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.

The American Civil Liberties Union is suing the Obama administration to force them to release records related to the deaths by drone attacks of three U.S. citizens in Yemen.

The administration cited national security in denying the request for the documents under the Freedom of Information Act, but the ACLU said the drone program should not be allowed to operate without transparency and accountability. -db

From The Washington Post, February 1, 2012, by Karen DeYoung.

Full story

In a narrowly tailored decision, the 9th U.S. Circuit Court of Appeals ruled that the public, media and same-sex marriage proponents could not gain access to the videotapes of the trial over Proposition 8.

The court said that the trial judge had assured Prop 8 backers that the trial videotape would not be made public, and that pledge had to be respected to maintain the integrity of the justice system. -db

From the San Jose Mercury News, February 2, 2012, by Howard Mintz.

Full story

With travel costs eating up the budgets of the big media companies, they will look to save money by ending man-to-man coverage of also rans including Newt Gingrich, predicts John Ellis of BuzzFeed.-db

From a commentary in BuzzFeed, January  31, 2012, by John Ellis.

Full story

The Hanford City Council has so far not released an anonymous packet of documents to the public and may never. The documents make allegations against city leaders which the council discussed in closed meetings.

Jim Ewert, legal counsel for the California Newspaper Publisher Association, said the council may be on safe ground in denying public access to the documents but should consider if someone who intends to sue had supplied the documents. In that case disclosure is required under the state’s open meeting law, the Brown Act. -db

From the Hanford Sentinel, February 1, 2012, by Eiji Yamashita.

Full story

Together with other free speech groups, the Student Press Law Center is opposing the removal of ethnic history books from the Tucson, Arizona schools. The school district banned the books under a state law that prohibits courses of study that are “designed primarily for pupils of a particular ethnic group.”

“The Supreme Court has told us repeatedly, as recently as last term, that young people have a constitutional right to receive information that cannot lightly be overridden by the government,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. -db

From a press release from the Student Press Law Center, January 30, 2012.

Full story

The Electronic Frontier Foundation is petitioning a federal judge to protect the anonymity of individuals involved in a copyright lawsuit over porn downloading.

An adult film company wants to determine the identities of 1495 Internet users. The judge ordered the individuals suing to protect their anonymity to reveal their identities before the suit could proceed. -db

From a commentary for the Electronic Frontier Foundation, January 30, 2012.

Full story

The Reporters Committee  for Freedom of the Press did not like a federal appeals decision upholding a law restricting access to Virginia state records by non-residents. The court ruled that the restriction was not unconstitutional.

The Reporters Committee felt the court should have considered the effect of the restriction on smaller journalistic enterprises. -db

From a commentary by The Reporters Committee  for Freedom of the Press, February 1, 2012.

Full story

The 4th U.S. Circuit Court of Appeals ruled that non-residents have no right to Virginia public records under the state’s freedom of information law. Non-residents were challenging the law claiming it was unconstitutional.

The two non-residents who sued the state were seeking child support documents and real estate tax assessment records. -db

From The Reporters Committee for Freedom of the Press, February 1, 2012, by You-Jin Han.

Full story

A federal district judge ruled that the FBI could not use a Freedom of Information Act exclusion in denying access to records about a civil rights era photographer who was an informant for the agency.

The judge said the FBI confirmed the relationship with their response to the FOIA request so could not then withhold the records. -db

From The Reporters Committee for Freedom of the Press, February 1, 2012, by Rachel Bunn.

Full story

A federal judge says Digital Sin can pressure Internet service providers for names of people illegally downloading “My Little Panties #2.” The company has obtained 176  IPA addresses and now will ask the Internet service providers for the names of those affiliated with the addresses.

The judge is requiring that any names uncovered be sent to the court under seal so those individuals can fight the subpoenas anonymously. -db

From the Courthouse News Service, January 31, 2012, by Adam Klasfeld.

Full story

The Electronic Privacy Information Center (EPIC) has sued the Justice Department and the FBI claiming that they refuse to release information on the FBI’s surveillance of citizens who have shown support for or interest in WikiLeaks.

EPIC made the Freedom of Information Act complaint in federal court. -db

From the Courthouse News Service, January 31, 2012, by Iulia Filip.

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A gay police officer who alleged that St. Cloud Police Department refused to allow him his First Amendment rights to work in the Twin Cities Pride Festival even if he used his vacation time lost a bid in federal court on the First Amendment claim.

The court did say there was sufficient evidence to pursue an equal protection claim. -db

From the First Amendment Center, January 30, 2012, by David L. Hudson Jr.

Full story

Six journalists were arrested at an Occupy Oakland protest at Oakland City Hall where protesters broke in and vandalized the walls. That brings the total of journalists arrested during the protests to 52.

The reporters included those from KGO, an ABC affiliate, Mother Jones and the San Francisco Chronicle. As of now, it is not known why they were arrested. -db

From The Reporters Committee for Freedom of the Press, January 30, 2012, by Rachel Bunn.

Full story

Two years after President Barack Obama ordered government agencies to come up to speed on declassifying 400 million pages of old records, there has been little progress.

The failure to make more progress is a sign that the secrecy system considers itself immune from presidential orders, writes Steven Aftergood of Secrecy News. -db

From a commentary in Secrecy News, January 30, 2012 by Steven Aftergood.

Full story

The Oregon case denying a blogger protection under the state;’s shield is of minor concern writes Eric P. Robinson for the Citizen Media Law Project. A greater threat lies in a recent decision in Illinois.

In that case the Cook County court ruled that an online news source that posted blogs on technology did not qualify as a “news medium” and did not therefore enjoy Illinois reporter’s privilege. -db

From a commentary for the Citizen Media Law Project, January 26, 2012, by Eric P. Robinson.

Full story

A federal judge ruled that Republican presidential contender Ron Paul could not force YouTube and Twitter to provide the identities of whoever uploaded videos with a spoof of Ron Paul bashing former candidate Jon Huntsman for being a Chinese agent.

It is unusual for a candidate to sue in these matters given the courts’ tolerance of robust give and take in presidential campaigns, writes Jeff Roberts in paidContent. -db

From a commentary in paidContent, January 26, 2012, by Jeff Roberts.

Full story

An editorial in the Los Angeles Times says the board of supervisors for Los Angeles County “displays its contempt for the public” by closing the door before discussing such vital issues as the shift of convicts from state facilities to the county.

The Times argues that the mere wish to speak frankly does not allow a public agency to close its doors and the exemption cited for closing the door on the convict issue was passed in the 1970s to allow a government body to discuss how to keep protesters from denying citizens and workers access to public buildings. -db

From an editorial in the Los Angeles Times, January 31, 2012.

Full story

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.

Writing critical reviews of doctors and dentists online could make you the target of a defamation lawsuit as medical professionals try to stifle negative comments.

Some doctors are asking patients to sign gag orders to prevent online comments while the sites are publishing the names of doctors using gag order forms and providing patients with access to legal resources if they are threatened. -db

From the The Washington Post, January 28, 2012, by Dina ElBoghdady.

Full story

Long Beach and a police officers group are asking an appeals court  to overturn a lower court ruling that the city must provide the names of officers involved in shootings. After a controversial shooting of an unarmed man in Long Beach in 2010, the Los Angeles Times asked the city to provide the identities of officers involved in shootings.

The city contended that the records of shootings were part of personnel files and not for public viewing. The police officers union said the police needed to prevent retaliation against officers who used lethal force in conduct of their duties. -db

From the Los Angeles Times, January 27, 2012, by Victoria Kim.

Full story

The Justice Department wants a federal judge to allow them to withhold photos of the death of Osama bin Laden on the grounds that releasing the photos could incite violence against the U.S.

The DOJ disputed the arguments of Judicial Watch that making the photos public would cause harm to national security by revealing intelligence methods or equipment. -db

From The Blog of Legal Times, January 26, 2012, by Mike Scarcella.

Full story

After the 9th U.S. Circuit Court of Appeals ruled the Stolen Valor Act unconstitutional in a separate case, the 10th Circuit upheld the law which prohibits lying about military awards.

The opinion of the 10th Circuit judges cited a statement from a Supreme Court ruling that false statements do not get constitutional protection, “except to the extent necessary to protect more valuable speech.” -db

From The Denver Post, January 27, 2012, by John Ingold.

Full story

After NBC TV station continued to air a Mitt Romney ad that the network wants pulled, they were charged with hypocrisy, but says Josh Gerstein in Politico, it’s not that the stations would sell out principles to make a buck, FCC rules say that stations have to take ads on a comparable basis from all viable candidates. -db

From a commentary in Politico, January 29 2012, by Josh Gerstein.

Full story

The Sixth U.S. Circuit Court of Appeals extended the Supreme Court ruling known as Hazelwood to public colleges and universities while ruling on a case over the expulsion of a student in a counseling program at Eastern Michigan University.

Hazelwood allows school administrators to censor student expression on the grounds of “legitimate pedagogical concerns.” -db

From the Student Press Law Center, January 27, 2012, by Nick Glunt.

Full story

After Twitter announced last week they would engage in country-specific censorship, EFF’s Eva Galperin says there are ways to fight the plan including checking to see if Twitter makes use of the Chilling Effects Project which publishes a country’s censorship orders and puts it in an archive.

Galperin also says that a user can circumvent the censorship by changing the country listed in their profile. -db

From a commentary for the Electronic Frontier Foundation, January 27, 2012, by Eva Galperin.

Full story

The District of Columbia appeals court ruled that an agent for the Drug Enforcement Administration could not sue the agency for releasing a video showing him shoot himself in the leg while lecturing children on gun safety.

The agent claimed the DEA violated his privacy rights. -db

From the Courthouse News Service, January 27, 2012, by Rose Bouboushian.

Full story

To cries of protest, Twitter announced last week that it will take a country’s laws and culture into account in conducting country-specific censorship.

Saudi Prince Alwaleed bin Talal, who is also the second largest shareholder in News Corp., recently invested $300 million in Twitter. -db

From the Courthouse News Service, January 27, 2012, by Adam Klasfeld.

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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.

The Public Insight Network (PIN) is launching its own reporting unit to produce original stories tapping into  its huge database of 130,000 citizen sources.

Citizens across America and recently South Africa have been reporting their experiences to the PIN database. Reporters can use the sources to write stories on such topics as foreclosures or the presidential primaries. -db

From the Nieman Journalism Lab, January 25, 2012, by Andrew Phelps.

Full story

The Federal Trade Commission won a $4 million settlement against marketers of the Acai diet pill who made false claims about the pill’s effectiveness that included reference to fake news stories.

The promoters will only pay $500,000, the value of their tangible assets. -db

From the Los Angeles Times, January 25, 2012, by Matt Stevens.

Full story

A grieving family is suing Hustler Magazine for $20 million after the magazine published nude photos of a model who was murdered by her husband.

Hustler is claiming that the model was a public figure and newsworthy. -db

From the  Daily Mail, January 26, 2012, by Daily Mail Reporter.

Full story

Safety Research and Strategies is suing the federal government for details of their investigation into the sudden acceleration of a Prius last year.

Federal regulators have found no evidence that electronic systems were the cause of the unintended acceleration in Toyota vehicles, but Safety Research is not satisfied with that conclusion. -db

From The New York Times, January 24, 2012, by Bill Vlasic.

Full story

A Santa Monica math teacher lost a lawsuit in a California appeals court to keep a sexual harassment complaint against him private.

The court found substantial public interest in the release of details of the investigation into a parent’s charge that the teacher sexually harassed his thirteen-year-old daughter. The charge was not fully substantiated. -db

From the Metropolitan News-Enterprise, January 25, 2012, by Kenneth Ofgang.

Full story

Press freedom took a hit in the United States in 2011 according to Reporters Without Borders who ranked contries according to their performance.

The U.S. now shares 47th place in a tie with Romania and Argentina. Much of the drop may be based on the harassment, beating and arrest of journalists covering Occupy Wall Street protests. -db

From the Courthouse News Service, January 26, 2012, by Adam Klasfeld.

Full story

The 10th Circuit Appellate Court upheld a lower court decision that Albuquerque’s ban on registered sex offenders in public libraries violates the First Amendment.

The court ruled that the ban was too restrictive and did not allow alternative means for sex offenders to gain access to the library’s information and ideas. -db

From the First Amendment Center, January 26, 2012,by David L. Hudson Jr.

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A South Carolina county will have to pony up nearly $600,000 to settle a censorship lawsuit brought by a group who publishes a monthly newsletter for prison inmates.

Before the settlement, prison officials at a county detention center only allowed inmates religious texts for reading materials. -db

From the First Amendment Center, January 26, 2012, by David L. Hudson Jr.

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As Jay Leno was joking on “The Tonight Show”about Republican presidential candidate Mitt Romney’s wealth, a picture of the Sikh’s  Golden Temple Holy Shrine appeared on a screen.

A Sikh religious leader filed a lawsuit against Leno and NBC claiming the Leno joke was false and brought Sikhs into public hatred, contempt and ridicule. -db

From a commentary in the Hollywood Reporter, January 25, 2012,  by Eriq Gardner.

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