We were surprised and pleased when a reporter from the Reuters publication peHUB, Chris Witkowsky, contacted us a couple of days ago about the suit we had filed against CalPERS, the California Public Employees Retirement Systems, over their refusal to provide us with information they had given to three Oxford academics who had used that data as the basis for a recently-published paper. As readers may recall, under the California Public Records Act (PRA), 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 even though we were glad to have a well-known publication take interest (peHUB is widely read in the private equity industry), we weren’t certain how the piece would turn out, since the author would clearly talk to CalPERS and who knows how persuasive he would find them to be.
This turned out to be as positive as I could have imagined, and I believe that was solely due to the fact that the position CalPERS is taking in trying to deny me the information is simply indefensible. Moreover, the reporter confirmed some things we’ve strongly suspected but could not prove.
The article, Financial blog asks court to force CalPERS to release private equity data, goes through the background we recited in a post last week and in our court filing.
The critical, and brazen part, is that CalPERS, after saying in writing on December 18, 2013, that they’d be sending us the information, reversed themselves on January 27, 2014 and tried claiming after conducting an “extensive search” that “CalPERS staff” had never given the researchers the data. We at first thought this was an effort to treat us like rubes, since we had asked for data provided by CalPERS, not data provided by “CalPERS staff”. CalPERS has for some time kept its PE data in third party repositories. But under well-settled California law, actions taken by agents within the scope of their agency are imputed to the principal. Thus, even if as a matter of form, the data was provided directly by LP Capital or another CalPERS data repository to the authors of the Oxford study, it would still be disclosable under the PRA.
But we learned it was even worse than that. We wrote the authors of the paper, and the lead author, Professor Tim Jenkinson, replied to us and was explicit: he and one of his fellow authors, Ruediger Stucke, had gotten the information directly from CalPERS staff.
So one matter that had puzzled us was how CalPERS could keep making this patently untrue claim, that they’d never heard of these academics, particularly since, if someone were naive enough to believe CalPERS, it meant the academics weren’t on the up and up (as in they’d gotten the data through an unauthorized route, like a disgruntled former employee, which would raise doubts about the accuracy and completeness of the information). Here is CalPERS’ statement:
“CalPERS has been unable to locate any documentation of a written PRA request from the authors of the Oxford University article for the referenced private equity data. However, we stand ready to provide any private equity information that is discloseable under the PRA,” CalPERS said in an email in response to a series of questions.
This is the pettifogging bureaucratic version of drunk under the streetlight behavior.* The PRA stipulates that if a record has been give to a member of the public for any reason, not just to satisfy a PRA request, it is disclosable. So limiting their search to PRA requests was a form of stonewalling.
On top of that, Jenkinson confirmed for the record what he had told me via e-mail:
However, one of the authors, Tim Jenkinson, told me he and his colleagues did indeed get the information from CalPERS in late 2009. The authors then added to their data each quarter from CalPERS’ web site, which is why the study runs to 2012. “I have no idea why they are saying they didn’t give us the data, except it was nearly five years ago and maybe they haven’t looked far enough back in their archives,” Jenkinson said.
And the story ended with a generous sign-off:
Personally, I’m hoping CalPERS releases all the information. I’m curious to see what Naked Capitalism has in store once it gets its righteously indignant hands on the data. Webber wouldn’t divulge any future plans about coverage, but Naked Capitalism has a history of smart, scrappy articles attacking what it feels are injustices being committed in the name of capitalism.
* A classic joke is that someone walking at night finds a drunkard circling under a lamppost looking at the ground. The passer-by asks what he’s doing.
“I’m looking for my car keys.”
The sober person point out that there are clearly no car keys in sight and asks if he’s retraced his steps to find where he might have lost them.
“No, because the light’s better here.”