American Canyon City Council
October 15, 2024

The public notice relating to new or increased business assessments must be provided through a 261
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mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice.

The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.25 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.

Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.

However, there are three specific situations in which a legislative body can act on an item not on the agenda:26
ƒ When a majority decides there is an “emergency situation” (as defined for emergency meetings).
ƒ When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action, and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline. ƒ When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.

The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
“I’d like a two-thirds vote of the board so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?”
The desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident.

The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.
“We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go-ahead tonight, even though it’s not on the agenda.”
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:

PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
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ƒ First, make two determinations: (1) that there is an immediate need to take action
and (2) that the need arose after the posting of the agenda. The matter is then
placed on the agenda.
ƒ Second, discuss and act on the added agenda item.

Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?
While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on their own activities.27 However, caution should be used to avoid any discussion or action on such items.

Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street.

Are there problems with this project?
City Manager Frank: The public works director has prepared a 45-minute PowerPoint presentation for you on the status of this project and will give it right now.

Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy.

It is clear from this dialogue that the Elm Street project was not on the council’s agenda but was raised during the public comment period for items not on the agenda. Council Member Jefferson properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting. Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. 263
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The right to attend and observe meetings
A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings.

Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting.

Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.28 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.29 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.30 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.31 Action by secret ballot, whether preliminary or final, is flatly prohibited.32 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.33 Q. The agenda calls for election of the legislative body’s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A. No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot.

The legislative body may remove persons from a meeting who willfully interrupt or disrupt proceedings.34 Ejection is justified only when audience members actually disrupt the proceedings,35 or, alternatively, if the presiding member of the legislative body warns a person that their behavior is disruptive and that continued disruption may result in their removal (but no prior warning is required if there is a use of force or true threat of force).36 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to readmit an individual or individuals not responsible for the disturbance.37
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Records and recordings
The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.38 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.39 Q. In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A. No. The memorandum is a privileged attorney-client communication.

Q. In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public?
A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication.

A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A nonexempt or otherwise non-privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose, and the agendas for all meetings of the legislative body must include the address of this office or location.40 The location designated for public inspection must be open to the public, not a locked or closed office. Alternatively, the documents can be posted on the city's website for public review if statutory requirements are met.41
A writing distributed during a meeting must be made public:
ƒ At the meeting if prepared by the local agency or a member of its legislative body. ƒ After the meeting if prepared by some other person.42 This requirement does not prevent assessing a fee or deposit for providing a copy of a public record pursuant to the California Public Records Act except where required to accommodate persons with disabilities.43
Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.44 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.45
In addition, the public is specifically allowed to use audio or videotape recorders or still or motion picture cameras at a meeting to record meetings of legislative bodies, absent a reasonable finding by the body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.46
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Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.47
The public’s right to speak during a meeting
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, as long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.48
Q. Must the legislative body allow members of the public to show videos or make a PowerPoint presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment.

Moreover, the Brown Act, as well as case law, prevents legislative bodies from prohibiting public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself.49 However, this prohibition does not provide immunity for defamatory statements.50
Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments?
A. No, as long as the criticism pertains to job performance.

Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech?
A. There is no case law on this subject. Some would argue that purely campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph (c) of that section where relevant to the governing of the agency and an implicit criticism of the incumbents’ performance of city business.

The legislative body may adopt reasonable regulations, including a limit on the total time permitted for public comment and a limit on the time permitted per speaker.51 Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.52
The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a regular (but not special) public meeting if all interested members of the public had the opportunity to PRACTICE TIP: Public speakers
cannot be compelled to give
their name or address as a
condition of speaking. The clerk
or presiding officer may request
speakers to complete a speaker
card or identify themselves for
the record but must respect a
speaker’s desire for anonymity.
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speak on the item before or during its consideration, and if the item has not been substantially changed.53
Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.54

ENDNOTES
1 Cal. Gov. Code, § 54954.2, subd. (a)(1).
2 78 Ops.Cal.Atty.Gen. 327 (1995).
3 88 Ops.Cal.Atty.Gen. 218 (2005).
4 Cal. Gov. Code, §§ 54954.2, subd. (a)(1) and 54954.2, subd. (d). 5 Cal. Gov. Code, § 54960.1, subd. (d)(1).
6 99 Ops.Cal.Atty.Gen. 11 (2016).
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432.
8 99 Ops.Cal.Atty.Gen. 11 (2016).
9 Cal. Gov. Code, § 54954.2, subd. (a)(1).
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of California Environmental Quality Act [CEQA] action [mitigated negative declaration] without specifically listing it on the agenda violates the Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis). See also GI Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814 (depublished) (Brown Act requires CEQA finding of exemption to be listed on agenda items that are projects under CEQA). 11 Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194. 12 Cal. Gov. Code, § 54954.5.
13 Cal. Gov. Code, § 54954.1.
14 Cal. Gov. Code, §§ 36934; 54956, subd. (b).
15 Cal. Gov. Code, § 54956, subds. (a) and (c).
16 Cal. Gov. Code, § 54955.
17 Cal. Gov. Code, § 54954.2, subd. (b)(3).
18 Cal. Gov. Code, § 54955.1.
19 Cal. Gov. Code, § 54956.5.
20 Cal. Gov. Code, § 54952.3.
21 Cal. Edu. Code, §§ 35144, 35145, and 72129.
22 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196. 23 Cal. Edu. Code, § 35145.5
24 Cal. Edu. Code, § 54954.6
25 See Cal. Const. Art. XIIIC, XIIID; Cal. Gov. Code, § 54954.6, subd. (h). 26 Cal. Gov. Code, § 54954.2, subd. (b).
27 Cal. Gov. Code, § 54954.2, subd. (a)(2); Cruz v. City of Culver City (2016) 2 Cal.App.5th 239 (sixminute colloquy on non-agenda item with staff answering questions and advising that matter could be placed on future agenda fell within exceptions to discussing or acting upon non-agenda items). 267
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28 Cal. Gov. Code, § 54953.3.
29 Cal. Gov. Code, § 54961, subd. (a); Cal. Gov. Code, § 11135, subd. (a). 30 Cal. Gov. Code, § 54952.2, subd. (c)(2).
31 Cal. Gov. Code, § 54953, subd. (b).
32 Cal. Gov. Code, § 54953, subd. (c).
33 Cal. Gov. Code, § 54953, subd. (c)(2).
34 Cal. Gov. Code, §§ 54957.9, 54957.95.
35 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed toward mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption); but see Kirkland v. Luken (S.D. Ohio 2008) 536 F.Supp.2d 857 (finding no First Amendment violation by mayor for turning off microphone and removing speaker who used foul and inflammatory language that was deemed as "likely to incite the members of the audience during the meeting, cause disorder, and disrupt the meeting”).
36 Cal. Gov. Code, § 54957.95.
37 Cal. Gov. Code, § 54957.9.
38 Cal. Gov. Code, § 54957.5.
39 Cal. Gov. Code, § 54957.5, subd. (d).
40 Cal. Gov. Code, § 54957.5(b); see also Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1. 41 Cal. Gov. Code § 54957.5.
42 Cal. Gov. Code, § 54957.5, subd. (c).
43 Cal. Gov. Code, § 54957.5, subd. (d).
44 Cal. Gov. Code, § 54953.5, subd. (b).
45 Cal. Gov. Code, § 54957.5, subd. (d).
46 Cal. Gov. Code, § 54953.5, subd. (a).
47 Cal. Gov. Code, § 54953.6.
48 Cal. Gov. Code, § 54954.3, subd. (a).
49 Cal. Gov. Code, § 54954.3, subd. (c); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800. 50 Cal. Gov. Code, § 54954.3, subd. (c).
51 Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150 (public comment time limit of three minutes for each speaker did not violate First Amendment).
52 Cal. Gov. Code, § 54954.3. subd. (b); Chaffee v. San Francisco Public Library Commission (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992).
53 Cal. Gov. Code, § 54954.3, subd. (a); Preven v. City of Los Angeles (2019) 32 Cal.App.5th 925. 54 Cal. Gov. Code, § 54954.3, subd. (a).
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CLOSED SESSIONS
Agendas and reports......................................................................................................... 42 Litigation............................................................................................................................ 43 Real estate negotiations ................................................................................................... 45 Public employment........................................................................................................... 46 Labor negotiations ............................................................................................................ 47 Labor negotiations — school and community college districts ....................................... 48 Other Education Code exceptions.................................................................................... 48 Joint powers authorities ................................................................................................... 48 License applicants with criminal records ......................................................................... 49 Public security................................................................................................................... 49 Multijurisdictional law enforcement agency .................................................................... 49 Hospital peer review and trade secrets ........................................................................... 49 Other legislative bases for closed session ....................................................................... 50 Who may attend closed sessions ..................................................................................... 50 The confidentiality of closed session discussions............................................................ 51 269
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A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1
As summarized in chapter 1 of this guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.2 The most common purposes of the closed
session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees).

Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. However, there is no prohibition in putting overlapping exceptions on an agenda in order to provide an opportunity for more robust closed session discussions. As an example, a city council cannot give direction to the city manager about a property negotiation during a performance evaluation exception. However, if both real property negotiation and performance evaluation exceptions are on the agenda, those discussions might be conducted.

Similarly, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3
In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions applies to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the Brown Act does not authorize closed sessions for other contract negotiations.

Agendas and reports
Closed session items must be briefly described on the posted agenda, and the description must state the specific statutory exemption.5 An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly put on the agenda as a Chapter 5

CLOSED SESSIONS
PRACTICE TIP: Some problems
over closed sessions arise
because secrecy itself breeds
distrust. The Brown Act does
not require closed sessions and
legislative bodies may do well
to resist the tendency to call a
closed session simply because
it may be permitted. A better
practice is to go into closed
session only when necessary.
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closed session item or unless it is properly added as a closed-session item by a two-thirds vote of the body after making the appropriate urgency findings.6 The Brown Act supplies a series of fill-in-the-blank sample agenda descriptions for various types of authorized closed sessions that provide a “safe harbor” from legal attacks. These sample agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multijurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.7
If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda, and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8 The legislative body must take public comment on the closed session item before convening in a closed session.

Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report vary according to the reason for the closed session and the action taken.9 The announcements may be made at the site of the closed session, as long as the public is allowed to be present to hear them.

If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.10
The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.11 If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation.

Litigation
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation.13 The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. Essentially, a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator.16 PRACTICE TIP: Pay close
attention to closed session
agenda descriptions. Using
the wrong label can lead
to invalidation of an action
taken in closed session if not
substantially compliant.
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The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly.

Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation
Q. May the legislative body agree to settle a lawsuit in a properly noticed closed session without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings.19
Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.20
Anticipated exposure to litigation against the
local agency
Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.21 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff. If an agency receives a documented threat of litigation, and intends to discuss that matter in closed session, the record of a litigation threat must be included in the body’s agenda packet.22
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Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation.

Certain actions must be reported in open session at the same meeting following the closed session.

Other actions, such as when final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.23 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances.

Real estate negotiations
A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.24 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues, such as site design, architecture, or other aspects of the project for which the transaction is contemplated.25
Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session?
A. No. However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase.

The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern,26 and the names of the parties with whom its negotiator may negotiate.27 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person as soon as the agency is informed of it.28 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson.
“Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.”
“Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” 273
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A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting.

Public employment
The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”29 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies.30 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.31 That authority may be delegated to a subsidiary appointed body.32 An employee must be given at least 24 hours’ notice of any closed session convened to hear specific complaints or charges against them. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,33 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.34 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.35 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.36
However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.37 Q. Must 24 hours’ notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses.

Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.38 An incorrect agenda description can result in invalidation of an action and much embarrassment.

For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager, or superintendent. Examples of the latter include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer.

PRACTICE TIP: Discussions of
who to appoint to an advisory
body and whether or not to
censure a fellow member of the
legislative body must be held in
the open.
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Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.39 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.

The personnel exception specifically prohibits discussion or action on proposed compensation in closed session except for a disciplinary reduction in pay. That means, among other things, there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions.

Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session.

Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.40 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.41
“I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager effective immediately.

The council has met in closed session, and we’ve negotiated six months’ severance pay.”
“Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.”
This may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session.

Caution must be exercised not to discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice.

Labor negotiations
The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts.

A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,42 on employee salaries and fringe benefits for both represented (“union”) and unrepresented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.43
PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
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These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives.

During its discussions with representatives on salaries and fringe benefits, the legislative body may discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations. 44 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.45 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.

Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions.

Four types of meetings are exempted from compliance with the Rodda Act:

1. A negotiating session with a recognized or certified employee organization.

2. A meeting of a mediator with either side.

3. A hearing or meeting held by a fact finder or arbitrator.

4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.46 Public participation under the Rodda Act also takes another form.47 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.48 The final vote must be in public.

Other Education Code exceptions
The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.49
Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.50 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.51
PRACTICE TIP: Prior to the closed
session, the legislative body
must hold an open and public
session in which it identifies its
designated representatives.

PRACTICE TIP: Attendance by the
entire legislative body before a
grand jury would not constitute
a closed session meeting under
the Brown Act.
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Joint powers authorities
The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.52 License applicants with criminal records
A closed session is permitted when an applicant who has a criminal record applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw it, the body must deny the license in public, either immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.53
Public security
Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings; essential public services, including water, sewer, gas, or electric service; or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials, including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.54 Action taken in closed session with respect to such public security issues is not reportable action.

Multijurisdictional law enforcement agency
A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an ongoing criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.55 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.56 Hospital peer review and trade secrets
Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals under other provisions of law:57

1. A meeting to hear reports of hospital medical audit or quality assurance committees or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing.

2. A meeting to discuss “reports involving trade secrets” — provided no action is taken. 277
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A “trade secret” is defined as information that is not generally known to the public or competitors and that (1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; (2) is necessary to initiate a new hospital service or program or facility; and (3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit.

The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.58 Other legislative bases for closed session
Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to review the Brown Act carefully to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including a response to a confidential final draft audit report from the Bureau of State Audits,59 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,60 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides MediCal services,61 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,62 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.63 Who may attend closed sessions
Meetings of a legislative body are either fully open or fully closed; there is nothing in between.

Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official or essential role in the closed session subject matters must be excluded from closed sessions.65
Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors.

PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”64
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The confidentiality of closed session discussions
The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.66 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.67 Only the legislative body acting as a body may agree to divulge confidential closed session information. With regard to attorney-client privileged communications, the entire body is the holder of the privilege, and only the entire body can decide to waive the privilege.68 Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information regarding pending litigation that was received during a closed session,69 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.70 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief and, if the breach is a willful disclosure of confidential information, disciplinary action against an employee and referral of a member of the legislative body to the grand jury.71 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure (1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; (2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or (3) is information that is not confidential.72 The interplay between these possible sanctions and an official’s First Amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy.
“I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang.
“Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” The first comment to the press may be appropriate if it is a part of an action taken by the city council in closed session that must be reported publicly.73 The second comment to the property owner is not. Disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency.

PRACTICE TIP: There is a strong
interest in protecting the
confidentiality of proper and
lawful closed sessions.
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ENDNOTES
1 Cal. Gov. Code, § 54962.
2 Cal. Const. , Art. 1, § 3.
3 61 Ops.Cal.Atty.Gen. 220 (1978); but see Cal. Gov. Code, § 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations and other related matters).
4 Cal. Gov. Code, § 54957.1.
5 Cal. Gov. Code, § 54954.5.
6 Cal. Gov. Code, § 54954.2.
7 Cal. Gov. Code, § 54954.5.
8 Cal. Gov. Code, §§ 54956.9, 54957.7.
9 Cal. Gov. Code, § 54957.1, subd. (a).
10 Cal. Gov. Code, § 54957.1, subd. (b).
11 Cal. Gov. Code, § 54957.2.
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal. Code Regs. § 18707. 13 But see Roberts v. City of Palmdale (1993) 5 Cal.4th 363 (protection of the attorney-client privilege alone cannot by itself be the reason for a closed session). 14 Cal. Gov. Code, § 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999).
16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471. 17 “The Brown Act,” California Attorney General (2003), p. 40. 18 Cal. Gov. Code, § 54956.9, subd. (g).
19 See e.g., Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785; Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172. 20 Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172. 21 Cal. Gov. Code, § 54956.9, subd. (e).
22 Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360. 23 Cal. Gov. Code, § 54957.1.
24 Cal. Gov. Code, § 54956.8.
25 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904. See also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner, and timing of consideration and other items that cannot be disclosed without revealing price and terms).
26 73 Ops.Cal.Atty.Gen. 1 (1990).
27 Cal. Gov. Code, §§ 54956.8, 54954.5, subd. (b).
28 Cal. Gov. Code, § 54957.1, subd. (a)(1).
29 Cal. Gov. Code, § 54957, subd. (b).
30 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 280
OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT 53
31 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002).
32 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty.Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 33 Cal. Gov. Code, § 54957, subd. (b)(3).
34 88 Ops.Cal.Atty.Gen. 16 (2005).
35 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860. 36 Cal. Gov. Code, § 54957, subd. (b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges when there was a public evidentiary hearing prior to closed session). 37 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87.
38 Moreno v. City of King (2005) 127 Cal.App.4th 17.
39 Cal. Gov. Code, § 54957.
40 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165. 41 Cal. Gov. Code, § 54957.1, subd. (a)(5).
42 Cal. Gov. Code, § 54957.6.
43 Cal. Gov. Code, § 54957.6, subd. (b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district).
44 Cal. Gov. Code, § 54957.6; 51 Ops.Cal.Atty.Gen. 201 (1968). 45 Cal. Gov. Code, § 54957.1, subd. (a)(6).
46 Cal. Gov. Code, § 3549.1.
47 Cal. Gov. Code, § 3540.
48 Cal. Gov. Code, § 3547.
49 Cal. Edu. Code, § 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings).
50 Cal. Edu. Code, § 72122.
51 Cal. Edu. Code, § 60617.
52 Cal. Gov. Code, § 54956.96.
53 Cal. Gov. Code, § 54956.7.
54 Cal. Gov. Code, § 54957.
55 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.

App.4th 354.
56 Cal. Gov. Code, § 54957.8.
57 Cal. Gov. Code, § 54962.
58 Cal. Health and Saf. Code, § 32106.
59 Cal. Gov. Code, § 54956.75.
60 Cal. Gov. Code, § 54956.81.
281
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61 Cal. Gov. Code, § 54956.86.
62 Cal. Gov. Code, § 54956.87.
63 Cal. Gov. Code, § 54956.95.
64 Ops.Cal.Atty.Gen. 34 (1965)
65 82 Ops.Cal.Atty.Gen. 29 (1999); 2022 WL 1814322, 105 Ops. Cal.Atty.Gen. 89 (2022). 66 Cal. Gov. Code, § 54963.
67 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327. See also Cal. Gov. Code, § 54963. 68 Roberts v. City of Palmdale (1993) 5 Cal.4th 363.
69 80 Ops.Cal.Atty.Gen. 231 (1997).
70 76 Ops.Cal.Atty.Gen. 289 (1993).
71 Cal. Gov. Code, § 54963.
72 Cal. Gov. Code, § 54963.
73 Cal. Gov. Code, § 54957.1.
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REMEDIES
Invalidation of action taken .............................................................................................. 56 Declaratory relief to determine whether past action violated the act............................. 57 Civil action to prevent future violations............................................................................ 57 Costs and attorney’s fees ................................................................................................. 58 Misdemeanor penalties .................................................................................................... 58 Voluntary resolution.......................................................................................................... 59 283
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A violation of the Brown Act can lead to invalidation of the agency’s action, payment of a challenger’s attorney fees, public embarrassment, and even criminal prosecution. As explained below, a legislative body often has an opportunity to correct a violation prior to the filing of a lawsuit. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials.

This chapter discusses the remedies available to the public when that self-regulation is ineffective.

Invalidation of action taken
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the grounds that they violate the Brown Act.1 The following actions cannot be invalidated:
ƒ Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites the wrong Brown Act section but adequately advises the public that the legislative body will meet with legal counsel to discuss potential litigation in closed session.2
ƒ Those involving the sale or issuance of notes, bonds, or other indebtedness, or any related contracts or agreements.3
ƒ Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment.4
ƒ Those connected with the collection of any tax.5

ƒ Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken.6
Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation, or within 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that a legislative body may act only on items posted on the agenda.7 The legislative body then has up to 30 days to cure and correct its action.8 The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and, if so, consider correcting the action to avoid the costs of litigation. If the legislative body does not act, any lawsuit must be filed within the next 15 days.9
Chapter 6

REMEDIES
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Although just about anyone has standing to bring an action for invalidation,10 the challenger must show prejudice as a result of the alleged violation.11 An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.12 Declaratory relief to determine whether past action violated the act Any interested person, including the district attorney, may file a civil action to determine whether a past action of a legislative body constitutes a violation of the Brown Act and is subject to a mandamus, injunction, or declaratory relief action.13 Before filing an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body clearly describing the past action and the nature of the alleged violation.14 The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.15 If the body fails to take any action within the 30-day period or takes an action other than an unconditional commitment, the interested person has 60 days to file an action.16
The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.17 The unconditional commitment must be substantially in the form set forth in the Brown Act.18 No legal action may thereafter be commenced regarding the past action.19 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act, and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.20
The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.21
Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to do the following:
ƒ Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body.
ƒ Determine the applicability of the Brown Act to actions or threatened future action of the legislative body.
ƒ Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law.
ƒ Compel the legislative body to audio-record its closed sessions.22 PRACTICE TIP: A lawsuit to
invalidate must be preceded by
a demand to cure and correct
the challenged action in order
to give the legislative body
an opportunity to consider its
options. The Brown Act does not
specify how to cure or correct
a violation; the best method
is to rescind the action being
complained of and start over, or
reaffirm the action if the local
agency relied on the action and
rescinding the action would
prejudice the local agency.
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It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future when the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.23 A court may not compel elected officials to disclose their recollections of what transpired in a closed session.24 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to audio record its future closed sessions.25 In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the audio recording if it finds there is good cause to think the Brown Act has been violated and make public a certified transcript of the relevant portion of the closed session recording.26 Costs and attorney’s fees
A plaintiff who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.27 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Brown Act is proven.

An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit.28 Misdemeanor penalties
A violation of the Brown Act is a misdemeanor if (1) a member of the legislative body attends a meeting where action is taken in violation of the Brown Act, and (2) the member intends to deprive the public of information that the member knows or has reason to know the public is entitled to.29 “Action taken” is not only an actual vote but also a collective decision, commitment, or promise by a majority of the legislative body to make a positive or negative decision.30 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty.

A violation occurs for a tentative as well as final decision.31 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all.

As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law.

Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.32 There is no case law to support this view.

If anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.33
PRACTICE TIP: Attorney’s fees
will likely be awarded if a
violation of the Brown Act is
proven.
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Voluntary resolution
Successful enforcement actions for violations of the Brown Act can be costly to local agencies. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body and its members. It is in the agency’s interest to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were
satisfied.

Overall, agencies that regularly train their officials and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement.

ENDNOTES
1 Cal. Gov. Code, § 54960.1. Invalidation is limited to actions that violate the following sections of the Brown Act: section 54953 (the basic open meeting provision), sections 54954.2 and 54954.5 (notice and agenda requirements for regular meetings and closed sessions), 54954.6 (tax hearings), 54956 (special meetings), and 54596.5 (emergency situations). Violations of sections not listed above cannot give rise to invalidation actions, but they are subject to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1198. 3 Cal. Gov. Code, § 54960.1(d)(2).
4 Cal. Gov. Code, § 54960.1(d)(3).
5 Cal. Gov. Code, § 54960.1(d)(4).
6 Cal. Gov. Code, § 54960.1(d)(5).
7 Cal. Gov. Code, § 54960.1, subds. (b), (c)(1).
8 Cal. Gov. Code, § 54960.1, subd. (c)(2).
9 Cal. Gov. Code, § 54960.1, subd. (c)(4).
10 McKee v. Orange Unified School District (2003) 110 Cal.App.4th 1310, 1318-1319. 11 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561. 12 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118. 13 Cal. Gov. Code, § 54960.2, subd. (a); Senate Bill No. 1003, Section 4 (2011-2012 Session). 14 Cal. Gov. Code, § 54960.2, subds. (a)(1), (2).
15 The legislative body may provide an unconditional commitment after the 30-day period. If the commitment is made after the 30-day period, however, the plaintiff is entitled to attorneys’ fees and costs. Cal. Gov. Code, § 54960.2, subd. (b).
16 Cal. Gov. Code, § 54960.2, subd. (a)(4).
17 Cal. Gov. Code, § 54960.2, subd. (c)(2).

Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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18 Cal. Gov. Code, § 54960.2, subd. (c)(1).
19 Cal. Gov. Code, § 54960.2, subd. (c)(3).
20 Cal. Gov. Code, § 54960.2, subd. (d).
21 Cal. Gov. Code, § 54960.2, subd. (e).
22 Cal. Gov. Code, § 54960, subd. (a).
23 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 916 and fn.6.
24 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36. 25 Cal. Gov. Code, § 54960, subd. (b).
26 Cal. Gov. Code, § 54960, subd. (c).
27 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.

App.4th 1313, 1327-29 and cases cited therein.
28 Cal. Gov. Code, § 54960.5.
29 Cal. Gov. Code, § 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both (California Penal Code section 19). Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959. However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 30 Cal. Gov. Code, § 54952.6.
31 61 Ops.Cal.Atty.Gen. 283 (1978).
32 California Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” 33 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act. 288
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1400 K Street, Suite 400, Sacramento, CA 95814
Phone: (916) 658-8200 | Fax: (916) 658-8240
www.calcities.org | www.westerncity.com
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Law Offices of
William D. Ross
A Professional Corporation
File No.199/6

ATTORNEY-CLIENT

PRIVILEGED COMMUNICATION

VIA E-MAIL
TO: City of American Canyon Legislative
and Advisory Bodies
DATE: March 6, 2023
FROM: William D. Ross, City Attorney
David Schwarz, Deputy City Attorney
CC: Jason B. Holley, City Manager
Maria Ojeda, Assistant City Manager
Taresa Geilfuss, City Clerk
RE: AB 2449 Refresher – Brown Act Procedures for Teleconferencing This is an attorney-client privileged communication which supplements our November 1, 2022 memorandum to the City Council, summarizing changes in state law that modified the Brown Act’s teleconferencing procedures.

On February 28, 2023, Governor Newsom rescinded the COVID-19 state of emergency that had been in effect for nearly three years. Because of this, the City of American Canyon (City) and other public agencies can no longer utilize the AB 361 teleconferencing procedures that were used during the pandemic.

AB 361 provided broad authority for public agencies to use video conferencing platforms, like Zoom or Microsoft Teams, to conduct public meetings where members of the public and the agency’s legislative/advisory councils and commissions could meet either entirely or partially remotely. However, AB 361 requires an ongoing state of emergency as declared by the Governor, so will therefore not be available unless or until a future state of emergency affecting the City is declared (i.e., pandemic, flood, wildfire, etc.).

However, beginning January 1, 2023, newly enacted legislation, AB 2449 became effective providing a more rigid/restrictive than AB 361, but is still more flexible than the Brown Act’s “traditional” rules on teleconferencing. Stated differently, AB 2449 is a “middle ground” between the traditional rules and AB 361. AB 2449 will be in effect until January 1, 2026, and may be extended by future legislation.

AB 2449’s procedures, outlined below, can be used by any and all of the City’s legislative and advisory bodies when they hold public meetings, including the City Council, Planning Commission, Parks and Community Services Commission, and the Open Space, Active Transportation and Sustainability Commission, as well as the Board of Directors for the American Canyon Fire Protection District.
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Traditional Teleconferencing Rules
The Brown Act’s traditional teleconferencing rules remain in effect, and are still an option.

The traditional (pre-COVID) Brown Act teleconferencing rules for public meetings requires: (1) at least a quorum to meet physically in-person within the City’s boundaries; (2) that location available to public to physically attend; (3) and that any member who participates remotely must have the address of their remote location listed on the Agenda and allow in-person public access at that remote location.

Because the traditional rules require listing any member’s remote location on the agenda and making it available to the public, it is not well equipped for unexpected events arising after the agenda is posted that may necessitate a member’s remote attendance.

Requirements and Limits of AB 2449
As stated above, AB 2449 marks a partial move back towards the traditional teleconferencing rules, while still giving a degree of flexibility for remote attendance. AB 2449 adds new teleconferencing procedures that do not require a state of emergency. (Government Code Section 54953(f)).
1 AB 2449 requires at least a quorum of members to participate in person from a single, publicly available location that is identified on the meeting agenda. (Section 54953(f)(1)). A member may no longer participate from a remote location within the City and cannot count as a part of the quorum.

If the physical quorum requirement is met, AB 2449 permits any absent member to attend virtually under two situations: (1) for “just cause;” and, (2) due to "emergency circumstances."

1. Virtual Attendance for “Just Cause”
Grounds for “Just Cause” - AB 2449 lists specific grounds that are considered “just cause.” • There is a childcare or caregiving need (for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner) that requires the member to participate remotely;
• A contagious illness prevents the member from attending in person; 1 Unless otherwise noted, all section references are to the Government Code. 292
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• There is a need related to a defined physical or mental disability that is not otherwise accommodated for; or
• Traveling while on official City business or for another state or local agency. (Section 54953(j)(2)).

Notification - For “just cause” remote attendance, a member must (1) notify the legislative/advisory body at the earliest opportunity of the need for remote participation, and (2) provide a general description of the circumstances justifying their virtual attendance. (Section 54953(f)(2)(A)(i)). This notification can be made as late as the start of a regular meeting. (Id.) No Vote or Approval Necessary – The legislative/advisory body does not need to vote on or approve a notification for “just cause” remote attendance. The member’s remote attendance, however, should be noted on the record and in the Meeting Minutes.

Limited to two (2) Annual Uses - A member can only utilize the “just cause” authorization twice per calendar year. (Section 54953(f)(2)(A)(i)).

2. Virtual Attendance Due to “Emergency Circumstances”
“Emergency Circumstance” Defined - AB 2449 defines “emergency circumstances” as “a physical or family medical emergency that prevents a member from attending the meeting in person.” (Section 54953(j)(1)).

Timing and Procedure: Unlike remote attendance for “just cause,” remote attendance due to “emergency circumstances” is not granted as a matter of course – instead it requires the remote member to submit a request and that a vote be conducted by the legislative/advisory body to approve or deny the request. That vote should be conducted at the start of the meeting. (Section 54953(f)(2)(A)(ii).

The member must further provide a general description of the emergency circumstance justifying such attendance. (Section 54953(f)(2)(A)(ii)). However, the member is not required to disclose any medical diagnosis, disability, or personal medical information. (Section 54953 (f)(2)(A)(ii)).

The request to participate remotely must be made “as soon as possible.” (Section 54953(f)(2)(A)(ii)(I)). However, if the request does not allow enough time for it to be placed on the agenda, the legislative body may still take action on the request. (Section 54954.2(b)(4)). If the legislative body votes not to accept the member’s basis for virtual attendance, then that member may only participate as a general member of the public and cannot vote on any agenda item. 293
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3. Additional Requirements for Remote Participation under AB 2449 In addition to requiring justification as either “just cause” or an “emergency circumstance” for remote appearance, AB 2449 imposes the following additional requirements:
• Quorum: As stated above, at least a quorum must participate from the same physical location that is available to the public.
• Noted for the Record: The request for remote attendance should be stated on the record at the beginning of each public meeting. Staff should keep a record of how many times each member has appeared remotely and the grounds for appearing remotely.
• Disclosure of other Individuals Present: Before any action is taken during the meeting, the remote member must publicly disclose whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and describe the general nature of the member’s relationship with any such individuals.
• Audio AND Visual Required: The member participating remotely must participate through both audio and visual technology. That is, appearance by telephone without video is not authorized, and a member should not turn off their camera during the meeting.
• Limited Number of Uses: Each member’s total remote participation cannot be for more than three (3) consecutive months, nor 20 percent of the regular meetings within a calendar year. For legislative bodies that have less than 10 regular meetings in a calendar year, a member cannot participate remotely for more than two (2) meetings.
• Each Meeting Treated Separately: A notification (for just cause grounds) or request (for emergency grounds) is required for each meeting a member remotely attends.

That is, a single notification/request cannot be made for multiple meeting dates. • No Resolution Required. Unlike AB 361, which required monthly Resolutions of the City Council, AB 2449 contains no such requirement. (See, Section 54953(f))
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4. Technological Requirements and Agenda Posting
AB 2449 requires that the public have audio and visual access to the meeting. This can be accomplished either by a two-way audiovisual program (such as Zoom) or a two-way telephonic service combined with live webcasting (for example, members of the public calling a conference line for audio participation while accessing the live video feed on YouTube). That is, the public must be able to remotely hear, observe, and address the legislative body in real time during the meeting. (Section 54953(f)(1)(A).

Importantly, when AB 2449 is being utilized, in the event that the City experiences a disruption in streaming the meeting (such as a power or internet outage), then no action may be taken on any agenda item until the public’s access has been restored. For this reason, having alternative/redundant methods of access may be beneficial to avoid the need to halt a meeting. As mentioned above, this could be accomplished by Zoom, while also having a phone line paired with a live video feed on YouTube or a local public television station as a backup option.2 As with all public meetings, the City must timely post the agenda and issue all necessary meeting notices. Such materials should indicate how the public may access the meeting and how public comment may be given. (Section 54953(f)(1)(B)).

Under AB 2449, the agenda does not need to be posted at all teleconferencing locations (54953(f)(1)), only the physical location at which a quorum of the legislative body will conduct the meeting needs to be made available to the public. (Id). The agenda and advisory meeting notices do not need to list the individual locations of the members who are participating remotely, and those locations do not need to be made open to the public. For example, if a member participates remotely from their home or any other remote location, then their address does not need to be disclosed, nor does their location need to be made open to the public.

Conclusion
AB 2449’s procedures represent a partial shift back toward the more restrictive, preCOVID teleconferencing procedures, but nonetheless allow some flexibility for members to attend remotely on a case-by-case basis.
2 We are informed that, like many agencies, the City will continue to allow the public to access meetings by Zoom, even when all members of a body are present. Even in scenarios where AB 2449 is not being used (i.e., all members are physically present at the meeting location) it is still advisable to have redundant/backup means of access, in case Zoom connectivity is lost.
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We will continue to monitor updates to AB 2449 as well as practical “best practice” that evolve as public agencies familiarize themselves with the new procedures.

In the meantime, please contact our office if you have any questions.

WDR/DPS
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AB 2449 – Teleconferencing Requirements
NOTE: The traditional Brown Act Teleconference option is still in place for an advanced publicly noticed teleconference location which is accessible to the public. Please see Brown Act Teleconference Options Memo for more information.

AB 2449 provides these additional options:
“Just Cause” “Emergency Circumstances”
Timing and Procedure
The member notifiesthe legislative body at the earliest opportunity possible (can be as late asthe start of a regular meeting) of their need to participate remotely for “just cause,” including a general description of the
circumstances justifyingtheir need to appear remotely.

Qualifying Reason
“Just cause” means any of the following:
• A childcare or caregiving need of a child, parent,
grandparent, grandchild, sibling, spouse, or
domestic partner that requires them to participate
remotely
• A contagious illness that prevents a member from
attending in person
• A need related to a physical or mental disability
not otherwise accommodatedfor
• Travel while on official business of the legislative
body or another state or local agency
Note: A member is limited to two virtual attendances
based on “just cause” per calendar year.

Timing and Procedure
The memberrequeststhe legislative body as soon as
possible to allow them to participate in the meeting
remotely due to “emergency circumstances” and provides
a general description of the circumstances justifying their need to appear remotely.
and
The legislative body takes action to approve the request. If the request does not allow sufficient time to place
proposed action on such a request on the posted agenda
for the meeting for which the request is made, the
legislative body may take action at the beginning of the meeting in accordance with existing Brown Act provisions to add an item to the agenda.

Qualifying Reason
“Emergency circumstances” means a physical or family
medical emergency that prevents a member from
attending in person(does not require disclosure of any
medical diagnosis or disability, or any personal medical information that is already exempt under existing law).

Note: The member must make a separate request for each
meeting in which they seek to participate remotely.

Other Requirements
Under either “just cause” or “emergency circumstances”:
• The member must publicly disclose at the meeting, before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individual(s).
• The member must participate throughboth audio and visualtechnology (cannot turn off camera). • Teleconferencing by a member may not be for a period of o more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year, or
o more than two meetingsif the legislative body regularly meets fewer than 10 times per calendar year • The public must be able to participate remotely through either:
o A two-way audiovisual platform (defined to mean an online platform that provides participants with the ability to participate in a meeting via both an interactive video conference and a two-way telephonic function); and/or
o A two-way telephonic service and a live webcasting of the meeting (defined to mean a telephone service that does not require internet access, is not provided as part of a two-way audiovisual platform, and allows participants to dial a telephone number to listen and verbally participate. • All votes must be by roll call.
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APPENDIX D - PUBLIC RECORDS ACT
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A Guide to the California Public Records Act
299

ACKNOWLEDGEMENTS
AUTHORS OF THE PEOPLE’S BUSINESS
The League gratefully acknowledges the work of the Public Records Act Publication Committee, which authored this guide. Each member devoted countless hours to this project, and the League sincerely thanks each of them.

The League also thanks the following individuals for their assistance in reviewing and commenting on drafts of this publication: Amy Albano, City Attorney, Thousand Oaks; Jason Alcala, Assistant City Attorney, Livermore; Michael Jenkins, City Attorney, Diamond Bar, Hermosa Beach, Rolling Hills, and West Hollywood; Randi Johl, City Clerk, Lodi; Michelle Marchetta Kenyon, City Attorney, Calistoga, Rohnert Park, and Moraga; Colleen Nicol, City Clerk, Riverside; Lisa Pope, City Clerk, Malibu; Shalice Reynoso, City Clerk, Buena Park; and Brian Weinberger, Consultant, Senate Local Government Committee.

In addition, the League thanks the law firms of Greines, Martin, Stein, & Richland and Best Best & Krieger for their help with final edits, and a special thanks to Cindy Cekander of Best Best & Krieger for her invaluable assistance.

LEAGUE STAFF
Patrick Whitnell
General Counsel
Kourtney Burdick
Deputy General Counsel
Rhonda Boglin
Legal Assistant
Gregory P. Priamos, Chair
City Attorney, Riverside
Timothy T. Coates
Greines, Martin, Stein, & Richland, LLP
Eric W. Danly
City Attorney, Cloverdale and Petaluma
Meyers Nave
Roxanne M. Diaz
City Attorney, Hidden Hills
Richards, Watson & Gershon
Shawn D. Hagerty
City Attorney, Santee
Best Best & Krieger
Jolie Houston
City Attorney, Los Altos
Berliner Cohen
Craig Labadie
City Attorney, Concord
Juli Christine Scott
Chief Assistant City Attorney, Burbank
Kristina R. Scott
Deputy City Attorney, Los Angeles
Eileen M. Teichert
City Attorney, Sacramento
Paul H. Zarefsky
Deputy City Attorney, San Francisco
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I
THE PEOPLE’S BUSINESS:

A GUIDE TO THE PUBLIC RECORDS ACT
CH. 1: INTRODUCTION AND OVERVIEW
CH. 2: THE BASICS
CH. 3: RESPONDING TO A PUBLIC

RECORDS REQUEST
CH. 4: EXEMPTIONS
CH. 5: JUDICIAL REVIEW AND REMEDIES
CH. 6: RECORDS MANAGEMENT
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THE PEOPLE’S BUSINESS:

A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT
Copyright © 2008
League of California Cities
All rights reserved. This publication, or parts thereof, may not be reproduced in any form without the permission of the League of California Cities.

II 302

TABLE OF CONTENTS
FOREWORD: ............................................................................................................................................. iv CHAPTER 1: INTRODUCTION AND OVERVIEW
Fundamental Right of Access to Information..........................................................................................2 Fundamental Right of Privacy and Need for Efficient and Effective Government.................................3 Achieving Balance ....................................................................................................................................3 Proposition 59...........................................................................................................................................3 Beyond the Law........................................................................................................................................4 CHAPTER 2: THE BASICS
Agencies Covered ....................................................................................................................................6 What Are Public Records?........................................................................................................................6 Who Can Request Records? ....................................................................................................................7 CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
Types of Requests...................................................................................................................................10 Form of the Request...............................................................................................................................11 Content of the Request ..........................................................................................................................11 The Duty to Respond..............................................................................................................................11 Timing of the Response..........................................................................................................................11 Extending the Response Time................................................................................................................11 Assisting the Requester .........................................................................................................................12 Locating Records ....................................................................................................................................12 Redacting Records..................................................................................................................................13 Types of Responses................................................................................................................................13 Waiver .....................................................................................................................................................13 No Duty to Create a Record or to Create a Privilege Log .....................................................................13 Timing of Disclosure ...............................................................................................................................13 Fees.........................................................................................................................................................14 CHAPTER 4: EXEMPTIONS
Overview of Exemptions ........................................................................................................................18 Specific Exemptions ...............................................................................................................................19 Architectural and Official Building Plans .......................................................................................19 Attorney Client Communications and Attorney Work Product ....................................................19 Code Enforcement Records...........................................................................................................20 Drafts...............................................................................................................................................20 Election Information .......................................................................................................................21 Identity of Informants.....................................................................................................................21 Law Enforcement Records.............................................................................................................22 Library Circulation Records............................................................................................................25 Licensee Financial Information......................................................................................................25 Medical Privacy Laws.....................................................................................................................25 Official Information Privilege..........................................................................................................27 Pending Litigation or Claims ..........................................................................................................28 Personal Contact Information........................................................................................................29 Personnel Records .........................................................................................................................29 Public Contracting Documents......................................................................................................31 Real Estate Appraisals and Engineering Evaluations....................................................................32 Recipients of Public Services.........................................................................................................32 Taxpayer Information .....................................................................................................................33 Trade Secrets and Other Proprietary Information.........................................................................33 Utility Customer Information..........................................................................................................33 Public Interest Exemption ......................................................................................................................34 Effect of Proposition 59 on Exemptions ................................................................................................35 CHAPTER 5: JUDICIAL REVIEW AND REMEDIES
Overview .................................................................................................................................................44 The Trial Court Process and Decision ....................................................................................................44 Appellate Review....................................................................................................................................45 Attorney Fees and Costs........................................................................................................................46 CHAPTER 6: RECORDS MANAGEMENT
Public Meeting Records .........................................................................................................................50 Electronic Records..................................................................................................................................51 Electronic Discovery...............................................................................................................................52 Records Retention and Destruction Laws.............................................................................................52 APPENDIX: Frequently Requested Information and Records ...............................................................55 303

FOREWORD
The goal of this publication is to provide a comprehensive overview of the California Public Records Act for local government officials and employees, the public and the news media. This guide offers practical advice to assist local agencies in complying with the requirements of the Act and other related state laws. The guide is focused on settled law and is not intended to resolve emerging and unresolved legal issues.

The League thanks the following organizations representing diverse views and constituencies that reviewed, or were given the opportunity to review, this publication:

This publication is current as of March, 2008. Updates to the publication responding to changes in the Public Records Act and related laws including court interpretations are available at www.cacities.org/opengov.

As used in this guide, “local agency” means all public agencies to which the Public Records Act applies. This publication is not intended to provide legal advice. A local agency’s legal counsel is responsible for advising its governing body and staff, and should always be consulted when legal issues arise.

Additional copies of this publication as well as an individual table of “Frequently Requested Information and Records” may be purchased by visiting CityBooks online at www.cacities.org/store.

Association of California Water Agencies
California Association of Sanitation Agencies
California Attorney General’s Office
California Common Cause
California District Attorneys Association
California First Amendment Coalition
California Newspaper Publishers Association
California Redevelopment Association
California School Boards Association
California Special Districts Association
California State Association of Counties
Californians Aware
City Clerks Association of California
Community College League of California
First Amendment Project
League of Women Voters of California
IV 304

FUNDAMENTAL RIGHT OF ACCESS

TO INFORMATION

FUNDAMENTAL RIGHT OF PRIVACY

AND NEED FOR EFFICIENT AND

EFFECTIVE GOVERNMENT

ACHIEVING BALANCE
PROPOSITION 59

BEYOND THE LAW
CHAPTER 1:

INTRODUCTION AND OVERVIEW
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2 THE PEOPLE’S BUSINESS Q Chapter 1: Introduction and Overview

Q FUNDAMENTAL RIGHT OF ACCESS TO INFORMATION
The California Public Records Act1 (the “Act”) is an indispensable component of California’s commitment to open government. The purpose of the Act is to give the public access to information that enables them to monitor the functioning of their government.2 The Act’s fundamental precept is that
governmental records shall be disclosed to the public, upon request, unless there is a legal basis not to do so.

The Act provides for two types of access. One is a right to inspect public records:
“Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.”3 The other is a right to prompt availability of copies of those records:
“Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.”4 These rights of access are by no means unlimited and do not extend to records that are exempt from disclosure. In fact, the Act was the culmination of a 15-year effort by the Legislature to create a comprehensive general records law that attempted to accumulate all the exemptions in one location.

Previously, one was required to look at the law governing the specific type of record in question in order to determine its disclosability. The Act now expressly states or references other laws that are the sources of legal authority permitting records to be withheld.5
Practice Tip:

Express legal authority
is required to justify
denial of access
to public records.

The perception that
disclosure of a record
could lead to potential
embarrassment of the
local agency, alone, is
not a legal basis for
denying access.
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THE PEOPLE’S BUSINESS Q Chapter 1: Introduction and Overview 3

Q FUNDAMENTAL RIGHT OF PRIVACY AND NEED FOR

EFFICIENT AND EFFECTIVE GOVERNMENT
Two recurring interests underlie many of the exemptions from disclosure. First, many exemptions under the Act are based on protecting an individual’s fundamental right to privacy and permit withholding of, for example, certain personnel or medical records.6
If personal information is required from a person
(for example, a government employee or appointee, or an applicant for government employment/ appointment, as a precondition for the employment or appointment), a court would likely recognize a privacy interest in such information.7
However, if information is provided voluntarily in order to acquire a benefit, the information relates to serious wrongdoing, or the information is associated with an applicant’s qualifications, a court is less likely to recognize a privacy right.8 Second, a number of exemptions are based on the government’s need to perform its assigned functions in a reasonably efficient and effective manner, such as maintaining confidentiality of investigative records, official information, pending litigation records, and preliminary drafts. In addition, a record may be withheld whenever the public interest in nondisclosure clearly outweighs the public interest in disclosure.9 The
deliberative process privilege combines these two interests in affording a measure of privacy to decision makers and concurrently aiding in the efficiency and effectiveness of government.10

Q ACHIEVING BALANCE
In enacting the California Public Records Act, the Legislature struck a balance between two competing, fundamental
interests. The legislative findings declare that access to information concerning the conduct of the people’s business is a fundamental and necessary right for every person in the state and that the Legislature is “mindful of the right of individuals to privacy.”11 The Act balances these competing interests by preserving an “island of privacy upon the broad sea of enforced disclosure.”12 For the past forty years, courts have also balanced these competing interests in deciding whether to order disclosure of records.13 In administering the provisions of the Act, agencies must often balance the right of public access against the right of privacy and the need for governmental efficiency and effectiveness.

Q PROPOSITION 59
In November 2004, the voters approved Proposition 59, amending the California Constitution to include the public’s right to access public records. “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”14 Proposition 59 expressly states that “[t]his subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records…that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.”15 The courts have not yet squarely ruled whether Proposition 59 provides the public with a greater right of access than is provided under the Act. 307
4 THE PEOPLE’S BUSINESS Q Chapter 1: Introduction and Overview

Q BEYOND THE LAW
The Act itself provides that “except as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter.”16 A number of local agencies have gone beyond the mandates of the Act by adopting their own “sunshine ordinances” to afford greater public access.

To encourage local agencies’ compliance, the Act provides for a mandatory award of court costs and attorney’s fees to a prevailing plaintiff. A plaintiff need not obtain all of the requested records in order to be the prevailing party in litigation. A plaintiff is also considered the prevailing party if the lawsuit ultimately motivated the agency to provide the requested records.17
This publication is intended to help local agencies navigate the Act, comply with the spirit and intent of the Act, and interpret the Act in furtherance of open government. This publication is further intended to help members of the public understand their rights of access to public information, as well as the limitations on those rights.

Endnotes
1 Gov. Code, §§ 6250 et seq. All code references are to the California Code unless otherwise indicated. 2 U.S. Dept. of Justice v. Reporters Com. for Freedom of Press (1989) 489 U.S. 749; CBS, Inc. v. Block (1986) 42 Cal.3d 646; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 3 Gov. Code, § 6253, subd. (a).
4 Gov. Code, § 6253, subd. (b).
5 Gov. Code, §§ 6254, subd. (k), 6276.02 et seq.
6 Cal. Const., art. I, § 1; Gov. Code, §§ 6254, subd. (c), 6254, subd. (k), 6255; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579.
7 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762; Braun v. City of Taft (1984) 154 Cal.App.3d 332; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136; Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.

App.4th 159; Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788. 8 Calif. State Univ., Fresno Assn. v. Superior Court (2001) 90 Cal.App.4th 810; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762; Register Div. Freedom Newspaper, Inc. v. County of Orange (1984) 158 Cal.App.3d 893; CBS, Inc. v. Block (1986) 42 Cal.3d 646; Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788; BRV, Inc. v.

Superior Court (2006) 143 Cal.App.4th 742.
9 Gov. Code, § 6255.
10 See “Deliberative Process Privilege,” p. 35.
11 Gov. Code, § 6250; Cal. Const., art. I, § 3, subd. (b)(3). 12 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645. 13 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136; American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307; Britt v. Superior Court (1978) 20 Cal.3d 844. 14 Cal. Const., art. I, § 3, subd. (b)(1).
15 Cal. Const., art. I, § 3, subd. (b)(5).
16 Gov. Code, § 6253, subd. (e).
17 Roberts v. City of Palmdale (1993) 19 Cal.App.4th 469; Belth v. Garamendi (1991) 232 Cal.App.3d 896. 308
CHAPTER 2:

THE BASICS

AGENCIES COVERED
WHAT ARE PUBLIC RECORDS?
WHO CAN REQUEST RECORDS?
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6 THE PEOPLE’S BUSINESS Q Chapter 2: The Basics

Q AGENCIES COVERED
The Act applies to state and local agencies. For purposes of the Act, a state agency is defined to mean “every state office, officer, department, division, bureau, board and commission or other state body or agency.”1
A local agency includes a county, city (whether general law or chartered), city and county, school district, municipal corporation, special district, community college district or political subdivision.2 This
encompasses any committees, boards, commissions or departments of those entities as well. Nonprofit entities that are legislative bodies under the Brown Act are also subject to the Act. Private nonprofit entities that are delegated legal authority to carry out public functions are also subject to the Act if they are funded with public money.3
The Act does not apply to the Legislature or the judicial branch.4 The Legislative Open Records Act covers the Legislature.5
Most court records are disclosable as
a matter of public right of access to courts under the First Amendment of the United States Constitution.6
Q WHAT ARE PUBLIC RECORDS?
The Act defines “public records” as “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.”7 A writing is defined as “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and 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.”8 The definition of a public record is quite broad and is intended to encompass much more than written or printed documents. A public record is subject to disclosure under the Act “regardless of its physical form or characteristics.”9
For example, email messages and other electronic information are public records if they otherwise meet the statutory definition.
310
THE PEOPLE’S BUSINESS Q Chapter 2: The Basics 7
Over the years the courts have both broadened and limited the scope of the definition of a “public record.” First, it is clear that the term “public records” encompasses more than simply those documents that public officials are required by law to keep as official records. Courts have held that a public record is one that is “necessary or convenient to the discharge of [an] official duty” such as a status memorandum provided to the City Manager on a pending project.10 Second, courts have observed that merely because the writing is in the possession of the local agency, it is not automatically a public record. It must relate to the conduct of the public’s business.11 For example, records containing purely personal information unrelated to the conduct of the people’s business, such as an employee’s personal address list or grocery list, are considered outside the scope of the Act.12
Q WHO CAN REQUEST RECORDS?
All “persons” have the right to inspect and copy disclosable public records. A “person” need not be a resident of California or a citizen of the United States to make use of the Act.13 “Persons” include corporations, partnerships, limited liability companies, firms or associations.14 Often requesters include persons who have filed claims or lawsuits against the government, or who are investigating the possibility of doing so, or who just want to know what their government officials are up to. Local agencies and their officials are entitled to access public records on the same basis as any other person.15 Further, local agency officials may access public records of their own agency that are otherwise exempt when authorized to do so as part of their official duties.16 With certain exceptions, neither the media nor a person who is the subject of a public record has any greater right of access to public records than any other person.17 311
8 THE PEOPLE’S BUSINESS Q Chapter 2: The Basics
Endnotes
1 Gov. Code, § 6252, subd. (f). Excluded from the definition of state agency are those agencies provided for in article IV (except section 20(k)) and article VI of the Cal. Constitution. 2 Gov. Code, § 6252, subd. (a).
3 Gov. Code, § 6252, subd. (a), 85 Ops.Cal.Atty.Gen. 55 (2002). 4 Gov. Code, § 6252, subds. (a), (b); Mack v. State Bar of Cal. (2001) 92 Cal.App.4th 957. 5 Gov. Code, § 1070
6 Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258; Champion v. Superior Court (1988) 201 Cal.

App.3d 777
7 Gov. Code, § 6252, subd. (e).
8 Gov. Code, § 6252, subd. (g).
9 Gov. Code, § 6252, subd. (e).
10 Braun v. City of Taft (1984) 154 Cal.App.3d 332; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762. 11 Gov. Code, § 6252, subd. (e); Braun v. City of Taft (1984) 154 Cal.App.3d 332; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762.
12 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762. 13 Gov. Code, § 6252, subd. (c); Connell v. Superior Court (1997) 56 Cal.App.4th 601. 14 Gov. Code, § 6252, subd. (c).
15 Gov. Code, § 6252.5; Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759. 16 Gov. Code, § 6252, subd. (b). See also Gov. Code, § 54957.2. 17 Marylander v. Superior Court (2002) 81 Cal.App.4th 1119; Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.

App.661. See “Information That Must Be Disclosed,” p. 22; “Requests for Journalistic or Scholarly Purposes,” p. 24. 312

TYPES OF REQUESTS

FORM OF THE REQUEST

CONTENT OF THE REQUEST

THE DUTY TO RESPOND

TIMING OF THE RESPONSE

EXTENDING THE RESPONSE TIME

ASSISTING THE REQUESTER

LOCATING RECORDS

REDACTING RECORDS

TYPES OF RESPONSES
WAIVER

NO DUTY TO CREATE A RECORD

OR TO CREATE A PRIVILEGE LOG

TIMING OF DISCLOSURE
FEES
CHAPTER 3:

RESPONDING TO A PUBLIC

RECORDS REQUEST
313
10 THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request

Q TYPES OF REQUESTS
There are two ways to gain access to a public record – inspecting the record at the local agency’s offices, or obtaining a copy from the local agency. The local agency may not dictate to the requester which option must be used. That is the requester’s decision. Indeed, a requester does not have to choose between inspection and copying but instead can choose both options. For example, a requester may first inspect a set of records, and then, based on that review, decide which records should be copied.

A requester may inspect public records during the local agency’s regular office hours. 1 This does not mean
that a requester has a right to demand to see a record and immediately gain access to it. The right to inspect is constrained by an implied rule of reason to protect records against theft, mutilation, or accidental damage, prevent interference with the orderly functioning of the office, and generally avoid chaos in record archives.2
Moreover, the agency’s time to respond to an inspection request is governed by the deadlines set forth below, which give the agency a reasonable opportunity to search for, collect, and, if necessary, redact exempt information prior to the records being disclosed in an inspection.3 If a copy of a record has been requested, the local agency generally must provide an exact copy except where it is “impracticable” to do so.4
The term “impracticable” does not necessarily mean that compliance with the public records request would be inconvenient or time-consuming to the local agency. Rather, it means that the agency must provide the best or most complete copy of the requested record that is reasonably possible.5
As with the right to inspect public records, the same rule of reasonableness applies to the right to obtain copies of records. Thus, the custodian may impose reasonable restrictions on general requests for copies of voluminous classes of documents.6 The Act does not provide for a standing or continuing request for documents that may be generated in the future. However, the Brown Act provides that a person may make a request to receive a mailed copy of the agenda, or all documents constituting the agenda packet for any meeting of the legislative body. This request shall be valid for the calendar year in which it is filed.7 Practice Tip:

If the public records request
does not make clear whether
the requester wants to
inspect or obtain a copy of
the record or records being
sought, the local agency
should seek clarification
from the requester without
delaying the process of
searching for, collecting, and
redacting or “whiting out”
exempt information in the
records.
314
THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request 11

Q FORM OF THE REQUEST
A public records request may be made in writing or orally, in person or by phone.8 Further, a written request may be made in paper or electronic form and may be mailed, emailed, faxed, or personally delivered. A local agency may ask, but not require, that the requester put an oral request in writing. In general, a written request is preferable to an oral request because it provides a record of when the request was made and what was requested, and helps the agency respond in a more timely and thorough manner.

Q CONTENT OF THE REQUEST
A public records request must reasonably describe an identifiable record or records.9 It must be focused and specific10 and clear enough so that the agency can decipher what record or records are being sought.11 A request that is so open-ended that it amounts to asking for all of a department’s files is not reasonable.

If a request is not clear or is overly broad, the local agency still has a duty to assist the requester in reformulating the request to make it more clear or less broad.12 A request does not need to precisely identify the record or records being sought. For example, a requester may not know the exact date of a record or its title or author, but if the request is descriptive enough for the local agency to understand which records fall within its scope, the request is reasonable. Requests may identify writings somewhat generally by their content.13 No magic words need be used to trigger the local agency’s obligation to respond to a request for records.

The content of the request must simply indicate that a public record is being sought. Occasionally, a requester may incorrectly refer to the federal Freedom of Information Act (“FOIA”) as the legal basis for the request. This does not excuse the agency from responding if the request seeks public records. A public records request need not state its purpose or the use to which the record will be put by the requester.14 A requester does not have to justify or explain the reason for exercising a fundamental right.15

Q THE DUTY TO RESPOND
Under no circumstances should a local agency simply not respond to a public records request. Even if the request does not reasonably describe an identifiable record, the requested record does not exist, or the record is exempt from disclosure, the agency must respond.16

Q TIMING OF THE RESPONSE
Time is critical in responding to public records requests. A local agency must respond promptly, but no later than ten calendar days from receipt of the request, to notify the requester whether records will be disclosed.17 If the request is received after business hours or on a weekend or holiday, the next business day may be considered the date of receipt. The ten-day response period starts with the first calendar day after the date of receipt.18 If the tenth day falls on a weekend or holiday, the next business day is considered the deadline for responding to the request.19 The time limit for responding to a public records request is not necessarily the same as the time within which the records must be disclosed to the requester.20

Q EXTENDING THE RESPONSE TIME
A local agency may extend the ten-day response period for up to 14 additional calendar days because of the need:
• To search for and collect the requested records from field facilities or other establishments separate from the office processing the request;
• To search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request;
Practice Tip:

A public records request is
different than a question or
series of questions posed
to local agency officials or
employees. The Act creates
no duty to answer written
or oral questions submitted
by members of the public.

But if an existing and readily
available record contains
information that would
directly answer a question,
from a customer service
standpoint, it is advisable to
either answer the question
or provide the record in
response to the question.

Practice Tip:

Though not legally required,
a local agency may find it
convenient to use a written
form for public records
requests, particularly for
those instances when a
requester “drops in” to an
office and asks for one or
more records. The local
agency cannot require
the requester to use a
particular form, but having
the form and even having
agency staff assist with
filling out the form may help
agencies better identify the
information sought, follow
up with the requester using
the contact information
provided, and provide more
effective assistance to the
requester.
315
12 THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request • To consult with another agency having substantial interest in the request (such as a state agency), or among two or more components of the local agency (such as two city
departments) with substantial interest in the request; and/or • In the case of electronic records, to compile data, write programming language or a computer program, or to
construct a computer report to extract data.21
No other reasons justify an extension of time to respond to a public records request. For example, a local agency may not extend the time on the basis that it has other pressing business, or that the employee most knowledgeable about the records sought is on vacation or otherwise unavailable.

If a local agency exercises its right to extend the response time beyond the ten-day period, it must do so in writing, stating the reasons for the extension and the anticipated date of the response within the 14-day extension period.22 The agency does not need the consent of the requester to extend the time for response.

Q ASSISTING THE REQUESTER
Local agencies must provide assistance to requesters who are having difficulty making a focused and effective request.23 To the extent reasonable under the circumstances, a local agency must:
• Assist the requester in identifying records that are responsive to the request or the purpose of the request, if stated;
• Describe the information technology and physical location in which the records exist; and • Provide suggestions for overcoming any practical basis for denying access to records.24 Alternatively, the local agency may satisfy its duty to assist the requester if it gives the requester an index of records.25 Ordinarily an inquiry into a requester’s purpose in seeking access to a public record is inappropriate,26 but such an inquiry may be proper if it will help assist the requester in making a focused request that reasonably describes identifiable records.27

Q LOCATING RECORDS
A local agency must make a reasonable effort to search for and locate the record or records that have been requested.28 No bright-line test exists to determine whether an effort is reasonable. That determination will depend on the facts and circumstances surrounding each request. In general, upon the local agency’s receipt of a public records request, those persons or offices within the agency that would most likely be in possession of responsive records should be consulted in an effort to locate such records.

The right to access public records is not without limits. A local agency is not required to perform a “needle in a haystack” search to locate the record or records sought by the requester. 29 Nor is it compelled to undergo a search that will produce a “huge volume” of material in response to the request.30 On the other hand, an agency typically will endure some burden – at times, a significant burden – in its records search. Usually that burden alone will be insufficient to justify noncompliance with the request.31 Nevertheless, if the request imposes a substantial enough burden, an agency may decide to withhold the requested records on the basis that the public interest in nondisclosure clearly outweighs the public interest in disclosure.32
Practice Tip:

If a local agency is having
difficulty responding to a
public records request within
the 10-day response period,
and there are not grounds
to extend the response
period for an additional 14
days, the agency may obtain
an extension by consent
of the requester. Often a
requester will cooperate
with the agency, particularly
if the requester believes the
agency is acting reasonably
and conscientiously in
processing the request. It is
also advisable to document
in writing any extension
agreed to by the requester.
316
THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request 13

Q REDACTING RECORDS
Some records contain information that must be disclosed, along with information that is exempt from disclosure. A local agency has a duty to provide such a record to the requester in redacted form if the nonexempt information is “reasonably segregable” from that which is exempt,33 unless the burden of redacting the record becomes too great.34 What is reasonably segregable will depend on the circumstances.

If exempt information is inextricably intertwined with nonexempt information, the record may be withheld in its entirety.35

Q TYPES OF RESPONSES
After conducting a reasonable search for requested records, a local agency has only a limited number of possible responses. If a search yields no responsive records, the agency must inform the requester. If the agency locates a responsive record, it must decide whether to:
• Disclose the record;
• Withhold the record; or
• Disclose the record in redacted form.

In responding to a written public records request, if the local agency does not have the record or has decided to withhold it, or if the requested record is disclosed in redacted form, the agency’s response must be in writing, and must identify by name and title each person responsible for the decision.36 If the record is withheld in its entirety or provided to the requester in redacted form, the local agency must state the legal basis under the Act for its decision not to comply fully with the request.37 Statements like “we don’t give up those types of records” or “our policy is to keep such records confidential” will not suffice.

Q WAIVER
Generally, whenever a local agency discloses an otherwise exempt public record to any member of the public, the disclosure constitutes a waiver of most of the exemptions contained in the Act for all future requests for the same information.38 There are a number of statutory exceptions to the waiver provisions, including disclosures made through discovery or other legal proceedings and disclosures to another governmental agency that agrees to treat the disclosed material as confidential.39

Q NO DUTY TO CREATE A RECORD OR TO CREATE A PRIVILEGE LOG A local agency has no duty to create a record that does not exist at the time of the request.40 There is also no duty to reconstruct a record that was lawfully discarded prior to receipt of the request.

The Act does not require a local agency to create a “privilege log” or list that identifies the specific records being withheld.41 The response only needs to identify the legal grounds for nondisclosure. If the agency creates a privilege log for its own use, however, that document may be considered a public record and may be subject to disclosure in response to a later public records request.

Q TIMING OF DISCLOSURE
Although the law precisely defines the time for responding to a public records request, it is less precise in defining the deadline for disclosing records. The Act simply states that copies of records must be provided “promptly.”42 As for when a requester must be given access to inspect records, the Act is silent, but it is generally assumed that the same standard of promptness applies. Further, the Act states that nothing therein “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records,”43 which signals the importance of promptly disclosing records to the requester.

Practice Tip:

Care should be taken
in deciding whether to
disclose, withhold, or redact
a record. When a public
records request presents
novel or complicated
issues or implicates policy
concerns or third party
rights, it is advisable to
consult with the local
agency’s legal counsel
before making this decision.

Practice Tip:

A local agency should
always document that it
is supplying the record to
the requester. The fact and
sufficiency of the response
may become points of
dispute with the requester.

Any response that denies
in whole or in part an oral
public records request
should be put in writing.
317
14 THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request Neither the ten-day response period
nor the additional fourteen-day
extension may be used to delay or
obstruct the inspection or copying
of public records.44 For example,
requests for commonly disclosed
records that are held in a manner
that allows for prompt disclosure
should not be withheld because of the
statutory response period.

As a practical matter, records often
are disclosed at the same time the
local agency responds to the request.

But in some cases, that time frame for
disclosure is not feasible because of
the volume of records encompassed
by the request.

Q FEES
The public records process is in many respects cost-free to the requester. No fees may be charged to reimburse the local agency’s costs incurred to search for a record, review a record, redact a record, assist a requester in formulating a request, or respond to a request. Nor may the local agency charge a fee for the requester’s inspection of a record, even if staff time is expended in the inspection. For example, if concern for the security of records requires that an agency employee sit with the requester during the inspection, or if a record must be redacted before it can be inspected, the agency may not bill the requester for this expenditure of staff time.

The local agency may charge a fee for the direct costs of duplicating a record when the requester is seeking a copy,45 or it may charge a statutory fee, if applicable.46 Direct costs of duplication include costs of reproduction, and conceivably the cost of staff time expended in making a copy of the record.47 An agency may require payment in advance before providing the requested copies;48 however, no payment can be required merely to look at a record where copies are not sought.

Although permitted to charge a fee for duplication costs, a local agency may choose to reduce or waive that fee.49 For example, the agency might waive the fee in a particular case because the requester is indigent; or it might generally choose to waive fees below a certain dollar threshold because the administrative costs of collecting the fee would exceed the revenue to be collected. An agency may also set a customary copying fee for all requests that is below the amount that reflects actual duplication costs.

Practice Tip:

When faced with a
voluminous public records
request, a local agency
has numerous options
– for example, asking the
requester to narrow the
request, asking the requester
to consent to a later
deadline for responding to
the request, and providing
responsive records (whether
redacted or not) on a
“rolling” basis, rather than
in one complete package.

It is sometimes possible for
the agency and requester
to work cooperatively to
streamline a public records
request, with the result that
the requester obtains the
records or information the
requester truly wants, while
the burdens on the agency in
complying with the request
are reduced.

Practice Tip:

The local agency may wish
to maintain a separate file
for copies of records that
have been withheld and
those produced (including
redacted versions) in
the event there is a legal
challenge to the decision
regarding the disclosure.
318
THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request 15 Endnotes
1 Gov. Code, § 6253, subd. (a).
2 Bruce v. Gregory (1967) 65 Cal.2d 666; Rosenthal v. Hansen (1973) 34 Cal.App.3d 754; 64 Ops.Cal.Atty.Gen. 317 (1981).
3 See “Timing of the Response,” p. 11.
4 Gov. Code, § 6253, subd. (b).
5 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754.
6 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754; 64 Ops.Cal.Atty.Gen. 317 (1981). 7 Gov. Code, § 54954.1; see also Gov. Code § 65092 [standing request for notice of public hearing], Cal. Code Regs., tit. 14, ch. 3, §§ 15072, 15082 and 15087 [standing requests for notice related to environmental documents]. 8 Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381. 9 Gov. Code, § 6253, subd. (b).
10 Rogers v. Superior Court (1993) 19 Cal.App.4th 469.
11 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159. 12 See “Assisting the Requester,” p. 12.
13 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159. 14 See Gov. Code, § 6257.5; ACLU Foundation v. Deukmejian (1982) 32 Cal.3d 440. 15 Gov. Code, § 6250; Cal. Const., article I, § 3.
16 Gov. Code, § 6253.
17 Gov. Code, § 6253, subd. (c).
18 Civ. Code, § 10.
19 Civ. Code, § 11.
20 See “Timing of Disclosure,” p. 13.
21 Gov. Code, § 6253, subds. (c)(1) - (4).
22 Gov. Code, § 6253, subd. (c).
23 Gov. Code, § 6253.1; State Board of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177. 24 Gov. Code, § 6253.1, subds. (a)(1) - (3).
25 Gov. Code, § 6253.1, subd. (d)(3).
26 See Gov. Code, § 6257.5.
27 Gov. Code, § 6253.1, subd. (a).
28 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159. 29 Cal. First Amend.Coalition v. Superior Court (1998) 67 Cal.App.4th 159. 30 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159. 31 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159. 32 ACLU Foundation v. Deukmejian (1982) 32 Cal.3d 440; see also 64 Ops. Cal.Atty.Gen. 317 (1981). 33 Gov. Code, § 6253, subd. (a); ACLU Foundation v. Deukmejian (1982) 32 Cal.3d. 440. 34 ACLU Foundation v. Deukmejian (1982) 32 Cal.3d. 440. 35 ACLU Foundation v. Deukmejian (1982) 32 Cal.3d. 440. 36 Gov. Code, §§ 6253, subd. (d), 6255, subd. (b).
37 Gov. Code, § 6255, subd. (b).
38 Gov. Code, § 6254.5; 86 Ops.Cal.Atty.Gen. 132 (2003). 39 Gov. Code, § 6254.5.
319
16 THE PEOPLE’S BUSINESS Q Chapter 3: Responding to a Public Records Request 40 Gov. Code, § 6252, subd. (e); Haynie v. Superior Court (2001) 26 Cal.4th 1061; 71 Ops.Cal.Atty.Gen. 235 (1988). 41 Haynie v. Superior Court (2001) 26 Cal.4th 1061.
42 Gov. Code, § 6253, subd. (b); 88 Ops.Cal.Atty.Gen. 153 (2005); 89 Ops.Cal.Atty.Gen. 39 (2006). 43 Gov. Code, § 6253, subd. (d).
44 Gov. Code, § 6253, subd (d).
45 Gov. Code, § 6253, subd. (b).
46 Gov. Code, § 6253, subd. (b); 85 Ops.Cal.Atty.Gen. 225 (2002); see, e.g., Gov. Code, § 81008. 47 North County Parents Organization v. Dept. of Education (1994) 23 Cal.App.4th 144. 48 Gov. Code, § 6253, subd. (b).
49 Gov. Code, § 6253, subd. (e); North County Parents Organization v. Dept. of Education (1994) 23 Cal.App.4th 144. 320
CHAPTER 4:

EXEMPTIONS

OVERVIEW OF EXEMPTIONS

SPECIFIC EXEMPTIONS
Architectural and Official Building Plans
Attorney Client Communications
and Attorney Work Product
Code Enforcement Records
Drafts
Election Information
Identity of Informants
Law Enforcement Records
Library Circulation Records
Licensee Financial Information
Medical Privacy Laws
Official Information Privilege
Pending Litigation or Claims
Personal Contact Information
Personnel Records
Public Contracting Documents
Real Estate Appraisals and Engineering Evaluations
Recipients of Public Services
Taxpayer Information
Trade Secrets and Other Proprietary Information
Utility Customer Information

PUBLIC INTEREST EXEMPTION
EFFECT OF PROPOSITION 59

ON EXEMPTIONS
321
18 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions

Q OVERVIEW OF EXEMPTIONS
The underlying purpose of the Act is to assure broad access to public records. Any grounds for denying access to public records must be found in the enumerated exemptions of the Act.1 The Act’s general policy
of disclosure can only be accomplished if the exemptions are narrowly construed. As a result, courts—both as a matter of statutory interpretation and now by constitutional mandate—construe exemptions under the Act narrowly.2
This means that in responding to a record request, the local agency must allow access to the record unless it can identify an exemption within the Act that would justify nondisclosure of the information. Moreover, in circumstances where a record may contain some information that is subject to an exemption and other information that is not, the local agency must produce the record, but may redact the information that is exempt.

As discussed below, many of the exemptions are very specific and pertain to particular types of public records such as certain personnel, police, or medical records. Two exemptions, however, have a broader scope and may apply even if a record does not fall within any other exemption contained in the Act. First, the Act exempts records that are otherwise exempt from disclosure under other statutes.3 Second, the
Act’s “public interest” or “catchall” provision allows nondisclosure where the local agency demonstrates on the facts of a particular case that the public interest in nondisclosure clearly outweighs the public interest in disclosure.4
Practice Tip:

When evaluating a record
for purposes of determining
whether it falls within
any exemption under the
Act, a local agency should
always bear in mind that
it might also be subject
to nondisclosure under
other statutes such as the
Evidence Code or Penal
Code.5
322
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 19

Q SPECIFIC EXEMPTIONS
Architectural and Official Building Plans
Certain of the materials submitted by third parties to local agencies may qualify for federal copyright protection.6
In addition, local agencies may claim a copyright in
many of their own records.

The Act exempts records, “the disclosure of which is exempted or prohibited pursuant to federal or state law….”7
Federal copyright law defines “architectural
work” as the “design of a building as embodied in any tangible medium of expression, including building, architectural plans, or drawings.”8 The law includes architectural
plans as “original works of authorship” which have an automatic federal copyright protection.9
Architectural plans are therefore protected under the federal copyright law and may be inspected, but cannot be copied without the permission of the owner. “Fair use of copyrighted materials” does not require disclosure or the right to copy architectural plans. The Fair Use rule is a defense to a copyright infringement action; it is not proper to use the Fair Use rule offensively in order to obtain copyrighted materials.10
State law addresses inspection and duplication of building plans and authorizes inspection of the plans by the public.11 The official copy of building plans maintained by a local agency’s building department may be inspected, but may not be copied without first requesting the written permission of the licensed or registered professional who signed the document and the original or current property owner. A request for written permission from the professional must be accompanied by a statutorily prescribed affidavit signed by the person requesting to make copies, attesting that the copy of the plans shall only be used for the maintenance, operation and use of the building, that the drawings are instruments of professional service and are incomplete without the interpretation of the certified, licensed or registered professional of record, and that a licensed architect who signs and stamps plans, specifications, reports, or documents shall not be responsible for damage caused by subsequent unauthorized changes to or uses of those plans.12 After receiving this required information, the professional cannot unreasonably withhold written permission to make copies of the plans.13
Additionally, the California Attorney General has determined that interim grading documents, including geology, compaction, and soils reports are public records.14 Attorney Client Communications and Attorney Work Product The Act specifically exempts from disclosure “records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, the provisions of the Evidence Code relating to privilege.”15 The Act’s exemptions protect attorney client privileged communications and attorney work product, as well as, more broadly, other work product prepared for use in pending litigation or claims.16 Even after litigation is concluded, an attorney’s billing entries remain exempt from disclosure under the attorney client privilege or attorney work product doctrine insofar as they describe an attorney’s impressions, conclusions, opinions, legal research or strategy.17 Similarly, retainer agreements between a local agency and its attorneys may constitute confidential communications that fall within the attorney client privilege.18 A local agency may waive the privilege and elect to produce the agreements.19 Only the local agency’s governing board may waive the privilege.20 Practice Tip:

These statutory
requirements do not
prohibit duplication of
reduced copies of plans
that have been distributed
to local agency decisionmaking bodies as part of
the agenda materials for
a public meeting.
323
20 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
Code Enforcement Records
Local agencies may pursue code enforcement through administrative or criminal proceedings, or a combination of both. Records of code enforcement cases for which criminal sanctions are sought may be subject to the same disclosure rules as police and other law enforcement records, including the rules for investigatory records and files, as long as there is a concrete and definite prospect of criminal enforcement.21 Records of code enforcement cases being prosecuted administratively do not qualify as law enforcement records.22 However, some administrative code enforcement information, such as names and contact information of complainants, may be exempt from disclosure under the official information privilege, the identity of informant privilege, or the public interest exemption.23 Drafts
The Act exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.”24 The purpose of the “drafts” exemption is to provide a measure of privacy for writings concerning pending agency action.

The exemption was adapted from the federal Freedom of Information Act (“FOIA”), which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”25 The California Supreme Court has observed that the FOIA “memorandums” exemption is based on the policy of protecting the decision making processes of government agencies, and in particular the frank discussion of legal or policy matters that might be inhibited if subjected to public scrutiny.26
The courts have held that the “drafts” exemption in the Act has essentially the same purpose as the “memorandums” exemption in the FOIA, and that the “drafts” exemption protects deliberative materials produced in the process of making agency decisions, but not factual materials.27 Some courts have distinguished between pre-decisional advisory opinions, recommendations and policy deliberations, which are exempt, and memoranda of factual material or purely factual material contained in and severable from deliberative memoranda.28 However, in discussing the closely-related deliberative process privilege, which is also based on the FOIA “memorandums” exemption, the California Supreme Court has observed that the fact/opinion distinction may be misleading because even purely factual material may expose the deliberative process. According to the California Supreme Court, the key question under the FOIA “memorandums” exemption is whether the disclosure of materials would expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.29 To qualify for the “drafts” exemption:
• the record must be a preliminary draft, note, or memorandum; • that is not retained by the local agency in the ordinary course of business; and • the public interest in withholding the record must clearly outweigh the public interest in disclosure.30 The courts have observed that preliminary materials that are not customarily discarded or that have not in fact been discarded pursuant to policy or custom must be disclosed.31 What distinguishes the “drafts” exemption from the deliberative process privilege is a focus on whether the records containing deliberative information are normally retained by the local agency. If the records are normally retained, they do not qualify for the exemption. This is in keeping with the purpose of the FOIA “memorandums” exemption of prohibiting the “secret law” that would result from confidential memos retained by local agencies to guide their decision-making.

Practice Tip:

By adopting written policies
or developing consistent
practices of discarding
preliminary deliberative
writings, local agencies may
facilitate candid internal
policy debate. Such policies
and practices may exempt
from disclosure even
preliminary drafts that have
not yet been discarded, so
long as the drafts are not
maintained by the local
agency in the ordinary course
of business, and the public
interest in nondisclosure
clearly outweighs the public
interest in disclosure.
324
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 21
Election Information
Voter Registration Information
Voter registration information, including the home street address, telephone number, email address, precinct number, or other number given by the Secretary of State, is confidential and cannot be disclosed except as specified in the Elections Code. Similarly, the signature of the voter shown on the voter registration card is confidential and shall not be disclosed to any person, except as provided in the Elections Code.32 Voter registration information may be provided to any candidate for federal, state, or local office; any committee for or against an initiative or referendum measure for which legal publication is made; and to any person for election, scholarly, journalistic or political purposes, or for governmental purposes as determined by the Secretary of State.33
Identifying information contained in voter registration records including a California Driver’s License, California ID card, or other unique identifier used by the State of California is confidential and shall not be disclosed to any person (including those entitled to voter registration information).34
When a person’s vote is challenged, the voter’s home address or signature may be released to the challenger, elections officials, and other persons as necessary to make, defend or adjudicate a challenge.35 The elections official shall permit a person to view the signature of a voter for the purpose of determining whether the signature matches a signature on an affidavit of registration or a petition. The signature cannot be copied.36
Information or data compiled by public officers or employees that reveals the identity of persons who have requested bilingual ballots or ballot pamphlets is not a public record and shall not be provided to any person other than those public officers or employees who are responsible for receiving and processing those requests.37
Initiative, Recall, and Referendum Petitions
Any petition to which a voter has affixed his or her signature for a statewide, county, city, and/or district initiative, referendum, recall or matters submitted under the Education Code is not a public record and is not open to inspection except by the public officers and/or employees whose duty it is to receive, examine or preserve the petitions. This prohibition extends to all memoranda prepared by county elections officials in the examination of the petitions indicating which voters have signed particular petitions.38 If a petition is found to be insufficient, the proponents and their representatives may inspect the memoranda of insufficiency to determine which signatures were disqualified and the reasons for the disqualification.39
Identity of Informants
A local agency has a privilege to refuse to disclose and to prevent another from disclosing the identity of a person who has furnished information in confidence to a law enforcement officer or representative of a local agency charged with administration or enforcement of a law. This privilege applies where the information purports to disclose a violation of a law of the United States, the State of California or another public entity, and where the disclosure is forbidden by state or federal law. It also applies where the disclosure of the identity of the informant is against the public interest because there is a necessity for 325
22 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
preserving the confidentiality of the informant’s identity that outweighs the necessity for disclosure in the interest of justice.40 This privilege extends to disclosure of the contents of the informant’s communication if the disclosure would tend to disclose the identity of the informant.41 Law Enforcement Records
Overview
Law enforcement records are generally exempt from disclosure except for certain specific types of information that must be disclosed.42 The actual investigation files and records are themselves exempt from disclosure, but the Act requires the local agency to disclose certain information derived from them.43 The type of information that must be disclosed differs depending upon whether it relates to, for example, calls to the police department for assistance, the identity of an arrestee, information relating to a traffic accident, or certain types of crimes, including, for example, car theft, burglary, or arson. The identities of victims of certain types of crimes, including minors and victims of sexual assault, are required to be withheld if requested by the victim, or the victim’s guardian if the victim is a minor.44 Those portions of any file that reflect the analysis and conclusions of the investigating officers may also be withheld.45 Certain information that may be required to be released may be withheld where the disclosure would endanger a witness or interfere with the successful completion of the investigation. The disclosure exemption extends indefinitely, even after the investigation is closed.46 Release practices vary by local agency. Some local agencies provide a written summary of information being disclosed, some release only specific information upon request, while others release reports with certain matters redacted. Other local agencies release reports upon request with no redactions except as mandated by statute. Some local agencies also release 911 tapes47 and booking photos, although this is not required under the Act.48
If it is your local agency’s policy to release police reports upon request, it is helpful to establish an internal process to control the release of the identity of minors or victims of certain types of crimes; or to ensure that releasing the report would not endanger the safety of a person involved in an investigation or endanger the completion of the investigation.

Exempt Records
The Act generally exempts most law enforcement records from disclosure, including:
• Complaints to or investigations conducted by a local or state police agency • Records of intelligence information or security procedures of a local or state police agency • Any investigatory or security files compiled by any other local or state police agency • Customer lists provided to a local police agency by an alarm or security company • Any investigatory or security files compiled by any state or local agency for correctional, law enforcement or licensing purposes.49
Information that Must be Disclosed
There are three general categories of information contained in law enforcement investigatory files that must be disclosed: information that must be disclosed to victims, their authorized representatives and insurance carriers; information relating to arrestees; and information relating to complaints or requests for assistance.

Practice Tip:

Many departments that
choose not to release entire
reports develop a form that
can be filled out with the
requisite public information.
326
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 23
Disclosure to Victims, Authorized Representatives, Insurance Carriers:

Except where disclosure would endanger the successful completion of an investigation, or a related investigation, or endanger the safety of a witness, certain information relating to specific listed crimes must be disclosed upon request to:
• A victim
• The victim’s authorized representative
• An insurance carrier against which a claim has been or might be made • Any person suffering bodily injury, or property damage or loss.

The type of crimes listed to which this requirement applies include arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime defined by statute.50 The type of information that must be disclosed (except where it endangers safety of witnesses or the investigation itself) includes:
• Name and address of persons involved in or witnesses to incident (other than confidential informants) • Description of property involved
• Date, time and location of incident
• All diagrams; statements of the parties to the incident • Statements of all witnesses (other than confidential informants).51 Information Regarding Arrestees
The Act mandates that the following information be released pertaining to every individual arrested by the local law enforcement agency except where releasing the information would endanger the safety of persons involved in an investigation or endanger the successful completion of the investigation or a related investigation:
• Full name and occupation of the arrestee
• Physical description including date of birth, color of eyes and hair, sex, height and weight • Time, date and location of arrest
• Time and date of booking
• Factual circumstances surrounding arrest
• Amount of bail set
• Time and manner of release or location where arrestee is being held
• All charges, including outstanding warrants, parole or probation holds, that the arrestee is being held on.53
Complaints or Requests for Assistance
The Act provides that the following information must be disclosed relative to complaints or requests for assistance received by the law enforcement agency — subject to the restrictions imposed by the Penal Code:
• Time and nature of the response
• To the extent the crime alleged or committed or any other incident is recorded, the time, date and location of occurrence, and the time and date of report • Factual circumstances surrounding crime/incident
Practice Tip:

The release of traffic
accident information is
covered under the Vehicle
Code, which requires the
law enforcement agency to
disclose the entire contents
of a traffic accident report to
persons who have a “proper
interest” in the information,
including the driver or
authorized representative,
guardian, conservator or
parent of a minor driver,
injured person, owners
of vehicles or property
damaged by the accident,
persons who may be liable
for breach of warranty and
an attorney who declares
under penalty of perjury that
he or she represents any
such person.52
Practice Tip:

Most police departments
have some form of daily
desk or press log that
contains all or most of
arrestee information. The
Act does not require a
local agency to grant a
single requester to be given
access on a subscription
basis to records that may
be created in the future.

It applies only to records
existing at the time of the
request.54 Further, there
is no obligation to provide
the information in the
format requested if that is
not the format used by the
local agency to store the
information or to create
copies for its own use.55
327
24 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
• General description of injuries, property or weapons involved • Names and ages of victims shall be disclosed, except the names of victims of certain listed crimes may be withheld upon request of victim or parent of minor victim. These listed crimes include various Penal Code sections which relate to topics such as sexual abuse, child abuse, hate crimes and stalking.56 The Penal Code provides that except as required by criminal discovery provisions, no law enforcement officer or employee of a law enforcement agency shall disclose to any arrested person, or to any person who may be a defendant in a criminal action, the address or telephone number of any person who is a victim of or witness to the alleged offense.57
Requests for Journalistic or Scholarly Purposes
Where a request states, under penalty of perjury, that it is made for a scholarly, journalistic, political or governmental purpose, or for an investigative purpose by a licensed private investigator, and that it will not be used directly or indirectly or furnished to another to sell a product or service to any individual or group of individuals, the Act requires the disclosure of the name and address of every individual arrested by the local agency and the current address of the victim of a crime, except for specified crimes.58 Any address information furnished pursuant to this authorization may not be used directly or indirectly, or furnished to another to sell a product or service and is subject to statutory restrictions that preclude the furnishing of this information to an arrested person or a defendant in a criminal action.59 Mental Health Detention Information
All information and records obtained in the course of providing services to a mentally disordered individual who is gravely disabled and/or a danger to others or himself, and who is detained (often referred to as a “detainee”) and taken into custody by a peace officer, are confidential and may only be disclosed to enumerated recipients and for purposes specified in state law.60 Willful, knowing release of confidential mental health detention information can create liability for civil damages.61 Elder Abuse Records
Reports of suspected abuse or neglect of an elder or dependent adult, and information contained in such reports, are confidential and may only be disclosed as permitted by state law.62 The prohibition against unauthorized disclosure applies regardless of whether a report of suspected elder abuse or neglect is from someone who is a “mandated reporter” (any person that has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not for compensation) or from someone else.63 Unauthorized disclosure of suspected elder abuse or neglect information is a misdemeanor.64 Juvenile Records
Police and Court Records
Records or information gathered by law enforcement agencies relating to the detention of or taking a minor into custody or temporary custody are confidential and subject to release only in certain circumstances and by certain specified persons and entities.65 Juvenile court case files are subject to inspection only by specific listed persons and are governed by both statute and state court rules.66 Different provisions apply to dissemination of information gathered by a law enforcement agency relating to the taking of a minor into custody where it is provided to another law enforcement agency, including a school district police or security department or other agency or person who has a legitimate need for information for purposes of official disposition of a case.67 A law enforcement agency shall release the name of and descriptive information relating to any juvenile who has escaped from a secure detention facility.68
Practice Tip:

Some local courts have
their own rules regarding
inspection of juvenile
records, which may differ
from county to county and
may change from time to
time. Care should be taken
to periodically review the
rules as the presiding judge
of each juvenile court makes
their own rules.

Practice Tip:

Law enforcement information
such as complaint or
incident information that
may otherwise be subject
to disclosure is confidential
to the extent it includes
reports of suspected child
or elder abuse or neglect,
or information contained in
reports of suspected abuse
or neglect. To avoid potential
criminal liability, local
agencies should only disclose
reports of suspected child
or elder abuse or neglect
or information contained in
such reports as permitted by
state law.
328
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 25
Child Abuse Reports
Reports of suspected child abuse or neglect, including reports from those who are “mandated reporters” (for example, teachers and public school employees and officials, physicians, children’s organizations, community care facilities, etc.), and child abuse and neglect investigative reports that result in a summary report being filed with the Department of Justice are confidential and may only be disclosed to the persons and agencies listed in state law.69 Unauthorized disclosure of confidential child abuse or neglect information is a misdemeanor.70
Library Circulation Records
Library circulation records that are kept to identify the borrowers, and library and museum materials presented solely for reference or exhibition purposes, are exempt from disclosure.71 Further, all registration and circulation records of any library that is in whole or in part supported by public funds are confidential. Such records remain confidential and shall not be disclosed except to persons acting within the scope of their duties within the administration of the library, pursuant to written authorization by the individual to whom the records pertain, or by superior court order.72 The confidentiality of library circulation records does not extend to statistical reports of registration and circulation, or to records of fines collected by the library.73 Licensee Financial Information
When a local agency requires that applicants for licenses, certificates or permits submit personal financial data, that information is exempt from disclosure.74 One frequent example of this is the submittal of sales or income information under a business license tax requirement. However, this exemption does not apply to financial information filed by an existing licensee or franchisee to justify a rate increase, presumably because those affected by the increase have a right to know its basis.75 Medical Privacy Laws
State and federal medical privacy laws that may apply to records of local agencies include the physician/ patient privilege, the Confidentiality of Medical Information Act, and the Health Insurance Portability and Accountability Act.76 The exemptions from and prohibitions against disclosure contained in these laws are incorporated into the Act.77
Local agencies that receive or maintain individually identifiable health information may comply with the requirements of the physician/patient privilege, the Confidentiality of Medical Information Act, and the Health Insurance Portability and Accountability Act by citing appropriate sections of the Act, as well as applicable medical privacy laws and regulations, in declining to disclose protected, individually identifiable health information.78
Physician/Patient Privilege
State law gives patients a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications between patients and their physicians.
79 The privilege extends to confidential patient/
physician communications that are disclosed to third parties where reasonably necessary to accomplish the purpose for which the physician was consulted.80 Patient information in the possession of a local agency may be subject to the privilege.
329
26 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
Confidentiality of Medical Information Act
State law prohibits providers of health care, health care service plans and contractors, as these terms are defined in the law, from disclosing individually identifiable medical information of a patient, enrollee or subscriber without first obtaining authorization, subject to certain exceptions.81 State law also obligates employers to establish appropriate procedures to ensure the confidentiality of individually identifiable medical information, and prohibits employers from disclosing or permitting the disclosure or use of individually identifiable medical information without first obtaining authorization, subject to certain exceptions.82 Local agencies that are not providers of health care, health care service plans or contractors as defined in state law may possess individually identifiable medical information protected under state law that originated with providers of health care, health care service plans or contractors.83 Local agencies are also obligated as employers to protect individually identifiable medical information protected under state law. Patients whose individually identifiable medical information is used or disclosed in violation of the state law may recover compensatory damages, limited punitive damages, limited attorneys’ fees and their litigation costs.84 Violations of state law that result in economic loss or personal injury of patients are subject to criminal penalties, and damages are available for negligent release of protected records.85 Persons and entities that negligently disclose records protected under state law may be liable for administrative fines or civil penalties.86 Knowingly and willfully obtaining, using, or disclosing information protected under state law is subject to substantial administrative fines or civil penalties.87 Health Insurance Portability and Accountability Act
Congress enacted the Health Insurance Portability and
Accountability Act in 1996 to improve portability and continuity of health insurance coverage and to combat waste, fraud and abuse in health insurance and health care delivery through the development of a health information system and establishment of standards and requirements for the electronic transmission of certain health information.88 The Secretary of the U.S. Department of Health and Human Services has issued privacy regulations governing use and disclosure of individually identifiable health information.89 Persons that knowingly and in violation of federal law use or cause to be used a unique health identifier, obtain individually identifiable health information relating to an individual, or disclose individually identifiable health information to another person are subject to substantial fines and imprisonment of not more than one year, or both, and to increased fines and imprisonment for violations under false pretenses or with the intent to use individually identifiable health information for commercial advantage, personal gain, or malicious harm.90 Federal law also permits the Health and Human Services Secretary to impose civil penalties.91 Workers’ Compensation Benefits
A local agency may not release records pertaining to the workers’ compensation benefits for an individually identified employee because they are exempt from disclosure as “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of privacy.”92 The Act further prohibits the disclosure of records otherwise exempt or prohibited from disclosure pursuant to federal and state law.93 In addition, state law prohibits a person or public or private entity who is not a party to a claim for workers’ compensation benefits from obtaining individually identifiable information obtained or maintained by the Division of Workers’ Compensation on that claim.94 “[I]ndividually identifiable information” means “any Practice Tip:

Patient medical information
provided to local agency
emergency medical
personnel to assist in
providing emergency medical
care may be subject to the
physician/patient privilege
if providing the privileged
information is reasonably
necessary to accomplish
the purpose for which the
physician was consulted.
330
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 27
data concerning an injury or claim that is linked to a uniquely identifiable employee, employer, claims administrator, or any other person or entity.”95 If a public records request falls within this broad definition as a request for “data concerning an injury or claim” that is linked to a local agency employee or other uniquely identifiable individual, then the record(s) may not be disclosed.

Once an application for adjudication has been filed, certain information may be subject to disclosure;96 however, some of the personal information may still be protected under the Act.97 Requests for such information after adjudication must identify the requester and state the reason for the request. If the purpose of such a request is related to preemployment screening, the administrative director must notify the person about whom the information is requested and include a warning about discrimination against persons who have filed claims for workers’ compensation benefits. Further, a residence address shall not be disclosed except to law enforcement agencies, the district attorney, other governmental agencies or for journalistic purposes. Individually identifiable information is not subject to subpoena in a civil proceeding without notice and a hearing at which the court is required to balance the respective interests—privacy and public disclosure.

Individually identifiable information may be used for certain types of statistical research by specifically listed persons and entities.98
Official Information Privilege
A local agency has a privilege to refuse to disclose official information.99 “Official Information” includes:
• Information that is protected by a state or federal statutory privilege or; and • Information, the disclosure of which is against the public interest, due to necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.100 The local agency has the right to assert the privilege both to refuse to disclose and to prevent another from disclosing official information.101 Where the disclosure is prohibited by state or federal statute, the privilege is absolute. In all other respects, it is conditional and requires a judge to weigh the necessity for preserving the confidentiality of information against the necessity for disclosure in the interest of justice. (This is similar to the weighing process provided for in the Act—allowing nondisclosure when the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.)102 This is typically done through confidential judicial review.103 As part of the weighing process a court will look at the consequences to the public, including the effect of the disclosure on the integrity of public processes and procedures.104 There are a number of cases arising out of this statute.105 While many of the cases interpreting this privilege involve law enforcement records, other cases arise out of licensing and accreditation-type activities. The courts address these types of cases on an individualized basis and further legal research should be done within the context of particular facts. The statute defines “official information” as “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”106 However, the courts have somewhat expanded on the statutory definition by determining that certain types of information, such as police investigative files and medical information, are “by [their] nature confidential and widely treated as such” and thus protected from disclosure by the privilege.107 Although there is no case law directly on point, this privilege, along with the informant privilege, may be asserted to protect the identities of code enforcement complainants and whistleblowers.
331
28 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
Pending Litigation or Claims
The Act exempts from disclosure “(r)ecords pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to [the California Government Claims Act] until the pending litigation or claim has been finally adjudicated or otherwise settled.”108 Although the phrase “pertaining to” pending litigation or claims might seem broad, the courts nevertheless have construed the exemption narrowly, consistent with the underlying policy of the Act to promote access to public records. The exemption applies only to documents specifically prepared by, or at the direction of, the local agency for use in litigation. This includes records prepared not simply for an ongoing case, but those specifically prepared in anticipation of a future lawsuit, such as an incident report.109 It may sometimes be difficult to determine whether a particular record was prepared specifically for use in litigation or for other purposes related to the underlying incident. For example, an incident report may be prepared either in anticipation of defending a potential claim, or simply for risk management purposes. In order for the exemption to apply in those circumstances, the local agency would have to prove that the dominant purpose of the record was to be used in defense of litigation.110
It is important to remember that even members of the public that have sued a local agency are entitled to use the Act to obtain documents that may be relevant to the litigation, so long as the documents were not specifically prepared by the local agency for use in anticipated or pending litigation, and do not fall within some other exemption under the Act or other statute. The mere fact that the litigant might also be able to obtain the documents in discovery is not a ground for rejecting the request under the Act.111 The pending litigation exemption does not prevent members of the public from obtaining records submitted to the local entity by litigants, such as a claim for monetary damages filed prior to a lawsuit. This is because the document has been prepared by the litigant and not by the local agency.112 Once litigation has concluded and is no longer “pending,” records previously shielded from disclosure by the exemption must be produced, unless covered by another exemption or statutory privilege. The public may therefore obtain copies of depositions from closed cases.113 Documents concerning settlement of a claim, whether prepared by a litigant or the local agency, such as medical records, payment warrants, minutes of a claims settlement committee meeting, or investigative reports, must be produced unless shielded from disclosure by other exemptions of the Act or other statutes.114 While medical records are subject to a constitutional right of privacy, and generally exempt from production under the Act and other statutes,115 the litigant may be deemed to have waived the right to confidentiality by submitting them to the public entity in order to obtain a settlement.116 Similarly, investigative reports in claims involving law enforcement activity may fall within specific exemptions for law enforcement reports117 or reports prepared in anticipation of litigation may fall within the attorney client privilege.118 Particular records or information relevant to settlement of a closed case may also be subject to nondisclosure under the public interest exemption to the extent the local agency can show that the public interest in nondisclosure clearly outweighs the public interest in disclosure.119 There is considerable overlap between the pending litigation exemption and both the attorney client privilege120 and attorney work product protection.121 However, the exemption for pending litigation is not limited solely to documents that fall within either the attorney client privilege or work product protection.122 Moreover, while the exemption for pending litigation expires once the litigation is no longer pending, the attorney client privilege and work product protection are ongoing.123 Practice Tip:

In responding to a request
for documents concerning
settlement of a particular
matter, it is critical to pay
close attention to potential
application of other
exemptions under the Act
or other statutory privileges.

It is recommended that you
seek the advice of your local
agency counsel.
332
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 29
The attorney client privilege may come into play simultaneously with specific exemptions under the Act or other statutory privileges that could require a court to undertake confidential inspection of documents in order to determine application of the exemptions. The Act specifically references an Evidence Code provision that provides a court may not review privileged attorney client communications in camera for purposes of determining whether the privilege is established.124 Thus, in a writ of mandate proceeding a local agency may have to submit other documents for inspection to allow the court to determine whether a particular exemption applies, such as evaluating whether the public interest in nondisclosure clearly outweighs the public interest in disclosure under the public interest exemption. But the court cannot conduct an in camera review of documents that the local agency contends are subject to the attorney client privilege.

Personal Contact Information
Court decisions have ruled that individuals have a substantial privacy interest in their personal contact information. However, a fact-specific analysis must be conducted to determine whether the public interest exemption protects this information from disclosure, that is, whether the public interest in nondisclosure clearly outweighs the public interest in disclosure.125 Application of this balancing test has yielded varying results, depending on the circumstances of the case.

For example, courts have allowed nondisclosure of the names, addresses and telephone numbers of airport noise complainants.126 In that instance, the anticipated chilling effect on future citizen complaints weighed heavily in the court’s decision.

In other situations, courts have ordered disclosure of personal information contained in applications for licenses to carry concealed weapons,127 the names and addresses of residential water customers who exceeded their water allocation under a rationing ordinance,128 and the names of donors to a universityaffiliated foundation, even though those donors had requested anonymity.129 Posting Personal Information of Elected/Appointed Officials on the Internet The Act prohibits a state or local agency from posting on the Internet the home address or telephone number of any elected or appointed officials without first obtaining their written permission.130 This section also prohibits someone from knowingly posting on the Internet the home address or telephone number of any elected or appointed official or the official’s “residing spouse” or child, and either threatening or intending to cause imminent great bodily harm. It also prohibits a person, business or association from publicly posting or displaying on the Internet the home address or telephone number of any elected or appointed official where the official has made a written demand not to disclose his address or phone number. If an official makes such a written demand, it must include a statement describing a threat or fear for the safety of the official or any person residing at the official’s home address. The written demand is effective for four years, regardless of the length of the official’s term of office. Remedies include injunctive or declarative relief, misdemeanor or felony prosecution, and treble damages of not less than $4,000.131 Personnel Records
“Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy” are exempt from disclosure.132 The express policy declaration at the beginning of the Act “bespeaks legislative concern for individual privacy as well as disclosure.”133 Courts have continued to recognize that public employees have a constitutionally protected interest in their personnel files; however, recent decisions from the California Supreme Court have determined that public employees do not have a reasonable expectation of privacy in their names and salary information and their dates of employment.

This interpretation also applies to police officers absent unique, individual circumstances.134 Practice Tip:

In situations where personal
contact information clearly
cannot be kept confidential,
inform the affected members
of the public that their
personal contact information
is subject to disclosure
pursuant to the Act.

Practice Tip:

It is important to separate
potential attorney
client communications
from other records
and make certain that
privileged attorney client
communications are not
unintentionally submitted
to the court for inspection.
333
30 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
In addition, the public interest exemption may protect certain personnel records from disclosure.135 In determining whether to allow access to personnel files, the courts have determined that the tests are essentially the same. The extent of the employee’s privacy interest in certain information and the harm from its unwarranted disclosure is weighed against the public interest in disclosure. The public interest in disclosure will be considered in the context of the extent to which the disclosure of the information will shed light on the local agency’s performance of its duties.136 Concerning allegations of non-law enforcement public employee misconduct, courts have upheld the public interest against disclosure of “trivial or groundless charges.” When “the charges are found true, or discipline is imposed,” the public interest favors disclosure. In addition, “where there is reasonable cause to believe the complaint to be well founded, the right of public access to related public records exists.”137 Peace Officer Personnel Records
Peace officer personnel records fall within the category of records, “the disclosure of which is exempted or prohibited pursuant to federal or state law....” These records are confidential and privileged.139 The discovery and disclosure of the personnel records of peace officers are governed exclusively by statutory provisions contained in the Evidence Code and Penal Code. Peace officer personnel records and records of citizen complaints “. . . or information obtained from these records . . .” are confidential and “shall not” be disclosed in any criminal or civil proceeding except by discovery pursuant to statutorily prescribed procedures.140
Peace officer “personnel records” include personal data, medical history, appraisals and discipline, complaints and investigations relating to events perceived by the officer or relating to the manner in which his or her duties were performed, and any other information the disclosure of which would constitute an unwarranted invasion of privacy.141 The names, salary information and employment dates and departments of peace officers have been determined to be disclosable records.142 While the Penal and Evidence Code privileges are not per se applicable in federal court, federal common law recognizes a qualified privilege for “official information” and considers government personnel files to be “official information.”143 Such a qualified privilege in federal court results in a very similar weighing of the potential benefits of disclosure against potential disadvantages.144 Employment Contracts and Employee Salaries
Every employment contract between a state or local agency and any public official or public employee is a public record that is not exempt under either the personnel or public interest exemption.146 Thus, for example, one court has held that two letters in a city firefighter’s personnel file were part of his employment contract and could not be withheld under either the employee’s right to privacy in his personnel file or the public interest exemption.147
With or without an employment contract, the names and salaries (including performance bonuses and overtime) of public employees, including peace officers, are subject to disclosure under the Act.148 Public employees do not have a reasonable expectation that their salaries will remain a private matter. In addition, there is a strong public interest in knowing how the government spends its money. Therefore, absent unusual circumstances, the names and salaries of public employees are not subject to either the personnel exemption or the public interest exemption. Similarly, peace officer salary information is not exempted from disclosure under the Act. Thus, absent unique, individual circumstances such as where a peace officer’s anonymity is essential to his or her safety, the names and salaries of peace officers are subject to disclosure under the Act.149
Practice Tip:

California courts continue
to look for guidance to
provisions of the Federal
Freedom of Information Act
(FOIA), on which the Act
was modeled, as well as
federal cases interpreting
the FOIA relative to
personnel records.138
Practice Tip:

The appropriate procedure
for obtaining information
in protected peace officer
personnel files is to file a
motion commonly known as
a “Pitchess” motion, which
by statute entails a two-part
process involving first a
determination by the court
regarding good cause for
disclosure and materiality of
the information sought, and
a subsequent confidential
review by the court of the
files, where warranted.145
334
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 31
Contractor Payroll Records
State law establishes requirements for maintaining and disclosing certified payroll records for workers employed on public works projects subject to payment of prevailing wages.150 State law requires contractors to make certified copies of payroll records available to employees and their representatives, representatives of the awarding body, the Department of Industrial Relations, and the public.151 Requests are to be made through the awarding agency or the Department of Industrial Relations, and the requesting party is required to reimburse the cost of preparation to the contractor, subcontractors, and the agency through which the request is made prior to being provided the records.152 Contractors are required to file certified copies of the requested records with the requesting entity within ten days of receipt of a written request.153
However, state law also limits access to contractor payroll records.

Employee names, addresses and social security numbers must be redacted from certified payroll copies provided to the public or any local agency by the awarding body or the Department of Industrial Relations.154 Only the name and social security number are to be redacted from certified payroll copies provided to joint labormanagement committees established pursuant to the federal Labor Management Cooperation Act of 1978.155 The name and address of the contractor or subcontractor may not be redacted.156 The Director of the Department of Industrial Relations has adopted regulations governing release of certified payroll records and applicable fees.157 Such regulations require that requests for certified payroll records be in writing and contain certain specified information regarding the awarding body, the contract and the contractor; require awarding agency acknowledgement of requests; specify required contents of awarding agency requests to contractors for payroll records; and set fees to be paid in advance by persons seeking payroll records.158 Test Questions and Other Examination Data
The Act exempts from disclosure test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided in the portions of the Education Code that relate to standardized tests.159 Thus, for example, a local agency is not required to disclose the test questions it uses for its employment examinations. State law provides that standardized test subjects may, within 90 days of the release of test results to the test subject, have limited access to test questions and answers upon request to the test sponsor.160 This limited access may be either through an in-person examination or by release of certain information to the test subject.161 The Education Code also requires that test sponsors prepare and submit certain reports regarding standardized tests and test results to the California Postsecondary Education Commission.162 All such reports and information submitted to the Commission are public records subject to disclosure under the Act.163 Public Contracting Documents
Final contracts with local agencies are generally disclosable public records due to the public’s right to determine whether public resources are being spent for the benefit of the community as a whole or the benefit of only a limited few.164 When the bids or proposals leading up to those final contracts become disclosable depends largely upon the types of contracts involved.

For example, local agency contracts for construction of public works, and procurement of goods and non-professional services are typically awarded to the lowest responsive, responsible bidder through a competitive bidding process.165 Bids for these contracts are usually submitted to local agencies under seal 335
32 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
and then publicly opened at a designated time and place. These bids are public records and disclosable as soon as they are opened.

Other local agency contracts for acquisition of professional services or disposition of property are awarded to the successful proposer through a competitive proposal process. As part of this process, interested parties submit proposals that are evaluated by the local agency and are used to negotiate with the winning proposer.

While the public has a strong interest in scrutinizing the process leading to the selection of the winning proposer, the local agency’s interest in keeping these proposals confidential frequently outweighs the public’s interest in disclosure until negotiations with the winning proposer are complete.166 If a winning proposer has access to the specific details of other competing proposals, then the local agency is greatly impaired in its ability to secure the best possible deal on its constituents’ behalf.

Some local agencies pre-qualify prospective bidders through a request for qualifications process. The prequalification packages submitted, including questionnaire answers and financial statements, are exempt public records and are not open to public inspection.167 Nevertheless, documents containing the names of contractors applying for pre-qualification status are public records and must be disclosed. In addition, the contents of pre-qualification packages may be disclosed to third parties during the verification process, in an investigation of substantial allegations or at an appeal hearing.

Real Estate Appraisals and Engineering Evaluations
The Act requires the disclosure of the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or a local agency relative to the acquisition of property, or to prospective public supply and construction contracts, but only when all of the property has been acquired or when all of the contract agreement obtained.168 By its plain terms, this exemption only applies while the acquisition or prospective contract is pending. Once all the property is acquired or all of the contract agreement obtained, the exemption will not apply. In addition, this exemption is not intended to supersede the law of eminent domain.169 Thus, for example, this exemption would not apply to appraisals of owner-occupied residential property of four units or less, where disclosure of such appraisals is required by the Eminent Domain Law or related laws such as the California Relocation Assistance Act.170 Recipients of Public Services
Disclosure of information regarding food stamp recipients is prohibited.171 Subject to certain exceptions, disclosure of confidential information pertaining to applicants for or recipients of public social services for any purpose unconnected with the administration of the welfare department also is prohibited.172 This latter prohibition does not create a privilege.173
Housing Authority Tenants
Leases and lists or rosters of tenants of the Housing Authority are confidential and shall not be open to inspection by the public, but shall be supplied to the respective governing body on request.174 A Housing Authority has a duty to make available public documents and records of the Authority for inspection, except any applications for eligibility and occupancy that are submitted by prospective or current tenants of the Authority.175
The Act exempts from disclosure records that are the residence address of any person contained in the records of the Department of Housing and Community Development, if the person has requested confidentiality of that information in accordance with section 18081 of the Health and Safety Code.176 Practice Tip:

Local agencies should clearly
advise bidders and proposers
in their Requests for Bids and
Requests for Proposals what
bid and proposal documents
will be disclosable public
records and when they will
be disclosable to the public.
336
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 33
Taxpayer Information
Where information that is required from any taxpayer in connection with the collection of local taxes is received in confidence and where the disclosure of that information would result in an unfair competitive disadvantage to the person supplying the information, the information is exempt from disclosure.177 Sales and use tax records may be used only for tax administration. Unauthorized disclosure or use of confidential information contained in these records can give rise to criminal liability.178 Trade Secrets and Other Proprietary Information
As part of the award and administration of public contracts, businesses will often give local agencies information that the businesses would normally consider to be proprietary. There are three exemptions that businesses often use to attempt to protect this proprietary information – the official information privilege, the trade secret privilege, and the public interest exemption.179 However, California’s strong public policy in favor of disclosure of public records precludes local agencies from protecting most business information. Both the official information privilege and the public interest exemption require that the public interest in nondisclosure clearly outweighs the public interest in disclosure. While these provisions were designed to protect legitimate privacy interests, California courts have consistently held that when individuals or businesses voluntarily enter into the public sphere, they diminish their privacy interests.180 Courts have further concluded that the public interest in disclosure overrides alleged privacy interests. For example, a court ordered a university to release the names of anonymous contributors who received license agreements for luxury suites at the school’s sports arena.

Another court ordered a local agency to release a waste disposal contractor’s private financial statements used by the local agency to approve a rate increase.181 The trade secret privilege is for information, including a formula, pattern, compilation, program, device, method, technique or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.182
However, even when records contain trade secrets, local agencies must determine whether disclosing the information is in the public interest. When businesses give local agencies proprietary information, courts will examine whether disclosure of that information serves the public interest.183 The Act contains several exemptions that address specific types of information that may constitute a trade secret — pesticide safety and efficacy information,184 air pollution data,185 and corporate siting information.186 Other exemptions cover types of information that could include but are not limited to trade secrets — for example, certain information on plant production, utility systems development data, and market or crop reports.187
Utility Customer Information
Personal information expressly protected from disclosure under the Act includes names, credit histories, usage data, home addresses and telephone numbers of local agencies’ utility customers.188 This exception is not absolute, and customers’ names, utility usage data and home addresses may be disclosable in certain situations. For example, disclosure is required when requested either by a customer’s agent or authorized family member,189 an officer or employee of another governmental agency when necessary for performance of official duties,190 by court 337
34 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
order or request of a law enforcement agency relative to an ongoing investigation,191 when the local agency determines the customer used utility services in violation of utility policies,192 or if the local agency determines the public interest in disclosure clearly outweighs the public interest in nondisclosure.193 Utility customers who are local agency officials with authority to determine their agency’s utilities usage policies have lesser protection of their personal information because their names and usage data are disclosable upon request.194

Q PUBLIC INTEREST EXEMPTION
The Act establishes a “public interest” or “catchall” exemption that permits local agencies to withhold a record if the agency can demonstrate that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.195 Weighing the public interest in nondisclosure and the public interest in disclosure under the public interest exemption is often described as a balancing test.196 The Act does not specifically identify the public interests that might be served by not making the record public, but the nature of those interests may be inferred from specific exemptions contained in the Act. The scope of the public interest exemption is not limited to specific categories of information or established exemptions or privileges. Each request for records must be considered on the facts of the particular case in light of the competing public interests.197 The records and situations to which the public interest exemption may apply are open-ended, and when it applies, the public interest exemption alone is sufficient to justify nondisclosure of local agency records.

The courts have relied exclusively on the public interest exemption to uphold nondisclosure of local agency records containing names, addresses and phone numbers of airport noise complainants, proposals to lease airport land prior to conclusion of lease negotiations, and information kept in a public defender’s database about police officers.198
The public interest exemption is versatile and flexible, in keeping with its purpose of addressing circumstances not foreseen by the Legislature. For example, in one case, the court held local agencies could properly consider the burden of segregating exempt from nonexempt records when applying the balancing test under the public interest exemption.200 In that case, the court held that the substantial burden of redacting exempt information from law enforcement intelligence records outweighed the marginal and speculative benefit of disclosing the remaining nonexempt information. In another case, the court applied the balancing test to the time of disclosure to hold that public disclosure of competing proposals for leasing city airport property could properly await conclusion of the negotiation process.201 The requirement that the public interest in nondisclosure must “clearly outweigh” the public interest in disclosure for records to qualify as exempt under the public interest exemption is important and emphasized by the courts. Justifying nondisclosure under the public interest exemption demands a clear overbalance on the side of confidentiality.202 Close calls usually do not qualify for an exemption. There are a number of examples of cases where a clear overbalance was not present to support nondisclosure under the public interest exemption. The courts have held that the following are all subject to disclosure under the public interest exemption balancing test: the identities of individuals granted criminal conviction exemptions to work in licensed day care facilities and the facilities employing them; records relating to unpaid state warrants; court records of a settlement between the insurer for a school district and a minor sexual assault victim; applications for concealed weapons permits; letters appointing then rescinding an appointment to a local agency position; and the identities and license agreements of purchasers of luxury suites in a university arena.203 Practice Tip:

The public interest
exemption balancing
test weighs only public
interests—the public
interest in disclosure
and the public interest
in nondisclosure. Agency
interests or requester
interests that are not also
public interests are not
considered.199
338
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 35
Deliberative Process Privilege
The public interest exemption incorporates the deliberative process privilege.204 Like the “drafts” exemption, the deliberative process privilege derives from the FOIA “memorandums” exemption and its implementation of the executive or deliberative process privilege.205 Congress’ main concern in enacting the “memorandums” exemption was that frank discussion of legal or policy matters might be inhibited if subject to public scrutiny, and that efficiency of government would be greatly hampered if, with respect to such matters, local agencies were forced to operate in a fishbowl.206 The deliberative process privilege is based on the policy of protecting the decision-making processes of government agencies, and the notion that access to a broad array of opinions and the freedom to seek all points of view, to exchange ideas, and to discuss policies in confidence are essential to effective governance in a representative democracy. The deliberative process privilege is similar to the common law privilege protecting against the disclosure of the mental processes of legislators. To prevent injury to the quality of executive decisions, the courts have focused on protecting communications to the decision maker before the decision is made. Courts have treated communications subsequent to the legislative decision as outside of the recognized privilege.207
The California Supreme Court has acknowledged that even purely factually material may be exempt from disclosure because it exposes the deliberative process. In applying the deliberative process privilege, courts focus more on the effect of the records’ release and less on the nature of the records sought. The key question is whether the disclosure of materials would expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.208
The California Supreme Court has applied this analysis to uphold nondisclosure of the Governor’s calendars concerning both past and future meetings. California appellate courts have relied on the deliberative process privilege to uphold nondisclosure of the names and qualifications of applicants for temporary appointment to a local board of supervisors, names and background information about applicants for a county supervisor’s seat, and the telephone numbers of calls made and received by local agency council members from cellular phones and second phones in home offices.209
Q EFFECT OF PROPOSITION 59 ON EXEMPTIONS
At the November 2, 2004 general election, the voters of California passed Proposition 59 which amended the California Constitution to include a public right of access to public records.

The Constitution specifically provides: “The people have the right of access to information concerning the conduct of the people’s business, and therefore the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”210 Thus, after enactment of Proposition 59, the right of public access to documents is not simply statutory, but a basic right under the Constitution. In furtherance of that goal, the constitutional provision states that a “statute, court rule, or other authority, including, those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”211 It also provides that any statute enacted after its effective date that limits the right of access must be adopted with findings identifying the interest protected by the limitation and the need for protecting that interest.212 Practice Tip:

The main difference
between the deliberative
process privilege and the
closely related “drafts”
exemption is that the
deliberative process
privilege may exempt from
disclosure records that an
agency normally retains.
339
36 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
Although Proposition 59 elevated the right of access to public records to constitutional stature, it appears to be simply declarative of existing law in terms of existing statutory exemptions. For example, while the Constitution states that an existing exemption must be narrowly
construed,213 this is consistent with longstanding case authority.214 Moreover, the Constitution states that “[t]his subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception
to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and
prosecution records.”215
No published opinion has extensively analyzed the impact of Proposition 59 on the exemptions in the Act.

However, one court summarily noted that as to construction of the specific exemptions under the Act, it was simply declarative of existing law.216 In addition, in three separate opinions, the California Attorney General has concluded that Proposition 59 did not alter the application of exemptions under the Act that existed at the time of its enactment.217 Enactment of Proposition 59 underscores the general principle that public access to records is the rule, and nondisclosure the exception, only to be invoked in narrow circumstances after careful consideration.218
340
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 37
Endnotes
1 State of California ex rel Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778; Fairley v. Superior Court (1998) 66 Cal.App.4th 1414.
2 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762; Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; see “Effect of Proposition 59 on Exemptions,” p. 35. 3 Gov. Code, § 6254, subd. (k).
4 Gov. Code, § 6255; see also “Public Interest Exemption,” p. 34. 5 See, for example, “Attorney Client Communications and Attorney Work Product,” p. 19 and “Medical Privacy Laws,” p. 25.
6 U.S.C. title 17.
7 Gov. Code, § 6254, subd. (k).
8 17 U.S.C. § 101.
9 17 U.S.C. § 102(A)(8).
10 17 U.S.C. § 107.
11 Health & Saf. Code, § 19851.
12 Health & Saf. Code, § 19851.
13 Health & Saf. Code, § 19851.
14 89 Ops.Cal.Atty.Gen. 39 (2006).
15 Gov. Code, § 6254, subd. (k).
16 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; see also “Official Information Privilege,” p. 27. 17 U.S. v. Amlani (9th Cir. 1999) 169 F.3d 1189; Clarke v. American Commerce Nat. Bank (9th Cir. 1992) 974 F.2d 127; Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639. 18 Bus. & Prof. Code, § 6149 [a written fee contract shall be deemed to be a confidential communication within the meaning of section 6068, subdivision (e) of the Business & Professions Code and section 952 of the Evidence Code]; Evid. Code, § 952 [“Confidential communication between client and lawyer”]; Evid. Code, § 954 [attorney client privilege].
19 Evid. Code § 912. See also Gov. Code § 6254.5 and “Waiver”, p. 13. 20 See Rules Prof. Conduct, rule 3-600.
21 Gov. Code, § 6254, subd. (f); State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.

App.3d 778; Haynie v. Superior Court (2001) 26 Cal.4th 1061; see “Law Enforcement Records,” p. 22. 22 State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778; Haynie v. Superior Court (2001) 26 Cal.4th 1061.
23 San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; see “Official Information Privilege,” p. 27, “Identity of Informants,” p. 21, and “Public Interest Exemption,” p. 34. 24 Gov. Code, § 6254, subd. (a).
25 Gov. Code, § 6254, subd. (a); 5 U.S.C. § 552(b)(5).
26 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 27 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704. 28 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704. 29 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 30 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704. 31 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704. 32 Gov. Code, § 6254.4.
33 Elec. Code, § 2194.
34 Gov. Code, § 6254.4(c).
35 Elec. Code, § 2194, subd. (c).
36 Elec. Code, § 2194, subd. (c)(2).
37 Gov. Code, § 6253.6.
38 Gov. Code, § 6253.5.
39 Gov. Code, § 6253.5.
40 Evid. Code, § 1041; People v. Navarro (2006) 138 Cal.App.4th 146. 41 People v. Hobbs (1994) 7 Cal.4th 948.
42 Gov. Code, § 6254, subd. (f).
43 Haynie v. Superior Court (2001) 26 Cal.4th 1061; 65 Ops.Cal.Atty.Gen. 563 (1982). 341
38 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
44 Gov. Code, § 6254, subd. (f)(2).
45 Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169. 46 Rivero v. Superior Court (1997) 54 Cal.App.4th 1048; Williams v. Superior Court (1993) 5 Cal.4th 337. 47 Haynie v. Superior Court (2001) 26 Cal.4th 1061 [911 tapes]. 48 86 Ops.Cal.Atty.Gen. 132 (2003) [booking photos].
49 Gov. Code, § 6254, subd. (f).
50 Gov. Code, § 13951, subd. (b).
51 Gov. Code, § 6254, subd. (f).
52 Veh. Code, § 20012.
53 Gov. Code, § 6254, subd. (f)(1).
54 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754.
55 Gov. Code, § 6253.9, subd. (a).
56 Gov. Code, § 6254, subd. (f)(2).
57 Pen. Code, § 841.5, subd. (a).
58 Gov. Code, § 6254, subd. (f).
59 Gov. Code, § 6254, subd. (f)(3); Pen. Code, § 841.5; Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999) 528 U.S. 32 [120 S.Ct. 483].
60 Welf. & Inst. Code, §§ 5150, 5328.
61 Welf. & Inst. Code, § 5330.
62 Welf. & Inst. Code, § 15633.
63 Welf. & Inst. Code, §15633.
64 Welf. & Inst. Code, § 15633.
65 Welf. & Inst. Code, §§ 827, 828; see Welf. & Inst. Code, § 827.9 [applies to Los Angeles County only]; see also T.N.G. v. Superior Court (1971) 4 Cal.3d 767 [release of information regarding minor who has been temporarily detained and released without any further proceedings.]
66 Welf. & Inst. Code, § 827.
67 Welf. & Inst. Code, § 828, subd. (a); Cal. Rules of Court, rule 5.552(g). 68 Welf. & Inst. Code, § 828, subd. (b).
69 Pen. Code, §§ 11165.6, 11165.7, 11167.5 & 11169.
70 Pen. Code, § 11167.5, subd. (a).
71 Gov. Code, § 6254, subd. (j).
72 Gov. Code, § 6267.
73 Gov. Code, §§ 6254, subd. (j) & 6267.
74 Gov. Code, § 6254, subd. (n).
75 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762. 76 Evid. Code, § 990 et seq.; Civ. Code, § 56 et seq.; 42 U.S.C. § 1320d. 77 Gov. Code, § 6254, subd. (k).
78 Both section 6254, subd. (c) and section 6254, subd. (k) of the Act probably apply to most records protected under the physician/patient privilege, the Confidentiality of Medical Information Act, or the Health Insurance Portability and Accountability Act. Section 6254, subdivision (c) of the Act exempts from disclosure “[p]ersonnel, medical, or similar files the disclosure of which would constitute an unwarranted invasion of personal privacy.” Section 6254, subdivision (k) of the Act exempts “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the evidence Code relating to privilege.” Protected individually identifiable health information is probably also exempt from disclosure under the “public interest” exemption in section 6255 of the Act.
79 Evid. Code, § 994.
80 Evid. Code, § 992.
81 Civ. Code, §§ 56.10, subd. (a), 56.05, subd. (g). “Provider of health care” as defined means persons licensed under section 500 and following of the Business and Professions Code or section 1797 and following of the Health and Safety Code, and clinics, health dispensaries or health facilities licensed under section 1200 and following of the Health and Safety Code. “Health care service plan” as defined means entities regulated under Health and Safety Code section 1340 and following. “Contractor” as defined means medical groups, independent practice associations, pharmaceutical benefits managers and medical service organizations that are not providers of health care or health care service plans.
82 Civ. Code, § 56.20.
83 Civ. Code, § 56.05, subd. (g).
84 Civ. Code, § 56.35.
342
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 39
85 Civ. Code, § 56.36, subds. (a), (b).
86 Civ. Code, § 56.36, subd. (c)(1).
87 Civ. Code, § 56.36, subd. (c)(2).
88 Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-192, § 261 (Aug. 24, 1996) 110 Stat. 1936; 42 U.S.C. § 1320d.
89 42 U.S.C. § 1320d-1–d-3, Health and Human Services Summary of the Privacy Rule, May, 2003. The final privacy regulations were issued in December, 2000 and amended in August, 2002. The definitions of “health information” and “individually identifiable health information” in the privacy regulations are in 45 Code of Federal Regulations part 160.103. The general rules governing use and disclosure of protected health information are in 45 Code of Federal Regulations part 164.502.
90 42 U.S.C. § 1320d-6. Federal law defines “individually identifiable health information” as any information collected from an individual that is created or received by a health care provider, health plan, employer or health care clearing house, that relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual, and that identifies the individual, or with respect to which there is a reasonable basis to believe that the information can be used to identify the individual. 91 42 U.S.C. §1320d-5.
92 Gov. Code, § 6254, subd. (c).
93 Gov. Code, § 6254, subd. (k).
94 Lab. Code, § 138.7, subd. (a).
95 Lab. Code, § 138.7.
96 Lab. Code, §§ 5501.5 & 138.7.
97 Gov. Code, § 6254, subd. (c).
98 Lab. Code, § 138.7.
99 Evid. Code, § 1040.
100 White v. Superior Court (2002) 102 Cal.App.4th Supp. 1. 101 Evid. Code, § 1040, subd. (b).
102 Gov. Code, § 6255.
103 The term “in camera” refers to a review of the document in the judge’s chambers outside the presence of the requesting party.
104 Shepherd v. Superior Court (1976) 17 Cal.3d 107.
105 Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363; California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810; County of Orange v. Superior Court (2000) 79 Cal.App.4th 759. 106 Evid. Code, § 1040, subd. (a).
107 Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363. 108 Gov. Code, § 6254, subd. (b).
109 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411. 110 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411. 111 Wilder v. Superior Court (1998) 66 Cal.App.4th 77.
112 Poway Unified School Dist. v. Superior Court (1998) 62 Cal.App.4th 1496. 113 City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083. 114 Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893. 115 See “Medical Privacy Laws,” p. 25.
116 Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893. 117 See “Law Enforcement Records,” p. 22.
118 D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411.
119 Gov. Code, § 6255.
120 Evid. Code, § 950 et seq.
121 Code Civ. Proc., § 2018.030.
122 City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083. 123 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 [attorney client privilege]; Fellows v. Superior Court (1980) 108 Cal.

App.3d 55 [work product protection].
124 Gov. Code, § 6259; Evid. Code, § 915, subd. (a).
125 Gov. Code, § 6255, subd. (a).
126 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008. 127 CBS, Inc. v. Block (1986) 42 Cal.3d 646.
343
40 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
128 New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579. 129 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810. 130 See Gov. Code, § 6254.21, subd. (f) [containing a non-exhaustive list of individuals who qualify as “elected or appointed official[s]”].
131 Gov. Code, § 6254.21.
132 Gov. Code, § 6254, subd. (c).
133 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645; American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440.
134 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319; Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278. 135 Gov. Code, § 6255; BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742; see also, Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272; see Chapter 4(c).
136 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319; Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278; BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742; American Federation of State etc. Employees v. Regents of University of California (1978) 80 Cal.App.3d 913.
137 American Federation of State etc. Employees v. Regents of University of California (1978) 80 Cal.App.3d 913; Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041. 138 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; Detroit Edison Co. v. NLRB (1979) 440 U.S. 301 [court found a reasonable expectation of privacy in one’s personnel files]; American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440.
139 Gov. Code, § 6254, subd. (k); Pen. Code, § 832.7; City of Hemet v. Superior Court (1995) 37.Cal.App.4th 1411. 140 Pen. Code, § 832.7; Evid. Code, §§ 1043, 1046.
141 Pen. Code, § 832.8.
142 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319; Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278. 143 Sanchez v. City of Santa Ana (9th Cir. 1990) 936 F.2d 1027, cert. denied (1991) 502 U.S. 957; Miller v. Pancucci (C.D.Cal. 1992) 141 F.R.D. 292.
144 Evid. Code, § 1043 et seq.; Guerra v. Board of Trustees (9th Cir. 1977) 567 F.2d 352; Kerr v. United States Dist.

Court for Northern Dist. (9th Cir. 1975) 511 F.2d 192, aff’d, (1976) 426 U.S. 394; Garrett v. City and County of San Francisco (9th Cir. 1987) 818 F.2d 1515.
145 People v. Mooc (2001) 26 Cal.4th 1216; People v. Thompson (2006) 141 Cal.App.4th 1312; City of San Jose v. Superior.

Court (1998) 67 Cal.App.4th 1135.
146 Gov. Code, § 6254.8.
147 Braun v. City of Taft (1984) 154 Cal.App.3d 332.
148 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319 [holding that the names and salaries of public employees earning $100,000 or more per year, including peace officers, are subject to disclosure under the Act]. 149 Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278. 150 Lab. Code, § 1776.
151 Lab. Code, § 1776, subd. (b).
152 Lab. Code, § 1776, subd. (c).
153 Contractors and subcontractors that fail to do so may be subject to a penalty of $25 per worker for each calendar day until compliance is achieved. Lab. Code, § 1776, subds. (d), (g). 154 Lab. Code, § 1776, subd. (e).
155 Lab. Code, § 1776, subd. (e).
156 Lab. Code, § 1776, subd. (e).
157 Lab. Code, § 1776, subd. (i); see Lab. Code § 16400 et seq. 158 California Code Regs., tit. 8, §§ 16400, 16402.
159 Gov. Code, § 6254, subd. (g).
160 Ed. Code, § 99157, subd. (a); Brutsch v. City of Los Angeles (1982) 3 Cal.App.4th 354. 161 Ed. Code, § 9915, subds. 7(a) & (b).
162 Ed. Code, §§ 99153 & 99154.
163 Ed. Code, § 99162.
164 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810. 165 Pub. Contract Code, § 22038.
166 Gov. Code, § 6255; Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065. 167 Pub. Contract Code, §§ 10165, 10506.6, 10763, 20101, 20111.5, 20209.7, 20209.26 & 20651.5. 344
THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions 41
168 Gov. Code, § 6254, subd. (h).
169 Gov. Code, § 6245, subd. (h).
170 Gov. Code, § 7267.2, subd. (c).
171 Welf. & Inst. Code, § 18909.
172 Welf. & Inst. Code, § 10850.
173 Jonon v. Superior Court (1979) 93 Cal.App.3d 683.
174 Health & Saf. Code, § 34283.
175 Health & Saf. Code, § 34332, subd. (c).
176 Gov. Code, § 6254.1.
177 Gov. Code, § 6254, subd. (i); see also Rev. & Tax. Code, § 7056. 178 Rev. & Tax Code, §§ 7056 & 7056.5.
179 Evid. Code, §§ 1040 & 1060; Gov. Code, §§ 6254, subd. (k), 6255. 180 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810; Braun v. City of Taft (1984) 154 Cal.App.3d 332; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762. 181 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810; San Gabriel Tribune v.

Superior Court (1983) 143 Cal.App.3d 762.
182 Civ. Code, § 3426.1, subd. (d). This trade secret definition is set forth in the Uniform Trade Secrets Act (“UTSA”) at Civil Code section 3426.1, subdivision (d). However, Civil Code section 3426.7, subdivision (c) states that any determination as to whether disclosure of a record under the Act constitutes a misappropriation of a trade secret shall be made pursuant to the law in effect before the operative date of the UTSA. At that time, California used the Restatement definition of a trade secret, which was lengthy. See Uribe v. Howie (1971) 19 Cal.App.3d 194.

Accordingly, it is not clear that the trade secret definition that applies generally under the UTSA is the trade secret definition that applies in the context of a public records request. 183 Uribe v. Howie (1971) 19 Cal.App.3d 194.
184 Gov. Code, § 6254.2.
185 Gov. Code, § 6254.7.
186 Gov. Code, § 6254.15.
187 Gov. Code, § 6254, subd. (e).
188 Gov. Code, § 6254.16.
189 Gov. Code, § 6554.16, subd. (a).
190 Gov. Code, § 6254.16, subd. (b).
191 Gov. Code, § 6254.16, subd. (c).
192 Gov. Code, § 6254.16, subd. (d).
193 Gov. Code, § 6254.16, subd. (f).
194 Gov. Code, § 6265.16, subd. (e).
195 Gov. Code, § 6255; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 196 CBS Broadcasting, Inc. v. Superior Court (2001) 91 Cal.App.4th 892. 197 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 198 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065; Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001. 199 Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001. 200 American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440. 201 Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065. 202 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645. 203 CBS Broadcasting Inc., v. Superior Court (2001) 91 Cal.App.4th 892; Connell v. Superior Court (1997) 56 Cal.App.4th 601; Copley Press, Inc., v. Superior Court (1998) 63 Cal.App.4th 367; CBS, Inc. v. Block (1986) 42 Cal.App.3d 646; Braun v. City of Taft (1984) 154 Cal.App.3d 332; California State University, Fresno Assn. v. Superior Court (2001) 90 Cal.App.4th 810.
204 Gov. Code, § 6255.
205 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 206 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 207 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 208 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 209 California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136; Rogers v. Superior Court (1993) 19 Cal.App.4th 469. 210 Cal. Const., art. I, § 3, subd. (b)(1).
211 Cal. Const., art. I, § 3, subd. (b)(2).
212 Cal. Const., art. I, § 3, subd. (b)(2).
345
42 THE PEOPLE’S BUSINESS Q Chapter 4: Exemptions
213 Cal. Const., art. I, § 3, subd. (b)(2).
214 New York Times v. Superior Court (1990) 218 Cal.App.3d 1579; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762; Rogers v. Superior Court (1993) 19 Cal.App.4th 469. 215 Cal. Const., art. I, § 3, subd. (b)(5); International Federation of Professional and Technical Engineers, Local 21, AFLCIO v. Superior Court (2007) 42 Cal.4th 319. 216 BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742. 217 87 Ops.Cal.Atty.Gen. 181 (2004); 88 Ops.Cal.Atty.Gen. 16 (2005); 89 Ops.Cal.Atty.Gen. 204 (2006). 218 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319.
346
CHAPTER 5:

JUDICIAL REVIEW AND REMEDIES

OVERVIEW

THE TRIAL COURT PROCESS

AND DECISION

APPELLATE REVIEW

ATTORNEY FEES AND COSTS
347
44 THE PEOPLE’S BUSINESS Q Chapter 5: Judicial Review and Remedies

Q OVERVIEW
The Act establishes a special, expedited judicial process to resolve disputes over the public’s right to inspect or receive copies of public records.1
In contrast to other governmental transparency laws such as the Ralph M. Brown Act,2
the Act contains no criminal penalties for a local agency’s failure to comply with the Act. Rather, the Act is enforced through an expedited civil judicial process in which any person may ask a judge to compel a public agency to disclose a public record or a class of public records.3 A person who
successfully enforces his or her rights under the Act is entitled to receive reasonable attorney fees and court costs.4
This chapter discusses the special rules that apply to lawsuits brought to enforce the Act.

Q THE TRIAL COURT PROCESS AND DECISION
Any person may file a civil action for injunctive or declaratory relief or writ of mandate to enforce his or her right to inspect or receive a copy of any public record under the Act.5 The action may be filed in any court
of competent jurisdiction, which typically is the superior court in the county where the records or some part of them are maintained.6
The Act does not contain a specific time period in which the action must be filed. Therefore, such action must be filed in a manner consistent with traditional actions for injunctive or declaratory relief or writ of mandate and would be subject to any limitations periods or equitable concepts such as laches applicable to such actions.

A local agency may not commence an action for declaratory relief to determine the agency’s obligation to disclose records to a member of the public under the Act.7 Allowing a local agency to seek declaratory relief
to determine whether it must disclose records to a member of the public would frustrate the Legislature’s purpose of furthering the fundamental right of every person in the state to have prompt access to information in the possession of local agencies. However, a local agency is a “person” under the Act and may maintain an action to compel the disclosure of records under the Act.8 Practice Tip:

Although the Act does not
contain criminal penalties,
violations of the Act can
lead to public criticism of
both the local agency and
the individuals involved,
payment of attorney fees by
the local agency, and other
non-criminal sanctions.

Certain local agencies may
also have local “sunshine”
ordinance policies that
make violations of the Act
grounds for discipline of
employees or officials.
348
THE PEOPLE’S BUSINESS Q Chapter 5: Judicial Review and Remedies 45 A lawsuit brought to enforce the Act is not subject to the normal time periods that apply to other civil actions. The judge in each case will establish the times for responsive pleadings and for hearings with the object of securing a decision at the earliest possible time.9 If the judge determines, based upon a verified
petition, that certain public records are being improperly withheld from a member of the public, the judge will order the officer or person withholding the records to disclose the public record or show cause why he or she should not do so.10
In a typical action under the Act, the parties will file written arguments with the court to explain why the records should be disclosed or withheld. The court will also hold a hearing to give the parties an opportunity to argue the case. If permitted by the rules of evidence.11 The judge may examine the record or records at issue in camera, that is, in the judge’s chambers and out of the presence and hearing of others, to help decide the case.12 The judge must decide the case based on a review of the record or records (if such review is permitted), the papers filed by the parties, any oral argument, and additional evidence as the court may allow.13
If the court finds that the public official’s decision to refuse disclosure is not justified under the Act, the judge shall order the public official to make the record public.14 If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.15 The court may also order some of the records to be disclosed while upholding the decision to withhold other records.

In addition, the court may order that portions of the records be redacted and compel the disclosure of the remaining portions of the records.

A local agency must disclose the public records pursuant to the trial court’s order unless a party obtains a stay of the order or judgment through a petition to the appellate court. Absent a stay, any person who fails to obey the order of the court shall be ordered to show cause why he or she is not in contempt of court.16

Q APPELLATE REVIEW
As part of the expedited judicial review process established by the Act, a trial court’s order is not considered to be a final judgment subject to the normal and often lengthy appeal process. In place of a normal appeal, such orders are subject to immediate review through the filing of a petition to the appellate court for the issuance of an extraordinary writ.17 This manner of providing for appellate review through an extraordinary writ procedure rather than a normal appeal has been held to be constitutional.18 A party seeking review of a trial court’s order must file a petition for review with the appellate court within 20 days after he or she is served with a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the written notice of entry of the order is served by mail, the period within which to file the petition is increased by five days.19 If a party wishes to prevent the disclosure of public records pending appellate review of the trial court’s decision, that party must ask the appellate court for a stay of the order or judgment. The appellate court shall not grant such a stay unless the petitioning party demonstrates both that it will sustain irreparable damage because of the disclosure and that it is probable that the party will succeed on the merits of the case in the appellate court.20
349
46 THE PEOPLE’S BUSINESS Q Chapter 5: Judicial Review and Remedies Because the trial court’s decision is not a final judgment for which there is an absolute right of appeal, the appellate court may decline to review the case without a hearing or without issuance of a detailed written opinion. However, since the intent of substituting writ review for the normal appeal process is to provide for speedier appellate review, not to provide for less appellate review, an appellate court may not deny an apparently meritorious writ petition that is timely presented and procedurally sufficient merely because the petition presents no important issue of law or because the court considers the case less worthy of its attention than other matters.21
Once a court of appeal accepts a petition for review, the appellate process proceeds in much the same fashion as a normal appeal.

The appellate court will establish a briefing schedule and set the matter for a hearing once briefing is complete. The scope of review is equivalent to the scope of review on appeal, and an appellate court will consider the merits of a trial court’s order as if the case were on appeal.22 The appellate court will conduct an independent review of the trial court’s ruling, with the factual findings made by the trial court being upheld if based on substantial evidence.23 The decision of the appellate court, whether to deny review or on the merits of the case, is subject to discretionary review by the California Supreme Court through a petition for review.

While the trial court’s decision regarding disclosure of records is not subject to the normal appeal process, other decisions of the trial court related to a lawsuit under the Act are subject to appeal. Thus, a trial court’s decision to deny attorney fees and costs under the Act is subject to appeal and is not subject to the extraordinary writ process.24 Similarly, an award of sanctions in a public records case is subject to appeal rather than a petition for an extraordinary writ.25

Q ATTORNEY FEES AND COSTS
If the plaintiff prevails in the litigation, the judge must award court costs and reasonable attorney fees to the plaintiff.26 A plaintiff will be considered the prevailing party if the lawsuit results in the disclosure of some or all of the requested records. This means that the plaintiff will likely be considered the prevailing party even when he or she has only achieved a partial victory in the lawsuit.27 In addition, a plaintiff may be considered the prevailing party when the local agency discloses some or all of the records after the lawsuit is filed but prior to a court order requiring such disclosure, if the agency’s disclosure was the result of or prompted by the lawsuit.28 On the other hand, if the local agency did not decline to provide the records but, acting diligently, was only able to disclose them after the filing of the lawsuit, the plaintiff will likely not be considered the prevailing party because the lawsuit did not result in or prompt the disclosure.29 A member of the public may be entitled to an award of attorney fees and costs even when he or she is not denominated as the “plaintiff” in the action.30 If the party is the functional equivalent of a plaintiff in a Public Records Act lawsuit—that is, if the party’s intent to invoke the Act prompted the litigation—that party may be considered the prevailing plaintiff under the Act.

The local agency, not the public official who made the decision, must pay any award of costs and fees. The award does not become a personal liability of the public official who made the decision not to disclose the public records.31
350
THE PEOPLE’S BUSINESS Q Chapter 5: Judicial Review and Remedies 47 The successful local agency defendant may seek an award of attorney fees and court costs against an unsuccessful plaintiff, but the agency will only obtain such an award in very limited circumstances. Only when the court finds that the plaintiff’s case is clearly frivolous may it award court costs and reasonable attorney fees to the local agency.32
Endnotes
1 Gov. Code, §§ 6258, 6259.
2 Gov. Code, § 54950 et seq.
3 Gov. Code, § 6258.
4 Gov. Code, § 6259, subd. (d).
5 Gov. Code, § 6258.
6 Gov. Code, § 6259, subd. (a).
7 Filarsky v. Superior Court (2002) 28 Cal.4th 419.
8 Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759. 9 Gov. Code, § 6258.
10 Gov. Code, § 6259, subd. (a).
11 Evid. Code. § 915.
12 Gov. Code, § 6259, subd. (a).
13 Gov. Code, § 6259, subd. (a).
14 Gov. Code, § 6259, subd. (b).
15 Gov. Code, § 6259, subd. (b).
16 Gov. Code, § 6259, subd. (c).
17 Gov. Code, § 6259, subd. (c).
18 Powers v. City of Richmond (1995) 10 Cal.4th 85.
19 Gov. Code, § 6259, subd. (c).
20 Gov. Code, § 6259, subd. (c).
21 Powers v. City of Richmond (1995) 10 Cal.4th 85.
22 State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177. 23 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325. 24 Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381. 25 Butt v. City of Richmond (1996) 44 Cal.App.4th 925.
26 Gov. Code, § 6259, subd. (d).
27 Los Angeles Times v. Alameda Corridor Transportation. Authority (2001) 88 Cal.App.4th 1381. 28 Rogers v. Super. Ct. (1993) 19 Cal.App.4th 469; Belth v. Garamendi (1991) 232 Cal.App.3d 896. 29 Motorola Communication & Electronics, Inc. v. State Dept. of General Services (1997) 55 Cal.App.4th 1340; Rogers v.

Superior Court (1993) 19 Cal.App.4th 469.
30 Fontana Police Depart. v. Villegas Banuelos (1999) 74 Cal.App.4th 1249. 31 Gov. Code, § 6259, subd. (d).
32 Gov. Code, § 6259, subd. (d); Butt v. City of Richmond (1996) 44 Cal.App.4th 925. 351
48 THE PEOPLE’S BUSINESS Q Chapter 5: Judicial Review and Remedies 352 CHAPTER 6:

RECORDS MANAGEMENT

PUBLIC MEETING RECORDS

ELECTRONIC RECORDS

ELECTRONIC DISCOVERY

RECORDS RETENTION AND

DESTRUCTION LAWS
353
50 THE PEOPLE’S BUSINESS Q Chapter 6: Records Management

Q PUBLIC MEETING RECORDS
Any person may request to receive a copy of a local agency meeting agenda or agenda packet by mail.1 If requested, the agenda material must be made available in appropriate alternative formats to persons with disabilities.2
If a local agency receives a written request to send agenda materials by mail, the materials must be mailed when the agenda is posted or distributed to a majority of the agency’s legislative body, whichever occurs first.3
Requests for mailed copies of agendas or agenda packets are valid for the calendar year in which they are filed, but must be renewed after January 1 of each subsequent year.4 Local agency
legislative bodies may establish a fee for mailing agenda materials.5 The fee may not exceed the cost of
providing the service.6
Failure of a requester to receive agenda material is not a basis for invalidating action taken at the meeting for which agenda material was not received.7 Writings that are distributed to all or a majority of all members of a legislative body in connection with a matter subject to discussion or consideration at a public meeting of the body are public records (subject to the exemptions in the Act) and must be made available upon request without delay.8 Where such
nonexempt writings are distributed during a public meeting, in addition to making them available for public inspection at the meeting (if prepared by the agency or member of its legislative body) or after the meeting (if prepared by another person), they must be made available in appropriate alternative formats upon request by a person with a disability.9
The agency may charge a fee for a copy of this record; however, no surcharge may be imposed on persons with disabilities.10 Records pertaining to agenda items must be made available for public inspection at a location listed in the meeting agenda if the records are distributed less than 72 hours prior to the meeting.11
Practice Tip:

Some agencies have
found it useful to adopt
electronic records policies
governing such issues as:
what electronic records
(for example, emails) are
considered “retained in
the ordinary course of
business” for purposes of
the Act; whether personal
electronic devices (like
computers, personal data
assistants, cell phones,
etc.) may be used to
store or send electronic
communications concerning
the agency, or whether
agency devices must be
used; etc.
354
THE PEOPLE’S BUSINESS Q Chapter 6: Records Management 51

Q ELECTRONIC RECORDS
“Public records” subject to the Act 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.”12 Therefore, records subject to the Act include records in any media, including electronic media, in which government agencies may possess records. This is underscored by the definition of “writings” treated as public records, which includes any “transmitting by electronic mail or facsimile, and 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.”13 Some provisions of the Act deal explicitly with electronic records.

The Act obligates agencies to provide electronic copies of existing, nonexempt records that are requested in an electronic format that the agency has already used for itself or transmission to another agency, unless doing so would compromise the security or integrity of the original record, or any proprietary software in which it is maintained, or unless otherwise prohibited by law.14 Duplication costs of electronic records are limited to the direct cost of producing the electronic copy.15 However, requesters may be required to bear additional costs of producing the electronic copy, such as programming and computer services costs, if the records are only produced at regularly scheduled intervals, or production of the record would require data compilation, extraction or programming.16 Agencies are not required to reconstruct electronic copies of records no longer available to the agency in electronic format.17 Electronic records may include “metadata,” or data about data contained in a record that is not visible in the text. For example, metadata may describe how, when or by whom particular data was collected, and contain information about document authors, other documents, or commentary or notes. No provision of the Act expressly addresses metadata, and no reported court opinions have considered whether or the extent to which metadata is subject to disclosure. Nor does the Act or its case law provide guidance on whether agencies have a duty to disclose electronic public records that contain exempt metadata if the agency is unable to electronically remove the metadata.

Electronic records maintained by local agencies may also include geographic information system (GIS) records and GIS technology that permits storage, processing and display of geographical information. Many local agencies use GIS programs and databases for a broad range of purposes, including the creation and editing of maps depicting property and facilities of importance to the agency and the public. As with metadata, the Act does not expressly address, and no published cases discuss, GIS information disclosure.

The Act permits government agencies to develop and
commercialize computer software and to benefit from copyright protections for agency-developed software. Computer software developed by state or local agencies, including computer mapping systems, computer programs, and computer graphics systems, is not a public record subject to the Act.18 As a result, public agencies are not required to provide copies of agency-developed software pursuant to the Act. The Act authorizes state and local agencies to sell, lease, or license agency-developed software for commercial or noncommercial use.19 The exception for agency-developed software does not affect other public agency electronic records.20
Practice Tip:

Local agencies should
consult with legal
counsel concerning
disclosure of metadata
or GIS information.
355
52 THE PEOPLE’S BUSINESS Q Chapter 6: Records Management

Q ELECTRONIC DISCOVERY
The importance of maintaining a written document retention policy is evident by revisions to Rule 26 of the Federal Rules of Civil Procedure, which took effect December 1, 2006. Rule 26 requires parties in federal court litigation to address the production and preservation of electronic records. These rule changes do not require a local agency to alter its routine management or storage of electronic information. They do, however, illustrate the importance of having formal document retention policies.

In general, once federal court litigation begins, a local agency has a duty to preserve information for discovery. In some cases, the local agency may have to suspend the routine operation of its information systems in order to preserve information relevant to the litigation.

Q RECORDS RETENTION AND DESTRUCTION LAWS
The Act is not a records retention statute. The Act does not prescribe what type of information a public agency may gather or keep, or provide a method for correcting records.21 Its sole function is to provide for disclosure.22 Other provisions of state law govern retention of public records.

Local agencies generally must retain public records for a minimum of two years, although some records may be destroyed sooner.23 For example, duplicate records that are less than two years old may be destroyed if no longer required.24 State law does not permit destruction of records affecting title to or liens on real property, court records, records required to be kept by statute, and the minutes, ordinances, or resolutions of the legislative body or city board or commission.25 Most local agencies adopt records retention schedules as a key element of a records management system. The Secretary of State has provided local governments with records management guidelines.26 However, there is no definition of the “public records” subject to state records retention statutes.27 The Attorney General has opined that the definition of “public records” for purposes of the records retention statutes is “a thing which constitutes an objective lasting indication of a writing, event or other information, which is in the custody of a public officer and is kept either (1) because a law requires it to be kept or (2) because it is necessary or convenient to the discharge of the public officer’s duties and was made or retained for the purpose of preserving its informational content for future reference.”28 Under this definition, local agency officials retain some discretion concerning what agency records must be kept pursuant to state records retention laws. Similarly, the Act allows for local agency discretion concerning what preliminary drafts, notes or interagency or intra-agency memoranda are retained in the ordinary course of business.29
Practice Tip:

The definition of “public
records” for purposes of
the Act and state records
retention laws are different,
and because local agency
officials retain some
discretion under the Act and
state records retention laws
concerning what records
an agency retains, the fact
that a particular type of
public record is subject to
disclosure under the Act
does not necessarily mean
that local agencies must
retain such records.
356
THE PEOPLE’S BUSINESS Q Chapter 6: Records Management 53 Endnotes
1 Gov. Code, § 54954.1.
2 Gov. Code, § 54954.1.
3 Gov. Code, § 54954.1.
4 Gov. Code, § 54954.1.
5 Gov. Code, § 54954.1.
6 Gov. Code, § 54954.1.
7 Gov. Code, § 54954.1.
8 Gov. Code, § 54957.5, subd. (a).
9 Gov. Code, § 54957.4, subd. (c)
10 Gov. Code, § 54957.5, subd. (d).
11 Gov. Code, § 54957.5, subds. (b)(1),(2).
12 Gov. Code, § 6252, subd. (e), emphasis added.
13 Gov. Code, § 6252, subd. (g).
14 Gov. Code, § 6253.9, subd. (a).
15 Gov. Code, § 6253.9, subd. (a)(2).
16 Gov. Code, § 6253.9, subd. (b).
17 Gov. Code, § 6253.9, subd. (c). See “No Duty to Create a Record or to Create a Privilege Log,” p. 13. 18 Gov. Code, § 6254.9, subds. (a), (b).
19 Gov. Code, § 6254.9, subd. (a).
20 Gov. Code, § 6254.9, subd. (d).
21 Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661. 22 Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661. 23 Gov. Code, § 34090, subd. (d).
24 Gov. Code, § 34090.7.
25 Gov. Code, § 34090, subds. (a), (b), (c), (e).
26 The Secretary of State’s Local Government Records Management Guidelines may be viewed at http://www.sos.ca.gov/archives/locgov/localgovrm7.pdf.
27 64 Ops.Cal.Atty.Gen. 317 (1981).
28 64 Ops.Cal.Atty.Gen. 317 (1981).
29 Gov. Code, § 6254, subd. (a). See “Drafts,” p. 20.
357
54 THE PEOPLE’S BUSINESS Q Chapter 6: Records Management 358 THE PEOPLE’S BUSINESS:

A Guide to the California Public Records Act
APPENDIX:

FREQUENTLY REQUESTED

INFORMATION AND RECORDS
359
56 360
Information/Records Requested Must the Information/Record Generally Be Disclosed?
Applicable Authority
Agenda materials distributed to
a legislative body relating to an
open session item
Yes Gov. Code, § 54957.5. For additional information, see p. 50 of “The People’s Business: A Guide to the California Public Records Act,” hereafter referred to as “the Guide”.

Calendars of Elected Officials Probably not, but note that there is no published appellate
court decision on this issue
post- Prop. 59.1
Times Mirror Co. v. Superior Court (1991) 53 Cal.3d. 1325 and Rogers v. Superior Court (1993) 19 Cal.App.4th 469 for a discussion of the deliberative process privilege. See also, 87 Ops.Cal.Atty.Gen. 181 (2004); 88 Ops.Cal. Atty.Gen. 16 (2005); 89 Ops.Cal.Atty.Gen. 204 (2006), as to scope of Prop.

59. For additional information, see p. 35 of the Guide.

Contact information – Names,
addresses, and phone numbers of
crime victims or witnesses
No Gov. Code, § 6254(f)(2). For additional information, see p. 29 of the Guide.

Citizen complaints against peace
officers – annual summary report
to AG
Yes Pen. Code, § 832.7(c). For additional information, see p. 30 of the Guide.

Citizen complaint information –
names, addresses, and telephone
numbers
No City of San Jose v. San Jose Mercury News (1999) 74 Cal.

App.4th 1008. For additional information, see p. 30 of the Guide.

Claims for damages Yes Poway Unified School District v. Superior Court (1998) 62 Cal.App.4th 1496.

Election petitions
(initiative, referendum and
recall petitions)
No, except to proponents if petition
found to be insufficient.

Gov. Code, § 6253.5; Elec. Code, §§ 17200, 17400, and
18650; Evid. Code, § 1050. For additional information,
see p. 21 of the Guide.

Emails between government staff It depends. Generally, emails are deleted by administrative policy and are not retained in the ordinary course of business. (See § 6254(a)). See also Times Mirror v. Superior Court (1991) 53 Cal.3d 1325; Rogers v. Superior Court (1993) 19 Cal.App.4th 469 for a discussion of the deliberative process privilege.

For additional information, see p. 35 of the Guide.
1 The analysis with respect to elected officials may not necessarily apply to executive officers such as City Managers or Chief Administrative Officers, and there is no case law directly addressing this issue.

Frequently Requested Information and Records
This table is intended as a general guide on the applicable law and is not intended to provide legal advice. The facts and circumstances of each request should be carefully considered in light of the applicable law. A local agency’s legal counsel should always be consulted when legal issues arise.

THE PEOPLE’S BUSINESS:

A Guide to the California Public Records Act
57 361
Information/Records Requested Must the Information/Record Generally Be Disclosed?
Applicable Authority
Employment Agreements/
Contracts
Yes Gov. Code, §§ 6254.8 and 53262(b). For additional
information, see p. 30 of the Guide.

Form 700 (Statement of
Economic Interests) and
Campaign Statements
Yes2 Gov. Code, § 81008
Grading documents including
geology reports, compaction
reports, and soils reports
submitted in conjunction with an
application for a building permit
Yes 89 Ops.Cal.Atty.Gen. 39 (2006); but see Gov. Code, § 6254(e). For additional information, see p. 19 of the Guide.

Juvenile Court Records No T.N.G. v. Superior Court (1971) 4 Cal.3d. 767; Welf. & Inst.

Code, §§ 827 and 828. For additional information, see p. 24 of the Guide.

Legal billing statements Generally, yes, as to amount billed.

No, as to any billing detail which
reflects an attorney’s impressions,
conclusions, opinions or legal
research or strategy.

Gov. Code, § 6254(k); Evid. Code, § 950, et seq.; Smith v.

Laguna Sun Villas Community Assoc. (2000) 79 Cal.App.4th 639; United States v. Amlani, 169 F.3d 1189 (9th Cir. 1999); Clarke v. American Commerce National Bank, 974 F.2d.
127 (9th Cir. 1992); but see Gov. Code, § 6254(b) as to the disclosure of billing amounts reflecting legal strategy in pending litigation. For additional information, see p. 19, 28 of the Guide.

Library Circulation Records No Gov. Code, § 6254(j) and 6267. For additional information, see p. 25 of the Guide.

Medical Records No Gov. Code, § 6254(c). For additional information, see p. 25 of the Guide.

Mental Health detentions
(5150 reports)
No Welf. & Inst. Code, § 5328. For additional information, see p. 24 of the Guide.

Minutes of Closed Sessions No Gov. Code, § 54957.2(a). For additional information, see p. 19, 34, 35 of the Guide.

Notices/Orders to property
owner re: housing/building code,
violations
Yes Gov. Code, § 6254.7(c). For additional information, see p. 20 of the Guide.

Official Building Plans
(architectural drawings and plans)
Inspection only. Copies provided
under certain circumstances.

Health & Saf. Code, § 19851; see also 17 U.S.C. §§101 and 102. For additional information, see p. 19 of the Guide.

Personal Financial Records No Gov. Code, § 7470, 7471, 7473; see also Gov. Code, § 6254(n). For additional information, see p. 25 of the Guide.

Frequently Requested Information and Records, Continued 2 It should be noted that these statements must be made available for inspection and copying not later than the second business day following the day on which the request was received.
58 362
Information/Records Requested Must the Information/Record Generally Be Disclosed?
Applicable Authority
Personnel
• Employee inspection of own
personnel file
• Names and salaries (including
performance bonuses and overtime)
of public employees, including peace
officers
• Test Questions, scoring keys, and
other examination data.

Yes, with exceptions.

Yes, absent unique, individual
circumstances. However, other
personal information such as social
security numbers, home telephone
numbers and home addresses are
generally exempt from disclosure
per Gov. Code, § 6254(c).

No
For additional information, see p. 29-31 of the Guide.
• Lab. Code, § 1198.5. This section applies to charter cities.

See Gov. Code, § 31011. For peace officers, see Gov.

Code, § 3306.5.
• International Federation of Professional and Technical Engineers, Local 21, AFL-CIO, et al. v. Superior Court
(2007) 42 Cal.4th 319.
• Gov. Code, § 6254(g)
Police
• Citizen complaint policy
• Criminal history
• Criminal investigative reports
including booking photos, audio
recordings, dispatch tapes, 911
tapes and in-car video
• Crime reports
• Gang intelligence information
• In custody death reports to AG
• List of concealed weapon permit
holders
• Concealed weapon permits and
applications
• Officer’s personnel file
• Peace officer’s name, employing
agency and employment dates
• Names of officers involved in critical
incidents
• Traffic accident reports
Yes
No
No
Yes
No
Yes
Yes
Yes, except for home/ business
address and medical/psychological
history.

No
Yes, absent unique, individual
circumstances.

Yes, absent unique, individual
circumstances.

Yes, to certain parties.

For additional information, see p. 22-25 of the Guide.
• Pen. Code, § 832.5(a)(1)
• Pen. Code, § 13300 et seq.; Pen. Code, § 11105 et seq. • Gov. Code, § 6254(f); Haynie v. Superior Court (2001) 26 Cal.4th 1061.
• Gov. Code, §§ 6254(f), 6255
• Gov. Code, § 6254(f); 79 Ops.Cal.Atty Gen. 206 (1996). • Gov. Code, § 12525
• Gov. Code, § 6254(u)(1); CBS, Inc. v. Block (1986) 42 Cal.3d 646.
• Gov. Code, § 6254(u)(1); CBS, Inc. v. Block (1986) 42 Cal.3d 646.

This information can only be disclosed through a Pitchess motion. Pen. Code, §§ 832.7 and 832.8; Evid. Code, §§
1043-1045.
• Commission on Peace Officer Standards and Training
v. Superior Court (2007) 42 Cal.4th 278.
• Commission on Peace Officer Standards and Training v.

Superior Court (2007) 42 Cal.4th 278; New York Times v.

Superior Court (1997) 52 Cal.App.4th 97.
• Veh. Code, § 16005 [only disclose to those needing the information, such as insurance companies, and the
individuals involved].

Frequently Requested Information and Records, Continued 59 363
Information/Records Requested Must the Information/Record Generally Be Disclosed?
Applicable Authority
Public Contracts
• Bid Proposals, RFP proposals
• Financial information submitted
for bids
• Trade secrets
Yes, but only after negotiations are
complete.

No
No
• Michaelis v. Superior Court (2006) 38 Cal. 4th 1065;
but see Gov. Code, § 6255 and Evid. Code, § 1060.

For additional information, see p. 31-32 of the Guide.
• Gov. Code, §§ 6254(a),(h) and (k), 6254.15 and 6255;
Schnabel v. Superior Court of Orange County (1993) 5
Cal.App.4th 704, 718. For additional information,
see p. 31-32 of the Guide.
• Evid. Code, § 1060; Civ. Code, § 3426, et seq. For
additional information, see p. 33 of the Guide.

Purchase price of real property Yes, after the agency acquires the property.

Gov. Code, § 7275
Real Estate
• Property information (such as selling
assessed value, square footage,
number of rooms)
• Appraisals and offers to purchase
Yes
Yes, but only after conclusion of the
property acquisition.

For additional information, see p. 32 of the Guide.
• 88 Ops.Cal.Atty.Gen. 153 (2005)
• Gov. Code, § 6254(h); Note that Gov. Code, § 7267.2
requires release of more information to the property
owner while the acquisition is pending.

Report of arrest not resulting in
conviction
No, except as to peace officers or
peace officer applicants.

Lab. Code, § 432.7
Settlement Agreements Yes Register Division of Freedom Newspapers v. County of Orange (1984) 158 Cal.App.3d 893. For additional
information, see p. 28 of the Guide.

Software, including mapping
systems
No Gov. Code, § 6254.9; 88 Ops.Cal.Atty.Gen. 153 (2005).

For additional information, see p. 51 of the Guide.

Taxpayer information received
in connection with collection of
local taxes
No Gov. Code, § 6254(i). For additional information, see p. 33 of the Guide.

Telephone Records of Elected
Officials
Yes, as to expense totals. No,
as to phone numbers called.

See Rogers v. Superior Court (1993) 19 Cal.App.4th 469.

For additional information, see p. 35 of the Guide.

Utility usage data No, with certain exceptions. Gov. Code, § 6254.16. For additional information, see p. 33 of the Guide.

Voter information No Gov. Code, § 6254.4. For additional information, see p. 21 of the Guide.

Frequently Requested Information and Records, Continued 60 364
THE PEOPLE’S BUSINESS:

A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT
1400 K Street, Sacramento, CA 95814
Phone: (916) 658-8200 | Fax: (916) 658-8240
www.cacities.org
Price: $40.00
SKU 1800 365

APPENDIX E - PUBLIC FACING COMMUNICATIONS, COUNCIL NOTIFICATIONS

AND SOCIAL MEDIA POLICY
366

CITY OF AMERICAN CANYON
Public and Media Communications Policy
Policy Statement:

The City of American Canyon encourages the positive exchange of accurate and timely information among City Council Members, City staff, representatives of the media, community groups, citizens, and other interested parties. The City Manager and department directors are charged with providing an “objective playing field” for the legislative process and distribution of public information for the media.

The City endeavors to keep citizens apprised of pertinent information concerning community issues, policies, activities, services and events to create greater awareness of local government and to facilitate the community’s participation in the local government decisionmaking process.

The City follows all regulations and policies related to use of public funds for any purpose other than those related to City administration, operations, and services. In no case shall City resources be used for any promotional purposes including, but not limited to, promotion of a political position or individual running for, or maintaining a political office.

Policy:

I. Public Communications
A. Letters and opinion surveys designed for mass distribution shall be reviewed and coordinated with the City Manager’s Office for purpose, content, format analysis, and for placement strategies.

B. All printed materials (fliers, posters, signs, pamphlets, brochures, advertisements, maps, presentation materials, etc.) designed for distribution to and/or viewing by the public shall be reviewed by the City Manager or his/her designee prior to printing, copying, or uploading.

C. Requests from the public or from community groups for the involvement of City officials, employees, or other City resources in events, photo opportunities, or for other purposes shall be made through the City Manager or his/her designee to determine the appropriateness and legality of the involvement. Criteria for granting such a request shall be approved by the City Council (see Table 1).

II. State Regulation for Newsletters, Mass Mailings, and other Media All mass-distributed documents and other media prepared at “taxpayers’ expense shall comply with all FPPC rules and regulations regarding all printed and photographical materials, video productions, and other media-related features. (The latest FPPC rules and regulations can be found at www.fppc.ca.gov) 367
III. Use of Public Funds for Political Purposes
Use of any City resources such as equipment, supplies, employee time, and/or City symbols (any symbol or insignia of the City that would create a nexus with the public entity and a political purpose/office) is expressly prohibited unless approved by the governing body and/or the City Manager. Public funds cannot be extended for any political purposes such as the promotion of a political position or office. It is generally prohibited because it could reasonably be interpreted or construed as implying the City’s connection, approval, or endorsement of the involved political issue, office, or function. As stated in # I above, requests for such City involvement shall be made through the City Manager or his/her designee to determine the appropriateness and legality of such involvement and if approval by the governing body is required.

IV. Media Response Philosophy
City staff shall be timely, accurate and concise in their responses to the media. The City encourages and promotes accurate press coverage of programs, events, and decisions which could be of interest to a significant segment of the community.

Inquiries from the news media are to be given a high priority and shall be responded to as quickly, efficiently, and professionally as possible. Every effort shall be made to meet media deadlines and to ensure that all information released is accurate, concise, and well organized.

When responding to the media, City staff shall represent the official position of the City and shall limit their comments to stating the facts and circumstances, without personal opinions or conclusions.

Council Members speaking to the media, who are not representing the official position of the City, or Council, shall clearly identify that they are responding on their own behalf and do not represent the Cit, or the Council in their comments on that specific issue.

V. Press Releases
City press releases constitute written or verbal communications to the media regarding official City business.

A. Responsibility – All media releases relative to major citywide policies and actions shall be prepared and distributed by the City Manager’s Office or his/her designee. Each department shall prepare and distribute releases related to their specific department. However, those releases need to be approved by the City Manager prior to release. In addition, the City Manager shall be notified prior to the release of information to the media in cases which are significant or controversial except those circumstances in public safety that would make this impracticable. In those situations, the department involved needs to notify the City Manager as soon as possible after the release of significant information 368
B. Release Preparation and Format – Press releases shall be prepared according to the City’s established format. The City Clerk will maintain a file of all press releases.

VI. Release of Information Pertaining to Significant/Controversial Issues and Events
Definition of Issues: It is the responsibility of department directors to notify the City Manager of significant events or issues which occur within their departments or that have had a public airing resulting in a conflict or public agitation. Such event or issue may be of major interest to the City Council, general public or the media.

Such issues/events include, but are not limited to:

1. An event/issue in a department or program that could have financial, labor, or environmental consequences resulting in controversy and aggravation (eg. sewer spill).

2. Injury or death of a City employee while on or off official duty.

3. Major malfunctions of a City facility that could impact the general welfare of the public or environment.

4. An unexpected work stoppage or inability to provide a critical City service.

5. The arrest or conviction of a City employee, which may impact that individual’s ability in successfully carrying out his/her professional duty or that may attract significant public attention due to the nature of the arrest or conviction.

6. Major police or fire activities
VII. Reporting Procedure
The City Manager will determine if it is necessary to contact the City Council or other department directors. However, the Police Department may notify and inform the entire City Council on a significant event after there has been an attempt to notify the City Manager. When possible, the City Manager shall notify the City Council prior to communicating to the media on those issues believed to be controversial or of major concern.

VIII. Back-up Procedure
If the City Manager is unavailable, the department director shall determine if it is necessary to contact the City Council or other department directors. The department director should use his/her own judgment in releasing information to the press or the public regarding significant events or issues. 369
IX. Media Responders
A. Spokesperson – The City Manager will respond directly or designate a media spokesperson to respond to an issue of major public significance to ensure that the information is disseminated quickly and accurately to all interested media sources. The City Manager will then notify all appropriate department directors to forward all media inquiries regarding the particular issue to the appointed spokesperson. It is essential that a spokesperson is kept abreast and briefed on the status of the event as it occurs. It is important to note that the chain of command can be modified to expedite the release of crucial information.

B. Media Contacts to Staff – Employees shall refer media inquires to their department directors. A department director may delegate an employee to respond to an inquiry because of her/his involvement with an event or issue. In such cases, the staff member should work with their department director before the interview to develop appropriate responses to anticipated questions. The department director may want to contact the City Manager’s Office for assistance in such matters.

C. City Council – Council Members are encouraged to notify the City Manager when they are approached by the media, especially when they are responding to controversial issues. Council Members are encouraged to review such issues with the City Manager for assistance in formulating their response.

D. Emergency Operations –Emergency Operations Center procedures will take precedent during a disaster.

E. Police Issues – Whenever there is a significant event involving a major police activity, the first media contact is the Police Chief or his/her designee, followed by the City Manager.

X. How to Respond to Press Inquiries
All media inquiries received by staff should be given a high priority and responded to as quickly as possible. Every effort should be made to meet media deadlines and to ensure that all information that is released is accurate. Clerical staff should be instructed to give priority to media calls by alerting their respective department director.
370
A. It is important to determine a reporter’s focus for a story as well as the specific information being requested. A reporter may unintentionally present the particular facts in a manner that might cause a misunderstanding of the facts surrounding specific City issues. By knowing the reporter’s intentions, one can attempt to respond more accurately and in a manner that captures the full range of the issues and facts involved and within the larger context that the issue exists.

B. Any staff member (management or non-management) who responds to a media inquiry, provides an interview, appears on a radio or television program, etc., shall notify his/her immediate supervisor, the department director, and the City Manager either by phone, email, or written memo detailing the nature and possible implications of the media inquiry.

C. Regarding controversial matters only (see Section VI), the City Manager must be consulted before conducting the interview. This should provide the spokesperson an opportunity to review anticipated questions and to formulate and properly position appropriate responses. This notification process is only necessary for those significant issues facing a particular department and should not include routine interviews that are conducted on a regular basis by a specific department, the only exception being an urgent public safety issue that requires an immediate response.

XI. Media Etiquette
City staff shall maintain and strengthen the relations between the City and the media.

A. Responding to Council Actions – Staff shall not publicly make judgmental comments regarding individual Council Members, Council actions, City Administration or official City policy when responding to media inquiries. Staff shall refrain from anticipating an action or position which has not been formally taken by the City Council or City. Any inquiry regarding “why” an individual Council Member voted in a particular manner shall be forwarded to that Council Member.

B. Scope of Response – Staff members shall not respond to media inquiries that are not directly related to their professional responsibilities. Staff members should assist the media in receiving the needed information by referring them to an appropriate department director.

C. Inaccurate Information – The media shall not be intentionally misled or provided inaccurate information by a staff member regarding any City policy or event. 371
XII. Public and Confidential Information
Most City records and official City meetings are open to the public and media. The media are no more or less privileged than the general public in being provided access to the City Council meetings and City records. In situations where there is a discrepancy or uncertainty on the part of a City employee regarding the release of an official record to the media, the City Attorney’s Office should be contacted to make the final determination.

Attendance at Public Meetings - The media and public may attend and report on actions taken at Council meetings, study sessions, as well as regularly scheduled Commission meetings.

Closed Sessions – Public and media attendance is not allowed at closed Council sessions.

Public Records – The media and the general public have access to all records or proceedings pursuant to the provisions of the State of California Public Records Act (Government Code Sections 6250 it seq.). However, the Public Records Act does exempt specific categories of records. A Public Records Request Form is required for all public records requests (copies of form are available in the City Clerk’s Office).

Not for Public Disclosure – Media inquiries regarding the specifics of pending litigation, policy or administrative drafts, matters involving a significant exposure to litigation and certain personnel-related information that would constitute an unwarranted invasion of individual privacy are usually exempt from public disclosure.

Litigation Issues – Staff members shall not respond to media inquiries on behalf of the City involving City litigation, policies, or activities without first contacting the City Attorney’s Office. The City Attorney’s Office should serve as the point of contact regarding clarification before responding to a media inquiry. The Manager may provide an official City position regarding City litigation issues after first consulting with the City Attorney’s Office.
372
TABLE 1 - CRITERIA FOR GRANTING CITY PARTICIPATION REQUESTS THAT MAY

RESULT IN MEDIA EXPOSURE
The following are the criteria to use for addressing requests from the public or from community groups for the involvement of City officials, employees, or other City resources (See Section IC in policy):
• The City Manager shall notify all Council Members of the event. • The community group must provide services/assistance to the community members of the City of American Canyon.
• The City Council has adopted within the past twenty-four (24) months a resolution endorsing the event or activity.
• All Members of the City Council Board will be invited to observe the use of City resources (equipment, personnel, etc.) being utilized in the actual event, including but not limited to, addressing the group, participating in conversations during the event, and any action to document the City’s endorsement on use of the City resources. • The City Manager is given ten (10) working days’ notice of the request. (Note: the City Manager may waive this criterion under extraordinary circumstances or if there has been a history of City Manager-approved participation in the past.) 373
Most City records and official City meetings are open to the public and media. The media are no more or less privileged than the general public in being provided access to the City Council meetings and City records. In situations where there is a discrepancy or uncertainty on the part of a City employee regarding the release of an official record to the media, the City Attorney’s Office should be contacted to make the final determination.

Attendance at Public Meetings - The media and public may attend and report on actions taken at Council meetings, study sessions, as well as regularly scheduled Commission meetings.

Closed Sessions – Public and media attendance is not allowed at closed Council sessions.

Public Records – The media and the general public have access to all records or proceedings pursuant to the provisions of the State of California Public Records Act (Government Code Sections 6250 it seq.). However, the Public Records Act does exempt specific categories of records. A Public Records Request Form is required for all public records requests (copies of form are available in the City Clerk’s Office).

Not for Public Disclosure – Media inquiries regarding the specifics of pending litigation, policy or administrative drafts, matters involving a significant exposure to litigation and certain personnel-related information that would constitute an unwarranted invasion of individual privacy are usually exempt from public disclosure.

Litigation Issues – Staff members shall not respond to media inquiries on behalf of the City involving City litigation, policies, or activities without first contacting the City Attorney’s Office. The City Attorney’s Office should serve as the point of contact regarding clarification before responding to a media inquiry. The Manager may provide an official City position regarding City litigation issues after first consulting with the City Attorney’s Office.
374
TABLE 1 - CRITERIA FOR GRANTING CITY PARTICIPATION REQUESTS THAT

MAY RESULT IN MEDIA EXPOSURE
The following are the criteria to use for addressing requests from the public or from community groups for the involvement of City officials, employees, or other City resources (See Section IC in policy):
• The City Manager shall notify all Council Members of the event. • The community group must provide services/assistance to the community members of the City of American Canyon.
• The City Council has adopted within the past twenty-four (24) months a resolution endorsing the event or activity.
• All Members of the City Council Board will be invited to observe the use of City resources (equipment, personnel, etc.) being utilized in the actual event, including but not limited to, addressing the group, participating in conversations during the event, and any action to document the City’s endorsement on use of the City resources.
• The City Manager is given ten (10) working days’ notice of the request. (Note:
the City Manager may waive this criterion under extraordinary circumstances or if there has been a history of City Manager-approved participation in the past.)
375

APPENDIX F - TRAVEL POLICY
376
Revised 07/2023 1

CITY OF AMERICAN CANYON

TRAVEL POLICY

PURPOSE
To establish a uniform policy for City employees, City elected officials, City appointed officials, and City commissioners hereafter known as “employees” for travel and business expenses. This policy establishes procedures for pre‐travel authorization and reimbursement of expenses incurred by employees when traveling on official City business or attending approved training programs. The governing rule for all City travel expenses shall be budget, availability, economy, convenience, and propriety.

GENERAL PROVISIONS
It is the policy of the City of American Canyon that all travel expenses and business expenses incurred meet the following criteria:

1. The expense incurred is of direct benefit to the City.

2. The amount of the expense is reasonable in terms of the event or activity involved.

3. The expenses incurred are within the department’s budget and are approved by the department head. The department heads have approval authority for employees traveling within the state.

4. The City Manager or designee will approve travel and business expenses incurred by employees for all out of state and international travel, regardless of funding source or reimbursement by an outside agency. City Manger travel shall be approved by Mayor or designee.

5. Elected Officials must have approval of the City Council for travel expenses expected to exceed $500 per trip for meetings/conferences, unless Council members are voting delegates of organizations (i.e., Cal‐Cities), in which case no prior City Council approval is required regardless of amount.

RESPONSIBILITY
Every employee who travels on official business on behalf of the City isresponsible for knowing and complying with the Travel Policy. Department heads are responsible for reviewing and approving or denying all travel requestsfor compliance within this policy.

PROCEDURAL GUIDELINES
All employees must complete and have approved the Advanced Travel Authorization Form before traveling or incurring any expenses. Event brochures/agendas (if available) must accompany the form along with all anticipated expenses outlined in it. No expensesshould be incurred without prior approval via the Advanced Travel Authorization Form.

After travel is completed, employees must fill out the Travel Expense Claim Form to accompany the Advanced Travel Authorization Form, with actual costsincurred. These forms must be included with every request for payment, including Cal Card receipts and Payment Requests (to vendors or employees).

Detailed, itemized receipts for expenses shall be attached to the Travel Expense Claim Form for all reimbursement purposes. Receipts that are not itemized are not acceptable. Receipts are not required 377
2 for per diem meals and incidental expenses.

TRAVEL POLICY
This policy is based upon the following policies, guidelines, and protocols:
a) Human Resources Policies and Practices Manual, Section 6.1(f), Travel Time. b) Human Resources Policies and Practices Manual, Section 9.5, Reimbursement of Expenses.
c) Human Resources Policies and Practices Manual, Section 9.6, Travel. d) City/Fire District Governance Handbook, Section 14.2, Authorized Expenses.

Except in the case of MOU language, or specific employment agreement language, the language in this policy shall take precedence when there is any conflict between this policy and any other City policy, guidelines, and/or protocols.

The City shall provide reimbursement for expenses directly related to attendance of approved conferences, seminars, meetings, and other official functions/purposes.

Official travelshould be planned, approved, budgeted, and controlled at the department level. Elected officials are subject to the guideline established in the Governance Protocol Handbook.

Generally, the number of staff attendees should be limited to the minimum necessary to accomplish the travel's purpose. However, this will not preclude any travel or other expenses associated with required or recommended training for any City employees.  Such training is subject to availability of funds and approval by the appropriate department head and/or City Manager.

In the event a scheduled trip is canceled, it is the employee's responsibility to make sure all necessary arrangements have been made to cancel reservations and receive all available refunds.  Failure to do so may result in directly charging the employee for the expenses incurred by the City. The City does not pay for travel insurance.

Travel Expense Categories:

Meals

1. Meals and Incidentals are combined into one rate hereby referred to as per diem. The term "incidental expenses” typically includes fees and tips given to people such as porters, baggage carriers, bellhops, hotel housekeepers, waiters, or other food service.

2. During travel, meal and incidental expenses are paid on a per diem basis. The City’s rate for Meals and Incidental Expenses (M&IE) shall be equal to the U.S. General Services Administration’s (GSA) M&IE rates (https://www.gsa.gov/travel/plan‐book/per‐diem‐rates) based on the location of travel. For international travel, M&IE rates are set by the U.S. Department of State https://aoprals.state.gov/web920/per_diem.asp

3. For days that are exclusive to travel, employees are paid 75% of the applicable per diem rate.

4. Meals and/or Incidental Expenses shall not be purchased using the Cal Card. 378
3 Lodging

1. Lodging is allowed for out‐of‐town conferences and meetings. Out‐of‐town is defined as a location greater than one and one half (1.5) hours' drive in addition to normal commute time.  Due to the frequent selection of Sacramento, CA as a conference location for many statewide organizations, Sacramento, CA is an approved destination for lodging regardless of commute time. It is the City policy to provide adequate lodging for its employees while they are out of town on approved travel.  Lodging is an allowable expense for the evening preceding or following a training, meeting, or conference, when necessary, as determined by the department head. Employees must submit an itemized hotel check‐out receipt to obtain reimbursement or as supporting documentation if paid with a Cal Card.

2. Lodging charges are based on standard single occupancy rates. Reimbursement will not be provided for additional lodging expenses incurred by family members when an employee’s family accompanies them, or for any charges above the single occupancy rate if the hotel charges more for additional guests in the same room.

3. If lodging is in connection with a conference, lodging expenses must not exceed the group rate published by the conference sponsor for the event, or the rate for government employees on official business. If the group or government rate is not available, lodging at comparable rates to the group rate, which do not substantially increase transportation costs or interfere with an employee’s duties, are presumed to be reasonable and reimbursable.

4. If an employee extends their stay for personal reasons, they are responsible for all associated costs that exceed approved business travel. These extended travel expenses may not be charged to the Cal Card. Documentation shall be maintained to separate the business and personal travel expenses.

Transportation

1. The most economical mode of transportation, reasonably consistent with scheduling and cargo space requirements should be used, using the most direct and time‐efficient route. Rail, bus, taxi, ridesharing, and airfare will be reimbursed at actual cost. Only the most economic form of travel will be authorized. All travel arrangements should be made in advance. If any employee chooses to drive instead of fly, the reimbursement shall be computed for the lesser, round‐trip airfare or the actual mileage.
a. Airfare: Only economy and coach airfare will be authorized. Reasonable baggage fees may be reimbursed. Airline early check‐in fees, seat upgrades, travel insurance and other premium fees are not reimbursable. If the employee extends or modifies their travel for personal reasons, such as staying over a weekend before or after, and the cost of the airfare is greater than the necessary travel airfare, the employee is responsible for paying the difference.
b. Rental Vehicles: Rental vehicles will only be allowed for business reasons in a situation where the hotel location is not within walking distance of the event location and a shuttle service or other means of ground transportation are not available, impractical, or too costly. Rental vehicles are only allowed as a business necessity, not for personal convenience. Rental vehicle agreements should be limited to economy, compact or 379
4 subcompact cars. Rental Car insurance must be purchased, and at the minimum level. If a portion of the trip includes personal use, such as staying over a weekend, then the employee shall pay the pro‐rata cost of the rental car. Vans and other large vehicles may be rented if there is a group of employees traveling together. c. Automobiles: Mileage expenses will be reimbursed at the actual miles traveled times the federal mileage rate when an employee uses their own vehicle for travel. The federal mileage rates are designed to compensate the driver for gasoline, insurance, maintenance, and other expenses associated with operating a vehicle. For employees who receive an auto allowance, mileage reimbursement will only be made in excess of 50 miles, each way of a trip.

2. When an employee operates a motor vehicle for authorized travel purposes, minimum insurance limits must be on file with Human Resources prior to travel. The driver of the vehicle is required to have the following amounts and types of insurance:
 $100,000 Bodily Injury
 $300,000 Each Occurrence
 $50,000 Property Damage

3. Local/Short Distance Travel
For local/short distance travel, City vehicles shall be used whenever practical. However, the following are instances where it is not appropriate to use a City vehicle:
a) For trips that are in close mileage of an employee’s normal commute. If the travel is more than an employee normal home‐to‐work commute, then the reimbursement will be for mileage that exceeds that at the IRS rate in effect at the time of travel. An exception would be if the employee isreporting to/from the work location.
b) For those employees/officials who receive an auto allowance, if the trip is 50 miles or less each way.
c) For trips that will take the City vehicle out of commission/use by others for more than one full day. The exception is for employees serving on standby duty and preapproved to keep a City vehicle overnight and/or emergency vehicles on official assignments.
d) To park at an airport while the employee uses air travel to a destination.

Other Expenses
Personal expenses, including entertainment and travel insurance, are examples of items not eligible for reimbursement. All necessary expenses should be anticipated and detailed on the Advanced Travel Authorization Form. The following types of additional expenses are reimbursable, provided they are necessary for official business and detailed receipts are obtained:
 Baggage Charges
 Telecommunications Expenses (i.e., hotel internet)
 Toll
 Parking or Garage Fees (airport parking should be equal or less than long term rates)  Taxis, Rideshare, or Shuttles, including a maximum 15 percent gratuity 380
5 PRE‐PAID TRAVEL EXPENSES
100% of confirmed airfare, lodging, registration expense shall be paid in advance using the Cal Card or by check after the Advanced Travel Authorization Form has been approved. In no case shall petty cash be used for any travel advance.

POST TRAVEL REIMBURSEMENT
Employees are required to complete the Travel Expense Claim Form within 45 days of travel with detailed receipts. After 120 days, expenses paid by the City/District where receipts have not been provided shall be reported on the employee’s W‐2 at the end of the year, per IRS Publication 463.

TRAVEL TIME
Employees are compensated at their normal hourly rate for time committed to work‐related travel, which is called travel time, as defined further in Human Resources Policies and Procedures Manual Section 6.1(f). Travel time in this policy is only applicable to employees covered by the Fair Labor Standards Act (FLSA).

For all FLSA non‐exempt employees, common travel time situations are described with the following scenarios:
 Travel to and from different work or job sites.
 Travel for single day training or other activities that do not require an overnight stay.  Time spent in meetings and/or training during approved conferences and events are considered active work time.
 If the employee is expected to work before, during or after travel, all time is compensable.  If travel time falls on a non‐working day, holiday or weekend, only travel time to and from the destination is compensated.
 Personal time spent taking breaks from travel to eat, sleep or engage in personal activities, such as sightseeing, must be excluded from travel time.  If travel occurs on a normal scheduled workday and is less than the regular work shift, compensation is provided at a minimum of a regular work shift. Employees are expected to be available to work once settled in.
 Employees who decline to use public transportation and request permission to drive their personal vehicle instead will only be compensated for hours that would have been used for the public transportation method.

Employees who are FLSA exempt should coordinate their time appropriately with their Department Head; however, they are not eligible for compensatory time or overtime.

CITY MANAGER DISCRETIONARY EXCEPTIONS
The City Manager can make exceptions to this policy on a case‐by‐case basis as recommended by the department head for unusual or extenuating circumstances. Exceptions must be explained on the Advance Travel Authorization Form and signed by the City Manager. 381
APPENDIX G – COUNCIL COMPENSATION
382
BENEFITS SUMMARY FOR CITY COUNCIL MEMBERS (2025)
City Council Members, including the Mayor, receive salary and benefits as described in this Code of Conduct and Governance Protocols, and further defined below.

Salary
• $950 per month
• Bi-weekly (26 annual pay periods)
Retirement
• “Optional Member” under the City’s CalPERS retirement contract. o If a Council Member opts out of CalPERS retirement, then enrollment in PARS Alternative Plan is required.
• Eligible to participate in the City’s 457 Deferred Compensation Plans.

Health and Wellness Benefits
• The City contributes a monthly payment equal to 90% of the Kaiser HMO premium rates at each level of coverage (Employee only, Employee plus One Dependent, and Family). • City provides Employee-only coverage for Dental and Vision insurance. Council Members may acquire coverage for eligible dependents at the same rates available to City employees. • City provides Employee-only coverage for Life Insurance and Accidental Death and Dismemberment. Council Members may acquire supplemental coverage at the same rates available to City employees.
• Council Members vested in the City’s retirement program are eligible for retiree medical insurance benefits with same benefit levels as described in the Unrepresented Compensation Program.

Vehicle Stipend
• $500 per month
Telephone Stipend
• $50 per month
Technology Stipend
• $35 per month
Electronic Tablet Policy
• Council Members are issued electronic tablets to conduct City business during term in office.

Computer Tablet Acquisition Policy
• Eligible to participate in tablet purchase program at the same rates available to City employees.

Computer Revolving Loan Program
• Eligible to participate in computer loan program at the same rates available to City employees. 383

APPENDIX H -LIST OF COUNCIL POLICIES
384
Example City Council Policies
Fiscal and Budgetary Policies
• Basis of Accounting/Operating Budget
• Accounting, Auditing, and Financial Reporting
• Reserves, Unallocated Funds, and Capital Set-Aside
• Revenue Management
• Expenditure Control
• Investments and Cash Management
• Asset Management
• Debt Management
• Internal Controls
• Travel Policy
• Capital Set-Aside
Capital Improvement Program Policies
• Complete Streets
• Pavement Condition Index
Private Development and Economic Development Policies
• Economic Analysis of New Development
• Public Improvement Requirements & Nexus Fees
• Public Notice/Engagement
• Economic Incentives
Risk Management Policies
• Claims Review & Acceptance
• Claims Avoidance
• Insurance Requirements
• Use of Risk Pools
General
• Religious expression
• Political expression at City Events
• Flag Display at City Facilities
385

CITY COUNCIL AGENDA
OCTOBER 15, 2024

STAFF REPORT

BUSINESS
ITEM NUMBER: 14.

TITLE
Newell Drive Extension

RECOMMENDATION
Receive and file and update on the extension of Newell Drive.

CONTACT
Jason Holley, City Manager

BACKGROUND & ANALYSIS
This item responds to Council’s request for an update on the Newell Drive Extension Project.

Extending Newell Drive helps accomplish American Canyon’s Transporta5on Goal – to “Improve the transporta5on network within the City to alleviate conges5on and enhance the quality of life for the community.”
Specifically, the Project would result in the con5nua5on of a north-south roadway east of Highway 29, which is consistent with Strategy TR-3 (“Expand network of local streets and parallel routes to Highway 29”).

Simply put, the Newell Drive Extension Project is significant for the American Canyon community and the Napa Valley region, impac5ng transporta5on, economic development, and community wellbeing.

Newell Drive is comprised of four (4) sec5ons. Segment 1 is complete. Segments 2 and 3 are underway and within City limits. Segment 4 as proposed is located outside City-limits in an area planned for annexation in the near future (Attachment 1).

Segment 4 is con5ngent on the occurrence of other ac5ons some of which are accomplished by other governmental agencies. Design cannot begin un5l a decision about the type of railroad crossing (at-grade vs. grade-separated) is reached. Environmental review of City ac5on on the annexa5on is complete but challenged by the City of Vallejo. Property acquisi5on is 60% complete, but also delayed because of the legal challenge. Construc5on is an5cipated to occur in conjunc5on with development activity within the Watson Lane Annexation Area. 386
Funding Challenges: In 2017, Segment 4 had an es5mated cost of $10M with an at-grade railroad crossing. The grade-separated crossing was es5mated at an addi5onal cost of $20M. Due to infla5on, these costs will be at least 50% higher. Developers will contribute a por5on of the roadway costs with addi5onal funding sources needed. Securing grant funding is difficult because of State requirements for projects similar to that proposed and there are compe5ng local budget priorities and limited available financial resources that could also hinder progress on Segment 4.

Environmental Concerns: Poten5al environmental impacts, such as effects on local wildlife, habitats, or water quality, were extensively studied and mi5ga5on measures reducing impacts have been iden5fied and adopted. The studies for Segment 4 demonstrate the at-grade railroad crossing is the least damaging (environmental) alternative when compared to the grade-separated crossing.

Regulatory Hurdles: Naviga5ng the regulatory landscape can be complex. The Project requires various permits and approvals from state and federal agencies, most significantly, special approval from the California Public U5li5es Commission for a Segment 4 at-grade crossing because of concerns about safety (in contrast to a grade-separated crossing which would be a ministerial approval). Also, special approval from the other governmental agencies would be required for the grade separated-crossing as it would have more project impacts. Thus, Segment 4 is currently also delayed pending a decision about the railroad crossing.

Land Acquisi5on: The City has agreements with two (2) property owners to acquire property rights for Segment 4 once annexa5on is complete. Property acquisi5on from the remaining proper5es cannot begin un5l a decision on the type of railroad crossing is complete, because impacts to proper5es could be more wide-ranging with a grade-separated alterna5ve compared to a at-grade crossing.

Litigation
Since 2023, the City of Vallejo through Vallejo's City ALorney has ini5ated three (3) lawsuits against American Canyon on several theories of American Canyon not complying with applicable law. One of the cases was decided in American Canyon's favor at the trial court. The remaining lawsuits, including one challenging por5ons of the annexa5on containing Segment 4, are progressing through the legal system.

COUNCIL PRIORITY PROGRAMS AND PROJECTS
Transporta5on: "Improve the transporta5on network within the City to alleviate conges5on and enhance the quality of life for the community."

FISCAL IMPACT
Not applicable
387

ENVIRONMENTAL REVIEW
This communica5on provides informa5on only and is not a Project under the California Quality Environmental Quality Act.

ATTACHMENTS:

1. Newell Drive Segment 4
388
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SUMMARY
APN (OWNER) APPROX. AREA
c:::J 059-020-043 (CLARKE) 1.19 AC
c:::J 057-090-065 (HESS) 2.89 AC
- 057-120-017 (PAOLI) 0.77 AC
c:::J 057-120-036 (PAOLI) 2.56 AC
c:::J 057-180-004 (PAOLI) 0.08 AC
c:::J 057-180-005 (PAOLI) 0.05 AC
c:::J S. PACIFIC RAILROAD 0.24 AC
TOTAL 7.78AC
NOTE: ALL AREAS ARE APPROXIMATE
AND BASED UPON COUNTY BASE MAP.
8' ti' 5'
13"
14'
FOCto�OC
100' ROW
I 14'

FUTURE NEWELL DRIVE SECTION
APN 059-020-04
CLARKE
APN 059-020-043
CLARKE

NEWELL DRIVE EXTENSION
SEGMENT 4
O'

CITY OF AMERICAN CANYON
100' 300'

NAPA COUNTY CALIFORNIA
400' Carlson, Barbee
& Gibson, Inc.

CIVIL ENGINEERS • SURVEYORS • PLANNERS
ii:
2633 CAMINO RAMON, SUITE 350 (925) 866-0322 �
SAN RAMON, CALIFORNIA 94583 FAX (925) 866-8575 M
SCALE: 1"= 100' DATE JULY23 2014
"
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389

CITY COUNCIL AGENDA
OCTOBER 15, 2024

STAFF REPORT

BUSINESS
ITEM NUMBER: 15.

TITLE
Q2 FY24/25 Capital Project Schedule Update

RECOMMENDATION
Informational item with City Council feedback

CONTACT
Erica Ahmann Smithies, P.E., Public Works Director/City Engineer

BACKGROUND & ANALYSIS
The Public Works Department will be providing quarterly updates on the status and delivery of Capital Improvement Projects (CIP) for the current fiscal year. City Council will be provided with a master project schedule, a map of citywide projects, and photos when available. The projects will include the name of the City staff member leading the project and consultant when applicable. At this 9me there are some projects that do not include a project lead, but will be updated as the fiscal year unfolds.

FISCAL IMPACT
The Capital Improvement Program Budget was adopted by City Council on June 4, 2024.

ENVIRONMENTAL REVIEW
None
ATTACHMENTS:

1. CIP 90-Day Summary

2. FY24-25 CIP Schedule Q2

3. FY24-25 CIP Project Map Q2
390
Capital Project Accomplishments in the previous 90 Days:

Construction Completed:
• Benton Way substantially completed prior to school start – remaining item is a RRFB lighted crosswalk on Benton Way at Hummingbird way Construction started:
• Newell Open Space Trailhead and Parking Lot Improvements Design Completed:
• Knightsbridge Water and Pavement Improvements
• Melvin Road Sidewalk and Storm Drain Improvements
Capital Project Goals for the next 90 Days:

Under Construction:
• Newell Open Space Trailhead and Parking Lot Improvements Award of Construction Contracts:
• City Hall Roof Repair
• Knightsbridge Water and Pavement Improvements
• Melvin Road Sidewalk and Storm Drain Improvements
• Green Island Road Widening and Reconstruction
• Rancho Del Mar Utility and Pavement Improvements
• Wetlands Edge Enhancement and
Design Completed
• Silver Oak Restroom
• Northampton Restroom
• Northampton Shade Structure
Award of Design Contracts
• South Kelly Road/Hwy 29 Intersection Improvements
391
ID Task
Mode
Task Name Duration Start Finish Resource Names
19 TR22‐0400 Benton Pavement Rehab 112 days Thu 6/20/24 Fri 11/22/24 20 BENTON WAY RECONSTRUCTION 112 days Thu 6/20/24 Fri 11/22/24 21 Construction 110 days Mon 6/24/24 Fri 11/22/24 Kristine Delos Santos, Vendon McLeod 22 TR16‐0700 Green Island Road 353 days Thu 6/20/24 Mon 10/27/25 23 GREEN ISLAND ROAD RECONSTRUCTION AND WIDENING PROJECT 353 days Thu 6/20/24 Mon 10/27/25 24 Utility Undergrounding Construction 47 days Thu 6/20/24 Fri 8/23/24 25 Construction 111 days Sun 6/30/24 Fri 11/29/24 Ronald Ranada, Consultant (Consor) 26 Green Island Road Reconstruction and Widening Project 353 days Thu 6/20/24 Mon 10/27/25 27 Design 112 days Thu 6/20/24 Fri 11/22/24 Ronald Ranada, Consultant (Consor) 28 Award Contract (City Council) 0 days Tue 2/4/25 Tue 2/4/25 29 Construction 168 days Mon 3/3/25 Wed 10/22/25 Ronald Ranada, Consultant (TBD) 101 WW20‐0100 SS4 Broadway Sewer 211 days Tue 6/25/24 Tue 4/15/25 102 WW20‐0100 SS4 Broadway Sewer 211 days Tue 6/25/24 Tue 4/15/25 103 Mainline (City) 211 days Tue 6/25/24 Tue 4/15/25
104 Design 94 days Tue 6/25/24 Fri 11/1/24 David Miller, Ronald Ranada 105 Award Contract (City Council) 0 days Tue 1/21/25 Tue 1/21/25 106 Construction 32 days Mon 3/3/25 Tue 4/15/25 Ronald Ranada 107 SR29 Crossing (RSA) 211 days Tue 6/25/24 Tue 4/15/25 108 Design 94 days Tue 6/25/24 Fri 11/1/24 Consultant (RSA) 109 Award Contract (City Council) 0 days Tue 1/21/25 Tue 1/21/25 110 Construction 32 days Mon 3/3/25 Tue 4/15/25
50 PR13‐0200 Newell Open Space 109 days Thu 6/20/24 Tue 11/19/24 51 Newell Open Space 109 days Thu 6/20/24 Tue 11/19/24
52 Design 48 days Thu 6/20/24 Mon 8/26/24 Ronald Ranada, Kristine Delos Santos, Consultant (Questa) 53 Award Contract (City Council) 0 days Tue 9/17/24 Tue 9/17/24 54 Construction 35 days Wed 10/2/24 Tue 11/19/24 Ronald Ranada, Kristine Delos Santos, Vendon McLeod 6 TR23‐0100 Knightsbridge (ARPA) 209 days Tue 6/25/24 Fri 4/11/25 7 TR23‐0100 Knightsbridge 209 days Tue 6/25/24 Fri 4/11/25 8 Design 74 days Tue 6/25/24 Fri 10/4/24 Ginny Leija, Ronald Ranada, Consultant (Bellecci) 9 Award Contract (City Council) 0 days Tue 11/19/24 Tue 11/19/24 10 Construction 60 days Mon 1/20/25 Fri 4/11/25 Ronald Ranada, Consultant (TBD) 84 TR24‐0300 Rancho Del Mar (ARPA) 244 days Tue 6/25/24 Fri 5/30/25 85 TR24‐0300 Rancho Del Mar 244 days Tue 6/25/24 Fri 5/30/25 86 Design 84 days Tue 6/25/24 Fri 10/18/24 Ronald Ranada, Consultant (Bennett) 87 Award Contract (City Council) 0 days Tue 12/17/24 Tue 12/17/24 88 Construction 85 days Mon 2/3/25 Fri 5/30/25 Ronald Ranada, Vendon McLeod 89 TR24‐0200 Mevlin SD and Swk (ARPA) 309 days Tue 6/25/24 Fri 8/29/25 90 TR24‐0200 Melvin SD and Swk 309 days Tue 6/25/24 Fri 8/29/25 91 Design 69 days Tue 6/25/24 Fri 9/27/24 Ginny Leija, Ronald Ranada, Consultant (Coastland) 92 Award Contract (City Council) 0 days Tue 11/19/24 Tue 11/19/24 93 Construction 90 days Mon 4/28/25 Fri 8/29/25 Ronald Ranada, Vendon McLeod 79 TR24‐0100 2024 Annual Paving (Cape) 395 days Mon 1/6/25 Fri 7/10/26 80 TR24‐0100 Annual Paving (Cape) 395 days Mon 1/6/25 Fri 7/10/26 81 Design 40 days Mon 1/6/25 Fri 2/28/25 Kristine Delos Santos 82 Award Contract (City Council) 0 days Tue 12/2/25 Tue 12/2/25 83 Construction 50 days Mon 5/4/26 Fri 7/10/26 Kristine Delos Santos, Vendon McLeod 69 TR23‐0200 S Kelly ‐ SR29 291 days Tue 6/25/24 Tue 8/5/25 70 TR23‐0200 S Kelly ‐ SR29 235 days Mon 12/9/24 Fri 10/31/25 71 Design 81 days Mon 12/9/24 Mon 3/31/25 Kristine Delos Santos, Ronald Ranada, Consultant (TBD) 72 Award Contract (City Council) 0 days Tue 6/3/25 Tue 6/3/25 73 Construction 90 days Mon 6/30/25 Fri 10/31/25 Kristine Delos Santos, Ronald Ranada 74 TR23‐0300 Am Can Rd East  Guardrail 164 days Tue 6/25/24 Fri 2/7/25 75 TR23‐0300 Am Can Rd East  Guardrail 164 days Tue 6/25/24 Fri 2/7/25 76 Design 65 days Mon 11/4/24 Fri 1/31/25 Kristine Delos Santos, Ronald Ranada, Consultant (TBD) 77 Award Contract (City Council) 0 days Tue 5/20/25 Tue 5/20/25 78 Construction 45 days Mon 6/23/25 Fri 8/22/25 Kristine Delos Santos, Ronald Ranada 1 WA24‐0200 N Kelly Water Main 65 days Mon 1/6/25 Fri 4/4/25 2 WA24‐0200 N Kelly Water Main 60 days Mon 1/6/25 Fri 3/28/25 3 Design 20 days Mon 1/6/25 Fri 1/31/25 TBD
Kristine Delos Santos[75%],Ronald Ranada[10%],Vendon McLeod[90%] Ronald Ranada, Consultant (Consor)
Ronald Ranada[20%]
2/4
David Miller[75%],Ronald Ranada[25%]
1/21
Ronald Ranada[30%]
1/21
20%],Kristine Delos Santos[10%]
Kristine Delos Santos[25%],Ronald Ranada[15%],Vendon McLeod[75%] Ginny Leija[25%],Ronald Ranada[10%]
11/19
Ronald Ranada[15%]
Ronald Ranada[10%]
12/17
Ronald Ranada[20%],Vendon McLeod[90%]
Ronald Ranada[10%],Ginny Leija[20%]
11/19
Ronald Ranada[
Kristine Delos Santos[33%],Ronald Ranada[20%]
6/3
5/20
Kristine Delos Santo
Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
Qtr 4, 2024 Qtr 1, 2025 Qtr 2, 2025 Qtr 3, 2025
Task
Split
Milestone
Summary
Project Summary
Inactive Task
Inactive Milestone
Inactive Summary
Manual Task
Duration-only
Manual Summary Rollup
Manual Summary
Start-only
Finish-only
External Tasks
External Milestone
Deadline
Progress
Manual Progress