A8F39D7AF0A8E79BC.ashx Keith Paul Bishop
Partner at Allen Matkins
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