Q:  My reputation has been attacked by a few Yelpers, who never used my services, or met me.   However, my concern is that right now about 75% of my positive reviews are “filtered” while all the negatives mostly stay at the top! Apparently, Yelp is not interested in real experience of those who really use my services.  At the same time negative reviews posted for some businesses are filtered in large number.

For me the whole thing started when a Yelp employee called and suggested that advertising with them would let them to control my negative reviews. I said I didn’t have any before I realized what a big mistake I was making.  Shortly, the first negative review was posted. A couple of months later, another call was made from Yelp, again, I refused to advertise, so another negative was posted.

Each time I complain to Yelp, they say that a few bad reviews adds to the credibility of the positive reviews on Yelp community, and cannot do anything about real experience. While a negative review show up and stay intact (as they put it) the positive review from my real clients  disappear right after pictures of them are posted. Yelp’s excuse for that is that the computer is in charge of the filtering, in order to avoid  fake reviews!

Yelp extorts business owner, by using negative reviews, and hides behind the first amendment. Yelp is like being in a bad neighborhood with corrupted authorities! You are threatened by those asking for free or cheap services and goods or else you face bad reviews, and Yelp wants you to pay them to have control over your listing!

A: It sounds like you are aware that you are not the first to have considered some kind of legal challenge against Yelp (see, e.g., http://online.wsj.com/article/SB10001424052970204505304577002170423750412.html). Although it might be possible to come up with legal theories based on causes of action like false advertising, misrepresentation, and even defamation, it might not be useful to invoke the First Amendment in this situation.

The reason for this is that, generally speaking, the First Amendment governs speech restrictions imposed by government actors rather than private parties. That is, the First Amendment might preclude a government agency from interfering with my handing out flyers in a public square, but it would likely not have much to say about whether a private company that offers a communications forum can refuse to let me disseminate my message there.

This is not to say that businesses can say and do whatever they want. But, generally speaking, it is not the First Amendment that is constraining them.

To the extent you are interested in retaining counsel to explore legal action, you might consider starting with the resources listed on the American Bar Association web site at http://apps.americanbar.org/legalservices/findlegalhelp/lris.cfm?id=CA .

As you note that you are aware of other litigation involving Yelp, you might also consider doing some research into the attorneys who have represented plaintiffs in those cases (although the fact that an attorney represented a party in a particular case does not necessarily speak to the attorney’s skill or experience).

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: Can a person request records under the CA Public Records Act and then make money off of the re-distribution of these records? For example, can the records be put on a website that has advertising or can the records be outright sold? Clearly people could still request the records directly from the agency if they wished to avoid the profit-seeking website.

A: As a general matter, the Public Records act is requestor-neutral. That is, the agency, with certain exceptions, must treat all requesters the same. For that reason, the Act expressly bars “limitations on access to a public record based upon the purpose for which the record is otherwise subject to disclosure.” Govt. Code section 6257.5.

That being said, there are some provisions of the law that specifically bar the commercial use of public records. The most common of these is section 6254(f)(3) which requires an agency to provide the address of every person arrested, and every victim of a crime, but only where the requester swears, under the penalty of perjury that the request is made for a scholarly, journalistic, political or governmental purpose” or by a licensed investigator.

That same section specifically prohibits the sue of the address information “directly or indirectly to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under the penalty of perjury.” Obviously such a provision would not be necessary if the sale of public records was otherwise prohibited.

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

Q: A group of parents circulated a petition to remove my autistic son from a public school.

They submitted this petition to a Board of Education member. There were a series of email exchanges between the parents and Board member.

At the parents’ email requests, the Board Member arranged a meeting with himself, the Superintendent, and a large group of parents in a forum at the school district’s office to discuss my son, and behaviors resulting from his disability.

This group of parents included parents from the PTA Board at the school site. Invited to this group forum were also the school principal and the director of Special Education. Would this constitute a subcommittee of a governing body?

We were not invited, nor informed of this meeting. We made a public records request to obtain information, minutes, agenda, etc. from this meeting–nothing.

Two weeks following this meeting we received a letter of prior notice denying all options of a public education–moving my son from 100% general education to 100% non-public school–no continuum of Least Restricted Educational (LRE) placement offered.

A month following this letter, the district filed Due Process against us to force this placement.

We believe that at this public meeting–that we were denied information and access to–a decision was made to remove our son from public education.

Did the Board of Ed member violate policy by meeting in a public forum to discuss our son’s disability, while continuing to deny us all information?

A: Under the Brown Act, “legislative bodies” are defined to include “a commission, committee, board or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body.” Gov’t Code § 54952(b).

Also, “advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.” Cal. Gov’t Code § 54952(b).

If the meeting that you mention in your email was that of a “committee” that is subject to the Brown Act, it would either have to have been a group that was created by formal action of the legislative body, or one that would be considered a “standing committee of the legislative body.”

It does not seem that the group was one that was formally created by the legislative body. You might argue that the group that attended the meeting had “continuing subject matter jurisdiction” of the legislative body’s business, if, indeed, the school board is responsible for making such enrollment decisions (as opposed to giving the school administrators themselves the power to make such decisions).

However, in the end, it is unlikely that the group could be considered as having continuing subject matter jurisdiction, even if it did share its sentiments with decisionmakers at the school. See, e.g., Taxpayers for Livable Communities v. City of Malibu, 126 Cal.App.4th 1123 (2005) (Brown Act did not apply to meeting by two sole members of city council’s standing committee for land use and planning with Coastal Commission concerning proposed Local Coastal Program).

As to whether the board members violated any school board policies regarding meetings, that would depend on the school board’s bylaws.

If there were any records that were produced in connection with these meetings, then they should be made available to you per the Public Records Act, which presumes 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” are open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. Gov’t Code § 6252(e).

If the board member has any notes from this meeting, or if the school has any records, then it seems that these must be disclosed.

You might consider following up with the school and asking them whether any records exist with respect to the meeting. If there are such records, but they are not disclosing them, then they must state which exemption applies to those records, and why the records fall within that exemption.

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: At last night’s city council meeting one city councilperson was censored by having his microphone turned off in the middle of his public comments. He was talking about how the city has lost millions [like the city of Bell] and given away millions more as favors to certain council and city staff friends.

Actions are being taken by the city manager to sue this same outspoken city councilman over his asking questions about contract steering by the city finance director. Multiple PRA public document requests by our newspaper have been denied – some for three years. The city police chief is in on the deals. Crimes in city hall go unreported and no one is held accountable. We believe the County District Attorney is compromised. Help is seriously needed. Please.

A: With respect to the first issue you note below, although the Brown Act allows for certain restrictions on the speech of both members of the relevant legislative body and members of the public, these restrictions must be filtered through the protections of the First Amendment. Very broadly speaking, this means that the governmental agency must not curtail speech based on the viewpoint expressed through the speech.

For example, members of a legislative body subject to the Brown Act are constrained from addressing issues that have not been properly agendized in order to ensure that the public has notice and can attend meetings where particular issues are addressed.

Although “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda, … members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights ….

In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.

Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.” Gov’t Code § 54954.2.

In other words, it is possible to imagine a situation in which it would be appropriate for a legislative body to cut short the comments of a member.

But even where a Brown Act provision or other procedural rule might arguably support cutting short the comments of a legislative body member in a particular situation, such speech restriction could run afoul of the First Amendment if it were applied only based on the content of the speech.

That is, if a procedural rule were enforced only in order to silence comments critical of the majority, then there might be a First Amendment violation. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006) (restrictions on speech in a public forum “must be justified without reference to the protected speech’s content”); Boos v. Barry, 485 U.S. 312, 320 (1988).

While this issue normally arises in the context of restricting comments by members of the public, conceivably it could arise in the context of speech by members of the legislative body, as well.

As for a lawsuit based on a councilperson’s comments about public issues, it seems likely that legal protections for public speech, including California’s anti-SLAPP law, would generally make it difficult to impose civil liability based on truthful speech about a matter of public interest.

Whether the denials of the PRA requests are wrongful would, of course, depend on whether there was a legal justification for the city to refuse to make the requested records available.

If not, the ultimate recourse would be litigation to enforce the PRA. It can sometimes be useful to remind an agency that a plaintiff who succeeds in litigation to enforce the PRA is entitled to his or her 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 enforcing the PRA at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

It sounds like the transparency issues you describe may be fairly deep and complicated, but perhaps addressing a discrete issue — such as an unjustified PRA denial — would be a reasonable place to begin.

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 am a retired public employee and I’m being taken to small claims for an alleged overpayment that supposedly happened in 2008. I need to try to get copies of my payroll for 2008. If those are still around, can I access those? How would I do it?

A: The California Public Records Act, Cal. Govt.. Code sections 6250 et seq., provides that all records of state and local agencies be open to the public for inspection and copying.

The Act is however subject to numerous exemptions, many of which are set forth in Govt. Code section 6254.

Payroll reports of governmental employees are generally considered to be exempt from disclosure pursuant to the “personnel files exemption,” Govt Code section 6254(c) (exemption “personnel, medical, or similar files the disclosure of which would constitute an unwarranted invasion of privacy’), although in certain situations salary information may be public. See IFPTE v. Superior Court, 42 cal. 4th 319 (2007).

The concern that underlies the personnel file exemption is one for the privacy of the public employee. Therefore, you could waive your privacy interests and thus eliminate the need to assert the exemption. Please note that in doing so, however, the information will be public and produced to any requester, not just you.

A better approach, assuming the agency retained the records, might be to seek the records pursuant to the Information Practices Act, Cal. Civil Code sections 1798 et seq., the statutory scheme that governs a citizen’s rights of access to records that state agencies hold about the citizen. I believe the payroll information should be available pursuant to the IPA.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to inquiries, we can give general information regarding open government and freedom of speech issues but cannot provide specific legal advice or representations. I apologize for the long delay in responding to your inquiry.

Q: One of our District Board members has been out of the district for several months.  She has been participating in Board meetings by telephone from Alabama where she is seeking medical attention, but she is not in the district to serve in any way other than these monthly meetings by telephone. How long can this go on and still qualify to be on the Board?

A: The Brown Act, at Government Code section 54953(b), provides that local agencies may use teleconferencing to conduct a meeting and provides the specific rules for so doing:

(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency.
Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as
provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both. Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.

As you can see, the Brown Act itself does not limit the number of telephone conferences that may be held.

There may be other provisions of law, such as the agency’s own bylaws, that require that a board member live in or be present in the jurisdiction. However, those issues extend beyond the expertise in open government and freedom of speech issues that we provide through this hotline.

Q: I am seeking some clarification regarding the use of Government Code Section 6255(a) by the San Diego County Employees Retirement System and am wondering if there is any case law that shows the use of this law is not being applied correctly.

I have included the information below that the plan provided me.

“…documents evaluating performance of managers and any documents relating to a manager change before the change is made, are confidential under Government Code Section 6255(a) because the interest in disclosure is clearly outweighed by the interest in nondisclosure. Specifically, release of such information would damage SDCERA’s relationship with managers, SDCERA’s position in the market, and possibly even the value of an investment if changes are telegraphed in advance. In addition, section 6254.26 provides specific protection to certain information about alternative investments, including due diligence materials of the public fund. SDCERA’s due diligence is ongoing, which includes the internals evaluations as to possible manager changes. SDCERA and its portfolio strategist, Lee Partridge, properly report changes after they are made.”

A: Section 6255(a) of California’s Public Records Act provides simply that “[t]he agency shall 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.

When an agency cites § 6255(a) (often called the “catch-all” or “balancing” exemption of the PRA) as justification for withholding a particular record, this typically means that there is no specific authorization for the agency to withhold the record but the agency nevertheless maintains that the public is better off with the record’s being kept secret.

By its express language, § 6255(a) imposes a high burden on the agency. It must provide specific facts establishing that the public interest in withholding the record “clearly outweighs” the public interest in disclosing the record.

Note that there is always a public interest in disclosure of records that relate to the conduct of the people’s business. See, e.g., Connell v. Superior Court, 56 Cal. App. 4th 601, 616-617 (1997) (“If the records sought pertain to the conduct of the people’s business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.”).

You may be aware that California’s Court of Appeal recently affirmed the public interest in disclosing certain information about benefits from the Sonoma County Employees’ Retirement Association.

In that case, the court noted that “the taxpaying public has substantially the same interest in [SCERA's] operations and payout levels as it does in the salaries of county employees.” Sonoma County Employees’ Retirement Assn. v. Superior Court, 198 Cal. App. 4th 986, 1005 (2011) (finding “SCERA’s claim that releasing information to the public about pension benefits will expose its retirees to annoyance and abuse too speculative to outweigh the public’s interest in securing information about how public money is spent”).

Whether any public interest in withholding the records you have requested clearly outweigh the public interest in disclosure would be based on a fact-intensive analysis of the respective interests, including an evaluation of the claims that release of the relevant records “would damage SDCERA’s relationship with managers, SDCERA’s position in the market, and possibly even the value of an investment if changes are telegraphed in advance.” You may be in a good position to evaluate, as a practical matter, whether these claims have merit. If they do not, you might consider articulating in a follow-up letter why release of the requested records would not be likely to result in the harms articulated by SDCERA.

Finally, as SDCERA notes, § 6254.26 of the PRA provides additional guidance as to particular records that are exempt from disclosure or that must be disclosed:

(a) Notwithstanding any provision of this chapter or other law, the following records regarding alternative investments in which public investment funds invest shall not be subject to disclosure pursuant to this chapter, unless the information has already been publicly released by the keeper of the information:

(1) Due diligence materials that are proprietary to the public investment fund or the alternative investment vehicle.

(2) Quarterly and annual financial statements of alternative investment vehicles.

(3) Meeting materials of alternative investment vehicles.

(4) Records containing information regarding the portfolio positions in which alternative investment funds invest.

(5) Capital call and distribution notices.

(6) Alternative investment agreements and all related documents.

(b) Notwithstanding subdivision (a), the following information contained in records described in subdivision (a) regarding alternative investments in which public investment funds invest shall be subject to disclosure pursuant to this chapter and shall not be considered a trade secret exempt from disclosure:

(1) The name, address, and vintage year of each alternative investment vehicle.

(2) The dollar amount of the commitment made to each alternative investment vehicle by the public investment fund since inception.

(3) The dollar amount of cash contributions made by the public investment fund to each alternative investment vehicle since inception.

(4) The dollar amount, on a fiscal yearend basis, of cash distributions received by the public investment fund from each alternative investment vehicle.

(5) The dollar amount, on a fiscal yearend basis, of cash distributions received by the public investment fund plus remaining value of partnership assets attributable to the public investment fund’s investment in each alternative investment vehicle.

(6) The net internal rate of return of each alternative investment vehicle since inception.

(7) The investment multiple of each alternative investment vehicle since inception.

(8) The dollar amount of the total management fees and costs paid on an annual fiscal yearend basis, by the public investment fund to each alternative investment vehicle.

(9) The dollar amount of cash profit received by public investment funds from each alternative investment vehicle on a fiscal year-end basis.

(c) For purposes of this section, the following definitions shall apply:

(1) “Alternative investment” means an investment in a private equity fund, venture fund, hedge fund, or absolute return fund.

(2) “Alternative investment vehicle” means the limited partnership, limited liability company, or similar legal structure through which the public investment fund invests in portfolio companies.

(3) “Portfolio positions” means individual portfolio investments made by the alternative investment vehicles.

(4) “Public investment fund” means any public pension or retirement system, and any public endowment or foundation.

Gov’t Code § 6254.26.

To the extent the records you requested clearly fall within one of the categories listed in § 6254.26(a), then SDCERA may be on solid footing in refusing to disclose them.

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: While traveling in California, I had property stolen out of my hotel room and I filed a police report.  When I returned home, I made a public records request to the PD for a copy of the report.  My request was denied.  I am wondering who do I write to so I can appeal the denial?

Is there a way to file the request pursuant to the federal Freedom of Information Act (FOIA)?

I’m all the way in Chicago and don’t have time to get to CA for something so simple. Can your office file on my behalf IF I were to file the suit?

A: Unlike the federal Freedom of Information Act, and other state public records laws, the California Public Records Act does not establish any system of administrative appeal, neither within the agency itself nor with any other body of the state government. Rather, the only way formally to challenge a determination that a record is exempt from the Public Records Act is to file a lawsuit. Cal. Govt. Code sections 6258, 6259.

The federal Freedom of Information Act applies only to requests made to federal agencies. It does not apply to state and local agencies like the LAPD.

I did not see the request letter. But I did see the response you received from LAPD. I believe that their interpretation of the law is largely correct. The 911 tapes that you seek, for an incident that occurred in 2009, would not likely be considered contemporaneous law enforcement records subject to mandatory disclosure pursuant to Govt. Code section 6254(f)(2). County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588 (1993).

First Amendment Coalition does not offer direct legal representation. Nor does our office does provide services in its capacity as general counsel for First Amendment Coalition. You may be able to find a lawyer to represent you by contacting the Los Angeles Bar Association.

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

Q: My county recently formed a commission. The by-laws of that commission now state:

IV. VOTING AND QUORUM
B. Inaudible Votes. Any member present who does not vote in an audible voice shall be recorded as voting ”aye.” A member may abstain from voting only if the member has recused himself or herself from participating due to a conflict of interest under Government Code section 87100 and following, in which case the member shall not be present in the meeting room during the discussion and action on the item.

E. Voting Affected by Conflict of Interest. As a general rule, no member shall participate as a member in any discussion or voting if to do so would constitute a conflict of interest. However, if a quorum cannot be achieved or the required number of affirmative votes for action obtained because conflicts of interest exist that prevent members having such conflicts from discussing or voting on the matter, and the conflicts are such that an insufficient number of non-conflicted members will be available to vote at a later date even if the matter is continued, then the matter shall not be continued and a sufficient number of members having conflicts of interest, selected by lot, shall be allowed to participate to provide enough votes for the [Commission] to form a quorum and take affirmative action.

V. SUBCOMMITTEES.
Ad Hoc Subcommittees. The [Commission] may authorize the creation of ad hoc subcommittees from time to time to investigate, observe, review, or otherwise study and report back their observations and conclusions to the full [Commission] for possible further action. When creating such ad hoc committees, the [Commission] shall specify the subject to be investigated and time to report, and shall appoint those [Commission] members who will serve on the ad hoc subcommittee. The number of [Commission] members appointed to any particular ad hoc committee shall be less than the number of members required to constitute a quorum of the full [Commission]. Upon presentation of its final report to the full [Commission], each such ad hoc subcommittee shall cease to exist. Ad hoc subcommittees created pursuant to this subsection shall not be subject to the Brown Act.

I have three questions:

• Can the county through a commission exempt its sub-committees from the Brown Act?

• Can the county through a commission waive provisions of the “conflict of interest code”?

• Can the county through a commission automatically record an inaudible vote as an ‘aye’ vote?

A: You raise three very interesting questions with respect to a county commission’s by-laws.

As to the first, I am not aware of any specific authority prohibiting the recording of an inaudible vote as an “aye” as outlined below. In fact, in 1977 the Court of Appeal refused to invalidate a vote by a county Board of Supervisors based on a rule that an abstention counted as a concurring vote. Dry Creek Valley Assn., Inc. v. Board of Supervisors, 67 Cal. App. 3d 839 (1977).

The court pointed to “the public policy that members of public legislative bodies take a position, and vote, on issues brought before them. This policy has been expressed as ‘the duty of members of a city council to vote and that they ought not ‘by inaction, prevent action by the board.’ Or as elsewhere stated: ‘The duty to vote is present if the member is present.’” Id. at 844.

As for the second question, it may be that similar policy considerations would weigh in favor of the rule with respect to conflicts of interest that would otherwise prevent the possibility of a vote.

As to whether this particular rule is lawful or not would probably first depend on whether it conflicted with a statutory directive with respect to legislative conflicts of interest. Unfortunately, California’s conflict-of-interest legislation is beyond the scope of our immediate expertise, which focuses on free speech and government access issues, and I cannot say whether the rule below is consistent or inconsistent with state laws on handling conflicts of interest among local legislators.

Finally, if a body is subject to the requirements of the Brown Act, then it would not seem that those requirements could be waived by rule. The Brown Act defines “legislative body” for relevant purposes as including:

(a) The governing body of a local agency or any other local body created by state or federal statute.

(b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.

Gov’t Code § 54952(a)-(b). To the extent the rule in question simply mirrors the requirements set out in § 54952(b) — in particular, that the ad hoc committee in question be an advisory committee composed solely of members of the body that are less than a quorum and that does not have a continuing subject matter jurisdiction or a meeting fixed by charter, ordinance, resolution, or formal action of a legislative body is not a legislative body for Brown Act purposes — then it would not seem to be problematic. To the extent the rule purported to exempt a legislative body that would otherwise be subject to the Brown Act from the Act’s requirements, however, the rule would seem to be invalid.

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 trying to obtain public records at my university which are stored in electronic format. I have been told that I will be charged $.20 per page for the electronic record and, upon inquiring about this fee have been referred to the following policy by the California State University:

Public Records Act? The records that I am trying to obtain are in ready-made format and used for analysis by the CSU on a regular basis. In other words, there is no compiling of records required in my request.

A: The California Public Records Act specifies that, “unless otherwise prohibited by law,” if an agency “has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format,” the agency must “make that information available in an electronic format when requested by any person.” Gov’t Code § 6253.9.

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.

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 it seems you are aware, there appear to be two situations where an agency may charge a fee that goes beyond the “direct costs” of duplication:

(1) when the agency must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or

(2) when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301,1336 (2009), citing Gov’t Code § 6253.9, subd. (b)(1), (2); see also 88 Ops. Cal.Atty.Gen., 153, 154 (2005).

If the agency can recover ancillary costs as a result of either or both of the two situations outlined above, then the agency may charge “the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record … .” Id., citing Gov’t Code § 6253.9(b).

Since you state that the university would not need to compile data to fulfill your records request, and the electronic records are already compiled for university use, it does not seem that charges related to the above situation would apply.

Given this, it may be unreasonable to charge 20 cents per page given that the university 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).

When making a public records request, you may want to ask the university to justify the costs for producing those records by breaking down the totals: cost of a CD, the staff time spent copying the records onto the CD.

At the end of the day, it may well be that charging $20 for 100 pages of electronic records using the 20 cents/page fee is reasonable, but charging $200 for 1,000 pages of electronic records is unreasonable, particularly if the effort expended by the agency in transferring those records to the CD is the same regardless of the number of pages produced.

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 City Council sets the City Manager’s goals in open session. The goals are public. The evaluation of the City Manager in meeting goals in done in closed session.

In contrast, the School Board sets  goals for the Superintendent’s in closed session. Recently, the new superintendent made her goals available on the District web site. The Board President thanked her in a public column for choosing to be transparent since the goals are an integral part of her personnel file and it is her choice.

Should the School Board be setting current goals in open session, similar to the City Council? Do the open meeting laws let the superintendent decided whether or not to make her goals public or should they always be public?

A: California’s open meeting law, known as the Brown Act, provides for closed sessions for certain personnel decisions:

(1) … [N]othing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.

(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

(3) The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.

(4) For the purposes of this subdivision, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. … Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.

Gov’t Code § 54957(b)

“Evaluation of performance” is not restricted to formal, periodic review of the employee’s job performance, but may also include consideration of the criteria for such evaluation, consideration of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of the legislative body’s discretion in evaluating a particular employee. Duval v. Board of Trustees of Coalinga-Huron Joint Unified School Dist., 93 Cal. App. 4th 902, 909 (2001)

(“[W]e conclude ‘evaluation’ may properly include consideration of the criteria for such evaluation, consider of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of [the public agency's] discretion in evaluating a particular employee. … [T]hese preliminary considerations are an integral part of the actual evaluation of the superintendent and are properly a part of defendant’s ‘consider[ation] [of] the … evaluation of performance’ of the superintendent.”).

The Duval case specifically addressed a meeting in which goals that were established by the school district for its superintendent, and the court determined that the establishment of “goals for future improvement” was part and parcel of “the primary objectives of a formal performance evaluation,” and as such, the plaintiffs had failed to allege any Brown Act violation. Id. at 910.

It sounds like, from the facts you describe, the goals discussed at the closed meeting were particular to the current superintendent, as opposed to being more generic goals that could apply to the position in general.

If the latter were true, there might be a colorable argument that the closed session was improper, since they were not in the process of evaluating (and setting goals for) a particular district employee, but rather were setting broader district policies with respect to the office of superintendent.

Of course, there are still certain notice requirements related to even those items that are discussed in closed session, as well as reporting requirements.

The Brown Act requires that agenda include “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” Gov’t Code § 54954.2(a).

The Duval court concluded that notice on the agenda that the superintendent would be evaluated, in general, was sufficient, even though the board discussed the evaluation criteria at one particular meeting, as opposed to specifically reviewing the superintendent. Id. at 910. “[I]t is far too narrow an interpretation of the statutory criteria to hold that ‘[taking] action to find the evaluation satisfactory’ is an action apart from the evaluation itself, thereby requiring separate notice on the defendant’s agenda.”

The Brown Act requires bodies to “publicly report any action taken in closed session and the vote or abstention on that action of every member present,” specifying particular procedures based on the justification for the closed session. Gov’t Code § 54957.1(a). For closed sessions authorized for personnel decisions, the Brown Act provides that “[a]ction taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.” Gov’t Code § 54957.1 (emphasis added).

Finally, it is worth noting that even though the Duval case suggests that the closed meeting you describe would not violate the Brown Act, written records of the goals may qualify as public records that are required to be disclosed under the Public Records Act (contrary to what the board president suggests, i.e., the goals are exempt from disclosure because they are part of a personnel file). Gov’t Code § 6254(c) exempts personnel files if their disclosure would constitute an “unwarranted invasion of privacy,” and is routinely invoked when a public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial. Gov’t Code section 6254(c) (agencies can withhold “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”). 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 Court of Appeal has held that “information as to the education, training, experience, awards, previous positions and publications of [the employee] … is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794 (1982); see also Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (1984) (letters contained in personnel filing appointing and then rescinding appointment of public employee were public records required to be disclosed under Public Records Act since they contained no personal information, and manifested the employee’s contract). Of course, since the superintendent herself posted the goals on the website, it is probably unnecessary in this instance to make an official request for those records, but this information may be helpful in connection with any future goals that are set by the school board in a closed meeting, and then withheld from public view because they are considered part of the individual’s “personnel file.”

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: A petition for review to the CA Supreme Court is assigned to a legal staff who drafts a ”conference memorandum” which summarizes the case facts, outlines the issues, and makes a recommendation to the court whether the case presents sufficiently important issues for review.

Under the ”petition clause” of the constitution I feel that I should have the right to review such “conference memorandum” to insure integrity of the process when 99 out of a hundred petitions for review are denied.

My case raised significant issues of public interest and issues that failed to follow case law of CA court districts yet it was denied. The case raised issues of public corruption, misappropriation of taxpayer funds, and conspiracy to violate federal law by local officials of several counties in California, yet it was denied.  As a citizen, I demand my Constitutional right to access to public documents citing the reasons for denial and the credentials of those making such a decision.

A: California recognizes a public right to access court records under both the state and federal constitutions: NBC Subsidiary (KNBC-TV) v. Superior Court, 20 Cal. 4th 1178 (1999); In re Marriage of Burkle, 135 Cal. App. 4th 1045 (2006).

The basic rule is that the public must be permitted to review court records unless the court makes specific findings of fact that establish the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

California Rule of Court 2.550(d); NBC Subsidiary, 20 Cal. 4th 1178.

In a case that may be relevant to your situation, California’s Court of Appeal considered whether the rough minute books of court clerks — “informal notes prepared by the court clerk as a precursor to creation of the formal minutes of the court” — were public court records subject to the disclosure requirements. Copley Press, Inc. v. Superior Court of San Diego County, 6 Cal. App. 4th 106, 110 (1992).

The court divided court records into two categories:

First, “documentation which accurately and officially reflects the work of the court, such as its orders and judgments, its scheduling and administration of cases, its assignment of judicial officers and administrators,” as well as “official court minutes,” written orders, the “master calendar,” and “the various documents filed in or received by the court. Id. at 113.

“All of these documents represent and reflect the official work of the court, in which the public and press have a justifiable interest.” Id.

Second “initial drafts, memoranda, critical analyses of others’ work, and all kinds of preliminary writings.” Id. at 114. The court said that this second category should not be subject to public disclosure because these materials “are tentative, often wrong, and sometimes misleading.” Id.

With respect to the clerk’s rough minute books, however, the court concluded that the clerk was “obligated to prepare a record of the events of the court’s sessions” and that the “rough minutes are made not only for his benefit but for the use of the court, and very possibly for the benefit of parties and others interested in the litigation.” Id. at 115. Accordingly, “the clerk’s initial or ‘rough’ minutes constitute a court record which should be available for public inspection.” Id.

The court’s conference memoranda are, however, more likely to be considered the kind of “memoranda” to which the public does not have access. The issue has, however, not been squarely addressed by the courts.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to inquiries, we can give general information regarding open government and freedom of speech issues but cannot provide specific legal advice or representations. I apologize for the long delay in responding to your inquiry.

Q: I have been trying to get information regarding the death of a musician-songwriter for a few years now. He died in 2003 from stab wounds and his case was declared inconclusive by the police, and has remained open since. The police has never been able to determine if it was a suicide or a murder.

I know that the police have some files and reports that even the family were not allowed to see, and I have also been trying to gain access.  I would like to know whether there is anything I or the family could do to obtain these police reports and relaunch the investigation which has been dormant for 8 years.

A: The California Public Records Act, Government Code sections 6250 et seq., generally provides that the records of state and local agencies are open to inspection and copy upon request.

As you can imagine, however, there are numerous categories of records excluded from the Public Records Act. Among these exemptions is Government Code section 6254(f), which exempts all records in police investigative files, except that certain information regarding calls for assistance and arrest must be disclosed if contemporaneously requested.

So, unfortunately, there is nothing that compels the police department to disclose this information.

That being said, the exemptions to the Public Records Act are largely discretionary. Thus the police department can release the records you seek if it so chooses. So your best option is to see if you can convince them to release the records.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to inquiries, we can give general information regarding open government and freedom of speech issues but cannot provide specific legal advice or representations. I apologize for the delay in responding to your inquiry.

Q: I received a cost breakdown from a California State Agency, which proposes to charge me more than $2,000 to produce what is essentially a list of names. Much of the cost involves redaction. Initially, the cost was presented to me as ”programming costs,” which are allowed for electronic records, but their cost breakdown covers mostly staff time for a massive redaction effort.  Are they abiding by the Public Records Act?

A: The Public Records Act generally permits an agency to bill a requester only for the direct costs of duplication, but not for searching for or otherwise preparing the records for duplication. Cal. Govt. Code section 6253(c); North County Parents v. DOE, 23 Cal. App. 4th 144 (1994).

However, as you are also aware, there is an exception when the request requires the agency to create a record from an electronic database. In such a case, the agency may further charge the requester for the costs of data compilation, extraction, and any required computer programming. Govt. Code section 6253.9(a),(b).

I am not aware of any court having decided whether or not the costs of redaction may be included. So we have only the precise language of the statute as guidance:

(b) . . . the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when . . . (2) . . the request would require data compilation, extraction, or programming to produce the record.”

Because the law specifically contemplates that responsive data will be extracted from other information in a database, it is perhaps not surprising that the redaction issues has not come up before. Typically what the data that would be subject to redaction would simply not be extracted.

Given that, I am inclined to believe that as a general matter, redaction done by way of “computer programming and computer services” would be considered akin to extraction as thus a permissible cost to pass on to the requester. However, the answer probably does depend on the specific situation.

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: In response to an emailed request for public records, the local agency responded that my “series of emails were not a public records act request.” In turn, they withheld the requested information.

Of course, it could be that I’ve been not asking for the right thing in the appropriate way?  I’ve been requesting information based on the Attorney General’s  2004 PRA Summary, page 3: “The essence of the CPRA is to provide access to information, not merely documents and files.” The AG cites San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3rd 762, 774 and Cook v. Craig (1976) 55 Cal.App. 3rd 773, 782. Perhaps I’m making my requests in too using language that is not specific enough.  Please advise.

A: It should not matter that your request was made in an email versus a hard-copy letter. If your emails were clearly “requests” that “reasonably describe[d] an identifiable record or records,” then it seems that the agency is obligated to respond to those requests under the provisions outlined in the Public Records Act. Gov’t Code § 6253(b).

As to your second inquiry re a request for information vs. a request for records, I agree that the Attorney General’s Summary of the California Public Records Act does state that the essence of the Act is to “provide access to information, not merely documents and files,” but it goes on to state that the ultimate goal of the Act is to provide documents containing the information, as opposed to the information itself. In other words, except in the instance of electronic records, the agency is not required to compile data or answer questions.

Thus, the trick is to, if possible, describe the records that the agency keeps that contain the information you want, and not just the information that you are seeking.

In other words, you may want to make sure to state that you request “all records containing the following information.”

There is no set form or process that must be followed to make a public records, except that a request must “reasonably describe an identifiable record or records.” Government Code § 6253(b). Requests need not even be in writing, although doing so creates a record of when you made your request (in case you decide to litigate in the future).

You may want to review your emailed requests to the agency and compile them into a single request (ensuring that you are asking for records, and not information) in the form of a letter. You can find a sample request letter at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

If you feel that the agency is improperly denying your public records request, your ultimate recourse is to file a lawsuit under Government Code § 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 § 6259(d).

In any correspondence you have with county counsel, you may want to point out that attorney’s fees are available should you take the agency to court and prevail.

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 have made a request for a report commissioned by the city to evaluate the police department. My request was denied on the grounds that the report is in draft form. A similar report on the fire department was released as a “draft final report.” That report has since been removed from public access “for further analysis.”  The report on the PD has been read by the police chief, city manager’s office and other members of city staff. Do I have rights to access this draft report?

A: The PRA exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda 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 6454(a).

Although some government personnel mistakenly believe that any “draft” document is automatically subject to this exemption, reading the text of the statute itself indicates that the exemption only applies if:

(1) the document is a preliminary draft, note, or memorandum;

(2) the agency establishes that the plan is not retained in the ordinary course of business; and (3) the public interest in withholding the plan clearly outweighs the public interest in disclosure. See Citizens for a Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 712 (1985) (“The burden of proof and of persuasion of the existence of each condition is the Department’s.”).

This is generally a fairly high threshold to meet, and it sounds like the city hasn’t tried to establish either of the second two elements.

It may make sense to follow up with the city, pointing out that draft documents are only exempt from disclosure if the agency holding them meets both of the requirements set forth in Government Code section 6454(a). You can find additional information about using the PRA to obtain records at the FAC 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 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 received a cost breakdown from a California state agency, which proposes to charge me more than $2,000 to produce what is essentially a list of names. Much of the cost involves redaction.

Initially, the cost was presented to me as “programming costs,” which are allowed for electronic records, but their cost breakdown covers mostly staff time for a massive redaction effort. Could I  get advice on whether they are abiding by the Public Records Act?

A: As you are aware the Public Records Act generally permits an agency to bill a requester only for the direct costs of duplication, but not for searching for or otherwise preparing the records for duplication. Cal. Govt. Code section 6253(c); North County Parents v. DOE, 23 Cal. App. 4th 144 (1994).

However, as you are also aware, there is an exception when the request requires the agency to create a record from an electronic database. In such a case, the agency may further charge the requester for the costs of data compilation, extraction, and any required computer programming. Govt. Code section 6253.9(a),(b).

I am not aware of any court having decided whether or not the costs of redaction may be included. So we have only the precise language of the statute as guidance:

(b) . . . the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when . . . (2) . . the request would require data compilation, extraction, or programming to produce the record.

Because the law specifically contemplates that responsive data will be extracted from other information in a database, it is perhaps not surprising that the redaction issues has not come up before.

Typically what the data that would be subject to redaction would simply not be extracted. Given that, I am inclined to believe that as a general matter, redaction done by way of “computer programming and computer services” would be considered akin to extraction as thus a permissible cost to pass on to the requester. However, the answer probably does depend on the specific situation.

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 am trying to proceed (pro se) anonymously in a lawsuit that is going to take place in a foreign state. Were the state more familiar to me, or were I to make usage of the Federal court, this would be a bit easier. However, I will be filing in CA. What I want to know is if you know the location of any ”example motions.” Specifically, I wanted to ”motion to proceed anonymously.” I also will be proceeding in forma pauperis. One more thing, do you have access to a sample protective order restricting access to information?

Again, were this in the state I was from or Federal court, I wouldn’t have too much of a problem. For somewhat tactical reasons, however, I am going to attempt the trial in CA before thinking about changing venue.

A: You may be able to find forms related to proceeding anonymously and restricting access to information in California’s state courts through the official court web site at http://www.courts.ca.gov/selfhelp.htm and http://www.courts.ca.gov/forms.htm. In addition, the Rules of Court are available at http://www.courts.ca.gov/rules.htm.

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: The CA Constitution states a person has a right to safety, yet my fiancee was ticketed for just that. She was being peered at alone in her car for no reason known to her by a patrol car as she was driving along, and then the patrol car went in back of her to pull her over.

She yielded by turning on her hazards and driving slower. She looked for an open store. She thought she found one. It was closed, but she remained.

She told the officer she had been looking for a well lit area, and that this location wasn’t that well lit, could they please move to a more well lit area, in which the officer said he would place her on the ground and restrain her if she moved. He then gave her a $500 “Failure to Yield to an Emergency Vehicle” ticket for not pulling over immediately.

The Pro Tem Judge made a mockery of my fiancee, and we are appealing the case. We would like to post the tape of the Judge Pro Tem, which we purchased from the “Temporary Judge Program.” We know it’s not an official court recording, as it’s for quality assurance purposes. We would like to play part of the recording at that televised meeting.

A: I understand that you have two main questions. First, whether it would be permissible to post a video of the proceedings by the pro tem judge on-line and/or play it at a city council meeting. Second, whether you would be able to play the entirety of the video at the public meeting despite a per-speaker time limit by having several different individuals use their comment time to play portions of the video. Although we cannot provide specific legal advice through this service, I can give you some general guidance on both these issues that will hopefully be useful.

On the first issue, the general rule is that there is a very broad right to disseminate truthful information on a matter of public interest, provided that the disseminator did not obtain the information improperly and that doing so would not violate copyright protections or the terms of an agreement.

About 10 years ago, in a case called Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that reports by news media of illegally intercepted telephone conversations, which the news media knew were illegally intercepted, were protected by the First Amendment — even though knowing use of intercepted calls is a federal crime — because the reports “were unquestionably [on] a matter of public concern, and [the media] were clearly engaged in debate about that concern.” Id. at 535.

In your situation, even though you are not a media entity, it seems clear that the video was lawfully obtained and that there is a public interest in playing it to inform the public debate in which you and your fiancee are engaged.

Conceivably, the agency that sold you the video purported to impose restrictions on how it could be used during your transaction. But it’s not clear that any such restrictions would stand up, given that the video seems to capture a public legal proceeding.

Moreover, even where there are issues of copyright or other content ownership, displaying the content in a public meeting to inform debate on a public issue would often provide a strong basis for a fair use or related First Amendment argument.

As for the second issue, it is not uncommon for individuals to divvy up content during the public comment period of a regular meeting of a city council or other legislative body of a local agency in California.

Though the Brown Act — California’s open meetings law — does not specifically address this issue, it does provide that regulations on public comments must be “reasonable” and directed toward ensuring that members of the public have an opportunity to address the body on items of interest to the public that are within the body’s subject matter jurisdiction. Gov’t Code § 54954.3.

In addition, this kind of meeting is considered to be a “limited public forum” for First Amendment purposes, and restrictions on speech in a limited public forum must be content-neutral. See, e.g, Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

It’s hard to see how a city council could refuse to allow several different people to play different portions of the video without running afoul of the rule against content-based restrictions.

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’m trying to obtain the school district’s 2010 spending records in digital form, but the USD’s 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 FOI 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.

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.

A: The California Public Records Act specifies that, “unless otherwise prohibited by law,” if an agency “has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format,” the agency must “make that information available in an electronic format when requested by any person.” Gov’t Code § 6253.9.

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.

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 the 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.

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 new sheriff is using his personal cell phone and personal e-mail for conducting county business. He rarely uses his county-issued phone or his official county e-mail address to respond to citizens,  instead public inquiries will be answered via his private e-mail. I believe there is some other activity going on as well, including leaking personnel file details about deputies and staff who disagree with him to a guy running a character assassination blog in support of the sheriff. Are his e-mail and phone records subject to Public Records Act law? Am I able to request those from the county, along with information on his Internet browser cache?

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).

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 to 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 sheriff is using his personal email and cell phone as his de facto accounts for county business, there would seem to be a strong argument that those records are subject to disclosure under the Public Records Act. With respect to email, he is probably using his account while at county offices, and while using county computers, which would further support any argument that his personal email account has become his business account. The same could be said of his cell phone, given he probably uses during times when he’s officially on duty.

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. However, as you note, the recent release 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).

You might want to write to submit a written request for the records to the county, and specify that you seek not only records sent from the sheriff’s official email account, but also those sent from his personal email account that relate to official business. It is possible that the county 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, although it’s been a while since I’ve been in a newsroom (I was also a cops reporter in my previous career), it seems that the fact that the sheriff is using personal email and cell phone for official communications may, in itself, be a story worth reporting, as it may be something that his constituents would want to know.

It may be that other Lake County officials, too, are using personal accounts for official business. 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.Bryan Cave 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.

I’d like to inquire as to the public’s right of access to public records which contain some information an agency either must or may redact. Specifically:

•  May the public demand access to records and use their own equipment to reproduce or image (e.g. camera, scanner) the records?
•  May an agency charge a fee for access to records if no copy/reproduction is requested yet the agency must or chooses to redact some information from the responsive record(s)?
• If the public must pay a fee for simply accessing and viewing records, may county governments charge more than the direct cost of reproducing the records? (Following that, and along the lines of [1], since search and retrieval costs are not allowed, may the agency charge to redact data in order to provide the public access to public records?)
• What are allowable costs for reproduction of public records?

A: There is not a great deal of authority on the situations in which an agency may charge members of the public under the PRA.

It is clear, as you know, that the Public Records Act generally permits an agency to bill a requester only for the direct costs of duplication, but not for searching for or otherwise preparing the records for duplication. Cal. Govt. Code section 6253(c); North County Parents v. Doe, 23 Cal. App. 4th 144 (1994).

It would seem to follow that a member of the public who does not request a copy of a record should be able to use his or her own equipment to make a copy of a record that he or she is inspecting. (It should not be the privilege of walking away with a copy of a record that the public is paying for — rather, under North County Parents, simply what it actually costs the agency to make the copy.)

Of course, there could theoretically be legitimate reasons for barring personal copying/scanning equipment (though none spring immediately to mind), but the PRA would seem to require the agency to make its case for that reason and not simply impose such a rule with no asserted justification.

There is no clear answer on whether the agency may impose some kind of charge for redacting a document as a cost of duplication. There is certainly merit in the argument that such redaction is not part of the direct cost of duplication, but we don’t know of a court decision addressing this issue.

But the question you raise is even more attenuated. That is, if the public asks only to inspect, may the agency impose a fee on the theory that it must redact information and that duplication is required in that process.

Again, there does not seem to be any authority on this point, but such a position would certainly seem counter to the underlying principles — if not the letter — of the PRA. Based on the plain language of the PRA (see below), it would seem to be the agency’s responsibility to “delet[e]” whatever “portions” of the record it claims are exempt, without any cost to the requester, especially since the cost language only comes in when there has been “a request for a copy of records.” Gov’t Code § 6253.

(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.

(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.

Cal Gov Code § 6253(a), (b)

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’m looking into a dean at one of the state universities who appears to spend a lot of university money on luxurious travel. I requested phone bills from the dean’s university-paid phone because I’d heard the dean’s dog is boarded at a kennel and the dean often calls the kennel from  international locales on UC’s dime.

I got the phone bills but UC redacted all the phone numbers citing California Government Code §6254(c); Cal. Civil Code §1798.42.

I am looking for some guidance as to how to draft a response arguing that these phone numbers should be public.

A: The university has cited two separate reasons for withholding the records that you seek, each of which deserves some explanation.

With respect to Gov’t Code § 6254(c), this particular exemption is known as the “personnel exemption,” and is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial.

However, this exemption — which 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) — applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6245(c) (emphasis added).

Unfortunately I could not find any case that specifically addresses whether revelation of phone numbers that a public employees call from an agency-provided phone would qualify for this particular exemption.

If a court were to consider this question, the burden would be on the university to demonstrate that the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. Braun v. City of Taft, 154 Cal. App. 3d 332, 345 (1984) (standard for weighing whether nondisclosure is proper under § 6254(c) is almost the same as the standard contained in the Public Record Act’s catch-all exemption).

It seems that in the situation you describe, the public has a strong interest in knowing how the dean is using university funds, and the only way to determine how much she is using the phone for personal purposes is to look at which numbers she has dialed and make an inquiry (either to the administrator herself, or by using other publicly available resources) into who is on the other end of those phone numbers.

Although some of the phone numbers may belong to friends, family, or dog kennel boarding houses, as opposed to individuals with whom she conducts official university business, it does not seem that this amounts to the type of invasion of personal privacy that would warrant the withholding of those phone numbers.

As to the second justification, Civil Code §1798.42 is part of the Information Practices Act of 1977, a scheme that governs agencies in their collection and maintenance of personal information related to individuals.

The statute cited states:

“In disclosing information contained in a record to an individual, an agency shall not disclose any personal information relating to another individual which may be contained in the record. To comply with this section, an agency shall, in disclosing information, delete from disclosure such information as may be necessary.” Cal Civ Code § 1798.42.

“Record” is defined as “any file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular such as the individual’s name, photograph, finger or voice print, or a number or symbol assigned to the individual.” Civil Code § 1798.1(g).

The definition of “record” under the IPA may not necessarily encompass the type of “record” you seek under the Public Records Act, since the phone records are probably not a “file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular.”

Nonetheless, the agency may have identified an issue related to its duty to maintain the privacy of those whom the dean called. As such, if, on your end, there is room for negotiation with the university with respect to these records, you might suggest that the university redact only the four-digit exchange portion of each phone number, so that you can at least see what area codes and prefixes the dean called.

This may help you determine the extent to which the dean made non-university-related-business calls while overseas, or at the very least, give you a starting point to inquire into whether the numbers called were for personal or business purposes.

You might want to write back to the university and ask that it fully explain how revelation of the phone numbers would lead to an “unwarranted invasion of personal privacy” under § 6254(c).

If revealing these phone numbers would merely cause embarrassment to the university and the dean in question, this is not sufficient justification for withholding those records. You may also want to point out that the Civil Code section cited does not seem to apply to the records that you seek, but then offer of meet the university halfway on this issue, as indicated above.

At any rate, in future communication with the university, you might want to mention that should it continue to maintain that the records are exempt from disclosure, and you decide to file a writ of petition in the Superior Court to compel disclosure of the records, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. Gov’t Code § 6259(d).

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 have been block a number of times from posting on the political board on Craigslist.
I also have been threatened harassed and slandered by one poster on this site and a Craigslist tech  told me if I didn’t like it to just stop posting. My name and personal info has been posted by this harasser on the political site and even sex sites. I can’t believe if Craigslist is licensed by the Federal Gov. it can legally block my First Amendment Rights.

A: As you are aware, the First amendment serves only as a limitation on the government; it does not constrain the activities of private persons and organizations who do not seek to use the government’s processes. As such, it does not restrict Craigslist as a private entity from controlling the content of its websites. I am not aware of Craigslist being licensed by the federal government; as a general matter, we do not in this country have a system for the licensing of media outlets, outside of the broadcast medium.

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: I am a member of a Citizens Advisory Committee. It has quasi status as a ”affiliated” committee with the city, as it advises the city on federal grant funding within the citizen participation plan.

I publish a blog which is very critical of political opponents. Last week, members of the committee tried to kick me off claiming my writing outside the committee was considered inflammatory.

I believe this is prior restraint and a violation of my free speech rights. If I write and speak out as a private citizen outside of a membership of an advisory committee, my membership should not be affected, correct?

Q: The First Amendment indeed forbids government officials from retaliating against individuals for speaking out. Blair v. Bethel School Dist., 608 F.3d 540, 543 (9th Cir. 2010).

In order to recover for such retaliation, you would have to prove that

(1) you were engaged in constitutionally protected activity;

(2) as a result, you were subjected to adverse action by the defendant that resulted in a chilling effect on further speech; and

(3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Id. at 543.

As in Blair, it may be that your critical statements are protected by the First Amendment, and even that your statements led to the board’s attempts to remove you from your position. Id.

However, if the “adverse action” taken by your peers can be categorized as one that falls into the political arena, as was the case in Blair, then, depending on the circumstances, a court might not determine that your First Amendment rights were violated.

In Blair, the 9th Circuit found that although the plaintiff’s comments that were critical of the school district’s superintendent were protected by the First Amendment, the board, in removing the plaintiff from the school board, did not violate his First Amendment rights. Id.

The court first considered that the “adverse action” of removing the plaintiff from the board was a “minor indignity, and de minimis deprivations of benefits and privileges on account of one’s speech do not give rise to a First Amendment claim.

Rather, for adverse, retaliatory actions to offend the First Amendment, they must be of a nature that would stifle someone from speaking out.” Id. at 544.

The court discussed the “prototypical plaintiff” in such cases as a government worker who loses his job because of some public communication critical of his employer. Id.

“Blair has little in common with these prototypical plaintiffs. Through the ordinary functioning of the democratic process, he was removed from a titular position on a school board by the very people who elected him to the position in the first place.” Id.

Second, the court found that “more is fair in electoral politics than in other contexts.” Id.

Because political bodies have “internal leadership structures” and structures that allow for “members of those bodies to be openly partisan in voting for and against one another for leadership positions,” the First Amendment does not protect “casualties of the regular functioning of the political process.” Id. at 545.

Third, the court found that the members who voted Blair off the board also had protectable speech interests, and by voting Blair off the board, they were sending a message to the public that they “viewed [the superintendent's] performance very differently from the way Blair saw it, and wanted to distance itself from Blair’s criticism of the superintendent.” Id.

“While Blair certainly had a First Amendment right to criticize [the superintendent] and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board.” Id. at 546.

As you can see, the analysis may depend on the particular facts of the case. But the committee may argue in your situation that it feels that your views do not represent the majority view of the public that the committee is charged with representing.

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: The new rule one of the county supervisors has been threatening to make formal, requires constituent speakers to aggregate all remarks on as many as a dozen or more separate items into one three minute slot isolated from other speakers and staff who may have commentary on individual items.

This requires the speaker to provide a brief identifying description of each item, as the three  minutes clock is running.

This process also segregates speakers who have interest in more than one item from other members of the public who only have chosen to speak on one item. Those individual speakers are given a chance to speak after an item is called. This containment/isolation of certain regular speakers is absurd and worse, insidious.

One of the big problems with being asked to compress remarks on say, 12 items into three minutes, is that the ’fast-talking’ time constraints make coherent remarks ultra challenging and often, key remarks on certain items are never heard because the Supervisors shut the mic down mid-sentence.

This, it seems, violates the ’before or during consideration of the item’ rule. If a speaker is asked to finish those remarks in Public comment, (after its been approved) and often hours later after the supervisors sort of filibuster with other business including non-urgent discussions, closed-sessions, and believe it or not lengthy adjournments for the fallen, the speaker is forced to comment on an already approved item. This is not right.

Reasonable limitations are easy to imagine, and I suppose if up to three minutes on agenda’d items plus two minutes on Public Comment were combined for five minutes, it could be workable some of the time. But the comments need to be heard before consideration. And sometimes a member of the public who has been forced to squeeze remarks into an unreasonable time slot, thus exceeding his time, is the only member of the public who wants to comment on a discussion that comes after his time is up. Here, the seat at the table of the public business is not filled and the supervisors are refusing access based on prior comments on other items. This is simply not supportable.

Q:  As a starting point — and as you may already know — the Brown Act provides that:

(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.

Cal Gov Code § 54954.3.

Much turns on whether the regulations — either on their face or as applied — are “reasonable.” Some years ago, in deciding that a local agency could limit comment time to two minutes per speaker when necessary, the Court of Appeal cautioned that it did “not mean to imply that restrictions on public comment time may be applied unreasonably or arbitrarily.” Chaffee v. San Francisco Public Library Com., 134 Cal. App. 4th 109, 115 (2005).

But the court said it had “no difficulty in imagining situations in which such limits would be appropriate. For instance, setting stricter time limits might be necessary in order to allow every member of the public who wished to speak to do so within the total time allotted for public comment, or in order to complete a meeting with a lengthy agenda within a reasonable period of time.” Id.

The First Amendment also confines the ability of a legislative body of a local agency to restrict public comment. 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).,

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 am attempting to report on city government and  have learned that the city only offers citizens the chance to view agendas during normal business hours. If one wishes to obtain copies, the city charges $.15 per black and white page. Past agendas and minutes can be obtained by sending a self-addressed stamped envelope. Agendas and minutes are also not available online.

It appears very un-American to set limited time parameters and charge citizens to view information that should be viewable at all times. We are wondering if there is any Constitutional violations at any level in this case.

A: Your instincts on this one seem to be on the money.

The Brown Act (California’s open meetings law) provides that–

“[a]t least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. … The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site, if the local agency has one.” Gov’t Code § 54954.2.

A 2005 Attorney General opinion concluded that “[t]he posting of an agenda for a regular meeting of the legislative body of a local agency for 72 hours in a public building that is locked during the evening hours would not satisfy the statutory requirements for posting the agenda.” 78 Ops. Cal. Atty. Gen. 327 (2005). The AG explained that:

“[T]he Act’s central purpose is to promote openness in government. The Legislature has made it clear that it considers ‘complete, faithful and uninterrupted compliance’ with the Act to be a matter of overriding public importance. (§§ 54950, 54954.4, subd. (c).) Given this strong expression of legislative intent and the fact that adequate notice to the public is critical in attaining the full benefits of the Act’s provisions, we find that the ‘freely accessible’ requirement is to be strictly interpreted. Not only must the agenda be posted for at least the full 72 hours immediately preceding the meeting, it must be posted in a location that is freely accessible throughout that period. n5 In short, the notice must be posted in a location where it can be read by the public at any time during the 72 hours immediately preceding the meeting. Members of the public cannot be expected to have full opportunity to learn of agenda items of interest if the place where the agenda is posted is inaccessible to them during any portion of the required 72-hour period.” Id. The AG noted by way of example that “if the building in question is closed during the evening hours, the agenda may be posted on the outside of the building in a lighted display case if necessary” Id.

In addition, if the city has a web site, then Section 54954.2 requires the agenda to be posted on the web site, as well (which may be why the city is evidently taking steps to post agendas on-line in the future).

As for copies, the Brown Act provides that:

“Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person. … Upon receipt of the written request, the legislative body or its designee shall cause the requested materials to be mailed at the time the agenda is posted pursuant to Section 54954.2 and 54956 or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. … The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service.” Cal Gov Code § 54954.1.

The AG considered what constitutes a “reasonable charge” under Section 54954.1 in 1979, concluding that “it is our opinion that the answer thereto is essentially a factual question and is essentially found in the language of the statute itself — that is, the charge is to be based upon ‘the estimated cost of providing such a service.’

It would appear that any ‘estimate’ which has a reasonable cost accounting basis would satisfy the provisions of the section.” 62 Ops. Cal. Atty. Gen. 658 (1979). While there may be room to argue that the “cost of providing the service” of mailing the agenda should not include any cost to copy the agenda, that argument might not win, and a 15-cent-per-page copying charge might hold up.

In this situation, it sounds like the copying charge is unreasonable as a practical matter because the failure to post the agenda in a freely accessible location for 72 hours causes people to have to request a mailed agenda when they would otherwise simply take a look in the public location. Posting agendas on the agency’s web site would also seem to solve this problem.

The bottom line is that while the Constitution might not have much to say about this situation, the Brown Act does, and what it says seems to back up your initial reaction.

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: An elementary school principal was forced to resigned after a closed session meeting with the school board. Board members say they CAN’T talk about the decision. I made a written request for the files. They say they don’t have to show me the file’s under government code 6250. I don’t believe that’s true. Most of the employees at the school agree with me, but cannot speak up.

A: There seem to be a couple of different issues related to your inquiry. First is whether the principal’s closed-session meeting with the school board comported with California’s open meeting law, known as the Brown Act. The second is whether the files you requested are subject to disclosure under California’s Public Records Act.

Brown Act: The Brown Act provides for closed sessions for certain personnel decisions:

(1) … [N]othing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.

(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

(3) The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.

(4) For the purposes of this subdivision, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. … Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.

Gov’t Code § 54957(b) (emphasis added).

The Brown Act requires bodies to “publicly report any action taken in closed session and the vote or abstention on that action of every member present,” specifying particular procedures based on the justification for the closed session. Gov’t Code § 54957.1(a).

For closed sessions authorized for personnel decisions, the Brown Act provides that

“[a]ction taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.” Gov’t Code § 54957.1

Note also that the Brown Act says 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.” Gov’t Code § 54963.

For purposes of this section, “‘confidential information’ means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter.” Id. In other words, those who attend the closed session might have to be careful about disclosing information from the closed session without authorization from the commission (with the exception, of course, of information that is required to be reported out under Gov’t Code § 54957.1).

Thus, it would appear that the school board would be required to announce that the principal resigned in open session. However, it does not appear that much more in the way of details would be required to be released under the Brown Act.

Public Records Act: Whether or not files or other records related to this incident that are in the possession of the school district or school board are disclosable is within the purview of the Public Records Act. Under the 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.

As a preliminary matter, you state in your inquiry that the school district is invoking Gov’t Code § 6250 as justification for withholding the records. This particular Government Code section is merely the Public Records Act’s preamble, and does not contain any specific exemption that justifies withholding the requested records.Rather, this section states that,

“In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning hte conduct of the people’s business is a fundamental and necessary right of every person in this state.” Gov’t Code § 6250.

To the extent the school district is invoking “privacy” as justification for withholding the records, there is a specific exemption for “personnel” records that public agencies routinely invoke when they believe a request seeks information pertaining to identifiable public officials or employees that is private or controversial. Gov’t Code § 6254(c).

However, this exemption — which 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) — applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code Section 6245(c) (emphasis added).

Information such as employee performance goals may be exempt from disclosure, at least if individually tailored and kept confidential. Versaci v. Superior Court, 127 Cal. App. 4th 805 (2005) (performance goals of a community college district superintendent were exempt from disclosure, based in part on the fact that the superintendent had retired, so the court found that there was no public interest in knowing what the goals were).

On the other hand, California courts have established a fairly liberal standard for disclosure of public records relating to complaints or investigations of misconduct by public employees. For example, in BRV, Inc. v. Superior Court, 143 Cal.App.4th 742(2006), the court found an investigative report into a school superintendent’s alleged misconduct must be disclosed, observing:

“[M]embers of the public were greatly concerned about the behavior of the city’s high school superintendent and his governing elected board in responding to their complaints. Indeed, from the public’s viewpoint, the District appeared to have entered into a ‘sweetheart deal’ to buy out the superintendent from his employment without having to respond to the public accusations of misconduct. The public’s interest in judging how the elected board treated this situation far outweighed the Board’s or [superintendent's] interest in keeping the matter quiet. Because of [the superintendent's] position of authority as a public official and the public nature of the allegations, the public’s interest in disclosure outweighed [the superintendent's] interest in preventing disclosure of the … report.” Id. at 759.

In coming to this conclusion, the court discusses varying degrees of the expectation privacy that a public employee has with respect to his or her position. A school superintendent has a “significantly reduced expectation of privacy in the matters of his public employment,” and as a public official, knows that “his performance could be the subject of public, ‘vehement, caustic, and sometimes unpleasantly sharp attacks. … .’” Id. at 758, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

It seems that this same logic would apply to a school principal. Unlike other categories of school employees, principals are highly visible and interface with the public to a significant extent. Of course, this assumes that there was some sort of investigation into the principal’s conduct prior to his resignation. Although courts in cases that pre-date BRV determine whether complaints are disclosable based upon whether the complaint itself reveals allegations of a substantial nature, and there is reasonable cause to believe the complaint is well founded, see Bakersfield City School District v. Superior Court, 118 Cal.App.4th 1041, 1046 (2004), the BRV court found these cases distinguishable because they didn’t “deal[] with a public official in the position of [the superintendent] who … had a significantly reduced expectation of privacy in the matters of his public employment.” BRV, Inc., 143 Cal.App.4th at 758. (Consequently, the position of the school employee complained about in the Bakersfield case is not identified.)

In any case, you might want to consider two questions when determining whether a particular record is exempt under the personnel exemption: (1) Does the record associate the person in question with an aspect of the individual’s personal life rather than with the business of the pbulic agency or the individual’s performance as a government employee; and (2) would release of the information constitute an unwarranted invasion of personal privacy? Both questions should be answered in the affirmative for the exemption to be applicable. Also remember that the burden to justify withholding a record or a portion thereof lies with the agency seeking to deny access; it is not enough merely to label the file a “personnel record.”

One factor in all of this might be the principal’s attitude towards disclosing relevant information. If he does not want the information kept secret, that would make it harder for the agencies to justify secrecy. But, as discussed above, there may be grounds for disclosure even if the principal prefers to keep everything in the dark.

As such, you might want to write to the agency once again asking that it set forth, in writing, the specific exemption that it is claiming justifies nondisclosure of the records, which will then give you the opportunity to respond with legal arguments as to why the records you seek should be disclosed. Keep in mind that 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). Thus, if there are any valid exemptions that apply to the records that you seek, but the agency could, for example, redact that information, then the agency should release the records in a redacted form.

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 requested access to a building permit from 1973.  Our building department told me I  had to pay $55 for building research fee to cover ”staff time.” Copies, if asked for, are an additional 25 cents per page, but I guess copying fee of that amount is borderline legitimate.

They have been charging this since at least 1995. I personally know at least 25 people who paid that fee over the years. I wonder if class action would be an appropriate and feasible remedy in this case. Please advise.

A:  With respect to the issue of permissible fees, the Public Records Act permits agencies to charge those who receive copies of records only the actual costs of duplication. Govt. Code section 6253(b).

Fees for searching are not permitted, unless the Legislature has specifically authorized a search fee. I am not aware of any statutory authorization for search fees for copies of building permits. But you may want to ask the agency what its authority is to charge the fee.

Regarding your inquiry about class actions, that is an area of law that is beyond our limited expertise in freedom of speech and freedom of information. I am sorry that we will not be able to help you with that particular questions.

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 am a member of a school board that recently voted to support a settlement agreement with a six-figure employee who we terminated. The settlement was designed to make the costs related to the termination finite. I supported the termination and opposed the settlement for a variety of reasons. It has come to light today, that a significant incorrect fact was given to us in closed session which I believe may very well have led to a different result on support of the settlement.  Nonetheless, I don’t think I’ll find support from my co-board-members by reopening this issue and I would like to know what, if any options I have for going outside of the board for resolution. My goal would be to unwind the vote if at all possible, and re-vote under the correct facts. If that were not possible, I would like to let the public know that these incorrect facts were used in the discussions of the ultimate conclusion. Any advice would be appreciated.

A: The Brown Act itself only governs the extent to which government meetings need be open and accessible to the public. It does not otherwise speak to the validity of governmental action. So the Brown Act itself does not provide any basis for overturning the decision on the basis of the error.

But I think your main concern is with what legal protections you have to disseminate the information you have obtained. As a general matter, you have an almost absolute right to disseminate information that is of public interest, provided that you did not break any laws in obtaining the information (but even if you suspected that your source did). Bartnicki v. Vopper, 532 U.S. 514 (2001).

Further, to the extent you are disclosing any type of official misconduct, your act of disclosure may be protected by a whistleblower protection law. However, if you have agreed not to disclose the information, you may be legally responsible for any damages that are caused because someone else relied on your promise not to disseminate the information, or any damages provided for in any contract that you may have entered into that contained your hypothetical promise not to disclose. Cohen v. Cowles Media, 501 U.S. 663 (1991).

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 am currently suspended from work for posting a thought on facebook regarding my company. I worked for the company for over 2 years, but a recent commission-structure change has made my living difficult (60% less than what it used to be). I then received a company internal email regarding the company’s huge growth in earnings since the change!

In response, I simply posted on my private Facebook that I am extremely unhappy with the company, and feel like we (employees) are getting ”ripped off”  so they can put up a good looking number at the stock holders’ meeting. Someone has forwarded this very private thought to my management, now I am currently suspended for violating the ”code of business conduct” under ”conflict of interest.” I posted this through my personal phone while on break (still on clock but on a 15 min break); again, my Facebook profile is set private. I was wondering if you could give me some legal advice on this because I feel not only my privacy but also my constitutional rights have been violated

A: The First Amendment acts as a restriction only on the government. It does not restrict the actions of private entities or individuals (except that private individuals and entities may be indirectly limited in that their ability to receive relief from a court will be restricted). Therefore, when a nongovernmental employer takes action against an employee because of that employee’s speech, it ordinarily does not raise constitutional issues.

That being said, there may be several non-constitutional issues relevant to your situation, and about which you may wish to obtain specific legal advice from an employment or other lawyer. To the extent an employee is exposing illegal activity by an employer, he or she may be protected by a whistleblower protection law. The privacy of one’s Facebook posts and messages may be protected by the Electronic Communication Privacy Act, 18 U.S.C. sections 2510-2522, or the Stored Communications Act, 18 U.S.C. sections 2701-12.

For a referral to an employment lawyer, you may want to check with your local bar association or the American Bar Association
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

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: The city council was previously instructed to fairly distribute funds to all domestic violence shelters in L.A.  Members decided to give the majority of the funds to just two of the thirteen shelters and wouldn’t take comments from the 11 shelters that were shortchanged. Our agency in fact serves more people than the two receiving the most funding. How is that fair and how is that legal?  How can we fight for the funds we need to for the people we serve?

A: A legislative body of a local agency that permitted only favored groups or individuals to comment would likely run afoul of a Brown Act requirement that restrictions on comments be administered in a neutral way and not based on the content of the expected speech.

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.

Note 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).

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 am writing to inquire what I can do to obtain a Los Angeles police report. Their website reports are only disclosed to the victims, and references Section 6254 of the Government Code (para. f) which seems to support their limited release.

I’m requesting the documents to investigate the use, or misuse, of helicopters in our neighborhood. The latest example was last night, at 4AM, circling low over our neighborhood for nearly an hour.

I believe I have at least a right to know why this was happening, but the law seems to suggest I am not entitled to a police report. This is certainly contrary to the spirit of the Sunshine Amendment and your own mission.

I have not yet formally solicited a police report as, based on what the LA police website says, I will be denied. What recourse do I have?

A: The availability of police records is governed by Govt. Code section 6254(f). As you can see, that section defines both the records that law enforcement agencies may withhold from the public and what information it must extract from its records and provide to the public. Among the records exempt from disclosure are “records of . . . investigations conducted by. . . or any investigatory or security files compiled by any other state or local police agency . . . .”

There is no temporal limitation on this exemption: it applies equally to ongoing and closed investigations. Williams v. Superior Court, 5 Cal. 4th 337 (1993). The Sunshine amendment, which by its terms did not disturb existing legislation, did not modify this exemption. That being said, these exemptions are discretionary. The police may choose to disclose the information to you if you request it. But they are under no legal obligation to do so.

The information required to be extracted from such records upon request basically falls into four categories:

(1) incident and witness information that need be disclosed only to the victim and his or her insurance agency;

(2) arrest information;

(3) calls-for-assistance and dispatch information; and

(4) contact information for arrestees and victims as long as such information will not be used for commercial purposes. ( Please read the section to see the specifics of the information that must be disclosed.)

There are exceptions for information the disclosure of which would interfere with an ongoing investigation or endanger a witness.

The term “police reports” is not used in section 6254(f). However, that term typically colloquially refers to investigative information, most of which is exempt from disclosure.

You maybe able to receive some of the information about the use of the helicopters in your area if they were in fact dispatched in response to a call for assistance. In speaking with the police again, you may want to ask specifically for the information they are required to disclose to you pursuant to section 6254(f)(2) regarding the use of the helicopter on a certain date.

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 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.

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.