BY DEBORAH FRUIN–A federal district court in Los Angeles has unsealed records related to a government shutdown of a music blog/website, Dajaz1.com, for suspicion of copyright piracy. The unsealing had been requested by FAC, Wired, and the Electronic Frontier Foundation.

Using a forfeiture authority usually invoked to seize cars and houses in drug cases, federal authorities had seized the hip hop website, then avoided a hearing in the matter and refused to give an explanation for over a year while the website was shutdown. After 13 months, the government dropped the case, returning the website to its owners.

The records, unsealed on May 2, provide access to details on why, after seizing the hip-hop website, no charges were ever filed despite the judge granting the government repeated time extensions to build a civil or criminal case.

Dajaz1 often posted promotional tracks at the request of artists and producers. It was swept up in “Operation in Our Sites,” a broad crackdown in which the government seized 750 domains, invoking criminal forfeiture law based on allegations of copyright infringement.

FAC was represented by attorney Josh Koltun; Wired by its corporate counsel Richard Bernstein of Sabin Bermant; and EFF by attorney Kelli Sager of Davis Wright Tremaine and EFF’s own Cindy Cohn, the organizations Legal Director.

This case illustrates what can go wrong when the government is given the power to shut down a website on its own say-so, without advance approval from a court,” said Peter Scheer, FAC’s executive director. “The government unplugged this website’s First Amendment rights, censoring the website without exlanation, and apparently also without cause, for over a year,” said Scheer.

Cindy Cohn told Wired the site’s 13-month seizure by the Immigration and Customs Enforcement bureau highlights the RIAA’s [Recording Industry Association of America] influence over the government. President Barack Obama has tapped at least five former RIAA attorneys for senior positions in the Justice Department.

“Here you have ICE making a seizure, based on the say-so of the record company guys, and getting secret extensions as they wait for their masters, the record companies, for evidence to prosecute,” Cohn told Wired in a telephone interview. “This is the RIAA controlling a government investigation and holding it up for a year.”

Read more at: “Feds Seized Hip-Hop Site for a Year, Waiting for Proof of Infringement” on Wired‘s “Threat Level”  blog.

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.

The attorney for an anonymous masseuse suing John Travolta for assault, sexual battery and emotional distress offered to hold the trial before a private judge with all proceedings and court documents secret.

The masseuse is seeking $2 million in damages. -db

From  The Wrap, May 14, 2012, by Tim Kenneally.

Full story

A Harvard classmate of Mark Zuckerberg who earlier settled a suit with Zuckerberg over the ‘Facebook’ trademark, lost his bid in Massachusetts court to establish a new tort, “defamation by omission.”

The classmate, Aaron Greenspan, said in omitting him from the movie “The Social Network,” the filmmakers were belittling his role in developing Facebook. -db

From The Hollywood Reporter, May 14, 2012, by Eriq Gardner.

Full story

A federal judge ruled substantially for Georgian State University in a copyright case. Georgia State professors were sued by publishing companies who objected to the professors posting online excerpts fr0m four books for the use of their students.

The “fair use” doctrine allows the publishing of limited amounts of material without permission so long as the publication does not hurt the market for the material. -db

From The Atlanta Journal-Constitution, May 14, 2012, by Bill Rankin and Laura Diamond.

Full story

The 6th Circuit U.S. Court of Appeals revived a lawsuit brought by a Michigan prison employee who was punished for complaining to lawmakers that prisoners were being coddled by allowing them rap contests.

The employee’s suit claimed she was deprived her free speech rights, and the appeals court agreed and remanded the case to the district federal court saying the complaint raised “matters of pubic importance.” -db

From the First Amendment Center, May 15, 2012, by Associated Press.

Full story

The American Civil Liberties Union has sent a letter to the State Department in support of one of the department’s  employees who is in the process of losing his job for criticizing the U.S. reconstruction in Iraq of which he had first-hand knowledge.

The State Department claimed the employee violated their policy on prepublication review. -db

From a commentary for the American Civil Liberties Union, May 15, 2012, by Kate Wood.

Full story

A photojournalist facing charges of conspiracy, vandalism and trespassing went free when a judge dismissed the charges. The photojournalist was arrested covering the Santa Cruz Occupy protests. -db

From the Reporters Committee for Freedom of the Press, May 14, 2012, by Emily Miller.

Full story

Amid a dispute over whether negotiations over the price of water from a proposed desalination plant can be held in a closed session, the Municipal Water District of Orange County dropped the item from the agenda of their May 15 meeting.

Opponents of the plant raised questions about whether water rights were real property held by the desal company so that negotiations over the rights were exempt from the open meeting requirement under the Brown Act. -db

From the Surf City Voice, May 15, 2012, by John Earl.

Full story

A former reporter,  Sarah Tressler, claimed the Houston Chronicle fired her for working partime as a stripper and that constituted gender discrimination.

Tresssler filed a complaint with the Equal Employment Opportunity Commission. -db

From the Courthouse News Service, May 11, 2012, by Cameron Langford.

Full story

The U.S. Supreme Court finding in Garcetti v. Ceballos sharply limited the freedom of public employes to speak about their official job duties, but public employees must be protected as they testify in court, argues David L Hudson Jr. of the First Amendment Center. -db

From a commentary for the First Amendment Center, May 11, 2012, by David L. Hudson Jr.

Full story

Leading members of Congress condemned the leak of details of the failed al Qaeda underwear bomb attempt. Someone in the government leaked the information to the Associated Press.

Senator Dianne Feinstein (D-CA) said the leak helped the enemy, endangering sources and methods, and called for a prosecution of the leaker. -db

From The Atlantic Wire, May 14, 2012, by John Hudson.

Full story

The office of the Inspector General for the General Services Administration has refused a Freedom of Information Act request for documents on their investigation of GSA travel fraud saying to release the documents would jeopardize the investigation.

As part of the inquiry, the Inspector General is looking into the profligate spending at a 2010 GSA conference in Las Vegas. -db

From The Washington Times, May 10, 2012, by Jim McElhatton.

Full story

The U.S. Court of Appeals from D.C. ruled that interchanges between Google and the National Security Agency on cybersecurity and encryption are not part of the public record.

The Electronic Privacy Information Center used a Freedom of Information Act request to seek the records following a cyber attack against Google in 2012. -db

From The Blog of Legal Times, May 11, 2012, by Mike Scarcella.

Full story

A U.S. congressman from Georgia is putting pressure on the Pentagon for what he claims is a weak propaganda effort. The congressman is also concerned about what he says were reprisals to USA TODAY journalists reporting on the propaganda program. -db

From USA TODAY , May 9, 2012, by Gregory Korte.

Full story

Even though a compelling argument can be made for the First Amendment right of journalists, activists and just plain regular citizens to make records of breaking news in public venues, the police have made numerous arrests in these incidents lowering the U.S. rank for freedom of the press.  -db

From a commentary for MediaShift, May 14, 2012, by Josh Stearns.

Full story

A federal district judge agreed with the Central Intelligence Agency that there were compelling reasons for withholding the agency’s internal investigation on the Bay of Pigs debacle .

Under a Freedom of Information Act request, the CIA released a number of records on the debacle but withheld the entire internal investigation report. -db

From the Courthouse News Service, May 11, 2012, by Ryan Abbott.

Full story

By a 3-2 vote the trustees of the Atwater Elementary School District fired the district superintendent, Melinda Hennes,  without explanation. Hennes had been on the job for seven years and recently received a favorable evaluation from the trustees.

The trustees owe the public an explanation not only for the firing but also how the three reached the decision to fire Hennes without any official meeting time, argues the Merced Sun-Star in an editorial. -db

From an editorial in the Merced Sun-Star, May. 12, 2012.

Full editorial

A Cincinnati Ben-Gals cheerleader won a round in federal appeals court in her defamation lawsuit against the gossip website TheDirty.com.

Websites are usually immune to lawsuits for user posts under federal law, but the court said the cheerleader can pursue the case and the website can appeal any decisions in the case. -db

From nky.com, May 10, 2012, by Jim Hannah.

Full story

The Environment Integrity Project is filing a lawsuit for records of meetings held in the White House with 51 groups including industries and public interest and environmental groups.

The meetings focused on Environmental Protection Agency regulations on mercury, ozone pollution, toxins from industrial boilers and cross-state pollution. -db

From The Hill, May 9,212, by Andrew Restuccia.

Full story

Public libraries have been removing the sexy romance novel, “Fifty Shades of Grey,” from shelves in response to complaints about its content which at times features bondage and whips.

Despite mixed reviews, there has been great demand for the novel especially by middle-aged women. -db

From a commentary in the Philadelphia Daily News, May 10, 2012, by Howard Gensler.

Full story

A Central Connecticut State University soccer coach tossed 150 copies of the school’s student newspaper into a trash bin prompting a police investigation. The coach was upset by a news report in the newspaper that the team had not met academic standards to qualify for post-season play.

The police closed the case without bringing charges, but the university is reviewing the incident. -db

From The Hartford Courant, May 8, 2012, by Mike Anthony.

Full story

A lawyer with a degree from Harvard Law School is suing the school for defamation alleging that they falsely accused her of plagiarism in submitting an article to the law school’s Journal of Law and Technology.

The lawyer claims a draft of her article was damaged when a virus invaded her computer, and the editors published it without giving her a chance to finish her work. She was accused of failing to give proper credit to sources. -db

From the Courthouse News Service, May 10, 2012, by Iulia Filip.

Full story

At the insistence of The Redding Record Searchlight that records of some 2400 criminal cases were being withheld illegally, the Shasta County Superior Court finally examined their policy, found no basis for it and released the records.

The court was withholding records of criminal cases involving arrest warrants. -db

From The Redding Record Searchlight, May 8, 2012, by Sean Longoria.

Full story

Customary weekly memos from superintendents to school board members does not necessarily violate the Brown Act, the state’s open meeting law, provided that the memos avoid relaying the policy positions of board members, writes James Scot Yarnell in a legal analysis for Atkinson, Andelson, Loya, Ruud & Romo. -db

From an analysis for the law corporation, Atkinson, Andelson, Loya, Ruud & Romo, May 8, 2012, by James Scot Yarnell.

Full story

Actor Ben Stein is losing ground in his lawsuit that alleges that the Japanese computer company fired him after learning of his view that global warming was an act of God.

A California superior court judge found that Stein’s claims of violations of his free speech religion and politics were countered by the computer company’s rights to “expressive association.” -db

From The Hollywood Reporter, May 8, 2012,by Eriq Gardner.

Full story

Investigative journalism is in jeopardy and not just from shift of resources from print to online, writes Katrina vanden Heuvel in The Washington Post.

She sees hope in recent stories by The Guardian exposing the Murdock phone hacking and the Atlanta Journal-Constitution revealing at some threat to its advertising base the cheating on school standardized tests. But, says vanden Heuvel “to combat the corporatization and gutting of media,” the country needs to develop public funding sources. -db

From a commentary in the The Washington Post, May8, 2012, by Katrina vanden Heuvel.

Full story

The 7th Circuit U.S. Court of Appeals ruled that Illinois could not enforce their eavesdropping law that makes it illegal to make recordings of police officers in public without their permission.

The appeals court wrote, “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests.” -db

From the Chicago Tribune, May 8, 2012, by Ryan Haggerty.

Full story

Neither Al Jazeera or the Chinese government was commenting, but China expelled Al Jazeera amid speculation that the government was angered by a documentary on re-education of dissenters through labor camps.

The documentary said the camps were a form of slavery and that millions of inmates produced goods sold worldwide. -db

From The New York Times, May 7, 2012, by Michael Wines with reporting by Sharon LaFraniere.

Full story
 

Vladimir Putin assumed the presidency once again promising to expand civil rights and freedoms and extend participation in government. But the inaugural was punctuated with police sweeps, hundred of detentions and attacks on citizens wearing white ribbons showing opposition to Putin.-db

From The New York Times, May 7, 2012, by Ellen Barry and Sophia Kishkovsky with reporting contributed by Michael Schwirtz and Andrew Kramer.

Full story

A U.S. Marine who was given an other-than-honorable discharge recently for criticizing President Barack Obama has little legal recourse in his appeal, writes Arthur Bright for the Citizen Media Law Project.

The problem is that the Marine wrote in an Armed Forces Tea Party blog, “Screw Obama and I will not follow all orders from him.” -db

From a commentary for the Citizen Media Law Project,  May 7, 2012 by Arthur Bright.

Full story