Q: I am interested in a possible cause of action arising from events at a meeting of the high school Site Council, at which public comment was cut off by the chair.  The individual was repeatedly ruled “out of order.”

The person was then ordered out of the meeting and, when he failed to comply, an armed police officer was summoned. The officer, however, determined that situation was not a police matter and refused to remove the man from the meeting.

Nonetheless, the action had a chilling effect on parents and other members of the public attending the meeting.  This seems to be a First Amendment violation as well as a violation of the Brown Act. Can you help?

A: It sounds like you may already know that under the Brown Act — California’s open meetings law — the legislative bodies of local agencies are required to provide opportunities for the public to comment at regular meetings, as follows:

(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.

(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.

(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.

Gov’t Code § 54954.3

With respect to removing individuals from public meetings, the Brown Act provides that:

In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.

Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.

Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. Gov’t Code § 54957.9.

As you can see, this provision allows for removing individuals from a meeting only when they have “willfully interrupted” the meeting so as to “render the orderly conduct of such meeting unfeasible.”

Obviously, there may often be room to disagree as to whether interruption was willful and whether it rendered the orderly conduct of the meeting unfeasible.

The provision must, however, be applied consistent with the mandate in California’s Constitution that “a statute, court rule, or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

In addition, note — as you may also already know — that the Brown Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Meetings of public bodies typically fit into this “limited public forum” category.

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45.

Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

As for next steps, the Brown Act provides that any person may sue to “prevent[] violations … of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions … of the legislative body.” Gov’t Code § 54960(a).

In other words, you could sue for a determination that the body’s actions in cutting off public comment and/or removing you from the meeting violated the Brown Act (as well as the First Amendment).

Whether you would be likely to prevail in such an action would require a highly fact-intensive analysis that is beyond what we can provide through this service.

You might be able to locate legal assistance through one of the following resources, however:

California State Bar-certified attorney referral services (http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

866-442-2529)

ACLU of Southern California (http://www.aclu-sc.org/contents/view/6)

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q:  I was fired a year ago, but I am only now reading that the board violated the Brown Act by not disclosing that my position would be discussed in closed session — 54957. (2) is the violation. I see from your A&A section that there is only only a 90-day window of opportunity to submit a Cure & Correct letter, but I do not see that spelled out in the Brown Act itself. Where is the statue of limitations spelled out? And if it is only 90 days, are there lawsuits that have been successful in having that deadline set aside?

A: The Brown Act at Government code section 54960.1 requires that for any legal action that seeks to nullify an agency decision because of a Brown Act violation, that the “cure or correct” demand regarding the violation be made within 90 days from the date the action was taken.

The only exception cited is if the action was taken in an open session but in violation of Section 54954.2 (failure to provide notice of the action on the agenda), in which case the demand must be made within 30 days. See Boyle v. City of Redondo Beach, 70 Cal. App. 4th 1109 (2009).

The date runs from the date the action occurred, not the date upon which one learned of the action. See Regents of the University of California v. Superior Court (Molloy), 20 Cal. 4th 509 (1999) (interpreting a parallel provision of the Bagley-Keene Act).

The “cure or correct” demand requirements, and the associated timing requirement, of section 54960.1 only apply to the sections listed therein: 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5. Those are the only sections by which an individual is authorized to bring an action that seeks to nullify a board action.

However, as you are aware, section 54957(b)(2) contains its own nullification provision, independent of section 54960.1. That is, it provides that any action taken in violation of it “shall be null and void.”

Lawsuits brought for violations of section 54957 are thus brought under section 54960. Because no statute of limitations is indicated in section 54960, the question of what statute of limitations does apply is difficult to answer in the scope of the services we offer in this hotline.

An argument can be made that the applicable statute of limitations is the one for civil actions based on statutory violations found in Civil Code found in Code of Civil Procedure section 338(a), which is three years running from the first date on which the action could have been commenced.

However, at least one unpublished decision appears to assume that the strict requirements of section 54960.1 apply, see Horton v. San Diego Unified Sch. Dist., 2003 Cal. App. Unpub. LEXIS 2251 ( March 10, 2003), and notes further that in termination decisions, the aggrieved former employee may be required to exhaust administrative remedies as well under a strict timeline.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Our local water district board is appointing new general counsel. They have agendized this in a special meeting, allowing each prospect to give a presentation on their firm in open session. After each presentation, the board went into closed session pursuant to GC 54957(b)(1), ”Public Employee Appointment: General Counsel.” I have never seen this done before. Can a legislative body refer to General Counsel as a ”Public Employee” and use this GC as safe harbor for closed session?

A: As you are aware, California Government Code § 54957(b)(1) is a provision of the Brown Act that grants agencies the right to hold closed session meetings to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.

Yet, the California Constitution and a series of case law requires that the provisions of the Brown Act permitting closed sessions be “narrowly construed.” Cal. Const., Art. I, section 3(b)(2). See also, e.g., Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 185 (2006); Shapiro v. Board of Directors, 134 Cal. App. 4th 170, 174 (2005).

That said, California courts have stated that the purpose of the exception is to prevent undue embarrassment to public employees or candidates, and to permit free and candid discussions of personnel matters. Morrison v. Housing Authority of the City of Los Angeles Bd. of Commissioners, 107 Cal. App. 4th 860, 873 (2003); Bollinger v. San Diego Civil Service Commission, 71 Cal. App. 4th 568, 574-575 (1999).

Moreover, a great deal of the language from Gov’t Code § 54957(b)(1), including what an “employee” is, has been defined by other sections of the statute and the courts. Under the code, an “employee” is defined to include officers and independent contractors who function as employees. Gov’t Code § 54957(b)(4). Therefore, the statute is not limited to rank-and-file employees. See Lucas v. Board of Trustees, 18 Cal. App. 3d 988, 990 (1971); 80 Ops. Cal. Atty. Gen. 308 (1997).

Turning now to your question, it seems that the legislative counsel can refer to the general counsel applicants as a “public employee” for the sake of using the safe harbor afforded by Gov’t Code § 54957(b)(1). For one, a subsequent section of the statute indicates that independent contractors, which the law firm of the general counsel would be, fall under the statute. Further, there is precedent indicating that applicants are within the scope of the statute’s intent. I see little reason why the water district board would be in violation of the Brown Act.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I believe Community College Faculty Senates are subject to the Brown Act?  If so, must these bodies disclose how each member voted on an item? I teach at a community college.  My program was asked to make some amendments to an item, otherwise an individual told us she would challenge the matter. We made the amendments. The indivdiual then actually went ahead and challenged the matter at a Faculty Senate open meeting. She also asked two senators  to join her in opposition.

No one from my program attended as the matter was very routine and we were told that there would be no challenge as long as the amendments were made. So, does a Faculty Senate have to keep a record of how senators vote, along with some brief notes, at least, regarding what was said by the senators?If so, doesn’t this information have to be released? In the past, the Senate kept more detailed notes, but the current body is releasing incredibly abbreviated notes.

A: Your question presents quite the puzzle and I will do my best to put the various pieces together for you. Unfortunately, the most definitive answer I can give you may be “maybe.”

Community Colleges are state entities, rather than local governmental entities, and thus the open meeting law potentially applicable is the Bagley-Keene Act, Government Code sections 11120-11132.

The Bagley-Keene Act applies to “state bodies,” which defines as “every state board, or commission, that is created by statute or required by law to conduct official meetings and every commission created by executive order,” or “a board, commission, committee or similar multimember body that exercises any authority of a state body delegated to it by that state body.”

Community college faculty senates are authorized by regulation, Title 5, sections 53200 et seq. But nothing in that regulatory scheme requires that a faculty senate conduct official meetings. Rather the regulations merely require the governing board of a community college district to authorize faculty to “fix and amend by vote of the full-time faculty the composition, structure, and procedures of the academic senate.” Title 5, section 53202(c)(1).

So unless, a particular community college district requires that the faculty senate of one of its colleges have meetings, it is unlikely that the faculty senate is “required by law to conduct official meetings.”

In terms of the second definition of “state body,” again there is nothing in the regulations by which the community college districts are required to delegate any of their own authority to the academic senates.

However, the regulations do permit the districts to so delegate its authority. Title 5, section 53203 (a), (e). So if a particular community college district has so delegated some of its authority to a faculty senate, such an action would then bring the faculty senate within the requirements of the Bagley-Keene Act.

And there is one more possibility: There are specific open meeting requirements in the Education Code that apply to “auxiliary organizations” of community colleges. Among other definitions, an “auxiliary organization” is “any entity which, exclusive of the foregoing subdivisions of this section, is designated as an auxiliary organization by the Board of Governors of the California Community Colleges.”

The Board of Governors has not so designated the academic senates as “auxiliary organizations” categorically. However, the applicable regulations appear to permit, although not require, the governing bodies of the individual community college districts to designate a faculty senate as an “auxiliary organization.” Title 5, sections 59250(a), (b), and Education code section 72670. But see Title 5, section 59259 (which lists the permissible services that may be provided by auxiliary organizations, and does not appear to include faculty support). If the faculty senate is an “auxiliary organization,” there will be an approved written agreement between the senate and the district and the faculty senate will be listed on the district’s official list of auxiliary organizations in good standing. Title 5, 59255, 59623

In sum, it does not appear the faculty senates are categorically subject to any of the open meetings statutes. But the possibility exists that a particular faculty senate is required to comply with the Bagley-Keene Act, or the rules governing auxiliary organizations.

If no law applies, then the faculty senate will merely be governed by its own bylaws. If the Bagley-Keene Act does apply, all votes must be public.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: We are trying to obtain records from an engineering contractor on a multi-billion dollar project they have with the state. In addition, we are seeking contracts, correspondence, etc. pertaining to the project between this engineering firm and multiple sub-consultants they have hired. Will FOIA allow us to obtain contracts between prime consultants and their sub-consultants? What about sub-consultants to sub-consultants? How many layers down does FOIA cover, assuming all of the work relates to the State’s main project. To whom should the FOIA request be made?

A: It sounds like you are trying to obtain these documents from a state agency, in which case, the California Public Records Act would apply. (FOIA applies only when the records are sought from a federal agency. Of course, if you are seeking records from a federal agency, please let us know.) Under the Public Records Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

It is not clear that any exemptions would apply to the records you seek. With respect to contracts entered into between the state agency and the engineering contractor, such records should be subject to disclosure under the PRA, assuming the agency is in possession of those contracts. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983) (finding that contracts entered into with a public agency are subject to disclosure under the PRA). (One would expect an agency to keep copies of such records; if the agency says it does not have the contracts, then that might be evidence of the agency’s general misfeasance.)

With respect to contracts between the engineering contractor and its subcontractors, or those subcontractors and their subcontractors, if the agency also has these documents in its possession, then those contracts, presumably, would be public records as well. However, the Public Records Act only applies to government entities, in particular, “state or local agencies.” Thus, you would probably only be able to obtain copies of contracts between subcontractors and sub-subcontractors unless those contracts were provided to the state agency.

If you haven’t done so already, you may want to make a written request for the records you seek. Although not statutorily required (your other option would be to orally convey your records request or to simply make an in-person request to inspect the relevant records), a written request should result in a written response, and if that response is a denial of your request, then the response should set forth the basis for the denial.

The PRA also says that “upon a request for a copy of records, [the agency] shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” Gov’t Code § 6253(c). In practice, agencies oftentimes latch onto the second provision, taking at least 10 days to respond to any request for copies.

You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: To what extent are school district settlement agreements public when they contain confidential student information?

A:  Copies of settlement agreements that school districts enter into are subject to disclosure under the Public Records Act.

Although it should generally be possible to draft a settlement agreement without including material so sensitive that it qualifies for an exemption from disclosure under the PRA, it is conceivable that a settlement agreement might contain material legitimately exempt from disclosure under state or federal law.

Yet even in that unusual circumstance, the agency (in this case, the school board) should disclose the agreement with the exempt material redacted. Govt. Code § 6253(a) (“Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”).

Any qualifying records must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. Settlement agreements where one of the parties is a public agency are generally not exempt from disclosure under the Act. See Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 909 (1984) (documents related to settlement with county jail inmate subject to disclosure, with possible exception of crime report and rough notes made by county’s risk management staff); Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376 (1998) (settlement reached between school district and student required to be unsealed from trial court record under analogous trial court rules); Sanchez v. County of San Bernardino, 176 Cal. App. 4th 516, 526 (2009) (confidentiality provision in settlement agreement with county would have violated Public Records Act).

As for whether “confidential student information” would be exempt from disclosure, that would depend on the information and the facts of the situation. Certain student records are confidential under state and federal law, but the scope of those laws is fairly narrow.

For example, California’s Education Code provides that:

“[a] school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order” except in certain situations. Ed Code § 49076. Note, however, that “pupil records” is defined as “any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district or required to be maintained by an employee in the performance of his or her duties whether recorded by handwriting, print, tapes, film, microfilm or other means.” Ed Code § 49061(b).

For purposes of the statute, directory information “means one or more of the following items: pupil’s name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the pupil.” Ed Code § 49061(c).

It is not at all clear that information that may relate to a student in a settlement agreement would be likely to be considered a “pupil record” under these provisions. It is more likely that a court would consider whether the information at issue might unreasonably intrude on a student’s privacy interests, either based on the § 6255(a) exemption noted below or on California’s constitutional right to privacy.

Note that in ordering an investigative report about alleged wrongdoing by a school superintendent disclosed under the PRA, the Court of Appeal ordered names, home addresses, and phone numbers of students, parents and staff members interviewed in the report to be redacted where:

“the public’s interest in viewing the … report is not furthered by knowing the identities of any of [those individuals.]. Knowing their identities does not help the public understand how the Board responded to the allegations involving [the superintendent].” BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 759 (2006).

Whether student information in the settlement agreement you reference could be redacted prior to disclosure would likely depend in large part on what exactly would be disclosed and the relationship of that information to the agreement and underlying dispute.

I should also mention that when no specific exemption applies, agencies often attempt to withhold records from public disclosure by citing the Act’s “catch-all” exemption, contained in Government Code § 6255(a).

This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

The blackout of websites, including BoingBoing, Reddit and Wikipedia, to protest the online piracy laws before Congress was successful in igniting opposition against the laws writes Ian Paul in PCWorld.

Paul says that there were 2.4 million tweets on the topic during the first 16 hours on Wednesday and that the Los Angeles Times reported that 4.5 million signed Google’s petition against the laws. -db

From a commentary in PCWorld, January 18, 2012, by Ian Paul.

Full story

Q: I requested documents regarding disciplinary action taken against me by my employer, a metro department of transportation. It’s  been more than a month and I’ve not received a reply.  What would be the next course of action?

A: The Public Records Act gives local agencies 10 days to respond to a request for a copy of a public record; the time for responding can be extended by the agency for an additional 14 days in “unusual circumstances.” Gov’t Code § 6253(b) and (c).

This section goes on to state:

“No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.” Gov’t Code § 6253(c).

The code then states what might constitute “unusual circumstances,” including:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

Gov’t Code § 6253(c).

Additionally, access to copies of records is to be provided “promptly,” Gov’t Code § 6253(b), and “[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.” Gov’t Code § 6253(d).

Thus, the 10-day deadline is not a legal deadline for producing the actual records; however, under § 6253(b) and (d), once a determination has been made as to whether the records are disclosable, actual release of the records should promptly follow.

Finally, if the requester is only seeking to inspect the records (as opposed to getting copies of the records), the Act requires that such records be made available for inspection “at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.” Gov’t Code § 6253(a).

Thus, it seems that nearly two months to respond to records request violates the plain language of the Act. You might consider writing to the agency against, restating your request and reminding the agency of its statutory duty to respond within ten days. Please keep in mind that if the agency responds that the records are not disclosable under the Act, it must state the specific exemption it is invoking, and how that exemption applies. Gov’t Code § 6253(c).

If an agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Government Code Section 6259. Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Government Code section 6259(d).

In any follow-up correspondence you have with the university regarding the fact that you have not received the requested records, you may want to (subtly, but firmly) point out that attorney’s fees are available should you take the agency to court and prevail. If you are looking for an attorney to represent you in this matter, you might consider trying the FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.

You might also find this link, which contains additional information about the Public Records Act, including a sample request letter, helpful: http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: A recent CPRA to obtain correspondence from the individual elected members of the a natural resource oversight committee and the individual appointed members of the  Wastewater Task Group either among themselves or to third parties was denied by the Community Development Commission (CDC) on the basis that neither neither entity was a “public agency.”

This the second time this position has been taken by CDC; resulting from the opinion of County Counsel.  Several years ago, in the previous request, a motion was made for declaratory and injunction relief in  County Superior Court as an ex parte motion.  The court dismissed the case without prejudice.  The ex parte route was chosen because court dates were so far behind that the records sought could not be obtained in time to meet the 60 day time limits for the Brown Act.  [The records were being sought to further support a claim of Brown Act Violation.

Can you reference me to current cases (or the current status of this issue) that might be applicable to my CPRA request for the correspondence of individual members of an elected legislative body and the members of an appointed Task Group appointed by a public agency?

A: If the denial was based on an assertion that neither the Oversight Committee nor the Wastewater Task Group is a "public agency" whose records are subject to disclosure under the PRA, that assertion seems suspect.

The PRA defines "local agency" as including "a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952 [the Brown Act].” Gov’t Code § 6252(a).

And “public records” is defined to include “includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Gov’t Code § 6252(e). By the plain terms of the PRA, both Oversight Committee and Wastewater Task Group would seem to qualify as local agencies whose records are presumptively subject to disclosure under the Brown Act.

If the denial is based instead on an assertion that correspondence from or among individual members of these entities are not subject to disclosure, that analysis might be a bit more complicated and might depend in part on the nature of the correspondence and the conditions surrounding its creation and transmission.

Given the extent of the public business that is carried out through correspondence among public officials, it seems indefensible to take the position that no correspondence to or from particular elected officials constitutes a public record because the official is a person rather than a government agency. The business of public agencies is obviously carried out by individual people, and I am aware of no authority suggesting that communications by individuals in their official capacities could somehow be exempt because the individuals are not themselves state or local agencies.

In holding that letters making and rescinding an appointment of an individual to public employment were subject to disclosure under the PRA, the Court of Appeal explained that “[t]he mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, it is a public record.” Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (1984).

The court also said that the definition of “public records” “is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.” Id. (quoting San Gabriel Tribune v. Superior Court, 143 Cal.App.3d 762, 774 (1983), which, in turn, quoted the legislative history of the PRA, Assembly Committee on Statewide Information Policy California Public Records Act of 1968, 1 Appendix to Journal of Assembly 7, Reg. Sess. (1970)).

The response you mention may be based on a case that raised the possibility of an elected official’s home e-mails being exempt from disclosure. In January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory.

Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman from her personal e-mail account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300. Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue. As far as I know, no reported decision in California has addressed the issue since.

Tracy Press does not provide an answer to the “novel and important issue” of “whether personal e-mails sent without using the [government] resources but discussing [government] business are ‘public records.’” Id. A California court deciding the issue should be working from the general body of law applying the PRA and would not be bound in any way by the determination made by the trial court in the Tracy Press case.

Moreover, although the merits of the action were not reached by the Court of Appeal, the statement that any e-mails from the elected official e-mailed from the government office, discussing government business are “undeniabl[y]” public records “that must be produced” could be useful in your efforts. Id.

Even if a government official uses a personal e-mail account to send or receive messages relating to the conduct of the public’s business, there would seem to be a strong argument that those messages should be public. Otherwise, important government business could be conducted in secret.

Moreover, to the extent certain elected officials conduct almost all business from a residence or other non-governmental location and communicate about public business through personal e-mails, the rationale for treating such communications as subject to disclosure under the PRA would seem to be even stronger, as the contrary ruling would shield all of that person’s work from the public.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. I believe you and I corresponded a few years ago on a related issue.

Q: I am considering a request for the 1099 form issued by a local agency to their general counsel. They are the worst violators of CPRA I have ever experienced. If I do not cite very specific statute and write the request so carefully that virtually all possibilities of misconstruction are eliminated, I will get a “no such records exist,” which is their default answer until they are challenged and provided “clarification.”

A: Any qualifying records must be disclosed unless a specific provision of the California Public Records Act or other law exempts them from disclosure. However, there are so many highly-specific exemptions, that it can be difficult to predict whether an exemption for 1099 forms has been created.

For instance, there is the possibility that some provision of the federal Internal Revenue Code has created an exemption for the disclosure of 1099s (they are federal forms, after all). I am not aware of any, but the possibility cannot be eliminated.

It’s also worth noting that generally tax forms are not public to the extent that you could not get them from the IRS. There certainly is a chance that this would relieve a state agency of any obligation to do the same.

Bearing that in mind, there may be an alternative method to get the information you desire. Personnel files are generally exempted under Gov’t Code § 6254(c); however, the California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public.

The International Federation of Professional Engineers v. Superior Court, 42 Cal. 4th 319 (2007) specifically discusses obtaining the names and salaries of employees making more than $100,000, so at the least, this will provide you with access to the salary information of highly-paid employees.

Citing that case and requesting access to the salary/financial information to the general counsel of the local water agency should get you to the 1099s (barring an Internal Revenue Code exemption).

If the 1099s aren’t available through that avenue, then at the least, you should be able to get pay stubs or other equivalent records.

I encourage you to file a written request for the records you seek because a written request requires the agency to provide a written response. Gov’t Code § 6255(b). If they reject your formal request, their response will need to identify the exemption or other justification for their denial. You may want to consider pre-empting their “no such records exist” response and remind them of this requirement.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: A county water agency has hired a consultant for a major capital project and has released the feasibility study done by the consultant but has not responded for a request to review the consulting contract itself. This isn’t academic: the agency asserts that the consultants’ excel spread sheet originals containing the actual cell-by-cell math calculations are proprietary to the consultant and the water agency itself isn’t privy to the calculations.

Here’s the dilemma: first, this means that the agency head has stood before the county board of supervisors endorsing a study and associated utility rates to end users without having had anyone in his agency replicate the spread sheets and verify the numbers; second it means no rate payer is privy to the math so that interested rate payers may not confirm that that methods used are accurate; and just as usefully no rate payers or voters who will be on the hook for a billion in new bonds will be able to run sensitivity analysis to assess potential alternatives to the proposed program and expenditures. This seems especially inappropriate in times of public revenue shortfalls in California. Are there precedents to shed light on this unhappy practice by the water agency?

A: It seems that you should be able to file a formal Public Records Act request in order to demand a copy of the employment contract between the county water agency and the consultant. Pursuant to Government Code § 6254.8, the employment contracts of public employees are expressly a matter of public record. I can’t think of a reason of why this provision would not also apply to contractors hired by an agency.

However, as best I can tell, there is no way to force a vendor to release the proprietary formulas or methodology they used to reach the prices agreed upon in the contract. So, the contract is a public record, but only to the extent of what lies within the four corners of the document. The code does not guarantee the public access to the “scratch-work” or calculations used to finalize the contract.

Further, Gov’t Code § 6254(k) creates a specific exemption for the records that are protected by state or federal laws, including the evidence code. California Evidence Code § 1060 allows parties not to disclose trade secrets so long as it doesn’t “conceal fraud or otherwise work injustice.”

This may allow the contractor to refuse to disclose the methodology for how it reached its final numbers as long as they can demonstrate that doing so would not perpetrate injustice or conceal fraud. So, trade secrets are normally exempt from disclosure, but without more precise insight about what information they’re protecting, it’s not possible to run through the analysis courts have established to determine if their methodology/formulas actually garner “trade secret” protection under the law.

Whether their calculations are an actual trade secret or just proprietary information is unclear, but there are examples where even proprietary information can be withheld (e.g., the Tax Code prevents local tax agencies from releasing proprietary information they acquire about companies during audits or other collections).

One way you might be able to obtain the information you’re looking for is through the Brown Act. As you may know, the Brown Act is the law that regulates the conduct of the governing bodies of all local public agencies. The Brown Act is intended to provide public access to local government meetings and serves to facilitate participation in all phases of local government decision-making.

One of the requirements of the law is that the public be given access to copies of any “agenda, background materials, and any other writings related to matters for public discussion.” Gov’t Code § 54957.5.

So, if the water agency circulated any type of written information at a meeting of the County Board of Supervisors, you are entitled to a copy of that. You also may obtain records if the water agency presented information to the Board of Supervisors in a closed session.

The public has the right to hear oral reports of certain actions taken in closed session at an open session held afterwards. Gov’t Code § 54957.1(a).

Additionally, upon the submission of a written request, the public has the right to receive copies of any contracts, settlement agreements or other documents finally approved or adopted in the closed session. Gov’t Code § 54957.1(b).

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: A council member has claimed in public meetings and in the press to have received email regarding a particular issue. Our PRA requesting those email have been rejected by the city because they do not have email accounts for council members. However on the city website the link to contact council members is the council member’s personal email account.

If the city is listing the personal email as the contact, then shouldn’t email from that account be available to the public through a PRA to the City?

A: Indeed, the issue of public officials using private email accounts and mobile phones to conduct the public’s business seems to be becoming a pervasive problem.

It would seem that if a government official uses a personal email account to send messages relating to the conduct of the public’s business, a strong argument could be made that those messages should be public. Otherwise, important government business could be conducted in secret. How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.

In January 2007, a newspaper in Tracy requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain emails, it did not produce e-mails between a city councilwoman from her personal email account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

Unfortunately, the Court of Appeal did not reach the substantive issue of whether the councilwoman’s emails from her private account were subject to the PRA, but instead only noted the trial court’s finding on this front regarding her non-status as a “local agecy,” and then disposed of the case on procedural grounds.

The Court of Appeal did say that “[i]f [the councilwoman] had emailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300.

Note, however, that in the context of legislators, the Court of Appeal in Rogers v. Superior Court, 19 Cal. App. 4th 469, 479-81 (1993), held that records of telephone calls made by city council members from city-owned cell phones and home offices were exempt from disclosure pursuant to the deliberative process privilege, which may allow nondisclosure of records relating the deliberations of agency officials.

This particular privilege is found in the Act’s “catch all” exemption, Gov’t Code § 6255. In coming to this conclusion, the court in Rogers stated:

“Disclosing the telephone numbers of persons with whom a city council member has spoken discloses the identity of such persons and is ‘the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the city council member. … [R]outine public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.”

If the city has advertised council members’ personal email addresses on its website, and has invited the public to communicate with council members through those email addresses, it would seem those email accounts are the council members’ de facto accounts for city business, and as such there would seem to be a strong argument that those records relating to the public’s business are subject to disclosure under the Public Records Act.

The danger of protecting such records related to personal cell phones and email accounts from disclosure is that it could create a mechanism to keep important government activity secret.

But the question is still a live one in California and in many other states. The release earlier this year of Sarah Palin’s emails from her personal account supports the notion that government officials cannot escape public records laws by conducting business through private modes of communication.

The issue has certainly caught the attention for various media organizations around the country: http://www.signonsandiego.com/news/2011/jun/17/gray-area-public-officials-on-private-emails/ (article from San Diego Union-Tribune).

If you haven’t done so already, you might want to write to submit a written request for the records to the city, and specify that you seek emails sent from council members’ email accounts, as advertised on the city’s website, that relate to official business.

As it sounds like the city has already done, it might push back and claim the records are not subject to disclosure, to which you might respond with the arguments above in favor of disclosure. You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Finally, as a former reporter, the fact that council members are using personal emails for official communications may be a story worthy of coverage by local media. I have heard from another FAC inquirer that the article from the Union-Tribune in San Diego prompted officials there to instruct elected officials there that only the county’s email system should be used when discussing public business.

It may be worth contacting the local media and pitching a story about this problem. (Coincidentally, I was a newspapers reporter for the Morro Bay Sun-Bulletin, and then the Tribune, from 1999-2002; I believe I interviewed you on at least one occasion regarding the Los Osos sewer project.)

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I’m trying to obtain records for the LA United School District’s spending for 2010 in digital format, but the LA USD Office of the General Counsel is asking for 25 cents per page to send the digital information to us.

They’ve explained that this is based on the usual fee rate for pages that are photocopied, but as we aren’t asking for any physical copies this rate seems inappropriate. I’ve looked at California’s public records laws and I don’t think the 25 cents per page is representative of direct costs of duplication and I’m not sure if the estimate is legal.

I’ve gone back and forth on this and I would really appreciate if someone could help me understand whether the county can legally assess these kinds of fees for public records.

A: The default rule for electronic records is that “[t]he cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” Id. (emphasis added).

In other words, the agency is permitted to charge for staff time spent in performing the copying, but not the searching for or retrieval of the records.

In addition, if the agency gives you the records on a CD or some other tangible recording device, it is permitted to pass on the actual cost of the blank CD.

The important thing here is that the copying rate charged must be based on the actual costs of duplication. As you point out, it may be unreasonable to charge 25 cents per page given that the agency is not required to expend any staff time in running a photocopying machine to make paper copies of the records.

In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301,1336 (2009), a case that involved access to electronically stored GIS basemaps, at the end of the day, the “direct costs” ended up being $3.10 for each CD (multiplied by four = $12.40).

You may want to write to the school district ask them how the 25-cent-per-page charge reflects the “direct cost of producing a copy of a record in an electronic format,” and perhaps relate your understanding of what is permissible with respect to costs related to duplicating electronic records.

It seems that if the files are easily accessible, the “direct cost of duplication” should not add up to much more than the cost of the CD to which the records are transferred, and the de minimis staff time involved for pushing a button to transfer those records onto the CD. The agency must be able to demonstrate how it calculated those costs using real data.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I have concerns that my school District has violated the Brown Act.  When the school board made our interim Superintendent a permanent Superintendent without any public input because it wasn’t properly agendized.

I am also concerned that a committee I serve on has been deemed a closed door confidential meeting per the Brown Act. I am an unpaid, parent volunteer on the committee and one of several stakeholders (parents, community, retired teacher, district employees and paid consultants). This committee was handpicked by the Superintendent and parents were selected as committee members to ensure transparency.

There are no school board members on the committee and there was no school board vote to create the committee, yet we are being told (after several meetings) that we are now an extension of the school board and the meetings and everything said in them is confidential. I am concerned California Education Codes and Public Contract Codes are not being followed and this may be the reason why the committee members are now being told the meetings are confidential to keep me from speaking publicly about what I have witnessed.

I would like to know if this committee is an open, public meeting versus a closed door Brown Act Meeting. There are no meeting minutes and no 72- hour posting of an Agenda, as required by the Brown Act. I have been repeatedly asked to resign from the committee and have been treated very badly because I am asking questions. I would appreciate any assistance you can provide.

A: You have two questions here:(1) The propriety of appointing the interim superintendent to the position permanently, and (2) the applicability of the Brown Act to the committee to which you are assigned. I will address each question in turn.

1. The Brown Act permits an agency to appoint a person to a position in a closed session. Govt. Code section 54957. However, prior to holding the closed session, the agency must notify the public in open session, on its agenda, or both, of the items to be discussed in the closed session. Govt. Code section 54957.7. According to Govt. Code section 54954.5, the suggested listing of such a session is

PUBLIC EMPLOYEE APPOINTMENT
Title: Superintendent

The agency cannot act on the matter if the item is not noticed in this or a similar way. Govt. Code 54954.2.

2. Regarding the Funds for Education committee, the Brown Act applies to

“A . . . committee . . . whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution or formal action of a legislative body.”

If the committee fits this description, then it must comply with the Brown Act. If the committee was only formed by the Superintendent, then it would not be covered by the Brown Act. If not covered by the Brown Act, and absent some independent requirement in the Education Code, there is no statutory requirement that the committee open its meetings, or notice and agendize its closed sessions.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Two years ago, I filed a citizens complaint with the Sheriff’s Department. This complaint was against the sheriff and his deputies.

I have requested copies of all documents compiled in their internal investigation and they have informed me that documents concerning personnel are exempt. I just want copies of my complaint plus any correspondence that is related to my complaint. I lost my file in this matter and am trying to recoup.

I have sent the sheriff two letters but he refuses to comply with my request. could you please advise me as what to do now. There was a lot of controversy concerning the case.  I am simply asking for copies of documents that I believe I am entitled to.

A: Although the California Public Records Act generally requires that the records of state and local governmental agencies are open to the public for inspection and copying, Govt. Code section 6253, the Act does list certain categories of records that are exempt from disclosure. Among these are “records of complaints to, or investigations conducted by . . . any state or local police agency.” Govt Code section 6254(f).

Moreover, as you noted, the records may further be exempt as part of the personnel records of the governmental employees about whom the complaint pertains. Govt. Code section 62549c).

Therefore, the records you seek need not be disclosed.

You maybe able to obtain a copy of your complaint letter only by writing to the agency and specifically waiving any privacy interest you have in the letter, and/or by agreeing that the names of the deputies may be redacted. That may address he privacy concerns which justify each exemption.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

The Online News Association announced Thursday that it was adding it’s name to the growing opposition to the Stop Online Piracy ACT (SOPA). Poynter’s Tracie Powell reports on what journalists need to know about the Act now being debated in the U.S. House.

“What jouralists need to know about SOPA”/ via Poynter

How does the First Amendment protect reporters on the OWS protest frontlines?  Attorney and University of Missouri Journalism Fellow Jonathan Peters spells it out in The Nation:

FAQ: What Are the Rights of Reporters Covering Protests? | The Nation.

Q: My CPRA request to review the 911 recording/transcript of a 2003 death was denied by the LAPD.

While the cause of death was determined to be a knife wound the coroner declined to rule on whether the incident was a suicide or homicide. Prior to my formal request, the police refused to discuss the case citing its ”ongoing nature.”

My formal request to review the 911 call for service was denied because it was not deemed contemporaneous. The denial was based on the 1993 Kuzar case.

It is my understanding that case recognizes that forcing agencies to search for old records could saddle them with a heavy financial burden. But in this case, it’s likely the 911 tape is easily accessible.

Also, if the case is in fact still ongoing, wouldn’t that constitute contemporaneous police activity? I’d like to sue the LAPD into releasing the information, but do I have any legal standing?

A: Although you didn’t specifically raise the issue of 911 tapes, per se, that might be a good place to start. We are not aware of a case that specifically says that tapes of 911 calls or similar calls to law enforcement must be released, but there are two cases that touch on the subject

In the first case, a city refused to release tapes of calls between the city’s police department and another law enforcement agency because the city considered portions of the tapes to be “embarrassing and irrelevant.” Fontana Police Dep’t v. Villegas-Banuelos, 74 Cal. App. 4th 1249, 1251 (1999).

The trial court ordered the city to release the tapes and the Court of Appeal affirmed an award of attorneys’ fees to the requester under the PRA. Among other things, the Court of Appeal said that the “Appellant was legally entitled to the unedited tapes which [the city] refused to produce until ordered to do so by the trial court.” Id. at 1252.

In the second case, decided two years after Fontana, the California Supreme Court held that the PRA did not require the release of certain “records … concern[ing] a citizen’s call to report a possible crime and the department’s response thereto.” Haynie v. Superior Court, 26 Cal. 4th 1061, 1064 (2001).

The Supreme Court held that the exemption in Government Code section 6254(f) for “records of investigations,” like the exemption in the same section for “records of complaints” to law enforcement, allows law enforcement to withhold the records completely. Law enforcement may have to release certain specific information in the records, but not the records themselves. Id.; see also Williams v. Superior Court, 5 Cal. 4th 337 (1993). Unfortunately, this precedent means that an agency could prevail with arguments that the recording/transcript you seek is exempt as an investigatory record.

As to the non-contemporaneous justification the agency has actually asserted, there may not be a cut-and-dried answer. Although the financial burden of compiling historical records was at issue in the Kusar case, the court also emphasized “the common law tradition of contemporaneous disclosure of individualized arrest information in order to prevent secret arrests. County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 598 (1993).

In addition, there does not appear to be a great deal of guidance from subsequent authority as to exactly what constitutes “contemporaneous” activity. Your argument that an ongoing investigation means that the underlying activity is, by definition, contemporaneous might be persuasive, but a court might also decide that something that happened in 2003 is no longer contemporaneous, regardless of whether investigation continues.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: At a recent Town Hall meeting, water rates were discussed. A majority of directors of the water district were in attendance to answer any questions. They did not notice this meeting. Items were discussed that they will vote on. Is this a Brown Act violation?

A: Under the Brown Act, a “meeting” includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Gov’t Code § 54952.2(a).

Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. In 2006, in a case called Wolfe v. City of Fremont, the Court of Appeal noted that “serial individual meetings that do not result in a ‘collective concurrence’ do not violate the Brown Act.” 144 Cal. App. 4th 533, 545 n. 6 (2006).

The Brown Act was subsequently amended in 2009 to supersede this holding from the Wolfe case. Now the Brown Act provides that:

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2 .

However, the Brown Act does seem to provide an exception for meetings such as the one you describe.

Gov’t Code § 54952.2(c) provides that “[n]othing in this section shall impose the requirements of this chapter upon any of the following,” including, among other things, “The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Gov’t Code § 54952.2(c)(3).

Thus, it could be that, so long as the meeting was not organized by the local agency itself, and the members did not “discuss among themselves, other than as part of the scheduled program,” agency business, this particular town hall meeting would pass muster under the Brown Act.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Electronic Frontier Foundation rounds up the “major trends influencing digital rights in 2011 and discussing where we are in the fight for a free expression, innovation, fair use, and privacy.

2011: The Year Secrecy Jumped the Shark

Domain-name host Go-Daddy has withdrawn its name from the judiciary’s list of SOPA supporters two days shy of the Move-Your-Domain-from-Go-Daddy protest scheduled for Dec. 29 inspired by pan avalanche of comments to a post on Reddit.

Read all about Go Daddy’s reaction and much, much more web and political reaction to SOPA on Techdirt.

Q: The city department of Code Enforcement wants to fine me $2500 per day up to $100,000 for code violations at my resident. When I made a public record request to see the evidence that the City’s has gathered on my property, it was denied stating that the case is still open and considered an active investigation. This matter has gone over a year now. No proof or evidence will be provided, but they are happy to fine me every single day until I comply with their ultimatum.

A: Under California’s Public Records Act, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Govt. Code § 6252-6253.

Section 6254(f) of the PRA exempts from disclosure:

“[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, … and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”

Investigatory files of the city’s code enforcement office might qualify for this exemption to the extent that they are records maintained by a local police agency or part of security files compiled by a local agency for law enforcement purposes. See, e.g., Black Panther Party v. Kehoe, 42 Cal. App. 3d 645, 653 (1974) (complaints submitted to state licensing bodies about collections agencies were exempt under 6254(f)).

However, if 6254(f) applies, the PRA nevertheless provides that state and local law enforcement agencies:

“shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation: … the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved.”

Of course, this information might not be of much use to you at this point, given you probably are already aware of the basic facts related to your situation.

I also did not see anything in the case law indicating that the city is required to provide you with access to those records upon which it is basing its code violation.

Other considerations related to “due process” may be at stake here — i.e., was the city required to provide you with a hearing prior to assessing any fine, etc. This inquiry could depend on whether you have been accused of a criminal or civil offense (in general, the standards for due process are much higher in connection with criminal offenses).

It may be that you are entitled to a hearing on the issue, or the city has some sort of administrative procedure for appealing your alleged violation.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Two family members were involved in a murder/suicide. On the night of the incident the homicide detective told me I would be able to get copies of the investigation once done.

The investigation is done, but I am being told that I have no right to files and that the homicide dept. does not have to disclose their investigation files. I spoke to the district attorney’s office and the local sheriff station. Both said as far as they knew I as a member of the immediate family I had the full right to the file.

I sent in a formal request under the Public Records Act but heard nothing back. I followed up and ultimately got to a Sergeant. He said it was largely a factor of time to redact any personal information of witnesses, etc. He would ”try” to arrange for me to come in so he could verbally reveal information as he saw fit and that would not take up too much of his time. This is unacceptable to me. How do I proceed to have copies of the file(s) made for me?

A: I am very sorry to hear about your loss. I hope this information may be of some use in obtaining the records you seek.

In your case, it sounds like the agency has not taken the position that the records you seek are exempt from disclosure. Rather, it sounds like the agency is trying to avoid having to redact exempt information from the records by instead verbally reporting information to you.

While it is conceivable in certain extreme cases that the burden of collecting and preparing voluminous records might provide some basis for an agency to refuse to produce or delay in producing records, this does not sound like an extreme case. That is, there is no evident justification for the agency to avoid its obligation to “make the records promptly available” to you. Gov’t Code § 6253(b).

The Public Records Act provides that:

“[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Gov’t Code § 6253(a).

The Act further provides that:

“[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Gov’t Code § 6253(b).

As for timing,

“[e]ach agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.

In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.

As used in this section, “unusual circumstances” means the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request;

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein;

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.” Gov’t Code § 6253(c).

From a practical perspective, it might be useful to follow up your initial request with a written follow-up letter setting out when you made the initial request and describing the subsequent (in)action of the agency. It might be useful to explicitly note the offer of a verbal report so that you can make it clear that you maintain your request for copies of the actual records.

It can sometimes also be useful to point out that if you are forced to file a lawsuit to enforce the Public Records Act and you prevail in that litigation, the agency would be liable for your attorneys’ fees. Gov’t Code § 6259 (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”).

You can find more information about the Public Records Act on the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: After nearly two years of trying, we finally got a photograph of three of our County Board of Supervisors (we have a five member Board) having lunch together as they regularly do. We can’t take it to the DA as he has been compromised as has our County Counsel.

What can we do?

A: The Brown Act, at Govt. Code section 54952.2, defines a “meeting” as “any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”

Thus a majority of the members of a board having lunch together could be a “meeting” if they were hearing, discussing or deliberating upon matters within the board’s jurisdiction, as opposed to, for example, merely having a social lunch in which no agency matters were discussed.

The Brown Act may be enforced in two ways. One, as you noted, is for the District Attorney to prosecute violations as misdemeanors. Govt. Code section 54959. The other is by way of private enforcement actions brought as civil lawsuits by individuals. Government Code section 54960.

Such private actions may be brought to declare actions taken in violation of the Brown Act null and void, or to declare that a particular policy or practice is in violation of the law. Govt. Code section 54960.1(d).

However, if one seeks to have an action of the board declared null and void, one must first, in a timely manner, sometimes within 30 days of the violation, demand in writing that the agency “cure and correct” the violations of law. A party who prevails in a Brown Act lawsuit may be entitled to an award of attorneys’ fees and costs. Govt. Code section 54960.5.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: During a hearing on a massive development project the several county supervisors walked around the room, talked on cell phones, or to each other or staff, worked on their computers and otherwise did not listen to any of the public testimony. This is particularly discouraging because this is a massive project with terrible impacts to our community. Does failure to pay attention to the testimony being giver or discussing the matter privately between themselves constitute a Brown Act violation? If so, is the deadline for sending a cure and correct letter 30 days?

A: Although the Brown Act does require that local agency governing board meetings be open to the public, and that the public be permitted to address the board regarding any item within the agency’s jurisdiction, Govt. Code section 54954.3(a), the Brown Act does not require that any Board member pay attention to those comments.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Can a private company make a profit by selling public information? Or is there a law that says they cannot take public information and charge people to look at it?

A: There is no restriction on a private entity that obtains public records from charging someone for copies of those records. The Public Records Act’s prohibition on charging for copies, beyond the direct costs of duplication, applies only to governmental agencies. Those who want records are able to get them for the costs of duplication directly from the agency.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I have a small group that would like to do a small Black Friday protest that would be focused on expressing gratitude and inviting passers-by to do the same (probably via posters, video messages, and large white boards) as an alternative to consumerism.

I would like to know where we can protest. We want to be somewhere near where heavy Black Friday shopping is going on, (like the main street in front of the mall, smaller streets in front of the mall, sidewalks in front of large shopping centers, parking lots, etc.) but I don’t know anything about where we can legally do this.

I would also like to know if writing things on the sidewalk (in sidewalk chalk) is allowed under any circumstances.

A: The very general answer to your question is that the First Amendment limits the ways speech can be restricted in public places.

In particular, the Supreme Court has called public streets “the archetype of a traditional public forum” because “‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011).

Speech in public streets is still subject to “reasonable time, place, or manner restrictions,” however, which — very broadly speaking — means that restrictions reasonably necessary to achieve a legitimate government objective and that are not based on the content of the speech may be permitted. Id.

You might want to check local ordinances to see if there are any particular rules or regulations in your area as to how protests like the one you plan should be conducted.

Note, however, that sometimes such rules or regulations purport to impose restrictions that might not actually be constitutional. Still, checking for local guidance on both the protest and sidewalk-writing issues is probably a good place to start.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Almost two years ago, Mike Harris’s  son was thrown off his high school basketball team for posting a parody hip-hop video about the youth drug culture on YouTube.

Harris wanted to find out how the District had arrived at their decision to oust his son from the team and requested all records documenting the incident. When the Northern California school district failed to provide everything he’d requested, Harris hired Davis attorney Paul Boylan to sue the Roseville joint Union High School District to gain access to the files.

In May, the Placer County Superior Court ordered the district to provide Harris with access to a complete copy of his son’s records. Then a second battle ensued when the school district balked at reimbursing Harris’ attorney’s fees and court costs.  In the press release from Boylan’s office reprinted below, Harris estimates the suit will end up costing the district $300,000 in total legal fees.

FOR IMMEDIATE RELEASE:

SCHOOL DISTRICT VIOLATES PARENT’S RIGHTS – PAYS $300,000
A Northern California school district’s decision to hide records cost the district over $300,000 in attorney’s fees, most of which was paid to two different law firms to unsuccessfully defend against a parent’s lawsuit to obtain access to his son’s pupil records.

Almost two years ago, Roseville resident Mike Harris asked the Roseville Joint Union High School District to show him his son’s student records. The district showed him some, but not all of his son’s records.

“They gave me what they said were my son’s complete official record but what they gave me was nowhere near the complete record. They claimed the electronic records and emails that they maintain and use on a daily basis were not official records and that they did not have to give them to me. They were wrong,” Harris said.

When Harris’ efforts to persuade the school to let him see more of his son’s pupil records failed, he hired Paul Nicholas Boylan, an attorney specializing in record access law, to file a lawsuit to help him gain access to the information and records the district decided to keep secret.

On January 6, 2010, Boylan filed a Petition for Writ of Mandate arguing that the California Constitution, Education Code and Public Records Act gave Harris the right to view his son’s records and that the school district violated Harris’ rights as a parent when they decided to keep his son’s records secret.
The district hired Trujillo & Vinson, a bay area law firm, to defend against Harris’ lawsuit.

“The District’s defense was vigorous,” Boylan said. “They did everything they could to prevent Mike from seeing records that any parent should be allowed to see. But in the end the court decided to defend not just Mike’s rights, but every parent’s right to see their children’s school records.”

On May 20, 2011, Placer County Superior Court Commissioner Margret Wells entered judgment holding that the district violated Harris’ rights and ordered the district to provide Harris with access to a complete copy of his son’s records, including emails and other electronic records.
“It was a huge victory,” Harris said.

But the dispute wasn’t over. As the winning party, Harris asked the court to order the district to pay his attorney’s fees and court costs.

“That’s when things got really nasty,” Boylan said. “As hard as the district fought to avoid letting Mike see his son’s records, they fought even harder to avoid reimbursing Mike for what it cost him to enforce his rights.”

When Harris filed his request for reimbursement, the district hired a second law firm, Meyers & Nave, a large law firm with offices in six cities, to work with Trujillo & Vinson to oppose the claim. However, right before the hearing on Harris’ motion, the case settled when the district agreed to pay Harris’ attorney’s fees and court costs.

“During the lawsuit, I asked to see the district’s attorney bills so I could keep track of how much the district was spending,” Harris said. “I estimate the district paid around $300,000 total to their lawyers and my attorney to keep me from seeing my son’s records.”

“This is not just a question of them trying to violate my rights,” Harris added. “This is a question of how much money was wasted in the attempt.  $300,000 is a huge amount of money, especially now in hard economic times when so many teachers are losing their jobs and so many school programs are being cut. The $300,000 should have been used to pay for teachers, books, or other costs related to educating our students, not a misguided and irresponsible attempt to deny me my rights as a parent. It makes absolutely no sense to spend so much money that way. It would never happen if they had to spend their own money but apparently they operate using different standards when they spend the taxpayer’s money.”

As part of the settlement, the district has agreed to let Harris meet with the District Board of Trustees.

“Over the past two years I have often wondered who was in charge and if they would be held responsible for wasting our taxpayer dollars,” Harris said. “I am certain the Board of Trustees does not know the real story of what happened in my case. They should know so that this does not happen to anyone else. We can’t afford it.”

Q: I am a city commissioner, and I was recently advised against voicing my opinion to the press on any subject that is or in the future may be under my commission’s jurisdiction.  The concern is that  later other commissioners may choose to speak to the press on the same subject and give rise to a Brown Act violation.

I am very concerned that this interpretation of the Brown Act violates my First Amendment right of freedom of speech, and also censors the press. Obviously I wouldn’t be meeting with commissioners in private to discuss a subject, or even publicly to discuss a subject. I would be speaking to the press publicly. I would appreciate any advice you could provide me on this matter.

A: It might be useful to know more about the basis for the advice you received against communicating with the press about issues that fall within your commission’s subject matter jurisdiction. I am not aware of any basis for a broad prohibition along these lines, though it is possible to imagine situations where Brown Act issues could conceivably be implicated.

The background for these issues is the Legislature’s intent for the Brown Act, which is that the actions and deliberations of public commissions, boards, councils, and other public agencies be performed publicly. Gov’t Code § 54950.

As the declaration of public policy set forth in the Brown Act itself states:

“[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

Accordingly, the provisions of the Brown Act are geared toward maximizing publicity and transparency about public business. Communications between members of legislative bodies of local agencies and the press would generally seem to promote transparency rather than subvert it.

It is possible that the concern underlying the advice you received relates to the so-called serial meeting prohibition of the Brown Act, which is intended to prevent legislative bodies from deliberating on public business outside the context of public meetings.

The Brown Act defines “meeting” as “any congregation of a majority of the members of a legislative body at the same time and location … to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” Gov’t Code § 54952.2(a).

The Brown Act further provides that:

“[a] majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Gov’t Code § 54952.2(b)(1).

California courts had held that this kind of prohibited serial meeting must result in a “collective concurrence” for it to violate the Brown Act, Wolfe v. City of Fremont, 144 Cal. App. 4th 533, 545 (2006), but the Legislature subsequently amended the Brown Act to remove the “collective concurrence” requirement.

There may be some uncertainty on the part of bodies subject to the Brown Act as to what exactly might constitute using a series of communications through intermediaries to discuss items of business with the subject matter jurisdiction of the legislative body and — in particular — whether expressing an opinion to the press could fall within the prohibition.

While I am not aware of any authority addressing this particular issue directly, interpreting the serial meeting prohibition to foreclose communications between members of legislative bodies of local agencies and the press would seem to be highly problematic, as you suggest.

Note that the Brown Act expressly permits:

“[t]he attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency.” Gov’t Code § 54952.2(c)(2).

Similarly permitted is:

“[t]he attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Gov’t Code § 54952.2(c)(3).

These provisions seem to underscore that discussion of public business that is truly open to the public is not contrary to the Brown Act and that what is meant to be prohibited is “subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next.” Roberts v. City of Palmdale, 5 Cal. 4th 363, 376 (1993).

An interpretation of the Brown Act that results in a wholesale prohibition against legislative body members’ speaking with the press — which, in turn, would seem to necessarily reduce instead of promote transparency as to the body’s workings — seems untenable in light of the principles underlying the Brown Act.

Q: Does California Ed Code 48907 apply to non-print media (ie: school news broadcasts via TV or internet)? If not, is there another code protecting non-print media and if so, where can I find documentation to support an effort to protect the same freedoms as EC 48907 for my TV Broadcasting students in a high school class?

A: Education Code § 48907 provides that

“[p]upils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”

The statute defines “official school publications” as “material produced by pupils in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee” and provides that:

“[t]here shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section.” (Education Code § 48907 is reproduced in its entirety below.)

In a 1995 case, the Court of Appeal treated a student film as an “official school publication” in deciding that a school could suppress the film because it contained profanity. Lopez v. Tulare Joint Union High School Dist. Bd. of Trustees, 34 Cal. App. 4th 1302 (1995). In a concurring opinion, however, one of the Court of Appeal judges said that audio-visual works were simply not encompassed by the statute. Id. at 1330-1332 (Ardaiz, P.J., conc.). (That is, Judge Ardaiz agreed with the outcome of the case but would have decided it on the grounds that a prior restraint of audio-visual works is not prohibited by Education Code § 48907.)

Arguably, Lopez could be cited as authority that the protections of § 48907 are not limited to expression in print media. In addition, in contrast to a film arts class (like the one in Lopez), there would seem to be a stronger argument that a student news report from a broadcasting class qualifies as “material produced by pupils in the journalism … classes,” regardless of the medium in which the report is transmitted. Certainly the rationale for protecting student news publications would seem to apply with equal force to non-print media.

Note also that not all of the protections of Education Code § 48907 are tied to “official school publications.” The statute more broadly provides that public school students “have the right to exercise freedom of speech and of the press.”

An effort to explicitly extend the protections of Education Code § 48907 to material produced in television broadcasting classes would likely amount to a legislative lobbying effort to amend Education Code § 48907. Materials that might support such an effort could include the extensive body of case law interpreting state and federal protection for student speech, as well as factual material documenting the evolution of student media and establishing the benefits of explicitly extending protection.

Education Code § 48907

(a) Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

(b) The governing board or body of each school district or charter school and each county board of education shall adopt rules and regulations in the form of a written publications code, which shall include reasonable provisions for the time, place, and manner of conducting such activities within its respective jurisdiction.

(c) Pupil editors of official school publications shall be responsible for assigning and editing the news, editorial, and feature content of their publications subject to the limitations of this section. However, it shall be the responsibility of a journalism adviser or advisers of pupil publications within each school to supervise the production of the pupil staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section.

(d) There shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section.

(e) “Official school publications” refers to material produced by pupils in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee.

(f) This section does not prohibit or prevent the governing board or body of a school district or charter school from adopting otherwise valid rules and regulations relating to oral communication by pupils upon the premises of each school.

(g) An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Can the police videotape interactions with the public without the public’s consent? Not just in public, where there may be less of an expectation of privacy, but when they enter an apartment or home (permissive entry), and they do not ask permission to videotape but do so anyway with hidden video cameras?

A: You pose an interesting question. A provision of California’s Penal Code imposes penalties for “intentionally and without the consent of all parties to a confidential communication … eavesdrop[ping] upon or record[ing] the confidential communication [by means of any electronic amplifying or recording device], whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.” Penal Code § 632 (a) (full text below).

The term “person” in the statute is defined to include “an individual acting or purporting to act for or on behalf of any government or subdivision thereof,” which would seem to include law enforcement personnel. Penal Code § 632 (b).

Note, however, that there are a number of carve-outs related to law enforcement, including one specifying that § 632 does not prohibit police officers from “overhearing or recording any communication that they could lawfully overhear or record prior to” the enactment of § 632 in 1967. Penal Code § 633.

Another carve-out provides that:

“[n]othing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith.” Penal Code § 633.5.

A more detailed analysis of the circumstances under with a police officer would be permitted to secretly record communications is, unfortunately, beyond the scope of this service, which is focused on First Amendment and government access issues.

It is probably worth noting, however, that law enforcement personnel might have room to debate whether a conversation between a police officer and a member of the public that took place in the course of the officer carrying out his or her official duties could reasonably be considered “confidential,” even if it took place in the citizen’s home.

That determination might be highly dependent on the particular circumstances surrounding the event. See People v. Maury, 30 Cal. 4th 342, 386 (2003) (“The term confidential communication as defined in Penal Code Section 632, [subdivision] (c) includes only those communications carried on in circumstances that would reasonably indicate that any party to the communication desired it to be confined to the parties thereto.”).

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

Cal Pen Code § 632

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Message I’m trying to obtain records of supervision for a high-risk parolee who is accused of murder. I sent a public records request and received a rejection letter that cites dozens of government codes in its defense. But I wonder if there’s a way to fight that rejection. After all, that information has become public in several high-profile cases such as Phillip Garrido and John Albert Gardner. I have the letter of rejection if you would like to see it, and I hope to get some help in getting valuable information to determine if parole agents were doing their jobs.

A: California law provides some fairly broad protections for many different kinds of law enforcement records. As you might expect (or have encountered first-hand), it is common for agencies to reject requests for law enforcement records out of hand, even if the requests include some records that are subject to disclosure under the Public Records Act.

The Garrido case you mentioned is a good example of how this often works. In that case, a number of media entities sought various records related to Garrido’s parole from the California Department of Corrections and Rehabilitation (CDCR) and records related to the investigation of the Office of the Inspector General (OIG) of the parole subsequent to his arrest in 2009. Both the CDCR and OIG refused to disclose most of the records requested.

The media entities sued, and the Sacramento Superior Court ordered the agencies to prepare a list of the responsive documents together with a justification as to why each was exempt from disclosure. Both the CDCR and OIG requested relief from that order, which the Court of Appeal granted for the OIG but not for the CDCR.

The trial court ultimately concluded that many of the records sought were exempt from disclosure under a variety of statutory authority. The court said some of the records were exempt as “Criminal Offender Record Information” under Gov’t Code Section 6254(k), Penal Code Sections 11075(a), 11076, 11081, and 11105, and the case Younger v. Berkeley City Council, 45 Cal. App. 3d 825, 832-833 (1975). The court said that information was properly redacted from many other parole records under the same authority (it is not clear from the court’s order precisely what information was redacted).

The court also found a mental health examination to be exempt in its entirety and that information reflecting “confidential medical information” could be redacted from other records based on HIPAA and the California Confidentiality of Medical Information Act. The court also said that parole records from the state of Nevada were exempt under Evidence Code Section 1040 (the so-called “official information” privilege).

The court said that the Case Management Review (which was evidently an appraisal of the performance of parole officers) was exempt as a peace officer personnel record under Penal Code Section 832.7(a). The court did, however, order that a “draft Executive Review” (evidently an internal summary of the review of the parole supervision) be disclosed.

Without knowing more about the particular records at issue, it is difficult to evaluate the merit of the trial court’s decisions. California’s statutes on “criminal offender record information” are complicated and unclear in many respects and have not been interpreted by the courts extensively.

Meanwhile,  the Court of Appeal considered the OIG’s request that it not be ordered to disclose the investigative materials underlying the “special public report” it had issued regarding CDCR’s parole supervision of Garrido. (Under California law, the OIG oversees CDCR and has the power to investigate CDCR activities. Penal Code Section 6131.

The statute calls for the OIG to prepare two different reports — one confidential and the other public. Id.) The Court of Appeal held that the OIG had complete discretion as to whether the underlying investigative materials would be disclosed (meaning that it could simply decide not to release them without meeting any particular standard or otherwise justifying the decision). Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 707 (2010). The Court of Appeal went on to find that the materials were exempt from disclosure as law enforcement investigatory records under Gov’t Code Section 6254(f). Id. at 708-10.

With respect to your request, there may well be a basis to push back on the denial of access of many of the records you requested. Among other things — as you noted — to the extent any of the information contained in the records has already been disclosed in one form or another, the rationale for withholding those records may be significantly undermined. In addition, to the extent the agency essentially spewed a string of authority but didn’t really explain how that authority justified keeping particular records from the public, it might be useful to push back for a more meaningful explanation of how the cited authority justifies withholding the records (or why redaction of the records is not a viable alternative).

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: As a school board member I have tried, but failed, to have the copious exorbitant legal billings by the district’s attorney released to the public.  So far the attorney’s fees of $50k to $70k per month (the amount of almost $1million is rapidly approaching) have been discussed in closed session and the rest of the board members what to keep it that way .

I consider the attorney just like any other a vendor and if confidentiality is an issue, a case number can be assigned to the items billed.   Please advice if the board can keeping these expenditures in closed session.

A: The provision of the Brown Act that authorizes closed sessions for discussion of pending litigation is set forth in its entirety below. The bottom line, though, is that by its terms, it seems to authorize only a closed session “to confer with, or receive advice from, its legal counsel regarding pending litigation” and would not seem to cover discussions about what an attorney has charged the school district.

What you describe sounds like a discussion about spending public funds and would not seem to involve getting advice from legal counsel about pending litigation. Even if some of the bills in question contain information that might legitimately subject to attorney work product or otherwise be privileged, there doesn’t seem to be any reason for that to preclude a public discussion of whether the district is getting its money’s worth or should consider retaining different counsel. To the extent such documents would be part of the discussion, the solution would seem to be redacting that information — consistent with the Public Records Act — and not moving the whole conversation behind closed doors.

Gov’t Code § 54956.9 .

“Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.

For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter.

For purposes of this section, “litigation” includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.

For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:

(a) Litigation, to which the local agency is a party, has been initiated formally.

(b) (1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.

(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision.

(3) For purposes of paragraphs (1) and (2), “existing facts and circumstances” shall consist only of one of the following:

(A) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.

(B) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.

(C) The receipt of a claim pursuant to the Tort Claims Act or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5.

(D) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.

(E) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicly disclosed.

(F) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).

(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

A local agency shall be considered to be a “party” or to have a “significant exposure to litigation” if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment.”

 

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I am a newly elected school board member. Our upcoming agenda will contain a closed session item that has also been discussed in closed session prior to my appointment. Can I ask the staff and board members who participated in the prior closed session to divulge what was discussed?

A: I am not aware of any authority specifying whether a new member of the legislative body is “a person … entitled to receive” confidential information disclosed in closed session prior to the member’s joining the body.

As you may know, the Brown Act provides that “[a] person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” Govt. Code § 54963(a).

Since the purpose of a closed session is to permit the legislative body to meet behind closed doors, there would not seem to be a logical justification for keeping what transpired in a previous closed session secret from a new member of the body. In other words, the rationale for allowing closed sessions is that certain limited circumstances require frank discussion outside the public eye, but this rationale would not seem to apply to new members of the body.

One possible argument in favor of keeping such information from a new member would be that under a strict interpretation of § 54963(a), the new member who acquired the information second-hand would not be prohibited from further disclosing it (because § 54963(a) is limited to acquisition of the information be being present in a closed session).

The stronger policy argument, however, would seem to be that members of the legislative body should have knowledge of what is or has been before that body, even if some of that involves information from previously held closed sessions.

In any event, the phrase “unless the legislative body authorizes disclosure of that confidential information,” suggests that a new member’s request to the body to disclose the information to the new member would be appropriate.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I’m a reporter trying to access information regarding a lawsuit against the local school district.

A decision was made but so far, no documents of that decision have reached the court records department. The only document filed is a single-page notation that the case was heard. There’s no indication the records have been sealed. I’ve filed a CPRA letter with the district, but school officials say they have no documents in hand.

The case is important because it potentially affects taxpayers and has already cost the district $2.5 million in legal fees.

So — how can I get information about the decision?

A: It sounds like the barrier you have encountered is administrative rather than substantive — that is, the court is not necessarily telling you that you are not allowed to access the decision; rather, it simply claims not to have possession of the record itself.

Unfortunately, these administrative barriers are becoming more and more common in California’s courts. As a practical matter, you may want to try to contact the clerk of the judge who issued the decision. He or she may be in the best position to let you know what the status of the decision is (i.e., whether it has been issued in written form) and may be able to give you practical advice for tracking down any written order or decision that has issued. It sounds like you have already tried obtaining the records from the District under the Public Records Act, which would probably be the next best source of information.

Given the length of the delay, you might also consider a letter to the court, especially if you determine that a written decision exists but has simply not been made available. This might also serve the more general goal of making sure courts are aware that administrative deficiencies in providing access to court records — if that is what is behind this situation — can have a very real negative effect on news reporting.

Both the California and federal constitution provide a right of public access to court records. Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 111 (1992) (“Both the federal (First Amendment to the United States Constitution ) and the state (article I, section 2(a), California Constitution) Constitutions provide broad access rights to judicial hearings and records.”).

The right of access attaches to “the various documents filed in or received by the court,” id. at 113, and extends to both criminal and civil records. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1208-1210 & n.25 (1999) (“We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.”) (emphasis in original); Burkle v. Burkle, 135 Cal. App. 4th 1045, 1062 (2006) (“[N]o basis exists for concluding that court records should be differentiated from courtroom proceedings for purposes of First Amendment access rights.”); Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 596 (2007) (“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication.”); Estate of Hearst v. Trustees of Hearst Testamentary Trust, 67 Cal. App. 3d 777, 782 (1977) (“[T]here can be no doubt that court records are public records, available to the public in general, including news reporters, unless a specific exception makes specific records nonpublic.”); Oregonian Publ’g Co. v. United States Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990) (“Under the first amendment, the press and the public have a presumed right of access to court proceedings and documents” that “can be overcome only by an overriding right or interest ‘based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1985)).

Courts have recognized that significant delays in access are the functional equivalent of access denials and thus are unconstitutional unless the procedural and substantive requirements for sealing records have been satisfied. For example, the California Supreme Court rejected the argument that “‘[d]elaying media access … is not a prior restraint warranting exacting First Amendment scrutiny’” because “temporarily seal[ing] the hearing transcripts …preclude[s] access to information in the first instance” and thus is “subject to ‘exacting First Amendment scrutiny.’” NBC Subsidiary , 20 Cal. 4th at 1219 n.42. Similarly, the First Circuit has observed that “even a one to two day delay impermissibly burdens the First Amendment,” Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 507 (1st Cir. 1989), and the Ninth Circuit has found that 48 hour delays in access constituted “a total restraint on the public’s first amendment right of access even though the restraint is limited in time.” Associated Press v. U.S. District Court, 705 F.2d 1143, 1147 (9th Cir. 1983); accord, e.g., Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (“[i]n light of values which the presumption of access endeavors to promote, a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous … ‘Each passing day may constitute a separate and cognizable infringement of the First Amendment.’”) (quoting Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975)); Courthouse News Service v. Jackson, 38 Media L. Rptr. 1890, 1892-94, 2009 U.S. Dist. LEXIS 62300, at *8-14, 2009 WL 2163609, at *3-5 (S.D. Tex. July 20, 2009) (issuing preliminary injunction ordering state trial court to provide same-day access to newly filed civil complaints); Estate of Hearst, 67 Cal. App. 3d at 785 (even temporary limitations on public access to court records require a “sufficiently strong showing of necessity”).

Q: I submitted a request arrest and incident reports from a police department for a case involving my client but I got a call from someone in the Records Department who said that I needed to submit signed authorization from my client. Is that the case in your practice?

A: If a person were submitting a request for reports under the Public Records Act, then there would be no requirement to submit any kind of written request. But access to arrest and incident requests is fairly limited under the PRA, so your client may have greater rights to access those records due to his or her involvement in the case than a member of the public would have under the PRA.

Under the PRA, many law enforcement records are exempt from disclosure (see below for exact language of exemption language). Specifically, the following are exempt: “[r]ecords of complaints to, or investigations conducted by … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” Gov’t Code Section 6254(f).

While some information must be disclosed under the PRA, it may not be everything your client is looking for.

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of the November 7, 2006, statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

Id.

Assuming that any involvement in the incident by your client entitles your client to greater access than what is provided by the PRA, the police may be on solid ground in asking for written authorization from your client.

One option would be to ask the records department for the legal basis for the request for authorization. It may be spelled out in a statute.

Or it may be that a statute spells out that someone in your client’s shoes is entitled to greater access and that the request for written authorization is a reasonable way to establish that your client is among the class of people to whom greater access is owed.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I was wondering if a city councilmember uses his personal email address as his primary source of contact, lists it on a city’s website as his email address, if any communication done on that email address is still exempt from the California Public Records Act? Is any legislation is coming down the line to address that?

A: First of all, there is no rule that e-mail communications regarding the public’s business that are sent to or from an official’s personal e-mail account are exempt from the PRA. That issue hasn’t been definitively decided in California, and there are strong arguments as to why e-mails to or from personal accounts should be disclosed under the PRA when the e-mails relate to the public’s business. As detailed below, there is a California court case on this issue, but it did not resolve the basic issue.

In January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman from her personal e-mail account and the lab.

After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300.

Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue. As far as I know, no reported decision in California has addressed the issue since.

Tracy Press does not provide an answer to the “novel and important issue” of “whether personal e-mails sent without using the [government] resources but discussing [government] business are ‘public records.’” Id.

A California court deciding the issue should be working from the general body of law applying the PRA and would not be bound in any way by the determination made by the trial court in the Tracy Press case. Moreover, although the merits of the action were not reached by the Court of Appeal, the statement that any e-mails from the elected official e-mailed from the government office, discussing government business are “undeniabl[y]” public records “that must be produced” could be useful in efforts to obtain such records under the PRA. Id.

Even if a government official uses a personal e-mail account to send or receive messages relating to the conduct of the public’s business, there would seem to be a strong argument that those messages should be public. Otherwise, important government business could be conducted in secret.

Moreover, to the extent certain elected officials conduct almost all business from a residence or other non-governmental location and communicate about public business through personal e-mails, the rationale for treating such communications as subject to disclosure under the PRA would seem to be even stronger, as the contrary ruling would shield all of that person’s work from the public.

In a situation like you describe, where an official holds his personal e-mail address out to the public in the context of his official capacity, the argument should be even stronger.

Although this issue comes up more and more frequently, I am not aware of any pending legislation in California that would address it.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: I am writing today for guidance regarding my rights as a blogger. I am the author of a cosmetics complaints blog and creator and one of the admins of the complaints Facebook Page.

The blog and page initially were started in an effort to obtain a refund from a cosmetics company due to sanitation questions. The company also had a recall in December of last year. The blog and page have slowly become more of a reporting conduit for the business practices of the company, as well as other safety issues as they relate to indie cosmetics.

Recently the company asked me to work with them to get information out about the refund process for recalls/unshipped items because they were attempting to relaunch after disappearing for a few months. I complied, but also continued to post about other issues involving the company, as well as other safety issues for other companies. The relaunch has not gone well and the company has failed to follow up with commitments regarding the refund process (keeping me advised of how it is going so I could continue to post and inform people due refunds).

I write the blog under a pseudonym for my last name. Late last night the owner of the company posted my name, age, address, and telephone number (the information is not current) and stated that she would continue to release information about my employment, other addresses and living family members until her demands were met. Her demand is that the blog and page be taken down.

She has previously stated she would send C&D’s and file defamation suits against myself and the other admins of the page. She has never pursued that, but is once again gearing up to attempt to pursue it.

I need assistance in knowing my rights to privacy and to guard against this threat. I will not be taking the page or blog down.

Any guidance you could provide would be most appreciated.

A: Your message below raises serious issues with respect to the unwanted dissemination of personally identifying information as well as defamation liability based on blogging or otherwise publishing content on-line.

Very generally speaking, the First Amendment provides fairly broad protection for the dissemination of truthful information that was lawfully obtained.

As you point out, however, dissemination of even truthful information can sometimes implicate privacy rights. Unfortunately, any analysis of this particular situation would be highly fact-intensive and would likely involve expertise in your state’s law and is therefore beyond the scope of what we can provide through this service.

You may, however, want to consider contacting the Online Media Legal Network (http://www.omln.org/), which may be able to provide either direct assistance or point you to other possible resources. You may also be able to find legal assistance through one of the resources for your state listed on the American Bar Association web site at http://apps.americanbar.org/legalservices/findlegalhelp/main.cfm?id=OK.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Recently the city manager sent an e-mail to the president of the senior center regarding complaints  his office had received about the local newspaper’s political cartoons being posted on the wall inside the senior center.

While the senior center is owned by the city, a local nonprofit pays rent on the building, maintains it and operates it. When asked, the City Manager responded that this is not a violation of the Brown Act because this was material posted in a city owned building, and government code section 54954.3 (c) of the Brown Act does not apply.

Is this the case? What are the senior’s rights on this issue? It seems to be a direct violation of their first amendment rights, but the City is notorious for not being transparent and open to the public.

Is there ground to stand on, or does the City have the full right to have the comics removed from the wall?

A: The City Manager was probably correct that the Brown Act does not apply, but only because, from the facts in your inquiry, there does not seem to be any meeting of a “legislative body” involved here, which is what would trigger that particular body of law. Rather, it sounds like broader First Amendment considerations are at stake here.

The analysis for determining whether any First Amendment rights have been violated begins with consideration of the exact nature of the space in question. On one end of the spectrum are places — like parks and sidewalks — that have traditionally been used for conduct protected by the First Amendment.

Such places are considered “public forums,” and conduct in these spaces is protected by the First Amendment and can only be restricted if a high standard is met. On the other end of the spectrum are “non-public forums,” which are places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In the middle are areas known as “limited public forums” or “designated public forums.” These areas have not traditionally been open to the public, but have become public forums for at least some purposes because the governmental body that regulates a particular area has made it available for use by the public, at least at certain times for certain purposes.

A high standard must be met to regulate conduct in limited purpose public forums if the conduct fits within the time or purpose for which the place has been made open. (The Supreme Court summarized this framework in the case Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).)

It may be that the senior center is a limited public forum, assuming it is open to members of the public for various uses. See, e.g., Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996) (senior center was limited public forum, given the city permitted lectures and classes on a broad range of subject by both members and non-members of the senior center, but limits the forum with respect to the age required for participation in certain activities, as well as requiring that the subject matter of topics presented be of interest to senior citizens).

Even as operated by the nonprofit, it could be that the senior center is still a limited public forum, assuming that, in general, members of the public are invited to participate in activities in this forum. The wall where these cartoons are being posted, too, might qualify as a limited public forum, if the public is generally invited to use and post items of interest on the wall.

However, the Supreme Court has warned that “simply because an instrumentality ‘is used for the communication of ideas or information’” does not automatically turn that particular instrument into a public forum. See United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 130 & n.6 (1981).

Thus, if the walls in question are considered non-public forums, then any restrictions placed on what can go on those walls need only be reasonable. It is possible that not allowing political cartoons to be posted due to their propensity to offend certain users of the senior center might pass as a reasonable restriction.

If, on the other hand, the senior center and the bulletin board are limited public forums, the next step in this inquiry is to determine whether the restrictions in place are content based or content neutral.

A government may impose reasonable restrictions on the time, place or manner of protected speech in a public forum, provided that the restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. Id. at 1102.

If the restrictions are content-based — i.e., they endeavor to restrict or prohibit speech based on either the viewpoint or the subject matter — then an even higher standard must be met in order for the government to justify its restrictions on that speech. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988). In other words, the restriction must serve a “compelling government interest.”

It sounds as though the restriction here was directly linked with the content of the speech at issue — the political cartoon. It would be hard in this situation for the city to come up with a compelling reason to require the removal of such cartoons.

If, on the other hand, the city had some content-neutral restriction in place, i.e., no postings from the public are allowed on the walls of the senior center, or are only permitted in designated areas (again, without reference to the content of those postings), then it may be that such a restriction would be permissible. However, it doesn’t sound like this was the case in this situation.

Finally, there’s the practical issue of whether the city manager has authority to regulate any aspect of the operation of the senior center since, as you mentioned, the building is rented from the city and managed by a nonprofit group.

It would seem that the senior center has a board of directors, and even if that board is an arm of the city, my experience is that such organizations typically give direction to the city manager and his or her staff on issues related to the operation of the city, and not the other way around. As such, you may want to inquire into the management of the senior center to determine whether the city manager is overstepping his bounds.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Q: Our newspaper made an public records request for ”all emails to and from city employees” regarding a new parking meter system the city is using.  Our intention is to see whether employees have written emails stating that the system is not working properly.

In response, the city attorney exempted an unspecified number of emails citing a ’deliberative process’ exemption in CCC 6252(d), 6254(a) and (k) and 6255. He cited cases including Rogers v. Superior Court 19 Cal. App. 4th 469 (1993).

I’m contacting you to see if he is citing a valid exemption, and whether we would have any other approach under the CPRA that might yield the emails.

A: Given that the city attorney has cited the Rogers decision, it may be that he is claiming an exemption for those emails that were sent to and from personal email accounts.

The issue of public officials using private email accounts and mobile phones to conduct the public’s business seems to be becoming a pervasive problem. It would seem that if a government official uses a personal email account to send messages relating to the conduct of the public’s business, a strong argument could be made that those messages should be public. Otherwise, important government business could be conducted in secret. How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.

In January 2007, a newspaper in Tracy requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain emails, it did not produce e-mails between a city councilwoman from her personal email account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008). The Court of Appeal said that:

“[i]f [the councilwoman] had emailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300. Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue.

Note, however, that in the context of legislators, the Court of Appeal in Rogers v. Superior Court, 19 Cal. App. 4th 469, 479-81 (1993), held that records of telephone calls made by city council members from city-owned cell phones and home offices were exempt from disclosure pursuant to the deliberative process privilege, which may allow nondisclosure of records relating the deliberations of agency officials. This particular privilege is found in the Act’s “catch all” exemption, Gov’t Code § 6255.

In coming to this conclusion, the court in Rogers stated:

“Disclosing the telephone numbers of persons with whom a city council member has spoken discloses the identity of such persons and is ‘the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the city council member. … [R]outine public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.”

It is not entirely clear that the Rogers case would apply to the facts that you describe. For one thing, you are not seeking records of telephone calls, but rather written records relating to a specific subject that were sent to and from city staff members. Second, it is not clear that the city attorney has identified those particular records that would be exempted pursuant to Rogers, and thus it may be that he is applying the deliberative process privilege very broadly, and is not providing adequate justification for why the privilege applies here, as required by statute.

Under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009). The key question is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991) (request for calendars of governor exempt from disclosure).

As stated in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172-73:

“[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the Governor to establish the conditions for creation of the privilege.”

Since the deliberative process privilege is an extension of the “catch-all” exemption contained in Goverment Code § 6255, the agency has a statutory duty to “justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

Likewise, the city attorney cited the Act’s “preliminary drafts” exemption, which also requires that the “public interest in withholding those records” should clearly outweigh “the public interest in disclosure.” Gov’t Code § 6254(a). Again, the city attorney has a statutory duty to justify why those particular records should be withheld.

Finally, the city attorney has cited Government Code § 6254(k), which exempts “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

This particular provisions is typically cited where there are records that may be encompassed by the attorney-client or attorney work-product privileges. Under Evidence Code sections 954 and 955, confidential communications between lawyer and client are privileged and do not have to be disclosed. Also, materials created by an attorney in the course of representing a client, known as “work product,” are generally protected from disclosure. Code of Civil Procedure § 2018.030.

The attorney-client exemption not only covers communications that are made pursuant to pending litigation, but also legal advice even where no litigation is threatened. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993). This exemption, however, should not be construed broadly, but rather interpreted narrowly in the interest of disclosure. For example, the mere presence of legal counsel at a closed session meeting does not render discussions that take place during that meeting “confidential.” Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 907-08 (1984).

Whether or not the communication is truly protected will likely turn on whether there are emails from the city attorney to city staff where he was dispensing legal advice regarding the parking meters. In other words, if there was no actual legal issue for which the city attorney was dispensing guidance to staff, then the city may not be able to refuse disclosure of the email under the attorney-client privilege exception.

Another Evidence Code section that is incorporated into the Public Records Act’s exemptions is section 1040, which grants a privilege for “official information,” which “means information acquired in confidence by a public employee int he course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”

For this privilege to apply, two conditions must be met:

First, the information must have been truly “acquired in confidence” and not previously shared with the public. If the supplier of the information did not convey it in confidence or the agency did not then treat it as confidential, the privilege does not arise.

Second, “(A)ssurances of confidentiality are insufficient in themselves to justify withholding pertinent public information from the public” San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 776 (1983). To complete the privilege, disclosure must either be prohibited by federal or state law (which would make it exempt under Section 6254 (k) in any event), or “against the public interest” under a balancing of factors essentially the same as in Section 6255.

As with the exemptions cited above, the city attorney should be specific in both identifying the specific exemption that applies, as well as the reason that it applies to specific records that are being withheld.

You may want to write to the city, restating your request for the withheld emails, and stating why you think the records should be disclosed. You might want to add that if the city believes the records are not subject to disclosure, it should state the reasons for this determination, including the specific exemption that applies.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.