Since readers have taken interest in the details of our ongoing litigation with the giant California public pension fund, CalPERS, I thought I’d tie off a thread from earlier in the month.
By way of background, last September, we filed a Public Records Act request (California’s version of FOIA) for private equity return data that CalPERS had not previously published. While CalPERS has published quarterly data on a fund-by-fund basis since settling an earlier Public Records Act case in 2002, three researchers at Oxford published a paper in 2013 which discussed specifically and in detail how they were the first to obtain the entire history of CalPERS’ investing in private equity, from its very first participation in the strategy. They stated that they got previously non-public data back to 1990. For more background, see this post.
Note that in California, once an agency has given out a record to one member of the public, it has forever waived the right to claim any exemption from disclosing the records to others. So it seemed that our PRA request should be straightforward. Silly us.
You can find the blow-by-blow of CalPERS’ inconsistent actions and disconnect between its statements (that it was cooperating) and its actions (delivering records that fell well short of what we’d asked for) here and here.
We wrote a post on a remarkable, and not in a good way, press release that CalPERS issued about our suit, in a post titled CalPERS Tries Ineffective Mudslinging in Response to Our Ongoing Private Equity Investigation. The short version is that the press release was extremely inept as well as inaccurate. Generally speaking, a large institution should not deign to notice critics, and when they do, they should above all retain their dignity while trying to tell their version of the situation. But their press release was screechy, defensive, and tried to engage in character assassination.
But we didn’t address the most ham-handed falsehood that CalPERS presented in its press release, since we wanted to see if it might be repeated in some way by opposing counsel in its filings. Since each side has now provided its initial arguments for our hearing on May 2, we though we’d fill you in on a critical tidbit we held back.
The thrust of CalPERS press release was to depict your humble blogger as an opportunistic harpy who was making unreasonable demand while CalPERS was (per CalPERS) cooperating. If so, CalPERS appears to have developed its idea of cooperation from the negotiations to end the war in Vietnam (where among other things, the two sides literally fought over the shape of the table).
In this press release, if you were following this contretemps, CalPERS delivered what it meant to be a showstopper. Our Public Records Act request has started with trying to get the same data that CalPERS had given to the Oxford academics. CalPERS’ initial responses were tantamount to “never heard of them.” They did release a bit of data after our attorney, Timothy Y. Fong, wrote a nastygram, but it was for 2012 and 2013 only, meaning almost entirely outside the time frame of the paper and not containing any of the older, non-public information.
Only after we filed suit did CalPERS rouse itself to call the researchers. The Oxford scholars told CalPERS who had supplied them the information, which had been in the form of a 226 page PDF and e-mailed them the document back to them.
So in its March 28 press release, CalPERS brayed that it was publishing the PDF, which it stated was “an exact copy of the data CalPERS provided to Oxford University academics several years ago” and said it was the also same PDF that it sent us on March 11. It tried to depict us as unreasonably hounding them.
There are a few wee problems with CalPERS characterization. The first is, as the affidavit at the end of this post states, the PDF was not an exact copy of what the Oxford academics received in 2009. Metadata showed it was generated from an Excel 2010 spreadsheet on March 7, 2014 and was modified on March 28, 2014, two weeks after the March 11 date when CalPERS sent us a CD with some documents on it. The PDF they did send me was created on the same day, March 7, but by a different author. It is rather odd that CalPERS would take the time and trouble to create new PDFs when they had the original version in hand (they received it from the researchers on March 6).
But that wasn’t the most glaring issue. The second wee problem was the PDF on their site was 627 pages, not 226, which is far from an “exact copy”. And the third problem was it included data thorough the end of 2011. It’s hard to see how these scholars received 2011 data in 2009 unless CalPERS had access to a time machine.
CalPERS’ screechiness about the PDF is meant to obscure other critical issues. The biggest is that PDF is not a permitted response under the Public Records Act. If the document is a machine-readable document, providing the output in the form of an image (a PDF) isn’t kosher. We asked for data and suggested various output formats and CalPERS has yet to provide us with the germane data in full.
In addition, the Public Records Act is extremely pro-transparency. It embraces the idea that members of the public might need to append their original request. CalPERS, thanks to its refusal, erm, failure to do the obvious and ring up the Oxford scholars, asked us in early February what we wanted. We asked for what we thought the academics got based on their description in their article (it turns out they got less than they implied) as well as bringing the data up to date. CalPERS had accepted our expanded request; they’ve acknowledged that again in their latest filing. So for CalPERS to claim in March that we were being unreasonable in seeking more than an unresponsive document that represented only a portion of the data being sought was more than a tad disingenuous.
But we’ve seen this sort of thing from CalPERS from the outset of our dealings with them, this bizarre pretense that they are cooperating while failing to deliver the goods and then trying to make us out to be the bad guy. All this conduct seems to do is make people wonder what is in this data that they are going to such lengths not to give it to us.