Q: At City Council and Planning Commission meetings they have a sign next to the public-comment podium that says “Please state your name.”I think it might even ask for address.  I believe it is in violation of the Brown Act to require people to say their names. It is important in this community that people not have to state their name as an unfortunate individual who has done work for the city council has a blog in which he libels anyone who challenges the council. How can I get help in forcing the city council/planning council to stop acting as if stating one’s name is a requirement to public comment?

A: Your basic question is whether the city council and planning commission may require individuals to state their name before speaking during public comment period. Unfortunately, the Brown Act is silent on whether a public agency may require speakers to state their name during public comment. See Gov’t Code § 54954.3 (public testimony at regular meetings). Government Code section 54953.3 states that a member of the public cannot be required to register his or her name as a condition of attendance at a meeting, but does not state anything with respect to speaking.

However, the Supreme Court has recognized that there is a First Amendment right to speak anonymously. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002) (ordinance requiring those intending to engage in door-to-door advocacy of a political or religious cause to obtain and, upon demand, display permit, which contained one’s name, violated First Amendment protection accorded to anonymous pamphleteering or discourse); Thomas v. Collins, 323 U.S. 516, 539 (1945) (“As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly”). It seems that this right to speak anonymously at city council meetings would be especially true since such meetings are considered to be public fora, for which members of the public have broad constitutional rights.

Meetings of legislative bodies, such as city council meetings, are regarded under First Amendment framework as “limited public forums.” See White v. City of Norwalk, 900 F.2d 1421, 1425 (1990). Speech in a “public forum,” which includes public spaces such as sidewalks and parks that have traditionally been used for conduct protected by the First Amendment, can only be restricted if a high standard is met. (The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities.

Restrictions in non-public forums need only be reasonable and are generally upheld.) “Limited public forums” that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public — such as a city council or planning commission meeting — command the same high standard that applies to public forums, so long as the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Thus, while it is likely not unconstitutional for the city council ask public speakers to state their names and addresses, you may have an argument that requiring them to state that information in order to speak would violate First Amendment principles.

Q: I have learned that a city councilman was sending text messages to a city intern, asking her for a date. I would like to file a CPR request for the text messages sent from his city issued Blackberry. I’m sure they (the councilman and the city attorney) would try to argue that such a message was personal but I feel that the text was a form of sexual harassment, was improper, and was a misuse of city resources.

Are there any legal consideration that would be helpful in addressing this issue? I did submit a CPR request asking for city policy on preservation of emails, texts messages, etc. They responded that unless there are tagged as a important city record, they dump all emails after 30 days. Are there state standards for preservation? I have read of investigators getting emails and text messages from months prior, in investigations, how do they do that if the data is “dumped” in 30 day cycles?

A: Assuming that a record of the message still exists, the question becomes whether this particular message related to “the conduct of the public’s business.” 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 section 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.

“Writing” includes not only writings in the traditional sense, but “every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Gov’t Code section 6252(g). Information retained in an electronic format must be made available in any electronic form in which the agency keeps the information. Gov’t Code section 6253.9(a). Thus, it appears that text messages would be covered by the Act.

The requirement that a record relate to the “conduct of the public’s business” is broadly construed, and “is intended to cover every conceivable kind of record that is involved in the governmental process. … Only purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.” Assembly Comm. on Statewide Information Policy, Appendix 1 to Journal of Assembly (1970 Reg. Sess) Final Report p. 9. Arguably, the city council member’s actions could be construed as related to the “conduct of the public’s business” insofar as he was using city resources to make (possibly unwelcome) contact with other city employees, thereby disrupting the day-to-day conduct of business and potentially violating the city’s sexual harassment policy.

As you can imagine, the city might come up with a range of arguments as to why it should not have to release the council member’s text messages. Or it may attempt to invoke the “catch-all” exemption to the Public Records Act:

The 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 section 6255(a).

However, the use of this section by the government requires a “case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Sup. Ct., 38 Cal. 4th 1065, 1071 (2006). It could be argued that the public interest in preventing the misuse of city-issued devices, such as Blackberries, particularly in situations that could expose the city to liability — such as here for sexual harassment — outweighs any privacy interest that the city council member might cite.

The above arguments are made assuming that the text message still exists in the city’s records or on the device itself. Nothing in the Act addresses a local agency’s obligation to retain records. See 64 Op. Atty Gen. Cal. 317 (1981) (“Nothing in the Public Records Act purports to govern destruction of records … Its sole function is to provide for disclosure.”). Unfortunately, it is not always clear what destruction of records is permissible under California law. Generally, the destruction of public records is a crime unless otherwise authorized by law. California Government Code § 6200 provides, in relevant part:

“Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:

(a) Steal, remove, or secrete.

(b) Destroy, mutilate, or deface.

(c) Alter or falsify.”

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The text message here likely would not fall under the definition of a “record … filed or deposited in any public office.” A “public record” is any document or record that may properly be kept by an officer in connection with discharge of his official duties. People v. Pearson, 111 Cal. App. 2d 9, 19 (1952).

Thus, in an odd catch-22, it could be that the record that you seek under the Public Records Act is disclosable, but has been destroyed, and under Gov’t Code section 6200, would not be construed as a “public record” for purposes of enforcing that statute.

Q:Why would our city clerk require city Commissions to move all ad hoc reports and standing committees from agenda items to the announcements portion of the meeting? They are not listed on the agenda unless the ad hoc specifies the exact language of the action/recommendation for our city council. Then it gets more complicated because an agency of the city can be listed on the agenda but a standing committee from one of the neighborhood groups is removed. Our ad hocs are under Brown Act and without the ability to have even a preliminary discussion on a report as a full body and have the public know we are covering the issue we’ve found it difficult to come to an agreement on the how to proceed in conveying our recommendations to council. I would appreciate any clarification as to the reasoning behind the city clerks request. My research on open meeting laws, accessing government records and the online resources about the Brown Act have not provided much help.

A: As I understand your submission, you are concerned with the fact that that the city council is no longer placing reports from ad hoc committees and standing committees as items on the agenda to be discussed during city council meetings.  Unfortunately, under the Brown Act, legislative bodies have sole control over the decision to place (or not) particular items on the agenda.  Government Code section 54954.3 provides, among other things, that in a public meeting, any “member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may … take action to direct staff to place a matter of business on a future agenda.”  While the Brown Act does not appear to prevent a body from adopting a rule or procedure to set a mechanism for non-legislative body members to place items on the agenda, it also does not require that the body do so.  You might want to request a copy of the body’s internal governing rules to see if it has adopted a rule that addresses the mechanisms for placing items on the agenda.

One way around this is to make use of the public comment period for this purpose.  The Brown Act provides that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, 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.”  This language seems to contemplate that members of the public can comment, not only on items on the agenda, but also on topics that are not agendized so long as these topics are within the subject matter jurisdiction of the legislative body.  You might want to use your allotted public comment time to try to publicly pressure the city council into placing certain items concerning the reports from ad hoc and standing committees on future agendas.  Or you may simply use this time to discuss such reports.  As noted above, however, the city council would not be able to take “action” on any item not appearing on the agenda.  Gov’t Code § 54954.2.  Thus, although you may be able to comment on any item within the subject matter jurisdiction of the city council, whether or not on the agenda, the city council cannot take any action with respect to items not on the agenda.

Although I understand your concern that it would be ideal for the city council to discuss the reports from the ad hoc and standing committees during city council meetings, please note that some of these committees, if subject to the Brown Act, require their own open meetings at which point the public is free to attend such meetings and to address the committee during their own public comment period.  Below is some information concerning whether a particular committee is subject to the Brown Act.

The Brown Act provides that: “All meetings of the legislative body of a local agency shall be open and public, . . . .”  Gov. Code § 54953.  As used in the Act, “legislative body” is defined to include “any advisory commission, advisory committee or advisory body of a local agency, created by charter, ordinance, resolution, or by any similar formal action of a governing body of a local agency. . . .”  Gov. Code § 54952.3.  Whether the committee you reference is subject to the Act, therefore, depends on whether such group was created by a formal action of a legislative body.  (Gov’t Code § 549529(b)).  Assuming the committee was created by “formal action,” the next issue to look at is whether the committee falls under the ad hoc sub-quorum committee exemption.  If it does, then the meetings of such group would not be subject to the Brown Act and would not need to be public even though the committee can choose to make them so.  Government Code section 54952(b) exempts advisory committees that are comprised solely of less than a quorum of the members of the legislative body that created them.  The exemption does not apply, however, if the advisory committee is a standing committee.  A standing committee is a committee that has continuing jurisdiction over a particular subject matter (e.g., budget, finance, legislation).  (Gov’t Code § 54952(b)).  The California Attorney General’s Office illustrates, in its “The Brown Act” publication, how section 54952(b) operates with respect to committees created by city councils.  According to the Attorney General, if the city council creates an advisory committee comprised of two council members for the purpose of reviewing all issues related to parks and recreation in the city on an ongoing basis, for example, such committee, even though comprised of less than a quorum of the members of the body that created it, is a standing committee that is subject to the Act because it has continuing jurisdiction over issues related to parks and recreation in the city.  On the other hand, if the city council creates an advisory committee comprised of two city council members for the purpose of producing a report in six months on downtown traffic congestion, for example, such committee is exempt because it is comprised solely of less than a quorum of the members of the city council, and it is not a standing committee because it is charged with accomplishing a specific task in a short period of time.