Recently the mayor discussed the changes she’s proposing in an interview with a local newspaper and mentioned email communication with the city attorney aimed at creating a city policy that disallows speakers on non agenda items from topics of ballot initiative or candidates, partisan or non partisan.

I questioned her in an email after reading the article and she responded in a very offensive manner which included a veiled threat. She cc’d the city council and the reporter. I had not cc’d anyone in my correspondence to her. Interestingly enough, a response from her fellow councilman supported my position that she was looking to stifle the First Amendment. He said he had been monitoring her emails to the city attorney and I was not wrong in my assessment that her intent was just that.

Will I have access, through an FOIA request, to the emails between the mayor and city attorney? If so, what would be the next steps to ensure her policy change effort fails? It is entirely possible she can get such a resolution and policy adopted.

A: The Public Records Act is California’s open records law and is the vehicle that you would want to use to access emails sent between the mayor and others regarding city business.

Under the PRA, 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. The term “writing” includes e-mail. Gov’t Code Section 6252(g) (defining “public records” to include emails). The emails sent by the mayor that discuss city business would presumptively be required to be released under the PRA, unless some exemption applies.

Since these emails could have been sent from the mayor’s personal email account, I should note here that there is some question about whether the PRA applies to emails sent from a personal email account, and from an individual’s home computer.

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 sent 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). T

he 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. However, since the emails that you seek were sent from the mayor to the city attorney, they were presumptively sent to the city attorney’s work email account, and therefore you could avoid this issue altogether by wording your request to ask for emails that are in the city’s possession via the city attorney’s work email.

This aside, the city may also attempt to invoke any number of exemptions to justify the withholding of the requested records. For example, the deliberative process privilege is often cited as a reason for withholding records. However, as with all exemptions under the PRA, this exemption must be narrowly construed.

The court in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172 (1998), noted that “only if the interest in nondisclosure clearly outweighs the public interest in disclosure of a record does the deliberative process privilege spring into existence.”

Another exemption that may be cited is the attorney-client privilege, which is incorporated into the PRA by Government Code section 6254(k), which applies to “[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 privilege is intended to protect legal advice, even where no litigation is threatened. Again, it must be narrowly construed, and cannot provide blanket protection to all communications between the city attorney and staff or council members.

In addition to specific exemptions, the Act also contains a frequently invoked “catch-all” exemption, which, like the balancing test noted above, provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “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).

This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.

You can find a sample PRA request letter, as well as additional information on the PRA, on FAC’s website at the following link: http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

As to ensuring the failure of the mayor’s effort regarding public comment, I cannot advise you on specific steps that you should take, but can make the general observation that restrictions on public comment at meetings of legislative bodies of local agencies can sometimes violate the Brown Act, as well as the First Amendment.

Under the Brown Act, “[e]very 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.” Gov’t Code section 54954.3(a).

The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).

The First Amendment also limits the ability of legislative bodies to restrict speech based on its content. In order to restrict speech in a public forum or limited public forum (such as a city council meeting), 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).

To the extent that the proposed regulations are intended to quell criticism and public comment on matters pertaining to the city council’s business, the regulations may be violations of the Brown Act and the First Amendment.

Since the regulation has not yet been approved, you may want to bring these concerns to the attention of the city council, city attorney and city manager before any action is taken to enact the regulation. If you determine that the regulation violates the Brown Act and is nevertheless enacted, you may want to consider bringing action against the city for violations of the Brown Act, or bring your concerns to the district attorney.

Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at http://www.firstamendmentcoalition.org/category/resources/access-to-meetings/ useful for proceeding.

If you are interested in finding a lawyer who specializes in the Brown Act and First Amendment to represent you, you may consider using the FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.
I wish you the best of luck in your endeavors.

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.

A: The Public Records Act generally provides that “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. Gov’t Code Section 6252-6253.

It seems that the information you are seeking is held by a public agency, and therefore is probably covered by the Act unless some exemption applies.

I am not quite sure how a Physicians’ Notice of Birth differs from a birth certificate. In any case, you may find the California Department of Public Health’s website helpful as you consider how to go about requesting your records: http://www.cdph.ca.gov/certlic/birthdeathmar/pages/certifiedcopiesofbirthdeathrecords.aspx.
Also, if you haven’t already done so, you may want to consider putting your request in writing, and ask that the district explain any grounds for denial of your request. You can find additional information regarding the Public Records Act, including sample request letters, on the FAC’s website here: 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.

A: It sounds like you believe the board members are violating the Brown Act by holding unnoticed meetings but also believe that if you raise the issue at an upcoming board meeting, the board members may find a way to either (a) technically comply with the Brown Act while violating its spirit, or (b) continue to violate the Brown Act, but in a way that members of the public will be unable to detect (i.e., continue unnoticed meetings but proceed more secretively).

Although I can’t advise you as to how to proceed, I can make a few general observations that may be useful. First, the only way to force a legislative body of a local agency to comply with the Brown Act is for either a member of the public or the district attorney to take legal action. Gov’t Code section 54960, 54960.1. A prerequisite for a suit under Section 54960.1 for a determination that a particular action taken by the body is null and void because it was taken in violation of certain provisions of the Brown Act is that a written demand be sent demanding that the body cure and correct the action.

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at http://www.firstamendmentcoalition.org/category/resources/access-to-meetings/ useful for proceeding. You might also try the First Amendment Coalition’s Attorney’s Assistance Request Form for finding an attorney who might be able to assist you (http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/).

Sometimes the public is able to rein in a body that has been violating the Brown Act by drawing media attention to the violation. For example, members of the public who send a cure-and-correct demand under Section 54960.1 sometimes send copies of the demand to local media in an attempt to generate attention.

Of course, to the extent the Board is either not technically violating the Brown Act or is violating it in a way that escapes detection by the public, there is — as a practical matter — little that can be done through legal channels. In such a case, it may be that mobilizing political attention and support is the only effective answer.

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.

A: The Brown Act itself does not mandate procedures for placing items on an agenda (though it does say that “a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may … take action to direct staff to place a matter of business on a future agenda,” Govt. Code Section 54954.2 (a)(2)). Often the legislative body’s bylaws or regulations will dictate how items may be placed on the agenda, so it might be worth checking on what kind of internal guidelines the CSD may have adopted.

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 hospital is owned by district residents who pay the hospital an assessment through their property taxes –it’s about 1 percent of the hospital’s budget. They have a publicly elected board of directors.

A: The Public Records Act applies to all local agencies, including publicly funded special districts. Gov’t Code § 6252(a), (c). Please note that some hospitals are owned and operated by local governments, and are therefore subject to the PRA.

Also, many publicly owned hospitals are leased to private companies, which operate the hospitals and employ doctors, nurses and other staff. Even these privately run hospitals may be subject to the PRA. Government Code section 6252(a) specifically provides that the Act applies to “entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” Section 54952(d) (which is part if California’s open meeting law, known as the Brown Act), provides that a “legislative body” that is covered by the Brown Act, and, through 6252(a), also covered by the Public Records Act, includes:

The lessee of any hospital the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises any material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority.    Gov’t Code § 54952(d).

You state that the hospital here is a “public district hospital,” owned and supported by district residents, which sounds like it is probably governed by the Public Records Act. However, you may want to doublecheck to be sure that the hospital district is indeed a “local agency” or “public agency” within the meaning of the Public Records Act before asserting any right to records pursuant to that law.

Under the PRA, “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. Gov’t Code Section 6252-6253.

One of the exemptions under the Act, which the hospital district might try to assert, is for “personnel” records. Gov’t Code § 6254(c). This exemption is routinely invoked when a public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial.

However, this exemption was developed to protect intimate details of personal and family life, not official business judgments and relationships. Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004).

The California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public. See International Federation of Processional Engineers v. Superior Court, 42 Cal. 4th 319, 331 (”[t]he ‘broadly based and widely accepted community norm[]‘ applicable to government employee salary information is public disclosure”).

Similarly, the Supreme Court held that records containing the names, employing departments, and hiring and termination dates of California police officers included in the Commission on Peace Officer Standards and Training’s database did not come under any exemption of the Public Records Act. Commission on Peace Officer Standards and Training v. Sup. Ct., 42 Cal. 4th 278, 284 (2007).

The Court remanded to the trial court to determine if any information relating to particular officers or categories of officers should be redacted from the records due to safety or efficacy (i.e., revelation of the identity of undercover officers) that might be jeopardized by disclosure. Id.

It does not seem that in the situation that you describe, there would be any privacy, safety or other concerns that would outweigh the public’s interest in knowing the identity of employees who benefited from the buyout program. It does not seem that release of the list should be conditioned upon an agreement by you to withhold the names of employees.

Please also be aware that the Act contains a “catch-all” exemption that agencies frequently attempt to invoke, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “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). This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure.

If you haven’t already done so, you may want to consider putting your request in writing, and ask that the district explain any grounds for denial of your request. You can find additional information regarding the Public Records Act, including sample request letters, on the FAC’s website here: 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.

A: As a starting point, you may want to check the city or county ordinance governing solicitation on public property to see if there are any regulations that restrict such activities on public property. The inquiry as to whether regulations restricting speech are permissible under the First Amendment turns on whether they represent reasonable time, place and manner restrictions.

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.

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. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Restrictions “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).

The California Court of Appeal struck down a Los Angeles County regulation that prohibited solicitation “in any manner or for any purpose, in any building or in or on any property or premises owned, lease, managed or controlled by the county of Los Angeles.” Los Angeles County Code § 13.16.010; People v. Tisbert, 11 Cal. App. 4th Supp. 1, 8 (1992).

In Tisbert, the appellant had set up a small portable table inside a county courthouse, where he placed several brochures and two petitions to collect signatures for two proposed ballot initiatives. Id. at 3.

He was expelled from the courthouse by sheriff’s deputies, and charged with a misdemeanor for violating the county’s solicitation statute, for which he was subsequently found guilty at trial. Id. at 4. In reversing his conviction, the appellate court stated that a courthouse is a public place, “which in general entitles a person to speak freely therein,” but, on the other hand, “a courthouse is operated for the limited purpose of conducting trials and other forms of judicial exercise.” Id. at 6.

The court concluded that the ordinance was overbroad on its face, since it is “not narrowly drawn to achieve the county’s purpose of safeguarding its property or the activities conducted therein.” Id. at 7. The court left it to the county to construct a “constitutionally solid” ordinance. Id. at 8.

In Carreras v. Anaheim, the court found that the exterior walkways and parking areas of a city-owned stadium and convention center were public fora, and regulations prohibiting a religious group from soliciting in these areas were impermissible under the First Amendment and California law. 768 F.2d 1039, 1045 (9th Cir. 1985).

The areas in question facilitate parking and the free flow of pedestrian and vehicular traffic, and the expressive activity of the religious group was not incompatible with these intended uses. Id. Fear on the city’s part that the solicitors would behave badly, as it claims the plaintiff had done in the past, were not justification for imposing the regulations that it did, and the city certainly could narrowly tailor the regulations to address any such fears, while still permitting the activity. Id. at 1046-47.

On the other hand, in Savage v. Trammell Crow Co., the court upheld a ban on leafletting in the parking lot of a privately owned shopping center as an appropriate time, place and manner restriction. 223 Cal. App. 3d 1562, 1571 (1990). Even though the shopping center was privately owned, the court found that it was a public forum for purposes of First Amendment analysis. Id.

Nonetheless, the court upheld the restriction on leafletting, finding that the regulation was content-neutral, meaning it was adopted due to concerns unrelated to any message that a potential leafletter was attempting to convey. Id. at 1573. Also, the regulation was appropriately tailored to meet the center’s interest in keeping the parking lot safe and presentable, given its primary concerns related to littering and interference with ingress and egress to and from the shopping center. Id. at 1573, 1575.

Finally, there were alternative channels of communication open to leafletters, especially considering that such activity was permitted on the center’s sidewalks. Id. at 1575.

Finally, in Jacobsen v. Bonine, the 9th Circuit Court of Appeals held that the perimeter walkways of interstate rest areas that border parking areas and facilities of a rest stop were not public fora, since they were not “traditional sidewalks, accessible to and from general pedestrian traffic,” but rather were “accessible only by persons traveling in motor vehicles on interstate highways.” 123 F.3d 1272, 1273-74 (9th Cir. 1997).

“The government, ‘no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.’” Id. at 1274 (internal quotations omitted). A property’s “mere physical characteristics” do not dictate forum analysis, but rather its “location and purpose” and “the government’s subjective intent in having the property built and maintained, that is crucial to determining the nature of the property for forum analysis.” Id.; see also US v. Kokinda, 497 U.S. 720, 730-33 (1990) (sidewalks leading to and from entrance to post office were nonpublic fora given that sidewalk serves as right of access to post office, rather than quintessential public sidewalk).

The question that a court might ask is whether the location in question has the “characteristics of public sidewalks traditionally open to expressive activity.” Jacobsen, 123 F.3d at 1274. Note that the Ninth Circuit has said that a courthouse is not a public forum, Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002), but it is not clear that that determination would extend to the parking lot or other areas outside of the courthouse. A federal district court in California said, more broadly, that courthouse grounds were not a public forum, Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006), but again, that would not necessarily extend to a parking lot.

As you can see, the analysis required is necessarily case-specific. I hope that the analysis provided above is helpful in determining where you might want to distribute your flyers at the courthouse.

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.

A: You are already aware that Government Code Section 54953.3 provides that members of the public may not be required to provide any information as a condition of attending a meeting that is subject to the Brown Act.

You are also aware that Government Code Section 54954.3 provides that members of the public must be permitted to address the legislative body on any item of interest to the public before or during the body’s consideration of that item, unless the item has already been considered at a previous meeting with an opportunity for comment, and subject to “reasonable regulations” to facilitate public comment, time limit per speaker to allow more people to speak.

While it is not absolutely clear that the Brown Act forbids requiring a member of the public to identify himself or herself or provide information in order to address the body, such a rule would certainly be consistent with the spirit of the Brown Act, as a contrary rule could inhibit robust debate.

With respect to interpreting these provisions of the Brown Act, note that Article I, section 3 of the California Constitution provides 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, the Supreme Court has recognized a First Amendment right to speak anonymously. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002) (ordinance requiring those intending to engage in door-to-door advocacy of a political or religious cause to obtain and, upon demand, display permit, which contained one’s name, violated First Amendment protection accorded to anonymous pamphleteering or discourse);, 323 U.S. 516, 539 (1945) (”As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly”).

One might argue that such a right to speak anonymously would be particularly important at city council meetings where the free exchange of viewpoints would seem to be especially critical.

Meetings of legislative bodies, such as city council meetings, are regarded under First Amendment framework as “limited public forums.” See White v. City of Norwalk, 900 F.2d 1421, 1425 (1990).  Speech in a “public forum,” which includes public spaces such as sidewalks and parks that have traditionally been used for conduct protected by the First Amendment, 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.

“Limited public forums” 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 — such as a city council or planning commission meeting — command the same high standard that applies to public forums, so long as 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).

Very generally speaking, the more public a venue is, the less latitude the government has to restrict speech.  Also, generally speaking, restrictions that are content-neutral (i.e., not tied to a particular message) will generally be easier to uphold than restrictions based on a particular viewpoint, which are more often constitutionally suspect.

This general principle is codified to some extent in Section 54954.3 of the Brown Act, which provides that “[t]he 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.”  This particular provision might be particularly relevant where the spectator trying to speak at a meeting was a political opponent of the member of the body forbidding the spectator to speak.

In such circumstances, it might be reasonable to infer that the limitation on speech is not a content-neutral restriction but is instead a viewpoint-specific restriction on speech which could violate not only the Brown Act but also the First Amendment.

Theoretically, this could also be the case in a situation where a facially neutral policy was enforced in a way that discriminated against a particular viewpoint.  In other words, even if a rule requiring speaker cards was considered acceptable under the Brown Act and First Amendment, it might still be the case that enforcing a speaker-card policy against a particular person expected to voice an unpopular opinion while not enforcing the policy against others represented an unconstitutional viewpoint-specific speech restriction.

The same kind of reasoning might apply if, when a disfavored speaker came to speak, the body imposed an ad hoc rule limiting speech that was more restrictive than its stated policy.

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.

A: The kind of letter you describe might be exempt from disclosure under the PRA under a number of different exemptions.

• If it were kept confidential between the attorney and district while in draft form, it might be subject to the attorney-client privilege (which is incorporated into the PRA in Govt. Code Section 6254(k)).
• It might also be exempt under Section 6254(b) as a record “pertaining to pending litigation to which the public agency is a party … until the pending litigation or claim has been finally adjudicated or otherwise settled.”
• If it satisfied the other requirements of the section, it might also be exempt as “[p]reliminary drafts … that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Govt. Code Section 6254(a).

It is also possible that circumstances surrounding the letter could make it ineligible for these exemptions. In addition, even if the letter is exempt from disclosure under the PRA, in most scenarios the district should still have the discretion to disclose the letter if it chooses to.

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.

A: The Public Records Act (”PRA” or the “Act”) does not provide for a statute of limitations for filing suit to enforce the provisions of the Act, and it is not entirely clear what statute of limitations might apply.

If you are considering litigation, however, I recommend that you seek specific legal advice from an attorney. You might consider using FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/
to find an attorney experienced in open records issues.

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.

• Do I need to file a “public record request letter,” or can I just go down to the district office and request copies of contracts, etc.?
• Can the district staff just give me copies of documents that I request without getting themselves into trouble?
• Can the district board refuse to give me access to employment and insurance contracts?
• Similarly, can the board order the staff to refuse me access to the documents or even talk to me?

A: As for your first question, no formal request letter is required under the Public Records Act. Some agencies will ask for the request to be put in writing, but you should not be required to do so.

Your second question is a bit trickier. Generally speaking, an agency should not be able to punish an employee for complying with the Public Records Act. It is conceivable that an agency could establish protocols for responding to PRA requests and require its employees to comply with those protocols, and that a failure to follow the protocols could result in some kind of disciplinary action.

The PRA provides that:

• (a) Public 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.

and

• (b) Except 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.

Govt. Code Section 6253. Any protocols established by an agency would have to be consistent with these requirements. Generally speaking, this means that a member of the public should be able to walk in off the street and inspect or obtain a copy of a public record.

To some extent, your question might also dovetail with First Amendment protection for government employee speech. The issue of when and how a government agency may lawfully restrict its employees’ speech is not always clearly defined or easy to analyze, however.

The question usually boils down to the “‘balance between the interests of the [employee], as a citizen, in communicating with the public on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Connick v. Myers, 461 U.S. 138, 140 (1983), quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

Courts considering government employee speech issues first ask whether the speech at issue “addressed a matter of public concern.” Kirchmann v. Lake Elsinore Unified School Dist., 57 Cal. App. 4th 595, 601 (1997). If the speech concerns a matter of public concern, “we must balance [the employee's] interest in making her statement against the interest of the [employer] in ‘”promoting the efficiency of the public services it performs through its employees.”‘” Id., quoting Rankin v. McPherson, 483 U.S. 378, 384-85 (1987).

In essence, therefore, government employers have some latitude to regulate employee speech, but the degree of latitude depends on the facts of the particular case, with particular focus on the connection between the speech and matters of public interest and the extent to which the regulation might be necessary for the functioning of the government office involved.

Your third question is whether the district can refuse to give you access to particular documents. If the employment contracts you refer to are between a public official or public employee and state or local agency, then the PRA specifically provides that the agency must disclose them.

Govt Code § 6254.8 (”Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of [the PRA exempting certain records from disclosure].”)

If the insurance contracts you refer to are “writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency,” then they are public records and must be disclosed unless some other provision of the PRA exempts them from disclosure. If the agency does take the position that the insurance contracts are exempt from disclosure, then it must tell you the specific exemption that authorizes the agency to withhold the record. That is often a good starting point for evaluating whether the withholding is lawful or not.

As for your last question, if the records are subject to disclosure under the PRA, then the agency must release them to you. Although you would not necessarily have a right to speak to any particular employee about the records, someone from the agency must either give you the records you request or tell you why they are exempt from disclosure under the PRA.

The FAC’s web site has additional information about making PRA requests that might be useful to you: 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.