Carlsbad City Council
May 18, 2023

Council Memorandum
{city of
Carlsbad
Memo ID# 2023048
May 18, 2023
To:

From:

Via:

Re:

Honorable Mayor Blackburn and Members of the City Council Jeff Murphy, Community Developmen~ o· ctor
Geoff Patnoe, Assistant City Manager
Update on the Development of Obje · e Design Standards for Multifamily Housing Projects (Districts - All)
This memorandum provides a status update on the objective design standards and streamlined permitting process for multifamily housing and mixed-use development projects, which are being released on May 18, 2023, for public review and comment. The public comment period ends June 15, 2023.

Background
In response to new state housing legislation to address the state's housing crisis, and to satisfy certain requirements in the city's Housing Element, the city is developing objective design standards 1 that will help support a streamlined permitting review process for new multifamily housing and mixed-use development projects. The city will take existing design regulations, some of which are subjective and open to interpretation, and replace them with new objective design standards that will apply to eligible multifamily housing and mixed-use development projects.

The city will not be proposing to replace existing objective development standards such as building height, density, or setbacks.

Given the unique architectural history and cultural dynamics of the city's downtown area, the City Council directed the development of two objective design standard projects: one set of standards that would apply to new development in the Village & Barrio Master Plan area and another set of standards that would apply to new development in the rest of the city. While the standards are distinctly separate, the two projects are being developed concurrently.

Discussion
Jurisdictions across California are creating objective design standards. In 2017, the Governor signed multiple housing bills to address the current state housing crisis, including CA Senate Bill 35 (SB-35) commonly referred to as the Housing Accountability & Affordability Act 1 Objective design standards are defined as standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official before submittal [Government Code Sections 6S913.4 and 66300(a)(7)] Council Memo - Update on Development of Objective Design Standards for Multifamily Housing May 18, 2023

(Attachment A), which requires all local jurisdictions to allow qualified multifamily housing projects to go through a streamlined ministerial approval process2 subject to objective regulatory standards and affordable housing requirements. To be eligible for SB-35 processing in the city, a development project is required to provide 50% affordable housing (low or very low-income housing) based on the city's current housing production needs which could change in this or future housing cycles. SB-35 project applications are the only applications legally required to be processed and approved ministerially. As of today, the city has not received any SB-35 application submittals.

CA Senate Bill 330 (SB-330) commonly referred to as the Housing Crisis Act of 2019 (Attachment B), also requires jur isdictions to streamline the approval process for qualified multifamily housing projects based on objective regulatory standards, but does not require ministerial approval like SB-35. As of today, the city is currently processing seven SB-330 applications.

Put another way, the city cannot use standards or guidelines that are subject to interpretation or are subjective in nature to deny SB-330 or SB-35 projects.

In addition to the standards set forth under SB-330 and SB-35, the need to create and implement local objective design standards was required by the State Department of Housing and Community Development (HCD) and is included in the city's certified Housing Element under Program 1.11.

Objective Design Standards
The new objective design standards will apply to eligible multifamily housing and mixed-use development projects which include two or more attached residential units such as: 1) townhomes; 2) duplexes; 3) condominiums; 4) apartment complexes; and 5) mixed-use development projects with at least two thirds square footage designated for residential uses.

The new standards will not apply to 1) previously approved multifamily housing/mixed-use projects (unless modifications are proposed); 2) single-family residential developments; 3) accessory dwelling units; or 4) stand-alone commercial, industrial or office sites.

Both projects are expected to be presented to the City Council in Summer 2023 for consideration and adoption, consistent with the deadline specified in the city's Housing Element. Below is a d1Scussion of the key components of the objective design standards projects and their current statuses.
• Village and Barrio Objective Design Standards Project Status These design standards are for multifamily and mixed-use projects that will be located within the Village and Barrio Master Plan area, which includes a palette of architectural 2 "Ministerial processing" or "ministerial approval" means a process for development approval involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project . The public official merely ensures that the proposed development meets all the "objective zoning standards,,. "objective subdivision standards," and "objective design review standards" in effect at the time that the application is submitted to the local government but uses no special discretion or judgment in reaching a decision. [Government Code Section 65913.4 - Updated Streamlined Ministerial Approval Process Guidelines)
Council Memo - Update on Development of Objective Design Standards for Multifamily Housing May 18, 2023

design standards that applicants are able to choose from. A professional service agreement with AVRP Studios to complete the project and facilitate a City Council appointed citizens design standards development committee was approved on October 19, 2021, via Resolution No. 2021-241 (Attachment C). Below is a brief timeline of events that have previously occurred regarding the development of the Village and Barrio objective design standards. More information, including meeting agendas, comments received, and draft standards can be found on the project webpage and Design Review Committee webpage.
o Spring 2022. The City Council formed a citizen's Design Review Committee that was tasked to assist in the development of the objective design standards. The first committee meeting was held in April (Attachment E). The city began sharing information about the development of the objective design standards through the city's communication channels and launched a project webpage. o Summer 2022. The city gathered community input on potential architectural styles for future multifamily housing projects through an in-person community workshop and online survey. In August, a second committee meeting was held to review and discuss the input received from the community (see Public Input Report, Attachment F).
o Fall 2022. On October 25, 2022, the third committee meeting was held to allow the committee and public to review and provide input on a selection of architectural styles, which were based on earlier public input/survey. o Winter 2022 to Spring 2023. A draft of the Village and Barrio objective design standards, which will be ultimately included as an appendix to the Village and Barrio Master Plan, and corresponding amendments to the Village and Barrio Master Plan and Local Coastal Program were prepared.
• Citywide Objective Design Standards Project Status
These design standards are for multifamily and mixed-use projects that are located outside the Village and Barrio Master Plan area. A professional service agreement with RRM Design Group to complete the project was approved on January 19, 2021, via Resolution No. 2021-023 (Attachment D). Below is a brief timeline of events that have previously occurred regarding the development of the citywide objective design standards. Unlike the Village and Barrio project, there is no palette of architectural styles being proposed for the citywide project. Therefore, no additional early community input regarding architectural styles was required. More information can be found on the project webpage.
o Spring 2021 to Early Winter 2022. Staff and consultants began collecting data and analyzing existing city documents including the city's Municipal Code, master plans, specific plans, and other related development standards. The consultants Council Memo - Update on Development of Objective Design Standards for Multifamily Housing May 18, 2023

Next Steps
met internally with Planning staff to get their input on the implementation process of the current standards and guidelines.
o Spring 2022. The city began sharing information about the development of the citywide objective design standards through the city's communication channels and launched a project webpage.
o Summer 2022 to Spring 2023. A draft of the citywide objective design standards manual and corresponding Municipal Code amendments to Carlsbad Municipal Code Title 21 {Zoning Ordinance) and Local Coastal Program were prepared.

Staff will release the public draft Village and Barrio and citywide objective design standards on May 18, 2023, for a 30 day public review period. Tentatively, staff anticipates presenting the standards and other implementing Municipal Codes and policies before the Planning Commission in July of this year, and then the City Council by September. Following City Council decision, the Village and Barrio and citywide objective design standards will be submitted to the California Coastal Commission to certify the Local Coastal Program amendments. The City Council's approval will not be effective in the Coastal Zone until the Coastal Commission's certification is final.

Attachments: A. SB-35 Project Applications - Information Bulletin {IB 135) B. SB-330 Project Applications - Information Bulletin {IB 132) C. City Council Resolution No. 2021-241
D. City Council Resolution No. 2021-023
E. Design Review Committee Meeting Agenda Packet April 2022 (Due to the size of Attachment E, a hardcopy is on file in the Office of the City Council, as reference)
F. Village & Barrio Objective Design Standards Public Input Report August 2022 (Due to the size of Attachment F, a hardcopy is on file in the Office of the City Council, as reference)
cc: Scott Chadwick, City Manger
Cindie McMahon, City Attorney
Ronald Kemp, Assistant City Attorney
Eric Lardy, City Planner
Robert Efird, Principal Planner
Shelley Glennon, Associate Planner

Community Development Department | 1635 Faraday Ave. | Carlsbad, CA 92008 | www.carlsbadca.gov IB-135
SB-35 Multifamily Housing
CA Senate Bill 35 (SB-35) adopted several
provisions related to housing, including a
streamlined ministerial review process for
multifamily housing developments under Gov.

Code § 65913.4, which became effective Jan. 1,
2018. Qualifying projects are considered ministerial
and not subject to a conditional use permit (CUP).

This Info-Bulletin provides an overview of how the
SB-35 affects the city’s review and approval of
eligible housing projects. This bulletin has been
updated to include several bills amending Gov.

Code § 65913.4, including AB-1174 (Sept. 2021).

BACKGROUND
Under state housing law, CA Department of
Housing and Community Development (HCD)
assigns each jurisdiction housing production goals
for different income categories; this is referred to
as the Regional Housing Needs Allocation (RHNA)
goals. For the current housing cycle (2021-2029),
Carlsbad was assigned the following housing
production goals.

Income Category RHNA
Very Low 1,311 units
Low 784 units
Moderate 749 units
Above Moderate 1,029 units
Refer to IB-137 to learn more about the city’s
RHNA obligations and how they are being
accommodated in the city’s Housing (Plan)
Element.

Every year cities are required to report to HCD
their housing production figures. If HCD finds that a
jurisdiction’s RHNA goals in any of the income
categories are not being timely satisfied,
residential projects meeting certain development
criteria are eligible for a ministerial, st reamlined
review process pursuant to SB-35.

HCD’s July 1, 2022 SB 35 Statewide Determination
Summary identified the City of Carlsbad as a
jurisdiction making insufficient progress toward its
lower income RHNA (Very Low and low income)
and concluded the City is subject to the SB 35
streamlined ministerial approval process for
proposed housing developments with at least 50%
affordability. The City of Carlsbad is located in an
urbanized area, as defined by the US Census
Bureau.

STREAMLINED MINISTERIAL AP PROV AL
SB-35 requires cities and counties to streamline
review and approval of eligible affordable housing
projects by providing a ministerial approval
process, exempting such projects from
environmental review under the California
Environmental Quality Act (CEQA) and expedited
ministerial permit review process (without the
need for a CUP).

This pro cess d oes not allow public hearings; only
ministerial design review or public oversight is
allowed, which must be objective and strictly
focused on assessing compliance with objective
development standards and criteria.

Documents Referenced
Housing Accountability Act, SB-35
Multifamily Housing Streamlining Law; §65913.4
HCD 2021 Updated SB-35 Guidelines
2010 Census – Urbanized Area Reference Map
HCD’s Statewide SB-35 RHNA Determination Summary
Carlsbad Housing Plan, IB-137
State Density Bonus Law, IB-112
SB-330 Housing Crisis Act; IB-132
Prelim Housing Development (SB-330) Pre-Application; P-32 SB-35 Multifamily Housing Permit Streamline Checklist, P-35 Development Permit Application, P-2
Attachment A

Depending upon the number of housing units
proposed in the project, the city has a short
timeframe to review the application to determine
if it is eligible for processing under SB-35. If it is
determined that the project is eligible, SB-35
specifies the timeframes within which the city must
make a final decision on the application. (Gov.

Code §65913.4(c).) These timeframes are discussed
more in this bulletin.

ELIGIBILITY CRITERIA
Development projects are eligible for the
streamlined, ministerial approval process under SB-
35 if they meet all the following criteria. Applicants
should review technical definitions and guidance
provided in (1) Gov. Code § 65913.4(k)
[Definitions], (2) Gov. Code § 65913.4(A) [Eligibility
criteria], (3) HCD’s 2021 Updated SB-35 Guidelines

(or any subsequent updates), and (4) any
subsequent statutory updates.

Minimum Affordable Units
At least 10% (when the city fails to meet
production goals for above market units) or 50%
(when the city fails to meet production goals for
moderate, low, or very low units) of the total
proposed units (depends on what level of
production goals the city fails to meet) must be
restricted for low or very low-income housing for a
period of no less than 55 years. As discussed
above, the City is currently only subject to SB 35
streamlining for residential developments with at
least 50% affordability.

Urban Infill
At least 75% of the site's perimeter adjoins parcels
that are developed with urban uses. “Urban uses”
means any current or former residential,
commercial, public institutional, transit or
transportation passenger facility, or retail use, or
any combination of those uses. Parcels that are
only separated by a street or highway shall be
considered to be adjoined.

Minimum Units
At least two residential units must be proposed.

Designated Residential Use
The city’s current general plan or zoning
designation must currently allow residential or
residential mixed-use with at least two-thirds of
the proposed development square footage
designated for residential use. (See Gov. Code §
65913.4(a)(2)(c) for guidance on square footage
calculations.)
Site Location
The development cannot be located on property
within any of the following areas:
• Coastal Zone
• Very or very high fire hazard severity zone
• Delineated earthquake fault zone
• Habitat for protected species or wetlands
• Conservation plan/conservation easement
• Flood plain/floodway
• Hazardous waste site
• Farmland (prime/statewide significance)
• Land governed by Mobilehome Residency
Law, Recreational Vehicle Park Occupancy
Law, the Mobilehome Parks Act, or the Special
Occupancy Parks Act
Demolition of Existing Residential Units
Development cannot demolish any existing housing
units that meet one of the following:
• Occupied by tenants in the last 10 years
• Subject to any form of rent or price control

IB-135_SB 35 Multifamily Ministerial Streamlining: 11/2021 Page 3 of 5 • Subject to a local law that restricts rents to
levels affordable to persons and families of
moderate, low, or very low incomes.
• Development cannot be on a site used for
housing that was occupied by tenants that
was demolished within 10 years.

Historic Buildings
Development cannot demolish a historic structure
that is currently listed on a national, state, or local historic register at the time of application
submittal.

Consistent with Objective Planning Standards
The project must meet all objective general plan,
zoning, subdivision, and design review standards in
effect at the time the application is submitted
(excluding inconsistencies arising from a Density
Bonus or related concessions/incentives/waivers).

SB-35 defines objective standards as those
standards that involve no personal or subjective
judgment by a public official and are uniformly
verifiable by reference to an external and uniform
benchmark or criterion available and knowable by
both the development applicant or proponent and
the public official prior to submittal.

Prevailing Wages
The project must be a public work as defined by
Labor Code § 1720, or all construction workers
employed in the execution of the development
must be paid at least the general prevailing rate of
per diem wages for the type of work and
geographic area. (See Government Code
§65913.4(a)(8)(A) for additional details.) Projects
which are not a public work and include 10 or
fewer units are exempt from providing a prevailing
wage.

Skilled & Trained Workforce Provisions
A skilled and trained workforce, as defined in
Government Code §65913.4(a)(8)(B)(i)(II), must
complete the development if the project consists
of 50 or more units that are not 100 percent
subsidized affordable housing.

Subdivision of Land
Does not involve a subdivision, unless the
development:
• Is consistent with all objective subdivision
standards; and either;
• Receives a low-income housing tax credit and
is subject to the requirement that prevailing
wages be paid; or,
• Subject to requirements to pay prevailing
wages and use a skilled/trained workforce.

Parking
The city cannot require more than one parking
space per residential unit, regardless of the City’s
residential parking standards contained in CMC §

21.44.020. However, no parking may be required
under the following:
• The project is located within:
o one half mile of a public transit;
o Architecturally or historically significant
historic district; or,
o one block of a car-share station; or,
• On-street parking permits are required, but
not offered to the development occupants.

HOW TO SUBMIT
Eligible projects are first required to complete an SB- 35 permit streamline eligibility checklist form (P-35), a “Notice of Intent ” to file in the f orm of a
Preliminary Housing Development (SB- 330) Pre -
Application ( P-32), and a complete development
permit application (P-2). Please contact the Planning
Division to schedule an intake appointment.

APPROVAL TIMELINE
Once a Notice of Intent is filed, the city must
determine whether the project is in conflict with
objective planning standards within 60 days of
application submittal for projects with 150 or
fewer units, and 90 days for projects with more
than 150 units.

Project design review and consideration of any
information requested of the applicant for
ministerial review must be completed with a final
approval in 90 days from project application
submittal for projects with 150 or fewer units and
180 days from project submittal for projects with
more than 150 units.

PUBLIC HEARING REQUIREMENTS
SB-35 projects are ministerial, which do not require
public hearings. SB-35 allows “design review or
public oversight” to occur if a city so chooses. This
process may be conducted by the Planning
Commission or equivalent board or commission
responsible for review and approval of
development projects, or the City Council.

Design review or public oversight must be
objective and strictly focused on assessing
compliance with criteria required for streamlined
projects, as well as any objective design standards
that were in effect before the application was
submitted. This process may not in any way
“inhibit, chill, or preclude the ministerial approval”
allowed by SB-35.

ENVIRONMENTAL REVIEW
SB-35 projects are considered ministerial and
therefore not subject to the California
Environmental Quality Act (CEQA). As such, the city
cannot require applicants to prepare any studies
that would be required under CEQA (e.g.,
transportation, air quality, noise).

The city can only require an applicant to abide by
objective planning standards that were in effect at
the time the SB-35 application was submitted. If an
objective planning standard requires certain
studies to be performed and there are objective
standards to address the preparation and results of
those studies, then the applicant would be
required to prepare and implement those
requirements.

MODIFICATIONS
A development proponent may request a
modification to a SB-35 development that has been
approved, provided that request is submitted
before the issuance of the final building permit.

Such modifications shall be approved if the
modifications are consistent with the objective
planning standards in effect when the original
development application was first submitted.

However, new objective planning standards may
be applied if:
• The applicant modifies the number of
residential units or square footage by 15
percent or more.
• The project is modified by 5 percent or more
and the new standards mitigate or avoid a
specific adverse impact.
• The standards are contained in the California
Building Standards Code (Title 24 of the
California Code of Regulations) and
submitted prior to the first building permit
application.

IB-135_SB 35 Multifamily Ministerial Streamlining: 11/2021 Page 5 of 5 The city shall determine if the requested
modification is consistent with the objective
planning standard and either approve or deny the
modification request within 60 days after
submission of the modification, or within 90 days if
design review is required. See Gov. Code §
65913.4(g) for additional information.

APPROVAL EXPIRATION
The expiration dates for projects approved under
SB-35 are as follows:
• Projects will not expire where both (A) the
project includes public investment in housing
affordability, beyond tax credits, and (B) at
least 50% of the units are affordable to
households making at or below 80% of the
area median income.
• Projects that do not include housing noted in
the bullet above automatically expire after
three years.
• Projects shall remain valid for three years and
shall remain in effect as long as construction
activity, including demolition and grading
activity, on the development site has begun
pursuant to a permit issued by the local
jurisdiction and is in progress. See Gov. Code §
65913.4(f)(2)(A) for additional information,
including phased projects, and projects with
cessation of construction for more than 180
days.
• A one-year extension to the original three-
year period may be granted if the applicant
can provide documentation that there has
been significant progress toward getting the
development construction ready.

DENSITY BONUS
SB-35 projects can utilize all the benefits offered
under the State Density Bonus Law, which includes
density bonus and the granting of concessions,
incentives and waivers of development standards
to housing developments. Please refer to the city’s
informational bulletin IB-112 for additional
information on density bonus allowances.

PRE-APPLICATION REVIEW (OPTIONAL)
Early consultation with the city is strongly
recommended since codes, standards and housing
requirements may apply to your project that could
affect the anticipated scope of a project. Although
it is not required, staff recommends applicants
informally discuss a preliminary review application
with staff (P-14
) to obtain input PRIOR to
submitting an SB-35 application packet.

This review could assist in scoping the
development project, may provide a road map for
what applications will be required, and may raise
important issues of concern as the project design is
developed. This will help further streamline the
review process, consistent with the intent and
purpose SB-35.

YOUR OPTIONS FOR SERVICE
To schedule an appointment or to learn more about
this process, please contact the Planning Division at
760-602-4610 or via email at
[email protected]
.

Community Development Department | 1635 Faraday Ave. | Carlsbad, CA 92008 | www.carlsbadca.gov SB-330 Housing Crisis Act
IB-132
CA Senate Bill 330 (SB-330) amended a number of
statutory provisions and added Gov. Code § 66300,
commonly referred to as the Housing Crisis Act of
2019 (HCA), which became effective on Jan. 1,
2020. This Info-Bulletin provides an overview of
how the HCA affects the city’s review and approval
of eligible housing developments. The bulletin has
been updated consistent with SB-8 (effective Jan.
1, 2022).

BACKGROUND
The HCA is based on the idea that needed housing
has largely already been planned for by local
jurisdictions. According to a 2019 report prepared
by UCLA Lewis Center for Regional Policy Studies,
cities and counties in the state have collectively
approved zoning for roughly 2.8 million new
housing units. However, the housing is not getting
built.

The development community contributes the lack
of housing production to growing regulatory
requirements, permit processing delays, and
excessive impact and service fees that get imposed
on new development and growth.

In response, HCA created a number of new
procedures and legislative limitations on
municipalities with the goal of streamlining the
entitlement process by slashing the time and costs
it takes to secure permits for housing that meets
the local government’s existing rules.

The following sections provide information on
some of the more important provisions of the HCA.

It should be noted that the HCA is currently
intended to apply to housing developments projects
which have submitted a preliminary application
before Jan. 1, 2030, and the HCA, as a whole,
sunsets on Jan. 1, 2034.

PROJECT ELIGIBILITY
Projects that are located outside of California
Department of Forestry and Fire Protection’s
(CALFIRE) mapped “Very-High Fire Severity” zones
(Gov. Code § 51178) and meet the following
definitions of Housing Development are eligible for
benefits afforded under the HCA (Gov. Code §
65589.5(h)(2).
• Residential unit projects; or,
• Mixed-use development consisting of
residential and nonresidential uses with at
least two-thirds of the square footage of the
project designated for residential use; or,
• Transitional Housing or Supportive Housing
project (see definitions of each term in Gov.

Code §§ 65582(j) and (h), 65650, Chapter 21.04
of the Carlsbad Municipal Code).

APPLICATION PROCESSES
Preliminary Housing Development Pre-Application
Eligible projects that seek the vesting and
processing benefits offered under SB-330 are first
required to submit a Preliminary Housing
Development (SB-330) Pre-Application, which the
city refers to as the SB-330 Pre-App (Form P-32),
and a Density Bonus Application, if applicable
Documents Referenced
The Housing Crisis Act; SB 330
Prelim Housing Development (SB-330) Pre-Application; P-32 State Density Bonus Law, IB-112
Density Bonus Supplemental Checklist; P-1(H)
Informal Preliminary Review Request Form; P-14
Master Fee Schedule
CMC Definitions; §21.04
Carlsbad Growth Management Plan; GMP
Attachment B

IB-133_SB330 Housing Crisis Act_11/2021 Page 2 of 4
(Form P-1(H)). The application needs to include
information and supporting documentation as
required in the SB-330 Pre-App (Gov. Code §
65941.1(a)), as well as payment of the permit fee;
charged as a “Preliminary Plan Review – Minor.”
The fee is $240 (FY 2021-22) but refer to the city’s
master fee schedule for the most current fees.

The application materials are reviewed by city
staff at a filing appointment to determine whether
the required submittal items are present so the
city can accept the submittal and “deem
complete” the application. While not required
under state law, deemed complete applications
will be approved (signed) by staff at the filing
appointment.

An approved application allows a development
project to be submitted under the permit
streamlining provisions of SB-330, and generally
limits the city to only applying those ordinances,
policies, rules, regulations, fees (excluding annual
adjustments), and development standards that
are in place on the date the SB-330 Pre-App was
approved. (Gov. Code §65589.5(o)(1).)
Discretionary Permit Application
The SB-330 Pre-App is not intended to represent
an in-depth analysis of the proposed project and
does not take the place of required discretionary
applications and approvals. The project is still
subject to all required discretionary permits,
processing procedures, hearings and timelines
governed by state law, including the California
Environmental Quality Act (CEQA) and the Coastal
Act. Development applications must be submitted
within 180 days from submittal of the Pre-App.

State law requires public agencies to determine
the completeness of a development application
within 30 days based on specific contents of the
application, rather than information deemed
relevant by the individual planner. If the city does
not make this determination within 30 days, the
application is automatically deemed complete.

If a project application is determined incomplete,
the city is required to provide the applicant with a
list of items that were not complete. The list must
be limited to those items actually specified on the
city’s application submittal requirement checklist.

Furthermore, the city cannot request that the
applicant provide any new information that was
not stated in the initial list of items that were
listed as incomplete. This does not preclude the
city from requesting additional information as
part of the CEQA process. (CEQA Guidelines §§
15060, 15084.)
Once the discretionary permit application is
deemed complete, for residential developments
proposing 150 units or fewer, the city has 30 days
from the date that an application is deemed
complete to determine whether the project is
“deemed consistent” with applicable plan,
program, policies, ordinances, and standards.

Cities have 60 days for residential developments
proposing greater than 150 units. (Gov. Code
§65589.5(j)(2)(A).) Different timelines apply for
ministerial applications. (Gov. Code
§65913.4(c)(1).) Failure to meet this deadline
automatically deems the project consistent.

Following certification of an Environmental Impact
Report (EIR), jurisdictions generally have 90 days,
to approve or disapprove the project. For low-
income projects seeking tax credits or public
funding, that time frame is 60 days. Following

IB-133_SB330 Housing Crisis Act_11/2021 Page 3 of 4
approval of a Negative Declaration or a CEQA
Exemption, jurisdictions have 60 days to approve
or disapprove the project. (Gov. Code § 65950.)

IMPORTANT TIMELINES FOR APPLICANT
To retain the benefits granted through the SB-330
Pre-Application process, a project must meet the
following timelines and project thresholds:
• The application must be filed with the city’s
Planning Division and deemed complete prior
to filing a formal application requesting
approval of any discretionary action for an
eligible housing development project.
• If the SB-330 Pre-App for the development
project is not deemed complete at the filing
appointment, the applicant shall submit the
specific information needed to complete the
application within 90 days of receiving the
agency’s written identification of the
necessary information.
• Once the city accepts a complete SB-330 Pre-
App, the applicant has 180 calendar days from
the acceptance date to submit a discretionary
permit application to the city for processing.
• The project proposed in the discretionary
permit application can deviate by no more
than 20 percent from the project reflected in
the SB-330 Streamline Application (exclusive
of any increase resulting from the receipt of a
density bonus, concession, waiver, or similar
provision). (Gov. Code § 65941.1(c).)
• If the applicant does not submit the requested
information to address an incomplete Pre-App
within the 90-day period, or a formal
application is not received within the 180-day
period from pre-application acceptance, then
the SB-330 Pre-App shall expire and have no
further force or effect. (Gov. Code §
65941.1(d).)
• Construction of the project must commence
within three and one-half (3½) years following
the date that the formal discretionary project
receives final approval. “Final approval”
includes all necessary approvals (including
other agencies’ approvals and permits) to be
eligible to obtain building permits, and all
appeal periods or statutes of limitations have
been exhausted or resolved in favor of the
housing development project. (Gov. Code §
65589.5(o)(2)(D))

IMPORTANT JURISDICTIONAL

LIMITATIONS
As previously noted, SB-330 was intended to help
the state address the housing supply crisis by
removing barriers to the approval process for
residential and mixed-use projects. Below are
some of the more significant provisions of the HCA
that limit the city’s land use authority.
• Cities may only apply those rules, regulations,
fees and development standards that are in
place on the date the SB-330 Pre-App was
deemed complete.
• Cities are prohibited from enforcing caps on
housing development. As such, the citywide
and quadrant housing caps listed in the city’s
Growth Management Plan (GMP) cannot be
applied to new housing development projects,
as documented in City Council Resolution No.
2021-074
.
• Cities are prohibited from enacting a
development policy, standard, or condition
that would have the effect of imposing a
moratorium or limitation on housing
development, unless the city finds that there
is an imminent threat to the public health and
safety. As discussed in Resolution No. 2020-
104, 2020-208, No. 2021-003, these
limitations have prevented the city from
adopting moratoria in response to
exceedances of the city’s Growth
Management Plan Performance Standards.

IB-133_SB330 Housing Crisis Act_11/2021 Page 4 of 4
• Only objective design standards can be
applied to eligible housing development
projects. Development standards that are
subject to interpretation and subjective in
nature cannot be applied to the project.
• Cities are limited to holding no more than five
hearings on housing development projects
which comply with applicable objective
standards after development applications
have been found complete. A “hearing”
covers any public hearing, workshop, or
similar meeting that is held by the City
Council, Planning Commission, or other
departments. If the city continues a hearing,
the continued hearing counts as one of the
five hearings. These provisions do not apply
to projects requesting legislative approvals.
• The City Council generally cannot deny a
Housing Development project unless it is able
to make written findings, pursuant to Gov.

Code §65589.5(d), based on the
preponderance of the evidence in the record
that either:
o The city has already met its Regional
Housing Needs Assessment (RHNA)
requirement;
o There is a specific adverse impact upon
the public health or safety and this impact
cannot be mitigated;
o Approval of the project would violate
State or Federal law and this violation
cannot be remedied; or,
o The project is proposed on land zoned for
agriculture or resource preservation that
is surrounded on at least two sides by
land being used for agricultural or
resource preservation purposes,
o The project does not have adequate
water or wastewater facilities to serve the
project.
o The project is inconsistent with the zoning
ordinance and general plan land use
designation.

NO NET-LOSS OF UNITS
In addition to the items listed above, HCA generally
limits a city’s ability to reduce the permitted
residential density below that in place on January 1,
2018 without concurrently increasing density on
other property. This is referred to as the “no net-
loss” provision. (Gov. Code, § 66300(b)(1)(A).)
SB-8, which becomes effective January 2022,
clarified the definition of “concurrent” in the HCA
to mean the action is approved at the same
meeting of the legislative body. However, if the
action that would result in a net loss is requested
by an applicant for a housing project,
“concurrently” means “within 180 days.”

PRE-APPLICATION REVIEW (OPTIONAL)
Early consultation with the city is strongly
recommended since codes, standards and housing
requirements may apply to your project that could
affect the anticipated scope of a project. Although
it is not required, staff recommends applicants
informally discuss their preliminary review
application with Staff (P-14
) to obtain input PRIOR
to submitting a Preliminary Housing Development
(SB-330) Pre-Application (Form P-32).

This review could assist in scoping the
development project, may provide a road map for
what discretionary applications will be required,
and may raise important issues of concern as the
project design is developed. This will help further
streamline the review process, consistent with the
intent and purpose of the HCA.

YOUR OPTIONS FOR SERVICE
To schedule an appointment or to learn more about
this process, please contact the Planning Division at
760-602-4610 or via email at
[email protected]
.

Oct. 19, 2021
Item #7 Page 6 of 47
Attachment C
RESOLUTION NO. 2021-241

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH AVRP STUDIOS, INC.

TO PREPARE OBJECTIVE DESIGN STANDARDS AND PROCEDURES TO STREAMLINE

THE PERMITTING PROCESS FOR MULTIFAMILY HOUSING AND MIXED-USE

DEVELOPMENT PROJECTS WITHIN THE VILLAGE AND BARRIO MASTER PLAN

AREA, APPROVING A CHARTER FOR A DESIGN REVIEW COMMITTEE TO REVIEW

AND PROVIDE RECOMMENDATIONS ON THE DRAFT OBJECTIVE DESIGN STANDARDS; AND APPROPRIATING GRANT FUNDING OF $160,000 TO THE GENERAL FUND TO IMPLEMENT THE PROJECT IN FISCAL YEAR 2021-2022 EXHIBIT 1
WHEREAS, the City Council on Jan. 19, 2021, authorized application for, and receipt of, Local Early Action Planning grant program funds from the California Department of Housing and Community Development; and
WHEREAS, the City of Carlsbad was awarded a LEAP grant in the amount of $500,000, of which $120,000 was awarded to prepare the city's permit-ready accessory dwelling unit program, $220,000 was awarde d to assist the city with its Housing Element update, and $160,000 was awarded to prepare objective design standards and a streamlined permitting process for multifamily housing and mixed­ use development projects with in the Village and Barrio Master Plan area; and WHEREAS, staff issued a request for proposals in compliance with Carlsbad Municipal Code Section 3.28.060(D), to obtain professional services to prepare objective design standards and procedures to streamline the permitting process for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area; and WHEREAS, after review of the three proposals submitted in response to the request for proposa ls, staff recommends AVRP Studios, Inc. as the most qualified consultant for the project; and WHEREAS, city staff and AVRP Studios, Inc. negotiated a scope of work and schedule with an associated fee for an amount not to exceed $160,000, which is to be fully funded by the LEAP grant; and
WHEREAS, the consultant costs to complete the scope of work will be paid by the City of Carlsbad and the city will be reimbursed through the LEAP grant funds program; and WHEREAS, the proposed professional services agreement with AVRP Studios, Inc., including the scope of work, fee, and schedule, is provided as Attachment A; and Oct. 19, 2021
Item #7 Page 7 of 47
WHEREAS, on Dec. 10, 2019, City Council directed staff to return to City Council on the formation of an ad-hoc design review committee to work with the consultant (AVRP Studios, Inc.) on developing objective design standards including a potential palette of architectural design styles for the Village and Barrio Master Plan area; and
WHEREAS, committee members will voluntarily serve for approximately one year as described in the design review committee charter and will review objective design standards including a new palette of architectural design styles for multifamily housing and mixed-use development projects in the Village and Barrio Master Plan area; and
WHEREAS, the proposed design review committee charter, which includes a mission statement, principles of participation, member roles, and meeting requirements, is provided as Attachment B; and WHEREAS, the City Planner determined on October 1, 2021, the Professional Services Agreement with AVRP Studios, Inc. is an activity that is not a project as defined by the California Environmental Quality Act Section 21065 and State CEQA Guidelines Section 15378(b)(4), because the activity involves execution of a contract which, on its own accord, will not cause significant environmental impact. As such, this activity is not subject to CEQA pursuant to Section 15060(c)(3) .

This determination is predicated on Section 15004 of the guidelines, which provide direction to lead agencies on the appropriate timing for environmental review; and WHEREAS, the City Planner determined on October 1, 2021, the design review committee charter is an activity that is exempt from the requirements of the California Environmental Quality Act {CEQA) in accordance with CEQA Guidelines Section 15378(b)(S), in that initiating enabling legislation for the design review committee does not meet CEQA's definition of a "project," because the action constitutes organizational or administrative activities of government that will not result in direct or indirect physical changes in the environment.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:

1. 2.

That the above recitations are true and correct.

That the City Manager is authorized and directed to execute the professional services agreement with AVRP Studios, Inc. (Attachment A), to assist in the preparation of objective design standards, including a new palette of architectural design styles, and Oct. 19, 2021
Item #7 Page 8 of 47
procedures to streamline the permitting process for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area.

3. That the City Manager is authorized to execute the City of Carlsbad Local Early Action Planning Grants Program application, the LEAP grant documents, and any amendments to the documents, on behalf of the City of Carlsbad as required by the California State Department of Housing and Community Development for receipt of the Local Early LEAP grant funds.

4. That the Deputy City Manager, Administrative Services is authorized to appropriate $160,000 in funding to the General Fund to be reimbursed by LEAP grant funds.

5. That the City Council approves a charter for a design review committee to review objective design standards, including a potential new palette of architectural design styles, for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area (Attachment B).

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 19th day of October 2021, by the following vote, to wit:

AYES:

NAYS:

ABSENT:

Blackburn, Bhat-Patel, Acosta, Norby.

None.

Hall.
lerk Services Manager
Oct. 19, 2021
Item #7 Page 9 of 47
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AGREEMENT FOR OBJECTIVE DESIGN STANDARDS AND

STREAMLINED PROCESSING SERVICES

AVRP STUDIOS, INC
:?HIS AGREEMENT is made and entered into as of the cJ._1 ..sJ- day of U,_~ , 2021, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and AVRP STUDIOS, INC., a California corporation ("Contractor").

RECITALS
A. City requires the professional services of a design company that is experienced in urban design and coding services.

B. Contractor has the necessary experience in providing professional services and advice related to objective design standards and streamlined processing.

C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work.

NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows:

1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions.

2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise.

3. TERM
The term of this Agreement will be effective for a period of three (3) years from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional two (2) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement.

4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.

5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be one hundred sixty thousand dollars ($160,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A".

Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".

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6. STATUS Of CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes.

The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor.

7. SUBCONTRACT ING
Contractor will not subcontract any portion of the Services without prior written approval of City.

If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. a_ OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.

9. INDEMNIFICAT ION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable.

The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement.

10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all amendments , insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 6/12/18
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DocuS ign Envelope ID: AD66 4269-DF60-4600-8C 59-3DF72D31FFBO in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.

10.1 Coverage and Limits .

Contractor will maintain the types of coverage and minimum limits indicated below , unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers , agents and employees make no representat ion that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage , as Contractor deems adequate , at Contractor's sole expense . The full limits available to the named insured shall also be available and applicable to the City as an additional insured .

10.1.1 Commercial General Liability (CGL) Insurance . Insurance written on an "occurrence " basis, including personal & advertising injury , with limits no less than $2,000,000 per occurrence . If a general aggregate limit applies , either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

10.1.2 Automobile Liability . (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single -limit per accident for bodily injury and property damage.

10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides , to City's satisfaction , a declaration stating this .

10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor 's profession with limits of not less than $1 ,000,000 per claim . Coverage must be maintained for a period of five years following the date of completion of the work .

10.2 Additional Provisions . Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain , the following provisions :

10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City .

10.2.2 Contracto r will obtain occurrence coverage, excluding Professional Liability , which will be written as claims-made coverage .

10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement.

10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement , Contractor will furnish certificates of insurance and endorsements to City.

10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages , then City will have the option to declare Contractor in breach , or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages . Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement.

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10.5 Submission of Insurance Policies. City reserves the right to require , at any time , complete and certified copies of any or all required insurance policies and endorsements.

11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement , as may be amended from time-to-time .

12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable . Contractor will allow a representative of City during normal business hours to examine , audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated , all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City . Contractor will have the right to make one (1) copy of the work product for Contractor's records .

14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City.

15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement.

For City
Name Shelley Glennon
Title Associate Planner
Department Comm. Dev.

City of Carlsbad
Address 1635 Faraday Avenue
Carlsbad. CA 92008
Phone No. 760-602-4605
For Contractor
Name Howard M. Blackson Ill. CNUac
Title Director of Urban Design
Address 703 16th St, Suite 200 -~------------
Phone No.

Email
San Diego. CA 92101
619-704-2670
[email protected]
Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address.

16. CONFUCT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code . The Contractor shall report investments or interests in all categories.

Yes ■ D
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17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed offederal , state and local laws and ordinances and regulations which in any manner affect those employed by Contractor , or in any way affect the performance of the Services by Contractor . Contractor will at all times observe and comply with these laws, ordinances , and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations .

Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements , including, but not limited to, verifying the eligibility for employment of all agents, employees , subcontractors and consultants whose services are required by this Agreement.

18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discriminat ion and harassment.

19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions , and their respective views, to writing . A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution , which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager . The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem . In such cases, the action of the City Manager will be binding upon the parties involved , although nothing in this procedure will prohibit the parties from seeking remedies available to them at law.

20. TERMINATION
In the event of the Contractor's failure to prosecute , deliver , or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement , City may terminate this Agreement upon written notice to Contractor. Upon notification of termination , Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed . Based upon that finding City will determine the final payment of the Agreement.

Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however , the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made.

21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor , to solicit or secure this Agreement , and that City Attorney Approved Version 6/12/18
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DocuSign Envelope ID: AD66426 9-DF60-4600-8C59-3DF72O31 FFB0 Contractor has not paid or agreed to pay any company or person, other than a bona fide employee , any fee, commission , percentage , brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion , to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission , percentage , brokerage fees, gift, or contingent fee.

22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information . If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement.

23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county.

24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors . Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld.

25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended , modified, waived or discharged except in a writing signed by both parties.

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26. AUJHPBIIY
The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement.

AVRP STUDIOS, a California corporation
By:
(sign here)
Randy S. Robbins/Secretary/Treasurer
(print name/title)
By:
(sign here)
Christopher T. Veum/President
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
D..../ Scott Chadwick
\ V' City Manager
ATTEST :
~ trtZ.:J1~

FAVIOLA MEDINA
~ City Clerk Services Manager
If required by City, proper notarial acknowledgment of execution by contractor must be attached .

If a corporation , Agreement must be signed by one corporate officer from each of the following two groups.

Group A
Chairman ,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise , the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.

APPROVED AS TO FORM:

CELIA A. BREWER , City Attorney
BY: ----- --------Assistant City Attorney
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SCOPE OF SERVICES
TASK 1-CREATE ODS AND SPP

1.1 Document Review and Kick-Off Meeting. Our team will:
• Review the basic toolkit that our team will provide;
• Review basic Table of Contents, graphic standard and sample chapter;
• Identify key questions to include in an online/citizen surveys; • Identify high-expectation sites in the project area;
• Identify data-needs requests with City staff beyond references listed in the RFP, such as prior development applications in the Project area, GIS data, and City staff preferences.

Meetings: One meeting with the City Staff/PM up to 4 hours.

Deliverables: None

1.2 Site Visits and Work Sessions. Our team will work with the City staff project manager to schedule a site visit, and meet with City staff to review and confirm the direction on:
• The approach to integrating new standards in the Master Plan; • The approach to the Table of Contents, graphic standards, applicant procedures and processes, and each chapter;
• The approach to the new standards on the Master Plan; • The approach to procedural changes/additions;
Our team will be in the field gathering a visual inventory of exemplary developments, identified by the community and/or by our team, to inform this process and the eventual standards.

Upon concluding all site visits and work sessions, our team will prepare an existing conditions memo that summarizes the conditions. After distribution of the existing conditions memo, our team will meet with the City staff in a work session to discuss the memo and any clarificati ons, outstanding questions and/ or data needs, and to review next steps.

1.3 Develop Base Map and Objective Design Standard Place Types and Multi-Family Building Types.

Using GIS information, our team will develop a base map for each of the parcels within the project area. We will then identify the palette of Multi-Family (MF) locations in each distr ict within the Village and Barrio Master Plan. For example, MF sites are located in different contexts within each district, such as transition lots between districts {VC and VG) or on large lots along the train t racks and small lots in a neighborhood in the same district (PT district) . This is done to identify a variety of MF building types within each district (3-5 architectural styles consistent with the community 's character and vision), required building form, and approaches to parking.

The MF building types will describe the physical characteristics and disposition of different types by context, such as mid­ block, corner, and edge conditions. This information will guide the preparation of detailed objective design and
development standards in each community. The palette and recommendations will be reviewed by the Ad Hoc Committee and City staff. Written comments will be compiled into one set of noncontradictory comments for our team to use in preparing an Administrative Draft of Building Types.

Meetings: None
Deliverables : PDF catalog of 3 - 5 MF Building Types.

1.4 Administrative Draft. Upon reviewing the comments
on the selected Building Types, our team will prepare the Admin istrative Draft Objective Design Standards. The team will prepare the ODS Administrative Draft based on the direction received in Task 1.3. Our team will present the Admin istrat ive Draft to the City staff. The Administrative Draft will be reviewed by the Ad Hoc Committee. Written comments will be compiled into one set of non-contradictory comments for our team to use in preparing the Final Draft.

Meetings: One meeting with the City Staff/PM/DRB
Deliverables: None

1.5 Develop Multi-Family Development Architectural Design Standards. Our team wil l prepare an Architectural Styles chapter per DRB recommendations. This chapter will be part of the Objective Design Standards sectio n. The chapter will describe the inten t of the architectural standards, provide illust rations for each of the 3 - 5 architectural styles, and include checklists of materia ls and finishes, lighting standards, siding, rooflines, fenestrations, eaves, color, cornice lines, and balconies. The chapter will identify the required approach wit h existing historic buildings, and architectural elements for multi ­ family buildings.

Meetings: Coordination with City Staff/PM and DRB.

Deliverables: Multi -Family Architecture Design Standards.

1.6 Develop Procedural and Form Changes. Based on the
review of existing administrative procedures, community input, working group discussions and team discussions, we will prepare a draft of administrative procedures and processes that streamline the developme nt application and entit lement review process, including drafts of the application and review forms and checklists. Our team will research existing multifamily housing and mixed-use projec t permit processes, practices, and materials and develop a permit processing program for the Village and Barrio Master Plan. Collaborating with city staff, our team will prov ide input on updated administrative procedures intended to facilitate the permitting process for project applicants . A clear and easy to understand process will also increase staff efficiency with the goal of reducing review time for mult ifamily and mixed-use residentia l housing projects by ±50% per stated objectives.

Meetings: Small Group meeting with th e City Staff.

Deliverables: Draft PDF of Streamlining Procedures

1.7 Final Draft ODS & SPP Document. Based on t he review of existing administ rat ive draft, screencheck, DRB review and recommendations, community input, working group discussions and team discussions, and we will prepare the final draft of the ODS and SPP administrative procedures and processes.

Oct. 19, 2021
Item #7 Page 17 of 47
DocuSign Envelope ID: AD664269-DF60-4600-8C59-3DF72D31 FFB0 TASK 2 - NECESSARY DOCUMENT AMENDMENTS

2.1 Village and Barrio Master Plan Amendment and
Local Coastal Program Amendment. Identify and make
recommendations for a Master Plan Amendment(s) and Local Coastal Program Amendment with a review of policies and standards as part of Task 1. Harris and Associates will prepare recommendations for the appropriate CEQA Compliance and CEQA determination (e.g., addendum, exemption, negative declaration), provided under a separate scope and cost estimate to complete the CEQA analysis.

Meetings: Meeting(s) with City staff.

Deliverables: PDF of Final Draft and Procedures
TASK 3- EDUCATION MATERIALS AND TRAINING

3.1 Training Materials. To assist the city in clearly understanding the new standards and permitting process with an updated methodology for project review based on the new standards, our team will lead a series of training sessions to walk staff through the applicants and reviewers forms and procedures.

We will facilitate workshops to explain the processing and review roles and expectations for city staff and development applicants. All training materials will be available for the public.

Meetings: Up to two (2) small group training sessions.

Deliverables: Prepare training materials, sample project applications, staff review checklists, and a PowerPoint to educate and train staff with an overview of the procedures and materials (graphic simulations) to process project applications.

TASK 4 - COMMUNITY OUTREACH/HEARINGS

4.1 Ad Hoc Design Review Committee will be a driving force of the palette of architectural styles. We will attend meetings and facilitate meetings per ORB and City staff direction.

Meetings: Attend all meetings and lead/facilitate at least three (3) meetings in coordination with City staff and chair.

Deliverables: Prepare informational and draft plan materials, and presentations.

4.2 Individual Meetings to Review Administrative Draft
(Screencheck and Public Draft). Our team will facilitate either one or a series of in-person meetings with the community to present and discuss the Administrative Draft Standards.

Alternatively, t his meeting can occur after a community's review of the Draft but prior to compiling the Ad Hoc Committee's comments for submitted to our team. Assist the City's
Communication & Engagement's Division to provide them with content/data for items including the project website, social media content, informationa l video and online surveys.

Meetings: Up to three (3) small group or one (1) large group Community meetings in coordination with City Staff and ORB.

Deliverables: Community Engagement Plan Document

12. Public Hearings. We will coordinate with city staff to prepare for and attend up to three (3) public hearings to adopt the proposed objective design standards and related documents and/or materials.

Meetings: Up to three (3) Public Hearings. On-call assistance (conference call and email correspondence).

Deliverables: An adopted ODSAmendment.

Oct. 19, 2021
Item #7 Page 18 of 47
Carlsbad Obj ect ive Design Standards
Project Schedule
ID Ta:5:k Name Jouratlon sf IFln~h
I 2y22 I I I I I I I
2 N- Jan
"'"
M-· Jul <en N- J n u., ..
1 Task l · Create Objective Design Standards 399 days Tue 4/6/21 Fri 10/14/22 I---
8 Phase 1- Due Diligence 3mons Mon 11/1/21 Fri 1/21/22
1---
9 Phase 2 - Design 6mon s Mon 5/2/22 frl 10/14/22
,_
10 T sk 2 • City Document Amendment 6mons Thu 12/1/22 WedS/17/23 ,_
11 T sk 3 • Education Mater ials and Training 3mons Tue 2/1/22 Mon4/25/22 -12 T sk 4 · Community Outreach and Hearings 240 days Mon 11/1/21 Fri 9/30/22 Task 4 • Community Outreach and Hearings - 13 Hearings 2mons Mon 5/2/22 Fri 6/24/22 Hearings
14 Ad Hoc ORB Work 1 12 mens Mon ll/l/21 Fri 9/30/22 Ad Hoc ORB Work 1 To,k ProJec:t Summol')' Manuilll ask StM--cinly [ O.~l lne ,I), Spi t ln1Ktlve Tisi:' Duruion-ooly Finish-only ] Pr'Ogl'tiS MUeslone ◊ ln.ac.tiveMileH<lne Manual SummaryRClllup Eitcrn.al Tasks Ma.nual Progresi Summary lnac;Iive SIJl1'\m.t,Y I I Manual Summa!')' b:temal Milestone ?

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Item #7 Page 19 of 47
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AVRP / Torti Gallas / Harris and Associates Team
CEQA Project Manager, Harris
CEQA Analyst, Harris
Publications Specialist, Harris
Design Director, Torti Gallas
Associate, Tort i Gallas
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Project Manager, AVRP
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Kristin Blackson $ 205.00
Kelsey Hawkins $ 115.00
Lindsey Messner $ 130.00
Neal Payton $ 200.00
Rogelio Huerta $150.00
Torti Gallas Staff $ 115.00
Howard Blackson $180.00
AVRP Staff $130 .00
Task 1
Objective Design
Standards and

0.0 0.0

0.0 140 .0 $28,000.00
$22,500 .00
$
Task 2
City Document
Amendments
$

40.0 $ 8,200 .00

40.0 $ 4,600.00

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36.0 $ 7,200.00

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1,150 .00
1,300 .00
Total
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50.0 10.0
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190.0

90.0 225.0
Total Cost
$ 5,130.00
$ 10,455.00
$ 5,750 .00
$ 1,300 .00
$ 39,100 .00
$ 28,500 .00
$ 10,350.00
$
$
Oct. 19, 2021
Item #7 Page 20 of 47
DocuSign Envelope ID: AD664269-DF60 -4600-8C59 -3DF72D31FFB0 RATE SCHEDULE (per fee structure)
Project Manager, AVRP Studios, Howard Blackson$ 180.00
Administrative/Graphiics Support, AVRP Studios Staff$ 130.00 Design Director, Torti Gallas, Neal Payton$ 200.00
Associate, Torti Gallas, Rogelio Huerta $ 150.00
Administrative/Graphics Support, Torti Gallas Staff$ 115.00 Senior Director, Harris and Associates, Diane Sandman$ 285.00 CEQA Project Manager, Harris and Associates, Kristin Blackson$ 205.00 CEQA Analyst, Harris and Associates, Kelsey Hawkins$ 115.00 Publications Specialist, Harris and Associates, Lindsey Messner$ 130.00 These are gross estimates for each phase including direct costs and expenses included. We are a San Diego­ based firm without travel expenses and the ability to be directly responsive to client needs and attendance at meetings, events, and hearings.

Oct. 19, 2021
Item #7 Page 21 of 47
EXHIBIT 1-ATTAC HMENT B
The Village & Barrio Master Plan Objective
Design Standards for Multifamily Housing and
Mixed-use Development Project
Design Review Committee
Charter
C cityof
Carlsbad
October 2021
Community Development Department
Planning Division
Oct. 19, 2021
Item #7 Page 22 of 47
Table of Contents
( City of
Carlsbad
lntroduct ion .................................................................................................................................. ............ ..... 3 Mission Statement .................................................................. ...................................................................... 3 Principles of Participation .......................................................................................................................... ... 3 Representation and Appointment ................................................................................................................ 4 Discussion Process ............................................................................ ............................................................. 4 Role of Chair and Vice-chair ............................................................................................................. ............. 5 Meeting Schedule ............................... ................................................................... ........................................ 5 Meeting Attendance ........................................................ ............................................................................. 5 Meeting Quorum .............................................................................................................................. ............. 6 Open Meeting Requirements .................................. ...................................................................................... 6 Meeting Agendas ............................................................................... ........................................................... 6 External Communications .......................................................................................................................... ... 6 Information Sharing ...................................................................................................................................... 7 Work Products ............................................................................... ................................................................ 7 Design Review Committee Charter Page 2 of 8
Oct. 19, 2021
Item #7 Page 23 of 47
{ City of
Carlsbad
Introduction
The Village and Barrio Master Plan objective design standards for multifamily housing and mixed-use development project is an approximately 20-month community outreach process, the purpose of which is to expedite the planning permitting process by replacing existing Village and Barrio Master Plan subjective design standards for multifamily housing and mixed-use development projects with objective design standards and creating a potential new palette of architectural design styles, consistent with the Village and Barrio's small beach-town community character.

Mission Statement
The mission of the Design Review Committee (DRC) is to participate in and provide guidance in developing new objective design standards for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area. The DRC must also review and provide guidance on a potential new palette of architectural design styles for multifamily housing and mixed-use development projects.

Principles of Participation
Role of Design Review Committee Members
To achieve the mission of the DRC, the City Council is asking members to constructively provide input into the development of the new objective design guidelines for achieving the following:
• Become familiar with state housing law and housing needs, constraints, and opportunities in the state, regional, and local context • Become familiar with the Village and Barrio Master Plan's existing design standards/guidelines related to multifamily residential development and mixed-use development projects
• Become familiar with the historic background of the Village and Barrio Master Plan area • Become familiar with the existing historic structures within the Village and Barrio neighborhoods
• Attend a minimum of three (3) meetings over an approximately one-year period • Adhere to the project schedule and respond to established deadlines • Keep interested commun ity members informed of the progress of the project • Encourage community participation throughout the development of the objective design standards
• Listen to and respect diversity in perspectives, facts and opinions • Provide constructive feedback to city staff and consultants on works in progress at key points during the development of the project
D~sign Review Committee Charter Page 3 of8
Oct. 19, 2021
Item #7 Page 24 of 47
( Cityof
Carlsbad
• In decision-making, balance individual and group stakeholder goals with the larger public interest and legal requirements
• Work collaboratively with other DRC members in reaching decisions and making recommendations to the City Council
Representation and Appointment
The committee will be composed of a total of nine members as follows:
• One Planning Commissioner
• One Historic Preservation Comm issioner
• Two Village resident representative
• Two Barrio resident representative
• Two professionals with expertise designing and/or developing multifamily housing/mixed-use development in the City of Carlsbad; preferably in the Village and Barrio Master Plan area.
• One Village or Barrio Business Owner representative
Each respective commiss ion will nominate a commissioner to serve as a member of the DRC.

The Planning Commission and Historic Preservation Comm ission will nominate one commissioner each. The nominated commissioner must have at least 18 months remaining on his or her term at the time of appointment . The Mayor/Mayor Pro Tern will consider and confirm the recommended nominations.

The City Council Member for District 1 will recommend the four residents and business owner.

The Mayor/Mayor Pro Tern will recommend the two profess ionals. The full City Council will make the final decision on all non-commiss ioner appointment recommendations.

Discussion Process
. During DRC meetings, committee members agree to abide by the following discussion process:
• The committee will select a Chair and Vice-chair
• The committee will establish ground rules for how members should conduct themselves during meetings
• The preferred decision-making process is collaborative problem-solv ing • Consensus of the DRC will take precedence over individual preferences • In cases of non-consensus, the Chair may call for majority vote of the committee; however, alternative perspectives will be documented
• Planning staff and the project consultant will be present at all meetings to assist in the facilitation of meet ing discussion with the Chair and committee as needed Design Review Committee Charter Page 4 of 8
Oct. 19, 2021
Item #7 Page 25 of 47
Role of Chair and Vice-chair
( City of
Carlsbad
The Chair will ensure that the DRC meetings are conducted fairly and efficiently, that proper order and mutual respect among all participants is maintained, that there is full participation during meetings, that all relevant matters are discussed, that all committee members have an opportunity to participate in committee discussions, and that necessary decisions are made. To the extent reasonable, the Chair will seek consensus of the committee in decision- making. In instances where consensus cannot be reached, the Chair may call for majority vote of the committee following procedures set forth in Carlsbad Municipal Code Chapter 1.20. However, the Chair will ensure that minority viewpoints are heard and documented.

The Chair will ensure that Principles of Participation and agreed-upon "ground rules" are adhered to.

The Chair is responsible for ensuring that members of the public desiring to address the committee can do so at the appropriate time.

The Chair may speak to members of the media on behalf of the DRC, and represent the committee at public workshops, hearings and other public events as appropriate.

The role of the Vice-chair is to serve as the Chair in the Chair's absence.

Meeting Schedule
DRC members are expected to make an approximate one-year commitment. The DRC will be formed soon after the City Council appointments are made and will have its first meeting approximately in December 2021/January 2022. The DRC will meet two additional times to review an administrative draft and public draft of the proposed objective design standards including a potential new palette of architectural design styles for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area. It is anticipated the DRC will conclude its work by approximately November 2022, however, the committee chair or committee member(s) so authorized may wish to continue project involvement by representing the DRC during public hearings on the Village and Barrio Master Plan Amendment to incorporate Objective Design Standards for multifamily housing and mixed­ use development projects in early/mid 2023.

Meeting Attendance
Full participation of committee members is essential to the effectiveness of the DRC, and members are expected to attend all DRC meetings. If a committee member is unable to attend a meeting, that person shall notify city staff as soon as possible.

Design Review Committee Charter Page 5 of8
Oct. 19, 2021
Item #7 Page 26 of 47
{ City of
Carlsbad
If a committee member resigns their appointment before the committee's work has concluded, that person shall notify the Mayor/Mayor Pro Tern and City Council in writing, with copies sent to the City Clerk, City Manager and the objective design standards project manager. At their next scheduled meeting, the DRC will consider whether to recommend that the Mayor/Mayor Pro Tern and City Council fill the vacated position.

Meeting Quorum
For meeting purposes, a quorum of the DRC is met with five members in attendance.

Open Meeting Requirements
All DRC meetings and committee members are subject to the open meeting requirements of the Ralph M. Brown Act (Brown Act). The Brown Act imposes public notice and access requirements on committee meetings, and places certain limitations on when and how committee members may communicate with one another. At the first DRC meeting, committee members will be given a briefing by the City Attorney's Office about the basic requirements of the Brown Act.

In addition to meeting as a committee approximately three times within a 11 to 12-month timeframe, committee members are encouraged to attend other activities scheduled for the benefit of the public, such as public hearings or other potential committee/commission workshops. Member attendance at these activities also may be subject to the Brown Act.

Meet ing Agendas
City staff will prepare meeting agendas and supporting materials in consultation with the Chair or a majority of the DRC following the procedures of the Brown Act. At the end of each meeting, the Chair and city staff will summarize: 1) the committee's recommendations for the Village and Barrio Master Plan's objective design standards and potential palette of architectural styles for multifamily housing and mixed-use development projects; 2) any additional research on items as determined by the committee; and 3) new items suggested for discussion at future meetings. Agendas for future meetings will be established by consensus of the DRC with concurrence of the Chair and city staff.

Members of the public have a right to attend DRC meetings and will have an opportunity to address the committee on any issues under its purview. Agendas will include time for public comment.

External Commun ications
The overriding consideration in all communications is to honor and sustain the constructive, collaborative process of the committee. DRC members are encouraged to communicate with Design Review Committee Charter Page 6 of 8
Oct. 19, 2021
Item #7 Page 27 of 47
( City of
Carlsbad
their constituencies to keep them informed of the objective design standards for the Village and Barrio Master Plan area and to encourage direct participation.

Should committee members speak to the media, members shall provide accurate information to inform the public about the project, but are asked to refrain from engaging in speculation, advocating a position on a specific issue/topic, speaking on behalf of the DRC ( except for the Chair or unless authorized by the committee to do so), or otherwise making public statements that would tend to hamper construct ive committee discussions.

Committee members are asked to notify city staff of any media contact related to the committee and its work. City staff will be available to assist in any communications to the media, if desired.

Informat ion Sharing
To ensure all DRC members have the same information available to them, all documents will be distributed thro ugh city staff. If a member has information, they would like to share with other committee members, the information should be given to staff for distribution to the entire committee. Maintaining this flow of informat ion will facilitate a respectful, collaborative process, and help avoid unintended violations of open meeting laws (e.g., serial meetings).

Work Products
In addition to its role as representatives of and conduits to community stakeholders, the DRC will be responsible for reviewing and providing guidance on draft work products, specifically on objective design standards including a potential palette of architectura l styles for developers to choose from when developing multifami ly and/or mixed-use development projects in the Village and/or Barrio. The DRC is not responsib le for reviewing the permit streamlining process update that is being proposed as part of the project. As previously requested by City Council, the DRC is charged with reviewing only the objective design standards including a new palette of architectural design styles.

The primary purpose of the DRC in review ing the work products is to ensure that the objective design standards accurately replaces all subjective design standards.

The draft work products that the DRC will likely review include but are not limited to:
• Staff, consultant, and subject matter expert reports and presentations on objective design standards, sample architectural design styles, and other relevant documents related to the development of multifam ily housing and mixed-use development projects;
Design Review Committee Charter Page 7 of 8
Oct. 19, 2021
Item #7 Page 28 of 47
( City of
Carlsbad
• Sites analysis related to existing historic structures within the Village and Barrio Master Plan area;
• Recommendation on draft objective design standards including a potential new palette of architectural styles to choose from; and
• Meeting minutes
Design Review Committee Charter Page 8 of 8
RESOLUTION NO. 2021-023

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,

CALIFORNIA, APPROVING AN AGREEMENT FOR PROFESSIONAL

CONSULTING SERVICES WITH RRM DESIGN GROUP TO ASSIST IN THE

PREPARATION OF OBJECTIVE DESIGN STANDARDS AND PROCEDURES TO

STREAMLINE THE PERMITTING PROCESS FOR MULTIFAMILY HOUSING AND

MIXED-USE DEVELOPMENT PROJECTS AND DIRECTING STAFF TO SUBMIT TO

THE CALIFORNIA HOUSING AND COMMUNITY DEVELOPMENT
DEPARTMENT A REQUEST TO REVISE THE SENATE BILL 2 SCOPE OF WORK

AND PROJECT SCHEDULE
CASE NAME:

CASE NO.:

OBJECTIVE DESIGN STANDARDS AND STREAMLINED

PERMITTING PROCESS FOR MULTIFAMILY HOUSING
ZCA 2020-0003/LCPA 2020-0007/AMEND 2020-0003 (PUB
2020-0004)
WHEREAS, the City Council on Aug. 20, 2019, authorized application for, and receipt of, SB2 Planning Grants Program Funds from the State of California to expedite the processing of projects and accelerate housing production; and
WHEREAS, the City of Carlsbad was awarded a SB2 grant in the amount of $310,000, of which $125,000 was awarded to assist the city with its Housing Element update and $185,000 was awarded to assist the city with the preparation of objective design standards and a streamlined permitting process for multifamily housing and mixed-use development projects.

WHEREAS, staff issued a request for proposals in compliance with Carlsbad Municipal Code sections 3.28.060.A to obtain professional services to prepare objective design standards and procedures to streamline the permitting process for multifamily housing and mixed-use development projects; and
WHEREAS, after review of the two proposals submitted in response to the request for proposals, staff recommended RRM Design Group as the most qualified consultant for the project; and WHEREAS, on July 1, 2020, the State of California approved an extension to the SB2 grant, allowing jurisdictions additional time to enumerate and expend the awarded grant funds.

WHEREAS, city staff and RRM Design Group negotiated a scope of work and schedule with an associated fee for an amount not to exceed $185,000 for Tasks 1 through 4, which is to be funded by the SB2 grant; and
Attachment D
WHEREAS, as directed by City Council, city staff will submit a request to update the SB2 grant scope of work and project schedule to the California Housing and Community Development Department for review and approval; and
WHEREAS, the consultant costs to complete Tasks 1 through 4 of the scope of work will be paid by the City of Carlsbad and the city will be reimbursed by the SB2 grant; and WHEREAS, the proposed professional services agreement with RRM Design Group, including the scope of work, fee, and schedule, is provided as Attachment A.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:

II
II
II
II
II
II
II
II
II
II
II

1. 2.

That the above recitations are true and correct.

That the City Manager is hereby authorized and directed to execute the professional services agreement with RRM Design Group (Attachment A), to assist in the preparation of objective design standards and procedures to streamline the permitting process for multifamily housing and mixed-use development projects outside of the Village and Barrio Master Plan area.

3. That the Deputy City Manager, Administrative Services is hereby authorized to appropriate $185,000 from the City Council's General Fund contingency account to the Community Development Department operating budget to pay consultant costs associated with Tasks 1 through 4 of the project scope of work...

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 19th day of January 2021, by the following vote, to wit:

AYES:

NAYS:

ABSENT:

Blackburn, Acosta, Bhat-Patel, Schumacher.

None.

Hall.

MA TT HALL, Mayor
-�m�V\,1/,tr'?j) gyr
BARBARA ENGLESON, City Clerk
(SEAL)
DocuSlgn Envelope ID: E5933C89-81E1-4172-8509-640D0BDA5833

AGREEMENT FOR PROFESSIONAL PLANNING SERVICES

RRM DESIGN GROUP
THIS AGREEMENT is made and entered into as of the 19th day of January 2021, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and RRM DESIGN GROUP, a California corporation, ("Contractor").

RECITALS
A. City requires the professional services of a planning consultant that is experienced in developing objective design review standards and expedited permitting programs.

B. Contractor has the necessary experience in providing professional services and advice related to objective design review standards and expedited permitting programs.

C: Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work.

NOW1 THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows:

1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A''., which is incorporated by this reference in accordance with this Agreement's
terms _and conditions.

2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and bestjudgment while exercising its professional skill and expertise.

3. TERM
The term of this Agreement will be effective for a period of two (2) years from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional one (1) year period or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement.

4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.

5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be one hundred eighty five thousand dollars ($185,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A".

Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".

City Attorney Approved Version 6/12/18

ATTACHMENT A
DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833

6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes.

The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor.

7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.

If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City.

8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.

9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable.

The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement.

10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 6/12/18
2 DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640DOBDA5833 in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.

10.1 Coverage and Limits.

Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured.

10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage.

10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this.

10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work.

10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions:

10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City.

10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage.

10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement.

10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City.

10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement.

City Attorney Approved Version 6/12/18
3 DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833

10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements.

11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time.

12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records.

14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City.

15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement.

For City
Name Shelley Glennon
Title Associate Planner
Department Com Dev Dept.

City of Carlsbad
Address 1635 Faraday Avenue
Carlsbad, CA 92008
Phone No. 760-602-4605
For Contractor
Name Jami Williams
Title Principal
32332 Camino Capistrano, Suite
Address 205 --------------
San Juan Capistrano, CA 92675
Phone No. 805-801-3743
Email [email protected]
Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address.

City Attorney Approved Version 6/12/18
4 DocuSign Envelope ID: E5933C89-81E1-4172-8509-640D0BDA5833

16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories.

Yes■ No D

17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations.

Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement.

18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment.

19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law.

20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement.

Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work City Attorney Approved Version 6/12/18
5 DocuSign Envelope ID: E5933C89-81E1-4172-8509-640D0BDA5833 performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made.

21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.

22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement.

23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county.

24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld.

25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties.

City Attorney Approved Version 6/12/18
6 DocuSign Envelope ID: E5933C89-81E1-4172-8509-640D0BDA5833

26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.

RRM DESIGN GROUP, a California
corporation
By:
(sign here)
Jami Williams/Senior Vice President
(print name/title)
By:
(sign here)
Diane BathgateNice President
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:

ATTEST:

Matt Hall
Mayor
Tamara R. McMinn for

BARBARA ENGLESON
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.

If a corporation, Agreement must be signed by one corporate officer from each of the following two groups.

Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.

APPROVED AS TO FORM:

CELIA A. BREWER, City Attorney
<;2 .... �?
BY: __________ _
Assistant City Attorney
City Attorney Approved Version 6/12/18
7 OocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833 ._,�HI BIT "A"

SCOPE OF SERVICES
The overarching goal of this work effort is to develop objective design review standards and an expedited permitting program that will facilitate and streamline development of housing in the City of Carlsbad. The State of California has adopted recent legislation to address the State-wide housing shortage and now requires a streamlined and ministerial process for specific residential developments (multi-family, including mixed-use). Objective development/design standards are required by the Housing Accountability Act, Senate Bill 35 Streamlining, and the Housing Crisis Act (Senate Bill 330). These laws require projects to be reviewed against established objective standards rather than through a city's traditional discretionary entitlement process. Objective standards are those that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark.

Currently, Carlsbad relies on codified standards in combination with design guidelines and a discretionary review processes when considering a multi-family and mixed-use development projects. The proposed work effort will result in objective design standards and a streamlined permit process, which are consistent with state law, for multi-family and mixed-use projects citywide, excluding the Village and Barrio Master Plan area.

The nature of the project is a technical exercise focused on identifying the subjectivity in the current development review process and replacing that subjectivity with objective requirements. The project is not intended to revise existing development standards (e.g., the intent is not to change existing building height or setback standards).

We have crafted the proposed work plan based on our knowledge of the project context and professional experience. However, we are prepared to adjust the work plan as necessary to best satisfy City objectives, budget, and timeframes.

Task 1: Create Objective Design Standards
Kickoff Meeting
Following the initial review of existing data, the project team will meet with City staff to establish a mutual understanding of the key issues, discuss the scope of work, expectations, and layout significant project milestones, meeting times, and deliverable targets. A virtual City tour to gain additional insight related to community character and recent development projects may also be incorporated into this task.

Data Gathering/Document Research and Review
1 DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833 As a first step in the process, RRM will collect and review data that is relevant to the development of: Objective Design Standards; an Expedited Permit Review/Processing Program; and Educational Materials. Data collection will include review of the following:
• Carlsbad General Plan
• Carlsbad Municipal Code,
• Master Plans and Specific Plans, including (note: Village and Barrio Master Plan is not included):
o Aviara Master Plan
o Bressi Ranch Master Plan
o Calavera Hills Master Plan
o Carrillo Ranch Master Plan
o Green Valley Master Plan
o La Costa Downs Specific Plan
o North County Plaza Specific Plan
o Poinsettia Properties Specific Plan
o Poinsettia Shores Master Plan
o Ponto Beachfront Village Vision Plan
o Quarry Creek Master Plan
o Robertson Ranch Master Plan
o Sunny Creek Specific Plan
o Villages of La Costa Master Plan
o Zone 20 Specific Plan
• City Council and Planning Division policies related to residential design • Previous development applications, and other planning efforts that have a bearing on future multi-family and mixed-use development.

City Staff Deliverable:

Staff will provide RRM relevant documents including: staffs current zoning 'fix-it" list; a brief summary of the current discretionary review process; and a summary of recent Planning Commission approvals of mu/ti-family and mixed-use projects along with any associated subjective, discretionary changes made to the design of the projects. This information will provide an opportunity for RRM to develop a thorough understanding of the City of Carlsbad's specific issues and opportunities associated with streamlining future multi-family and mixed-use development and ensuring context sensitive, objective design standards.

Conduct Consistency Analysis and Prepare Issue Identification Summary Matrix RRM will develop a matrix summarizing necessary revisions to existing City plans, guidelines, and standards. The matrix will identify revisions or amendments (graphics, figures, tables, charts, definitions) needed for existing City documents or plans to ensure consistency regarding the design standards. Findings will be summarized with recommendations for proposed objective design standards language. This will provide an opportunity to discuss the desired approach and modified language prior to developing the Administrative Draft document. 2 Do cu Sign Envelope ID: E5933C89-81 E 1-4172-8509-640D0BDA5833 Administrative Draft Objective Design Standards
RRM will prepare a comprehensive Administrative Draft of the Objective Design Standards. The standards will provide direction on design elements for multifamily housing and mixed-use projects, such as site planning, building massing and elements, building frontages, entrances, exterior materials, landscaping, utilitarian/mechanical elements of building design, etc. They will be clearly written and tailored with the ultimate users in mind. Design professionals, City staff, and decision-makers will all use this document in the creation and review of project submittals. The intention is to create an easy-to-use and easy-to-administer document and eliminate redundancy and unnecessary regulations otherwise covered by existing documents.

The document will be graphically oriented with images and exhibits representing a suggested design topic or standard. Many of the images will contain text callouts helping to illustrate the design intent.

Screencheck Draft Design Standards
Following the receipt of a single set of redlined comments from staff, RRM will produce the Screencheck Draft document. At this point, all staff comments will have been integrated and this draft will provide an opportunity for final review and comment prior to releasing the public review draft.

Public Draft Design Standards
RRM will update the screencheck draft with final edits and produce a Public Review Draft of the Design Standards. A companion document will be included to identify revisions needed for other existing City documents. This draft will be distributed to Planning Commission and City Council prior to hearings.

Final Objective Design Standards
Following the receipt of comments from City staff on the draft Objective Design Standards documents, RRM will produce the Final Admin Review document. This document will provide an opportunity for final review and comment prior to releasing the Final Public document.

Project Management
Work performed within this task will be associated with necessary coordination between RRM and City staff throughout the process. This will include information teleconferences, correspondence, status updates, record keeping, project coordination, electronic file management, and all other coordination during the project. In addition, bi-weekly check-in conference calls (~30 minutes) with the Project Manager will be provided within this task.

DELIVERABLES
• Prepare for and attend one (1) kickoff meeting
• One (1) summary matrix of proposed amendments to existing City documents • One (1) conference call with City to discuss findings of matrix 3 DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833 • RRM will provide a PDF of the Administrative Draft document for staff review • RRM will provide a PDF of the Screencheck Draft document for staff review • RRM will provide a PDF of the Public Draft document for staff use and public review • One (1) Final PDF Public Objective Design Standards document • Ongoing project coordination and management. Assumes approximately six (6) hours per month for 36 months including one (1) 30-minute check-in conference call with the City up to two (2) times a month (not all calls may be necessary) Task 2: Identify Necessary Amendments to City Documents Zone Code Amendments Coordination
RRM will work with City staff to ensure that necessary code amendments are identified to integrate the objective design standards into the City's Zoning Ordinance coordinated with the City consultant. This task will include reviewing and integrating relevant issues identified in staffs current "fix-it list" and coordination with concurrent efforts to prepare a comprehensive Zoning Ordinance update. Review of City plans, guidelines and standards will be performed as part of Task 1: Create Objective Design Standards. Potential conflicts with new state legislation related to project streamlining will also be examined.

CEQA Compliance
RRM is well qualified to prepare CEQA compliance analysis for the project. However, as the scale of the project and scope have yet to be determined, a cost estimate at this time would be speculative. We would be happy to provide a cost estimate based on further discussion with staff and delineation of work effort. As part of this task, RRM will prepare recommendations for the appropriate CEQA determination (e.g., Negative Declaration) and provide a cost estimate to complete the CEQA analysis.

DELIVERABLES
• Up to 24 hours of coordination, conference calls, and time associated with summarizing recommended revisions
• One (1) CEQA Recommendations Memo and Cost Estimate
Task 3: Internal Procedures
Project Streamlining
RRM will research existing multifamily housing and mixed-use project permit processes, practices, and materials and develop a revised permit processing program. RRM will coordinate with City staff to provide input on updated administrative procedures intended to facilitate and streamline the permitting process for project applicants. A clear, expedited and easy to understand process will also increase staff efficiency with the goal of reducing review time for affordable housing projects by at least 20%. The final deliverable will be a summary 4 DocuSign Envelope ID: E5933C89-81E1-4172-8509-640D0BDA5833 memorandum of findings as well as recommended modifications to the process for City consideration.

As stated in the RFP, the following quantitative outcomes are expected:
• Reduce the City's review and approval time for eligible projects with �50% affordable units to 60 days if the development contains 150 or fewer housing units • Reduce the City's review and approval time for eligible projects with �50% affordable units to 90 days if the development contains more than 150 housing units • Reduce project review processing time for the above eligible projects by 30% Staff Training Materials
We understand the overall goal for this task is for the City to clearly understand the new objective design standards, the streamlined permitting process and communication tools for the public, and the updated methodology for project review based on the new standards.

Efficient communication, processing, and review for City staff is key for successful implementation of the new design standards and ultimate goal of additional affordable housing and community wellbeing.

RRM will prepare materials for staff training and education, provide an overview of the educational and marketing materials (graphic simulations), and a summary of the objective standards. RRM will present a PowerPoint and facilitate a three·-hour training session for City staff. The session will include a substantial question and answer period to ensure that City staff will leave with a solid understanding of the objective design standards.

DELIVERABLES
• Summary memorandum of findings as well as recommended modifications to the process for City consideration
• One (1) three-hour training session with City staff with supporting PowerPoint presentation
• Educational materials for City staff training
Task 4: Community Outreach/Planning Commission/City Council Engagement associated with the development of objective design standards will focus on gaining an understanding from City staff, decision makers, and the development community on common issues associated with existing standards and the development review process.

As stated previously, the nature of this project is essentially a technical exercise and therefore will require the development of a suite of educational materials to inform the larger Carlsbad community of project objectives and schedule.

Project Website, Social Media, and Project Collateral
5 DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833 RRM will develop a project webpage, social media posts, and e-updates provide a means to distribute information to many interested parties and receive feedback. RRM will work with City staff to leverage existing on line resources, including social media platforms, and determine how new resources can augment online outreach efforts. In addition, we will prepare a graphically oriented and easy to understand informational flyer to provide an overview of the project, examples of subjective vs. objective language, City contact information, and additional project related information. A frequently asked questions (FAQ) handout/pdf will also be developed to provide additional information and clarify misconceptions.

Informational Video
This task will include an informational video that can be posted on the project website and will include an informational slide deck with voiceover.

Online Survey
Online surveys (using Survey Monkey or similar program) provide project information and solicit additional public comments and feedback when it is most convenient for the participant.

Stakeholder Interviews #1
As RRM will conduct a series of stakeholder interviews within a single day to interview individuals or interest groups that will share their thoughts on the City's existing discretionary review and approval process. The interviews involve a series of half-hour to one-hour confidential meetings (held via video/teleconference) with various stakeholders, including City staff, select decision makers, and developers/recent applicants.

Planning Commission Study Session
During the development of the objective design standards, RRM will conduct a study session with the Planning Commission to provide a project update and examples of final product. This will be an opportunity to collect input prior to finalizing the Administrative draft.

Stakeholder Interviews #2
RRM will conduct a series of stakeholder interviews within a single day to discuss preliminary objective design standards and recommended modifications to the City review process. The interviews involve a series of half-hour to one-hour confidential meetings (held via video/teleconference) with various stakeholders, including City staff, select decision makers, and developers/recent applicants.

Open House
Virtual open house to gather input on standards.

Hearings and Implementation
RRM will coordinate with City staff to prepare for and attend up to two (2) public hearings to adopt the proposed Objective Design Standards and related documents and/or materials. RRM 6 DocuSign Envelope ID: E5933C89-81 E1-4172-8509-640D0BDA5833 assumes City staff will be responsible for public notification. Errata sheets may be used to discuss preferred changes between the public review period, Planning Commission and City Council. Up to sixteen {16) hours of on-call assistance (conference call and email correspondence) to assist with implementation.

DELIVERABLES
• Prepare informational material for City distribution and to post on the City website including informational flyer, Frequently Asked Questions (FAQ) sheet, e-blast and social media content. Includes one round of revisions.
• One (1) video presentation with voice over.
• Facilitate two (2) days of meetings with stakeholders. We ask that staff be responsible for noticing and meeting logistics and contacting key stakeholders. • Facilitate online open house. City staff will be responsible for meeting notification and logistics.
• Planning Commission study session.
• Prepare and present Final Public Objective Design Standards document at up to two (2) hearings.

WORK PROGRAM ASSUMPTIONS
Meeting Notices. The City is responsible for printing and distribution of physical meeting notices and noticing and filing notices and documents for environmental review if needed. If requested, the costs of providing printing and/or distribution of meeting notices would be on a time and materials basis.

Meeting Attendance. The project budget assumes virtual attendance at meetings identified in the work program. The costs of additional or in-person meeting attendance would be on a time and materials basis if requested.

Draft Documents. A draft of each document will be provided to staff and revised based on a single set of consolidated comments providing clear direction.

Printing. This budget assumes the City will be responsible for printing and distributing documents 7 RRM
RRM
RRM
RRM
RRM
RRM
205 $ per hour 220 $ per hour 125 $ per hour 210 $ per hour 160 $ per hour 100 $ per hour 1 Create Objective Design Standards Fixed Fee 99,340$ 50 $10,250 220 $48,400 126 $15,750 6 $1,260 8 $1,280 224 $22,400 2 Develop Applicable Municipal Code Standards and Amendments Fixed Fee 19,240$ 4 $820 28 $6,160 24 $3,000 6 $1,260 0 $0 80 $8,000 3 Produce forms, internal procedures and marketing brochures Fixed Fee 24,820$ 20 $4,100 14 $3,080 8 $1,000 64 $13,440 0 $0 32 $3,200 4 Planning Commission / Community Outreach Fixed Fee 38,100$ 36 $7,380 88 $19,360 16 $2,000 6 $1,260 0 $0 81 $8,100 181,500$
3,500$
185,000$
Production
Subtotal (Excluding Optional task) Fee Footnotes
Fixed fee tasks will be billed as the work progresses until the task is completed and the total amount stated in the contract for the task is invoiced.

Reimbursable Expenses
Incidental expenses incurred by RRM Design Group or any subconsultant it may hire to perform services for this project are reimbursed by the client at actual cost plus 10% to cover its overhead and administrative expenses.

Reimbursable Expenses
Estimated Project Total
Carlsbad Objective Design Standards
Fee Schedule
Revised December 24, 2020
Principal in Charge Principal (PM) Senior Planner Principal (Public Policy) Landscape Architect
■ rrm=
Council Chamber
1200 Carlsbad Village Drive
Carlsbad, CA 92008

DESIGN REVIEW COMMITTEE
April 25, 2022, 3 p.m.

Welcome to the Design Review Committee Meeting
We welcome your interest and involvement in the city’s legislative process. This agenda includes information about topics coming before the Design Review Committee and the action recommended by city staff. You can read about each topic in the staff reports, which are available on the city website.

How to watch
In Person On TV Online
Design Review Committee Meetings
take place at City Hall, 1200 Carlsbad
Village Drive
Watch live on Charter Spectrum
channel 24 and AT&T U-verse
channel 99
Watch the livestream and replay past
meetings on the city website,
carlsbadca.gov/residents/communication/city-
tv-channel
How to participate
If you would like to provide comments to the Design Review Committee, please:
• Fill out a speaker request form, located in the foyer. • Submit the form to the Clerk before the item begins.
• When it’s your turn, the Clerk will call your name and invite you to the podium. • Speakers have three minutes, unless the presiding officer (usually the chair) changes that time. • You may not give your time to another person, but groups can select a single speaker as long as three other members of your group are present. Group representatives have 10 minutes unless that time is changed by the presiding officer or the commission.
• In writing: Email comments to [email protected] Comments received by 1 p.m. the day of the meeting will be shared with the commission prior to the meeting. When e-mailing comments, please identify in the subject line the agenda item to which your comments relate. All comments received will be included as part of the official record. Written comments will not be read out loud.

Reasonable accommodations
Persons with a disability may request an agenda packet in appropriate alternative formats as require by the Americans with Disabilities Act of 1990. Reasonable accommodations and auxiliary aids will be provided to effectively allow participation in the meeting. Please contact the City Manager’s Office at 760-434-2821 (voice), 711 (free relay service for TTY users), 760-720-9461 (fax) or [email protected] by noon on the Thursday before the meeting to make arrangements.

Attachment E
CALL TO ORDER:

ROLL CALL: City representatives will take attendance and announce absences.

APPROVAL OF MINUTES:

WELCOME & INTRODUCTIONS: Open meeting and welcome attendees. Review purpose and charge for the Committee. Review agenda and meeting format. Committee members will be invited to participate in an ice-breaker exercise and provide a brief self-introduction.

PUBLIC COMMENT: The Brown Act allows any member of the public to comment on items not on the agenda. Please treat others with courtesy, civility, and respect. In conformance with the Brown Act, public comment is provided so members of the public may participate in the meeting by submitting comments as provided on the front page of this agenda. The Design Review Committee will receive comments at the beginning of the meeting. In conformance with the Brown Act, no action can occur on these items.

DISCUSSION ITEMS:

1. PUBLIC SERVICE LAWS: POLITICAL REFORM ACT, RALPH M. BROWN ACT AND THE CALIFORNIA PUBLIC RECORDS ACT – Receive a presentation and training from the City Attorney’s Office regarding public service laws: Political Reform Act, Ralph M. Brown Act, and the California Public Records Act, the committee handbook and Resolution of the City Council Establishing the Committee. (Staff Contact: Celia Brewer, City Attorney’s Office)

2. COMMITTEE BUSINESS: Collaborate and discuss the following topics:

a. Committee Ground Rules Development
Committee members will work together to establish ground rules for how they wish group members to conduct themselves during meetings.
b. Committee Chair and Vice Chair Election
Receive information on the roles and responsibilities of the Committee Chair and Vice Chair and elects a Chair and Vice Chair.
c. Village and Barrio Objective Design Standards Project Background Receive information on the Village and Barrio Objective Design Standards Project and the Project Schedule
d. Self-Guided Walking Tour
Receive information for a self-guided walking tour
(Staff Contact: Shelley Glennon, Community Development Dept. Planning Division)

COMMITTEE MEMBER REQUESTS FOR FUTURE AGENDA ITEMS: Highlight proposed focus for next meeting and invite committee member suggestions for topics or presentations to consider in upcoming meetings.

ADJOURN: Closing comments and adjourn meeting
NEXT SPECIAL MEETING: Tentatively November 2022 – Specific Date to be determined.

Meeting Date: April 25, 2022

To: Design Review Committee

Staff Contact: Celia Brewer, City Attorney
[email protected], 442-339-2890

Subject: Public Service Laws: Political Reform Act, Ralph M. Brown Act , and California Public Records Act Presentation

Recommended Action
Receive a presentation from the City Attorney’s Office regarding public service laws, including the Political Reform Act, the Ralph M. Brown Act, and the California Public Records Act as they relate to the Commission.

Fiscal Analysis
This action has no fiscal impact.

Environmental Evaluation
In keeping with California Public Resources Code Section 21065, this action does not constitute a “project” within the meaning of the California Environmental Quality Act in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. Therefore, it does not require environmental review.

Public Notification and Outreach
This item was noticed in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 24 hours before the scheduled meeting date.

Exhibits

1. Open and Public V: A Guide to the Ralph M. Brown Act

2. The People’s Business: A Guide to the California Public Records Act

3. Design Review Committee Charter

4. City Council Resolution 2021-241 Approving the Charter for the Design Review Committee

DESIGN REVIEW COMMITTEE

EXHIBIT 1

Open and Public: A Guide to the Ralph M.

Brown Act

Open & Public V
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
ii
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT

ACKNOWLEDGEMENTS

ACKNOWLEDGEMENTS
The League thanks the following individuals for their work on this publication:

Brown Act Committee
Michael Jenkins, Committee Chair
City Attorney, Hermosa Beach, Rolling Hills and West Hollywood Michael W
. Barrett
City Attorney, Napa
Damien Brower
City Attorney, Brentwood
Ariel Pierre Calonne
City Attorney, Santa Barbara
V
eronica Ramirez
Assistant City Attorney, Redwood City
Malathy Subr
amanian
City Attorney, Clayton and Lafayette
P
aul Zarefsky
Deputy City Attorney, San Francisco
Gregory W
. Stepanicich
1st Vice President, City Attorneys’ Department
City Attorney Fairfield, Mill Valley, Town of Ross
League Staff
P
atrick Whitnell, General Counsel
Koreen Kelleher, Assistant General Counsel
Corrie Manning, Senior Deputy General Counsel
Alison Leary, Deputy General Counsel
Janet Leonard, Legal Assistant
1 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Open & Public V
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ....................................................5 CHAPTER 2: LEGISLATIVE BODIES .................................................................11 CHAPTER 3: MEETINGS .................................................................................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ...................29 CHAPTER 5: CLOSED SESSIONS ....................................................................41 CHAPTER 6: REMEDIES .................................................................................55

2 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT

TABLE OF CONTENTS

TABLE OF CONTENTS
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ..........................................5 The right of access ...................................................................................................................6 Broad coverage ........................................................................................................................6 Narrow exemptions .................................................................................................................7 Public participation in meetings ..............................................................................................7 Controversy ..............................................................................................................................8 Beyond the law — good business practices ............................................................................8 Achieving balance ....................................................................................................................9 Historical note ..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES .......................................................11 What is a “legislative body” of a local agency? ......................................................................12 What is not a “legislative body” for purposes of the Brown Act? .........................................14 CHAPTER 3: MEETINGS ........................................................................17 Brown Act meetings ...............................................................................................................18 Six exceptions to the meeting definition ...............................................................................18 Collective briefings .................................................................................................................21 Retreats or workshops of legislative bodies ..........................................................................21 Serial meetings .......................................................................................................................21 Informal gatherings ................................................................................................................24 Technological conferencing ...................................................................................................24 Location of meetings ..............................................................................................................25 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ......29 Agendas for regular meetings ................................................................................................30 Mailed agenda upon written request.....................................................................................31 Notice requirements for special meetings ............................................................................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings .....................................................................32 Notice of compensation for simultaneous or serial meetings ..............................................33 Educational agency meetings ................................................................................................33 Notice requirements for tax or assessment meetings and hearings ....................................33 3 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Non-agenda items ..................................................................................................................34 Responding to the public .......................................................................................................34 The right to attend and observe meetings ............................................................................35 Records and recordings .........................................................................................................36 The public’s place on the agenda ..........................................................................................37 CHAPTER 5: CLOSED SESSIONS ..........................................................41 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 .................................................................50 CHAPTER 6: REMEDIES ........................................................................55 Invalidation .............................................................................................................................56 Applicability to Past Actions ..................................................................................................57 Civil action to prevent future violations .................................................................................57 Costs and attorney’s fees ......................................................................................................58 Criminal complaints ...............................................................................................................58 Voluntary resolution ...............................................................................................................59 4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
5 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 5
Chapter 1
IT IS THE PEOPLE’S BUSINESS
The right of access ..............................................................................................................6 Broad coverage ...................................................................................................................6 Narrow exemptions ............................................................................................................ 7 Public participation in meetings ......................................................................................... 7 Controversy .........................................................................................................................8 Beyond the law — good business practices ...................................................................... 8 Achieving balance ...............................................................................................................9 Historical note .....................................................................................................................9 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT
6 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
The right of access
Two key parts of the Brown Act have not changed since its adoption in 1953. One is the Brown Act’s initial section, declaring the Legislature’s intent:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
1 The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“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.” 2 The Brown Act’s other unchanged provision is a single sentence:
“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”
3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act.

Broad coverage
The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly-elected members of a legislative body, even before they take office.

Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body Chapter 1
IT IS THE PEOPLE’S BUSINESS
PRACTICE TIP: The key to the
Brown Act is a single sentence.

In summary, all meetings shall
be open and public except
when the Brown Act authorizes
otherwise.
7 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference.

New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process.

Narrow exemptions
The express purpose of the Brown Act is to assure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.
4 Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself.

The Brown Act, however, is limited to meetings among a majority of the members of multi- member government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act.

The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body. 5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw.

Public participation in meetings
In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available.

Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and irrelevant speech.

PRACTICE TIP: Think of the
government’s house as being
made of glass. The curtains may
be drawn only to further the
public’s interest. A local policy
on the use of laptop computers,
tablets, and smart phones during
Brown Act meetings may help
avoid problems.
8 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
Controversy
Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception.

News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused.

Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately — such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act.

As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy.

Beyond the law — good business practices
Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal get- together takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda.

The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.
6 Rather than simply restate the basic
requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited.

A local policy could build on these basic Brown Act goals:
ƒƒ A legislative body’s need to get its business done smoothly; ƒƒ The public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time;
ƒƒ A local agency’s right to confidentially address certain negotiations, personnel matters, claims and litigation; and
ƒƒ The right of the press to fully understand and communicate public agency decision-making.

PRACTICE TIP: Transparency
is a foundational value for
ethical government practices.

The Brown Act is a floor, not a
ceiling, for conduct.
9 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
An explicit and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process.

Achieving balance
The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively.

There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents.

The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings.

In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government.

Historical note
In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series on “Your Secret Government” that ran in May and June 1952.

Out of the series came a decision to push for a new state open meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill and Governor Earl Warren signed it into law in 1953.

The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open meeting laws — such as the Bagley-Keene Act, enacted in 1967 to cover state agencies.

Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice.

PRACTICE TIP: The Brown Act
should be viewed as a tool
to facilitate the business of
local government agencies.

Local policies that go beyond
the minimum requirements
of law may help instill public
confidence and avoid problems.
10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
ENDNOTES:
1 California Government Code section 54950
2 California Constitution, Art. 1, section 3(b)(1)
3 California Government Code section 54953(a)
4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533
6 California Government Code section 54953.7
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
11 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 11 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT
Chapter 2

LEGISLATIVE BODIES
What is a “legislative body” of a local agency? ................................................................12 What is not a “legislative body” for purposes of the Brown Act? ....................................14 12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency?
A “legislative body” includes:
ƒƒ The “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This includes city councils, boards of supervisors, school boards and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision or other local public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.5 Entities created pursuant to joint powers agreements are also local agencies within the meaning of the Brown Act.
6 ƒƒ Newly-elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings between incumbents and newly-elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act.

Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act?
A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies.

If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. ƒƒ Appointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Chapter 2

LEGISLATIVE BODIES
PRACTICE TIP: The prudent
presumption is that an advisory
committee or task force is
subject to the Brown Act. Even
if one clearly is not, it may want
to comply with the Brown Act.

Public meetings may reduce the
possibility of misunderstandings
and controversy.
13 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act.

Had the two committees remained separate; and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.8 ƒƒ Standing committees of a legislative body, irrespective of their composition, which have either: (1) a continuing subject matter jurisdiction; or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.9 Even if it comprises less than a quorum of the governing body, a standing committee is subject to the Brown Act. For example, if a governing body creates long-term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative.
10 “Formal action” by a legislative body includes
authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11
ƒƒ The governing body of any private organization either: (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company or other entity; or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.
12 These include some nonprofit corporations created by local agencies.13 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.14 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.
15 Q: The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?
A: Maybe. If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.

Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A: Yes. But, if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. ƒƒ Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) PRACTICE TIP: It can be
difficult to determine whether
a subcommittee of a body falls
into the category of a standing
committee or an exempt
temporary committee. Suppose a
committee is created to explore
the renewal of a franchise or a
topic of similarly limited scope
and duration. Is it an exempt
temporary committee or a non-
exempt standing committee? The
answer may depend on factors
such as how meeting schedules
are determined, the scope of the
committee’s charge, or whether
the committee exists long enough
to have “continuing jurisdiction.”
14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
first leased under Health and Safety Code subsection 32121(p) after January 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a “legislative body” for purposes of the Brown Act? ƒƒ A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act. 17 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.
18 ƒƒ Groups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.19
Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee?
A. No, because the committee has not been established by formal action of the legislative body.

Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee?
A. Possibly, because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. ƒƒ Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 ƒƒ Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.
21 ƒƒ County central committees of political parties are also not Brown Act bodies.22 ENDNOTES:
1 T axpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127 15 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
2 California Government Code section 54952(a) and (b)
3 California Government Code section 54951; Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Education Code section 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules.
4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550
5 71 Ops.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990) 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime T ask Force (2005) 134 Cal.

App.4th 354, 362
7 California Government Code section 54952.1
8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805 9 California Government Code section 54952(b)
10 79 Ops.Cal.Atty.Gen. 69 (1996)
11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793 12 California Government Code section 54952(c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996 who, after that date, is made a non-voting board member by the legislative body. California Government Code section 54952(c)(2)
13 California Government Code section 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export T erminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002)
14 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal (1999) 69 Cal.

App.4th 287, 300 fn. 5
15 “The Brown Act, Open Meetings for Local Legislative Bodies, ” California Attorney General’s Office (2003), p. 7
16 California Government Code section 54952(d)
17 California Government Code section 54952(b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 18 T axpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129 19 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973)
20 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879 21 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513 22 59 Ops.Cal.Atty.Gen. 162, 164 (1976)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
17 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 17 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT
Chapter 3

MEETINGS
Brown Act meetings ......................................................................................................... 18 Six exceptions to the meeting definition ..........................................................................18 Collective briefings ............................................................................................................21 Retreats or workshops of legislative bodies..................................................................... 21 Serial meetings ................................................................................................................. 21 Informal gatherings ...........................................................................................................24 Technological conferencing ..............................................................................................24 Location of meetings ........................................................................................................ 25 18 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The Brown Act only applies to meetings of local legislative bodies. The Brown Act defines a meeting as: “… and any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1 The term “meeting” is not limited to gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2 Brown Act meetings
Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings.
ƒƒ “Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3
ƒƒ “Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements. 4 ƒƒ “Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 ƒƒ “Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.
6 Six exceptions to the meeting definition
The Brown Act creates six exceptions to the meeting definition:7 Individual Contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague.

Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below.

Chapter 3

MEETINGS

19 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Conferences
The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body.

Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, so long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction.

Community Meetings
The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public. “I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition.“I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?”
The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.

Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for re-election and all three participate. All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question?
A. Yes, because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates.

20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Other Legislative Bodies
The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of: (1) another body of the local agency; and (2) a legislative body of another local agency.8 Again, the majority cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.

Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body.

Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body?
A. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend.

Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public?
A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the Assembly member.

Standing Committees
The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting).9
Q. The legislative body establishes a standing committee of two of its five members, which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?
A. She may attend, but only as an observer; she may not participate.

21 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Social or Ceremonial Events
The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body.

Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attends the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. So long as no such business is discussed, there is no violation of the Brown Act.

Grand Jury Testimony
In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.
10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.”
Collective briefings
None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements.

Retreats or workshops of legislative bodies
Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, or workshops are covered under the Brown Act. This is the case whether the retreat, study session, or workshop focuses on long-range agency planning, discussion of critical local issues, or team building and group dynamics.11
Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business.

Serial meetings
One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings involve only a portion of a legislative body, but eventually involve a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making.

22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated, or taken action on an item within the legislative body’s subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, and D and so on (the spokes), until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes)
one-by-one for for discussion, deliberation, or a decision on a proposed action.
13 Another example of a serial meeting is
when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.

A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate
conversations or communications outside of an open and
noticed meeting “with members of a legislative body in
order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.” 14 The Brown Act has been violated, however, if several one-on-one meetings or conferences leads to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding. 15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.
16 Such a memo, however, may be a public record.17
The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?”
“Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you I’d be over the top.”
Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses.

How are you voting on it?”
Neither the lobbyist nor the reporter has violated the Brown Act, but they are facilitating

23 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others.

The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”
18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.”
The planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two of her colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act.

Q. The agency’s website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act?
A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business.

Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting.

PRACTICE TIP: When briefing
legislative body members,
staff must exercise care not to
disclose other members’ views
and positions.
24 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply to all” button that may inadvertently result in a Brown Act violation.

Informal gatherings
Often members are tempted to mix business with pleasure — for example, by holding a post- meeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend, hear, or participate in the deliberations of members.

Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board.

A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence in no way lessens the potential for a violation of the Brown Act.

Q. The agency has won a major victory in the Supreme Court on an issue of importance.

The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media. All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering, but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public, it seems harmless.

Technological conferencing
Except for certain nonsubstantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But, in an effort to keep up with information age technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.
20 While the Brown Act contains specific requirements
for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference.
“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either

25 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
audio or video, or both.”21 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable. The Brown Act contains the following teleconferencing requirements:22 ƒƒ Teleconferencing may be used for all purposes during any meeting; ƒƒ At least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction;
ƒƒ Additional teleconference locations may be made available for the public; ƒƒ Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable; ƒƒ Agendas must be posted at each teleconference location, even if a hotel room or a residence;
ƒƒ Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate; ƒƒ The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location; and
ƒƒ All votes must be by roll call.

Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C. to New York. May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location.

The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail. Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted.

Location of meetings
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.
23 An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24
ƒƒ Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party; ƒƒ Inspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall. The developer has built other similar malls, and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go?
A. Yes, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend. 26 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
ƒƒ Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice;
ƒƒ Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction;
ƒƒ Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; ƒƒ Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility; or
ƒƒ Visit the office of its legal counsel for a closed session on pending litigation, when to do so would reduce legal fees or costs.
25 In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.
26 A school board may also interview
members of the public residing in another district if the board is considering employing that district’s superintendent.

Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.
27 Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.
28 27
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Endnotes:
1 California Government Code section 54952.2(a)
2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870 3 California Government Code section 54954(a)
4 California Government Code section 54956
5 California Government Code section 54956.5
6 California Government Code section 54955
7 California Government Code section 54952.2(c)
8 California Government Code section 54952.2(c)(4)
9 California Government Code section 54952.2(c)(6)
10 California Government Code section 54953.1
11 “The Brown Act, ” California Attorney General (2003), p. 10 12 California Government Code section 54952.2(b)(1)
13 Stockton Newspaper Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2)
15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518
16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
17 California Government Code section 54957.5(a)
18 California Government Code section 54952.2(b)(2)
19 California Government Code section 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964) 20 California Government Code section 54953(b)(1)
21 California Government Code section 54953(b)(4)
22 California Government Code section 54953
23 California Government Code section 54954(b)
24 California Government Code section 54954(b)(1)-(7)
25 94 Ops.Cal.Atty.Gen. 15 (2011)
26 California Government Code section 54954(c)
27 California Government Code section 54954(d)
28 California Government Code section 54954(e)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
29 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 29 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT
Chapter 4

AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Agendas for regular meetings .......................................................................................... 30 Mailed agenda upon written request ............................................................................... 31 Notice requirements for special meetings .......................................................................32 Notices and agendas for adjourned and continued meetings and hearings ...................32 Notice requirements for emergency meetings ................................................................ 32 Notice of compensation for simultaneous or serial meetings ......................................... 33 Educational agency meetings ...........................................................................................33 Notice requirements for tax or assessment meetings and hearings ............................... 33 Non-agenda items .............................................................................................................34 Responding to the public ..................................................................................................34 The right to attend and observe meetings .......................................................................35 Records and recordings ....................................................................................................36 The public’s place on the agenda .....................................................................................37 30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Chapter 4

AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Effective notice is essential for an open and public meeting.

Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting.

Agendas for regular meetings
Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed.

The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend.
2 This provision may be satisfied by posting
on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.
3 While posting an agenda on an agency’s Internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.
4 Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting?
A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.5 Should website technical difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.
6 This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means. 7 The Attorney General’s
opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public

31 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
awareness, among other factors.8 The City Attorneys’ Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved.

The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”
9 Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a “project” if the “project” is actually a set of distinct actions that must each be separately listed on the agenda.10
Q. The agenda for a regular meeting contains the following items of business:
ĥ Consideration of a report regarding traffic on Eighth Street; and ĥ Consideration of contract with ABC Consulting.

Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read “consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”
Q. The agenda includes an item entitled City Manager’s Report, during which time the city manager provides a brief report on notable topics of interest, none of which are listed on the agenda.

Is this permissible?
A. Yes, so long as it does not result in extended discussion or action by the body.

A brief general description may not be sufficient for closed session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions. Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges.

Mailed agenda upon written request
The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted. If requested, these materials must be made available in appropriate alternative formats to persons with disabilities.

A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting. 11 PRACTICE TIP: Putting together
a meeting agenda requires
careful thought.
32 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Notice requirements for special meetings
There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed.

Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting.

The notice must state the time and place of the meeting, as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda — with a brief general description. As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.

The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: (1) at a site that is freely accessible to the public, and (2) on the agency’s website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body. 12 Notices and agendas for adjourned and continued meetings and hearings
A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.13 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced. 14 A copy of the
order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.

A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting. 15 Notice requirements for emergency meetings
The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken.

33 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy.

Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces: (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body. 17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging.

Educational agency meetings
The Education Code contains some special agenda and special meeting provisions.18 However, they are generally consistent with the Brown Act. An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and to address the board on those items. 20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.21 Though written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication. The public notice relating to new or increased business assessments must be provided through a 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.
22 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.

34 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
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:23
ƒƒ When a majority decides there is an “emergency situation” (as defined for emergency meetings);
ƒƒ 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; or ƒƒ 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:
ƒƒ 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.
ƒƒ 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?
PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
35 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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 his or her own activities.24 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 power point 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 A 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.

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.25 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.
26 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.27 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. 28 36
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Action by secret ballot, whether preliminary or final, is flatly prohibited.29 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.30 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 proceedings.31 Ejection is justified only when audience members actually disrupt the proceedings.32 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 re-admit an individual or individuals not responsible for the disturbance.33
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.
34 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.35 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.

37 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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 non-exempt or otherwise 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.36 A writing distributed during a meeting must be made public:
ƒƒ At the meeting if prepared by the local agency or a member of its legislative body; or
ƒƒ After the meeting if prepared by some other person.37 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.
38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.39
In addition, the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.
40 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.
41 The public’s place on the agenda
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, so 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.42
Q. Must the legislative body allow members of the public to show videos or make a power point 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 legislative body cannot prohibit public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself. But the Brown Act provides no immunity for defamatory statements.43
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.
38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
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 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 because it is relevant to the governing of the agency and an implicit criticism of the incumbents.

The legislative body may adopt reasonable regulations, including time limits, on public comments. 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. 44 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 public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed.
45 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.
46 Endnotes:
1 California Government Code section 54954.2(a)(1)
2 78 Ops.Cal.Atty.Gen. 327 (1995)
3 88 Ops.Cal.Atty.Gen. 218 (2005)
4 California Government Code sections 54954.2(a)(1) and 54954.2(d) 5 California Government Code section 54960.1(d)(1)
6 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432 8 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262, Slip Op. at p. 8
9 California Government Code section 54954.2(a)(1)
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of CEQA action (mitigated negative declaration) without specifically listing it on the agenda violates Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis.)

39 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
11 California Government Code section 54954.1
12 California Government Code sections 54956(a) and (c) 13 California Government Code section 54955
14 California Government Code section 54954.2(b)(3)
15 California Government Code section 54955.1
16 California Government Code section 54956.5
17 California Government Code section 54952.3
18 Education Code sections 35144, 35145 and 72129
19 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5
21 California Government Code section 54954.6
22 See Cal.Const.Art.XIIIC, XIIID and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b)
24 California Government Code section 54954.2(a)(2)
25 California Government Code section 54953.3
26 California Government Code section 54961(a); California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2)
28 California Government Code section 54953(b)
29 California Government Code section 54953(c)
30 California Government Code section 54953(c)(2)
31 California Government Code section 54957.9.
32 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed towards 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). 33 California Government Code section 54957.9
34 California Government Code section 54957.5
35 California Government Code section 54957.5(d)
36 California Government Code section 54957.5(b)
37 California Government Code section 54957.5(c)
38 California Government Code section 54953.5(b)
39 California Government Code section 54957.5(d)
40 California Government Code section 54953.5(a)
41 California Government Code section 54953.6
42 California Government Code section 54954.3(a)
43 California Government Code section 54954.3(c)
44 California Government Code section 54954.3(b); Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992)
45 California Government Code section 54954.3(a)
46 California Government Code section 54954.3(a)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
41 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 41 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT
Chapter 5

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 ............................................................50 42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
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. As an example, 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 apply 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 agendized as a 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, which provide a “safe harbor” from legal attacks. These sample 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.
43 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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, multi-jurisdictional 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
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 varies 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, so 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
There is an attorney/client relationship, and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body — outside of meetings. But protection of the attorney/client privilege cannot by itself be the reason for a closed session.13
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation. The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. The essential thing to know is that 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.
44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
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.

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.
19 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.20 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.

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

45 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
session. Other actions, as where final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.21 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.22 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.
23 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
24 and the names of the parties with whom its negotiator may negotiate.25 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. 26 “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.” 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.

46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
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.”27 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. 28 The body must possess
the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.29 That authority may be delegated to a subsidiary appointed body.30 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her. 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,31 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.32 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.
33 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.34
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.35 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.
36 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.

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.
37 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, or debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.

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.
47 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
The personnel exception specifically prohibits discussion or action on proposed compensation in closed session, except for a disciplinary reduction in pay. Among other things, that means 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.38 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.39
“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 should be exercised to not 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,
40 on employee salaries and fringe benefits for both represented (“union”) and non-represented 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. 41 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.

PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
During its discussions with representatives on salaries and fringe benefits, the legislative body may also 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.42 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.43 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; and

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.44 Public participation under the Rodda Act also takes another form.45 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.46 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.
47 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.48 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.49
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.50 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.
49 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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, the body must deny the license in public, 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.51 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.52 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 on-going criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases. 53 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.54 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.55

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.

A “trade secret” is defined as information which is not generally known to the public or competitors and which: 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.
56 50
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
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 carefully review the Brown Act 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,57 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,
58 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi-Cal services,59 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,
60 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.61 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 role in the closed session subject matters must be excluded from closed sessions.63
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.

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.64 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. 65 Only the legislative body acting as a body may agree to divulge confidential closed session information; regarding attorney/client privileged communications, the entire body is the holder of the privilege and only the entire body can decide to waive the privilege. 66 PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”62

51 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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 received during a closed session regarding pending litigation,67 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.
68 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, the remedies include disciplinary action against an employee, and referral of a member of the legislative body to the grand jury. 69 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. 70 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. 71 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.
52 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
ENDNOTES:
1 California Government Code section 54962
2 California Constitution, Art. 1, section 3
3 61 Ops.Cal.Atty.Gen. 220 (1978); but see California Government Code section 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 California Government Code section 54957.1
5 California Government Code section 54954.5
6 California Government Code section 54954.2
7 California Government Code section 54954.5
8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a)
10 California Government Code section 54957.1(b)
11 California Government Code section 54957.2
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal.Code Regs. section 18707 13 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
14 California Government Code section 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 California Government Code section 54956.9(g)
19 Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 20 Government Code section 54956.9(e)
21 California Government Code section 54957.1
22 California Government Code section 54956.8
23 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).
24 73 Ops.Cal.Atty.Gen. 1 (1990)
25 California Government Code sections 54956.8 and 54954.5(b) 26 California Government Code section 54957.1(a)(1)
27 California Government Code section 54957(b)
28 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). 29 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002)
30 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. 53 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
31 California Government Code section 54957(b)(3)
32 88 Ops.Cal.Atty.Gen. 16 (2005)
33 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860 34 California Government Code section 54957(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). 35 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
36 Moreno v. City of King (2005) 127 Cal.App.4th 17
37 California Government Code section 54957
38 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165 39 California Government Code section 54957.1(a)(5)
40 California Government Code section 54957.6
41 California Government Code section 54957.6(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).
42 California Government Code section 54957.6; and 51 Ops.Cal.Atty.Gen. 201 (1968) 43 California Government Code section 54957.1(a)(6)
44 California Government Code section 3549.1
45 California Government Code section 3540
46 California Government Code section 3547
47 California Education Code section 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). 48 California Education Code section 72122
49 California Education Code section 60617
50 California Government Code section 54956.96
51 California Government Code section 54956.7
52 California Government Code section 54957
53 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime T ask Force (2005) 134 Cal.

App.4th 354
54 California Government Code section 54957.8
55 California Government Code section 54962
56 California Health and Safety Code section 32106
57 California Government Code section 54956.75
58 California Government Code section 54956.81
59 California Government Code section 54956.86
60 California Government Code section 54956.87
61 California Government Code section 54956.95
62 46 Ops.Cal.Atty.Gen. 34 (1965)
63 82 Ops.Cal.Atty.Gen. 29 (1999)
54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
64 Government Code section 54963
65 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327; see also California Government Code section 54963.
66 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
67 80 Ops.Cal.Atty.Gen. 231 (1997)
68 76 Ops.Cal.Atty.Gen. 289 (1993)
69 California Government Code section 54963
70 California Government Code section 54963
71 California Government Code section 54957.1
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
55 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 55 OPEN & PUBLiC V: A GUIDE TO THE RALPH M. BROWN ACT
Chapter 6

REMEDIES
Invalidation ........................................................................................................................56 Applicability to Past Actions .............................................................................................57 Civil action to prevent future violations ........................................................................... 57 Costs and attorney’s fees .................................................................................................58 Criminal complaints ..........................................................................................................58 Voluntary resolution ..........................................................................................................59 56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
Certain violations of the Brown Act are designated as misdemeanors, although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations. Still, despite all the safeguards and remedies to enforce them, it is ultimately impossible for the public to monitor every aspect of public officials’ interactions. 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
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the ground that they violate the Brown Act. 1 Violations of the Brown Act, however, cannot be invalidated if they involve the following types of actions:
ƒƒ 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 to the wrong Brown Act section, but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session;2 ƒƒ Those involving the sale or issuance of notes, bonds or other indebtedness, or any related contracts or agreements;
ƒƒ 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;
ƒƒ Those connected with the collection of any tax; or
ƒƒ 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.

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 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that only properly agendized items are acted on by the governing body during a meeting.3 The legislative body then has up to 30 days to cure and correct its action. If it does not act, any lawsuit must be filed within the next 15 days. The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed.

Chapter 6

REMEDIES

57 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.5 An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.6 Applicability to Past Actions
Any interested person, including the district attorney, may file a civil action to determine whether past actions of a legislative body occurring on or after January 1, 2013 constitute violations of the Brown Act and are subject to a mandamus, injunction, or declaratory relief action.7 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.
8 The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.9 If the body fails to take any action within the 30-day period or takes an action other than an unconditional commitment, a lawsuit may be filed within 60 days.10
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.11 The unconditional commitment must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be commenced regarding the past action.13 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.14
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.
15 Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to:
ƒƒ Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency;
ƒƒ Determine the applicability of the Brown Act to actions or threatened future action of the legislative body;
ƒƒ 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; or
ƒƒ Compel the legislative body to tape record its closed sessions.

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.
58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
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 where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session.
17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. 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 tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording.

Costs and attorney’s fees
Someone 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.18 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 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. 19 Criminal complaints
A violation of the Brown Act by a member of the legislative body who acts with the improper intent described below is punishable as a misdemeanor.20 A criminal violation has two components. The first is that there must be an overt act — a member of a legislative body must attend a meeting at which action is taken in violation of the Brown Act. 21 “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. 22 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.23 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.

The second component of a criminal violation is that action is taken with the intent of a member “to deprive the public of information to which the member knows or has reason to know the public is entitled” by the Brown Act.24
PRACTICE TIP: Attorney’s
fees will likely be awarded if
a violation of the Brown Act is
proven.

59 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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 1222.25 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.26
Voluntary resolution
Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations, unhappy residents fume over an action, and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down. 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. There are times when it may be preferable 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.

At bottom, 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 California Government Code section 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 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 California Government Code section 54960.1 (b) and
(c)(1)
4 McKee v. Orange Unified School District (2003) 110 Cal.

App.4th 1310, 1318-1319
5 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561 6 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118 7 Government Code Section 54960.2(a); Senate Bill No. 1003, Section 4 (2011-2012 Session) 8 Government Code Sections 54960.2(a)(1), (2)
9 Government Code Section 54960.2(b)

60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
10 Government Code Section 54960.2(a)(4)
11 Government Code Section 54960.2(c)(2)
12 Government Code Section 54960.2(c)(1)
13 Government Code Section 54960.2(c)(3)
14 Government Code Section 54960.2(d)
15 Government Code Section 54960.2(e)
16 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 & fn.6
17 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36 18 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.

App.4th 1313, 1327-29 and cases cited therein
19 California Government Code section 54960.5
20 California Government Code section 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.
21 California Government Code section 54959
22 California Government Code section 54952.6
23 61 Ops.Cal.Atty.Gen.283 (1978)
24 California Government Code section 54959
25 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. ” 26 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.

Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.

EXHIBIT 2

The People’s Business: A Guide to the
California Public Records Act

The People's Business

A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT
ii
LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT 2015 and 2016
California Public Records Act Committees
Jolie Houston, Committee Chair (2016)
Interim City Attorney, Merced
Assistant City Attorney, Gilroy
Berliner Cohen
Eric W. Danly, Committee Chair (2015)
City Attorney, Petaluma
Morgan L. Foley, Committee Co-Chair (2015)
City Attorney, El Cajon and Poway
McDougal, Love, Eckis, Boehmer & Foley
Rebecca Andrews
Best Best & Krieger LLP
Ruben Duran
Best Best & Krieger LLP
Mara Elliott
City Attorney, San Diego
Gerald C. Hicks
Supervising Deputy City Attorney, Sacramento
Donna Mooney
Chief Assistant City Attorney, Vallejo
Joseph Pannone
City Attorney, Lompoc and Morro Bay
Aleshire & Wynder, LLP
Juli C. Scott
Ex Officio Member
Erica L. Vega
Assistant City Attorney, Cathedral City and Wildomar
Deputy City Attorney, Temple City and Hemet
Burke Williams & Sorensen
Christine Dietrick
1st Vice President, City Attorneys’ Department
City Attorney, San Luis Obispo

League of California Cities’ Staff
Patrick Whitnell, General Counsel
Koreen Kelleher, Assistant General Counsel
Corrie Manning, Senior Deputy General Counsel
Alison Leary, Deputy General Counsel
Janet Leonard, Legal Services Manager
This publication is provided for general information
only and is not offered or intended as legal advice.

Readers should seek the advice of an attorney when
confronted with legal issues and attorneys should
perform an independent evaluation of the issues
raised in these materials.

Copyright © 2017 by the League of California Cities®,
Sacramento, California
All rights reserved. This publication, or parts thereof, may not be reproduced in any form without the League’s
permission. For information, contact the League of California Cities, 1400 K Street, 4th Floor, Sacramento, CA 95814;

(916) 658-8200.

ACKNOWLEDGEMENTS
The League thanks the following individuals for their work on this publication:
1 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Contents
Chapter 1 – Introduction and Overview ................................................................................5 ORIGINS OF THE PUBLIC RECORDS ACT ....................................................................................................................... 5 FUNDAMENTAL RIGHT OF ACCESS TO GOVERNMENT INFORMATION ....................................................................5 EXEMPTIONS FROM DISCLOSURE — PROTECTING THE PUBLIC’S FUNDAMENTAL RIGHT OF PRIVACY AND NEED FOR EFFICIENT AND EFFECTIVE GOVERNMENT .....................................................6 Achieving Balance ......................................................................................................................................................7 INCORPORATION OF THE PRA INTO THE CALIFORNIA CONSTITUTION ...................................................................8 Proposition 59 .............................................................................................................................................................8 Proposition 42 .............................................................................................................................................................8 EXPANDED ACCESS TO LOCAL GOVERNMENT INFORMATION .................................................................................9 EQUAL ACCESS TO GOVERNMENT RECORDS ............................................................................................................. 9 ENFORCED ACCESS TO PUBLIC RECORDS ..................................................................................................................10 THE PRA AT THE CRUX OF DEMOCRATIC GOVERNMENT IN CALIFORNIA ..............................................................10 Chapter 2 – The Basics.......................................................................................................................... 11 WHAT ARE PUBLIC RECORDS? ......................................................................................................................................11 Writings ....................................................................................................................................................................11 Information Relating to the Conduct of Public Business ...................................................................................... 12 Prepared, Owned, Used, or Retained ..................................................................................................................... 12 Regardless of Physical Form or Characteristics .....................................................................................................13 Metadata ................................................................................................................................................................... 14 Agency-Developed Software ...................................................................................................................................14 Computer Mapping (GIS) Systems .........................................................................................................................14 SPECIFICALLY IDENTIFIED RECORDS ..........................................................................................................................15 WHAT AGENCIES ARE COVERED? ................................................................................................................................15 WHO CAN REQUEST RECORDS? ...................................................................................................................................16 2 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Chapter 3 – Responding to a Public Records Request ...................................... 17 LOCAL AGENCY’S DUTY TO RESPOND TO PUBLIC RECORD REQUESTS ................................................................17 TYPES OF REQUESTS — RIGHT TO INSPECT OR COPY PUBLIC RECORDS ............................................................. 17 Right to Inspect Public Records ...............................................................................................................................18 Right to Copy Public Records ..................................................................................................................................18 FORM OF THE REQUEST ................................................................................................................................................19 CONTENT OF THE REQUEST ......................................................................................................................................... 20 TIMING OF THE RESPONSE ..........................................................................................................................................20 Inspection of Public Records ...................................................................................................................................20 Copies of Public Records .........................................................................................................................................21 Extending the Response Times for Copies of Public Records ..............................................................................21 TIMING OF DISCLOSURE ................................................................................................................................................22 ASSISTING THE REQUESTER ........................................................................................................................................ 22 LOCATING RECORDS ......................................................................................................................................................23 TYPES OF RESPONSES ...................................................................................................................................................24 REDACTING RECORDS ................................................................................................................................................... 24 NO DUTY TO CREATE A RECORD OR A PRIVILEGE LOG ............................................................................................25 FEES ..................................................................................................................................................................................25 WAIVER ............................................................................................................................................................................26 Chapter 4 – Specific Document Types, Categories
and Exemptions from Disclosure................................................................................................ 27 OVERVIEW OF EXEMPTIONS .........................................................................................................................................27 TYPES OF RECORDS AND SPECIFIC EXEMPTIONS .....................................................................................................28 Architectural and Official Building Plans ................................................................................................................28 Attorney-Client Communications and Attorney Work Product ............................................................................ 29 Attorney-Client Privilege ........................................................................................................................................29 Attorney Work Product ..........................................................................................................................................30 Common Interest Doctrine ....................................................................................................................................30 Attorney Bills and Retainer Agreements ................................................................................................................ 30 CEQA Proceedings .................................................................................................................................................. 31 Code Enforcement Records .....................................................................................................................................32 Deliberative Process Privilege .................................................................................................................................32 Drafts .........................................................................................................................................................................33 3 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Elections ....................................................................................................................................................................34 Voter Registration Information ..............................................................................................................................34 Initiative, Recall, and Referendum Petitions ........................................................................................................... 34 Identity of Informants ...............................................................................................................................................35 Information Technology Systems Security Records .............................................................................................35 Law Enforcement Records .......................................................................................................................................35 Overview............................................................................................................................................................... 35 Exempt Records ....................................................................................................................................................36 Information that Must be Disclosed ....................................................................................................................... 36 Disclosure to Victims, Authorized Representatives, Insurance Carriers ...................................................................36 Information Regarding Arrestees ...........................................................................................................................37 Complaints or Requests for Assistance ..................................................................................................................38 Requests for Journalistic or Scholarly Purposes .....................................................................................................38 Coroner Photographs or Video .............................................................................................................................. 38 Mental Health Detention Information .....................................................................................................................39 Elder Abuse Records ............................................................................................................................................. 39 Juvenile Records ................................................................................................................................................... 39 Child Abuse Reports ..............................................................................................................................................40 Library Patron Use Records .....................................................................................................................................40 Library Circulation Records .....................................................................................................................................40 Licensee Financial Information ............................................................................................................................... 40 Medical Records .......................................................................................................................................................40 Health Data and Advisory Council Consolidation Act ..............................................................................................41 Physician/Patient Privilege .................................................................................................................................... 41 Confidentiality of Medical Information Act ............................................................................................................. 42 Health Insurance Portability and Accountability Act ...............................................................................................42 Workers’ Compensation Benefits ...........................................................................................................................42 Official Information Privilege ...................................................................................................................................43 Pending Litigation or Claims ...................................................................................................................................44 Personal Contact Information ..................................................................................................................................45 Posting Personal Contact Information of Elected/Appointed Officials on the Internet ...................................... 46 Personnel Records ....................................................................................................................................................46 Peace Officer Personnel Records ...........................................................................................................................47 Employment Contracts, Employee Salaries, & Pension Benefits ............................................................................. 49 Contractor Payroll Records ....................................................................................................................................49 Test Questions and Other Examination Data .......................................................................................................... 50 Public Contracting Documents ................................................................................................................................50 Real Estate Appraisals and Engineering Evaluations ............................................................................................51 Recipients of Public Services ...................................................................................................................................52 Taxpayer Information ...............................................................................................................................................52 4 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Trade Secrets and Other Proprietary Information .................................................................................................52 Utility Customer Information ...................................................................................................................................54 PUBLIC INTEREST EXEMPTION .....................................................................................................................................54 Chapter 5 – Judicial Review and Remedies ...................................................................57 OVERVIEW .......................................................................................................................................................................57 THE TRIAL COURT PROCESS ........................................................................................................................................57 Jurisdiction and Venue ............................................................................................................................................57 Procedural Considerations ...................................................................................................................................... 58 Timing ...................................................................................................................................................................58 Discovery ..............................................................................................................................................................58 Burden of Proof ..................................................................................................................................................... 58 In Camera Review ................................................................................................................................................. 59 Decision and Order ............................................................................................................................................... 59 REVERSE PRA LITIGATION .............................................................................................................................................59 APPELLATE REVIEW ........................................................................................................................................................60 Petition for Review ...................................................................................................................................................60 Timing ...................................................................................................................................................................60 Requesting a Stay .....................................................................................................................................................60 Scope and Standard of Review ..............................................................................................................................60 Appeal of Other Decisions under the PRA ..............................................................................................................61 ATTORNEYS’ FEES AND COSTS ....................................................................................................................................61 Eligibility to Recover Attorneys’ Fees .....................................................................................................................61 Chapter 6 – Records Management ..........................................................................................63 PUBLIC MEETING RECORDS ..........................................................................................................................................63 MAINTAINING ELECTRONIC RECORDS ........................................................................................................................64 Metadata ................................................................................................................................................................... 65 Computer Software ..................................................................................................................................................65 Computer Mapping (GIS) Systems .........................................................................................................................65 Public Contracting Records ..................................................................................................................................... 66 ELECTRONIC DISCOVERY .............................................................................................................................................. 66 RECORD RETENTION AND DESTRUCTION LAWS .......................................................................................................66 Records Covered by the Records Retention Laws .................................................................................................67 Frequently Requested Information and Records ......................................................68 5 5
LEAGUE OF CALIFORNIA CITIES: THE CALIFORNIA PUBLIC RECORDS ACT Chapter 1
Introduction and Overview
Origins of the Public Records Act
The California Public Records Act (the PRA) was enacted in 1968 to: (1) safeguard the accountability of government to the public; (2) promote maximum disclosure of the conduct of governmental operations; and (3) explicitly acknowledge the principle that secrecy is antithetical to a democratic system of “government of the people, by the people and for the people.”1 The PRA was enacted against a background of legislative impatience with secrecy in government and was modeled on the federal Freedom of Information Act (FOIA) enacted a year earlier.
2 When the PRA was enacted, the Legislature had been attempting to formulate a workable means of minimizing secrecy in government. The resulting legislation replaced a confusing mass of statutes and court decisions relating to disclosure of government records. 3 The PRA was the culmination of a 15-year effort by the Legislature to create a comprehensive general public records law.

Fundamental Right of Access to Government Information
The PRA is an indispensable component of California’s commitment to open government. The PRA expressly provides that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”4 The purpose is to give the public access to information that enables them to monitor the functioning of their government.5 The concept that access to information is a fundamental right is not new to United States jurisprudence. Two hundred years ago James Madison observed “[k]nowledge will forever govern ignorance and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both.” 6 1 Gov . Code, § 6250 et seq.; Stats 1968, Ch. 1473; CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651–652; 52 Ops.Cal.Atty .Gen 136, 143; San Gabriel T ribune v.

Superior Court (1983) 143 Cal.App.3d 762, 771–772.
2 San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d at p. 772; 5 U.S.C. §552 et seq., 81 Stat. 54; American Civil Liberties Union Foundation v.

Deukmejian (1982) 32 Cal.3d 440, 447; CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651. The basic purpose of the FOIA is to expose agency action to the light of public scrutiny . U.S. Dept. of Justice v. Reporters Com. for Freedom of Press (1989) 489 US 749, 774. 3 San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d at p. 772; American Civil Liberties Union Federation v. Deukmejian, supra, 32 Cal.3d at p. 447. 4 Gov . Code, § 6250.
5 CBS, Inc. v. Block, supra, 42 Cal.3d at p. 651; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1350. 6 San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d at p. 772, citing Shaffer et al., A Look at the California Records Act and Its Exemptions (1974) 4 Golden Gate L Rev 203, 212.
6 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 1: INTRODUCTION
The PRA provides for two different rights 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.”7 The other is a right to prompt availability of copies of public 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.8 Agency records policies and practices must satisfy both types of public records access that the PRA guarantees.

Exemptions from Disclosure — Protecting the Public’s Fundamental Right of Privacy and Need for Efficient and Effective Government
The PRA’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.9 The right of access to public records under the PRA is not unlimited; it does not extend to records that are exempt from disclosure. Express legal authority is required to justify denial of access to public records.

XX PRACTICE TIP:

There is no general exemption authorizing non-disclosure of government records on the basis the disclosure could be inconvenient or even potentially embarrassing to a local agency or its officials.

Disclosure of such records is one of the primary purposes of the PRA.

The PRA itself currently contains approximately 76 exemptions from disclosure.10 Despite the Legislature’s goal of accumulating all of the exemptions from disclosure in one place, there are numerous laws outside the PRA that create exemptions from disclosure. The PRA now lists other laws that exempt particular types of government records from disclosure.11 The exemptions from disclosure contained in the PRA and other laws reflect two recurring interests. Many exemptions are intended to protect privacy rights.12 Many other exemptions are based on the recognition that, in addition to the need for the public to know what its government is doing, there is a need for the government to perform its assigned functions in a reasonably efficient and effective manner, and to operate on a reasonably level playing field in dealing with private interests.13 7 Gov . Code, § 6253, subd. (a).
8 Gov . Code, § 6253, subd. (b).
9 Gov . Code, § 6253, subd. (b).
10 Gov . Code, §§ 6253.2 – 6268.
11 Gov . Code, §§ 6275 et seq.
12 See, e.g., “Personnel Records, ” p. 46.
13 See, e.g., “ Attorney Client Communications and Attorney W ork Product, ” p. 29. 7 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Achieving Balance
The Legislature in enacting the PRA struck a balance among competing, yet fundamental interests: government transparency, privacy rights, and government effectiveness. The legislative findings declare access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state and the Legislature is “mindful of the right of individuals to privacy.”14 “In the spirit of this declaration, judicial decisions interpreting the [PRA] seek to balance the public right to access to information, the government’s need, or lack of need, to preserve confidentiality, and the individual’s right to privacy.”15 Of the approximately 76 current exemptions from disclosure contained in the PRA, 38 or half, appear intended primarily to protect privacy interests.
16 Another 35 appear intended primarily to support effective governmental operation in the public’s interest.17 A few exemptions appear to focus equally on protecting privacy rights and effective government. Those include: an exemption for law enforcement records; an exemption that incorporates into the PRA exemptions from disclosure in other state and federal laws, including privileges contained in the Evidence Code; and the “public interest” or “catch-all” exemption, where, based on the particular facts, the public interest in not disclosing the record clearly outweighs the public interest in disclosure.18 Additionally, the deliberative process privilege reflects both the public interests in privacy and government effectiveness by affording a measure of privacy to decision-makers that is intended to aid in the efficiency and effectiveness of government decision-making.19
The balance that the PRA strikes among the often-competing interests of government transparency and accountability, privacy rights, and government effectiveness intentionally favors transparency and accountability. The PRA is intended to reserve “islands of privacy upon the broad seas of enforced disclosure.” 20 For the past four decades, courts have balanced those competing interests in deciding whether to order disclosure of records.21 The courts have consistently construed exemptions from disclosure narrowly and agencies’ disclosure obligations broadly.22 Ambiguities in the PRA must be interpreted in a way that maximizes the public’s access to information unless the Legislature has expressly provided otherwise.23 The PRA requires local agencies, as keepers of the public’s records, to balance the public interests in transparency, privacy, and effective government in response to records requests. Certain provisions in the PRA help maintain the balancing scheme established under the PRA and the cases interpreting it by prohibiting state and local agencies from delegating their balancing role and making arrangements with other entities that could limit access to public records. For example, state and local agencies may not allow another party to control the disclosure of information otherwise subject to disclosure under the PRA.24 Also, state and local agencies may not provide public records subject to disclosure under the PRA to a private entity in a way that prevents a state or local agency from providing the records directly pursuant to the PRA. 25 14 Gov . Code, § 6250; Cal Const., art I, § 3(b)(3). 15 American Civil Liberties Union Foundation v. Deukmejian, supra, 32 Cal.3d at p. 447. 16 The following exemptions contained in the PRA appear primarily intended to protect privacy interests: Gov . Code, §§ 6253.2; 6253.5; 6253.6; 6254, subds. (c), (i), (j), (n), (o), (r), (u)(1), (u)(2), (u)(3), (x), (z), (ac), (ad), (ad)(1), (ad)(4), (ad)(5) & (ad)(6); 6254.1, subds. (a), (b) & (c); 6254.2; 6254.3; 6254.4; 6254.10; 6254.11; 6254.13; 6254.15; 6254.16; 6254.17; 6254.18; 6254.20; 6254.21; 6254.29; 6267; 6268. 17 The following exemptions contained in the PRA appear primarily intended to support effective government: Gov . Code, §§ 6254, subds. (a), (b), (c)(1), (c) (2), (c)(3), (c)(4), (e), (g), (h), (l), (m), (p), (q), (s), (t), (v)(1), (v)(1)(A), (v)(1)(B), (w), (y), (aa), (ab), (ad)(2) & (ad)(3); 6254.6; 6254.7; 6254.9; 6254.14; 6254.19; 6254.22; 6254.23; 6254.25; 6254.26; 6254.27; 6254.28. 18 Gov . Code, §§ 6254, subds. (f) & (k); Gov . Code, § 6255. 19 Gov . Code § 6255; Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at pp. 1339–1344. 20 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 653. 21 Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1344; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136, 1144. 22 Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 476; New Y ork Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1585; San Gabriel T ribune v.

Superior Court, supra, 143 Cal.App.3d at pp. 772–773.
23 Sierra Club v. Superior Court of Orange County (2013) 57 Cal.4th 157, 175–176. 24 Gov . Code, § 6253.3.
25 Gov . Code, § 6270, subd. (a).
8 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 1: INTRODUCTION
XX PRACTICE TIP:

Even though contracts or settlement agreements between agencies and private parties may require that the parties give each other notice of requests for the contract or settlement agreement, such agreements cannot purport to permit private parties to dictate whether the agreement is a public record subject to disclosure.

Incorporation of the PRA into the California Constitution Proposition 59
In November 2004, the voters approved Proposition 59, which amended 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.”26 As amended, the California Constitution provides each statute, court rule, and other authority “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” 27 The Proposition 59 amendments
expressly retained and did not supersede or modify other existing constitutional, statutory, or regulatory provisions, including the rights of privacy, due process and equal protection, as well as any constitutional, statutory, or common-law exception to the right of access to public records in effect on the amendments’ effective date. That includes any statute protecting the confidentiality of law enforcement and prosecution records.
28 The courts and the California Attorney General have determined that the constitutional provisions added by Proposition 59 maintain the established principles that disclosure obligations under the PRA must be construed broadly, and exemptions construed narrowly.29 By approving Proposition 59, the voters have incorporated into the California Constitution the PRA policy prioritizing government transparency and accountability, as well as the PRA’s careful balancing of the public’s right of access to government information with protections for the public interests in privacy and effective government. No case has yet held Proposition 59 substantively altered the balance struck in the PRA between government transparency, privacy protection, and government effectiveness.

Proposition 42
In June 2014, the voters approved Proposition 42, which amended the California Constitution “to ensure public access to the meetings of public bodies and the writings of public officials and agencies.”30 As amended, the Constitution requires local agencies to comply with the PRA, the Ralph M. Brown Act (The Brown Act), any subsequent amendments to either act, any successor act, and any amendments to any successor act that contain findings that the legislation furthers the purposes of public access to public body meetings and public official and agency writings.31 As amended, the Constitution also no longer requires the state to reimburse local governments for the cost of complying with legislative mandates in the PRA, the Brown Act, 26 Cal. Const., art I, § 3, subd. (b)(1).
27 Cal. Const., art I, § 3, subd. (b)(2).
28 Cal. Const. art. I, §§ 3, subds. (b)(3), (b)(4) & (b)(5). 29 Sierra Club v. Superior Court of Orange County, supra, 57 Cal.4th at pp. 175–176; Sutter’s Place, v. Superior Court (2008) 161 Cal.App.4th 1370, 1378–1381; Los Angeles Unified Sch. Dist. v. Superior Court (2007) 151 Cal.App.4th 759, 765; P .O.S.T . v. Superior Court (2007) 42 Cal.4th 278, 305; BRV , Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750; 89 Ops.Cal.Atty .Gen. 204, 211 (2006); 88 Ops.Cal.Atty .Gen. 16, 23 (2005); 87 Ops.Cal.Atty .Gen. 181, 189 (2004). 30 Cal. Const., art. I, § 3, subd. (b)(7).
31 Cal. Const., art. I, § 3, subd. (b)(7).
9 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT and successor statutes and amendments.32 Following the enactment of Proposition 42, the Legislature has enacted new local mandates related to public records, including requirements for agency data designated as “open data” that is kept on the Internet and requirements to create and maintain “enterprise system catalogs.”33 Expanded Access to Local Government Information
The policy of government records transparency mandated by the PRA is a floor, not a ceiling. Most exemptions from disclosure that apply to the PRA are permissive, not mandatory.34 Local agencies may choose to disclose public records even though they are exempt, although they cannot be required to do so.35 The PRA 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.”36 A number of local agencies have gone beyond the minimum mandates of the PRA by adopting their own “sunshine ordinances” to afford greater public access to public records. Such “sunshine ordinances,” however, do not purport to authorize a locality to enact an ordinance addressing records access that conflicts with the locality’s governing charter.
37 Local agency disclosure of exempt records can promote the government transparency and accountability purposes of the PRA.

However, local agencies are also subject to mandatory duties to safeguard some particularly sensitive records. 38 Unauthorized
disclosure of such records can subject local agencies and their officials to civil and in some cases criminal liability.

XX PRACTICE TIP:

Local agencies that expand on the minimum transparency prescribed in the PRA, which is something that the PRA encourages, should ensure that they do not violate their duty to safeguard certain records, or undermine the public’s interest in effective government.

Equal Access to Government Records
The PRA affords the same right of access to government information to all types of requesters. Every person has a right to inspect any public record, except as otherwise provided in the PRA, including citizens of other states and countries, elected officials, and members of the press.39 With few exceptions, whenever a local agency discloses an exempt public record to any member of the public, unless the disclosure was inadvertent, all exemptions that apply to that particular record are waived and it becomes 32 Cal. Const., art. XIIIB, §6, subd. (a)(4). Proposition 42 was a legislatively-referred constitutional amendment in response to public opposition to AB- 1464 and SB-1006 approved June, 2012. The 2012 legislation suspended certain PRA and Brown Act provisions and was intended to eliminate the state’s obligation to reimburse local governments for the cost of complying with PRA and Brown Act mandates through the 2015 fiscal year. There is no record of local agencies ceasing to comply with the suspended provisions. 33 Gov . Code, §§ 6253.10, 6270.5.
34 Black Panther Party v. Kehoe, supra, 42 Cal.App.3d at p. 656. 35 See Gov . Code, § 6254.5 and “W aiver, ” p. 26, regarding the effect of disclosing exempt records. 36 Gov . Code, § 6253, subd. (e).
37 St. Croix v. Superior Court (2014) 228 Cal.App.4th 434, 446. (“Because the charter incorporates the [attorney-client] privilege, an ordinance (whether enacted by the City’s board of supervisors or by the voters) cannot eliminate it, either by designating as not confidential a class of material that otherwise would be protected by the privilege, or by waiving the privilege as to that category of documents; only a charter amendment can achieve that result. ”). 38 E.g., individually-identifiable medical information protected under state and federal law (Civ . Code §§ 56.10(a), 56.05(g); 42 U.S.C. § 1320d-1-d-3); child abuse and neglect records (Pen. Code, § 11167.5); elder abuse and neglect records (W elf. & Inst. Code, §15633); mental health detention records (W elf. & Inst. Code, §§ 5150, 5328).
39 Gov . Code, §§ 6253, subd. (a); 6252, subd. (c); Connell v. Superior Court (1997) 56 Cal.App.4th 601, 610-612; Gov . Code § 6252.5; See “Who Can Request Records, ” p. 16.
10 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 1: INTRODUCTION
subject to disclosure to any and all requesters.40 Accordingly, the PRA ensures equal access to government information by preventing local agencies form releasing exempt records to some requesters but not to others.

Enforced Access to Public Records
To enforce local agencies’ compliance with the PRA’s open government mandate, the PRA provides for the mandatory award of court costs and attorneys’ fees to plaintiffs who successfully seek a court ruling ordering disclosure of withheld public records.41 The attorney’s fees policy enforcing records transparency is liberally applied.42 The PRA at the Crux of Democratic Government in California Ongoing, important developments in PRA-related constitutional, statutory, and decisional law continue to reflect the central role government’s handling of information plays in balancing tensions inherent in democratic society: considerations of privacy and government transparency, accountability, and effectiveness. Controversial records law issues in California have included government’s use of social media and new law enforcement technologies, and treatment of related records; management and retention of public officials’ emails; open data standards for government information; disclosure of attorney bills; and new legal means for preserving or opposing access to government information. 43 Regarding all those issues and others, the PRA has been, and continues to be an indispensable and dynamic arena for simultaneously preserving information transparency, privacy, and effective government, which the California Constitutional and statutory frameworks are intended to guarantee, and on which California citizens continue to insist.
40 Gov . Code, § 6254.5. Section 6254.5 does not apply to inadvertent disclosure of exempt documents. Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1182–1183; Newark Unified School Dist. v. Superior Court (2015) 245 Cal.App.4th 887, 894. See “W aiver, ” p. 26. 41 Gov . Code, § 6259, subd. (d); see “ Attorney Fees and Costs, ” p. 61. 42 See “ Attorneys Fees and Costs, ” p. 61.
43 American Civil Liberties Union Foundation of Southern California v. Superior Court (review granted July 29, 2015, S227106; superseded opinion at 236 Cal.

App.4th 673); Regents of the Univ. of Cal. v. Superior Court (2013) 222 Cal.App.4th 383, 399; City of San Jose v. Superior Court (2017) 2 Cal.5th 608; Gov .

Code, §§ 6253.10, 6270.5; Marken v. Santa Monica-Malibu Unified Sch. Dist. (2012) 202 Cal.App.4th 1250, 1265; County of Los Angeles Board of Supervisors v. Superior Court (review granted July 8, 2015, S226645; superseded opinion at 235 Cal.App.4th 1154). 11 11
LEAGUE OF CALIFORNIA CITIES: THE CALIFORNIA PUBLIC RECORDS ACT Chapter 2
The Basics
The PRA “embodies a strong policy in favor of disclosure of public records.”44 As with any interpretation or construction of legislation, the courts will “first look at the words themselves, giving them their usual and ordinary meaning.”45 Definitions found in the PRA establish the statute’s structure and scope, and guide local agencies, the public, and the courts in achieving the legislative goal of disclosing local agency records while preserving equally legitimate concerns of privacy and government effectiveness.46 It is these definitions that form the “basics” of the PRA.

What are Public Records?
The PRA 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.” 47 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.48 Writings
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.” 49 44 Lorig v. Medical Board of Cal. (2000) 78 Cal.App.4th 462, 467; see Chapter 1, “Fundamental Right of Access to Government Information, ” supra, p. 5. 45 People .v Lawrence (2000) 24 Cal.4th 219, 230.
46 See Chapter 1, “Exemptions from Disclosure — Protecting the Public’s Fundamental Rights of Privacy and Need for Efficient and Effective Government, ” supra, p.6.
47 Gov . Code, § 6252, subd. (e).
48 Braun v. City of T aft (1984) 154 Cal.App.3d 332, 340; San Gabriel T ribune v. Superior Court (1983) 143 Cal.App.3d 762, 774. 49 Gov . Code, § 6252, subd. (g).
12 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 2: THE BASICS
The statute unambiguously states that “[p]ublic records” 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.”50 Unless the writing is related “to the conduct of the public’s business” and is “prepared, owned, used or retained by” a local agency, it is not a public record subject to disclosure under the PRA. 51 Information Relating to the Conduct of Public Business
Public records include “any writing containing information relating to the conduct of the public’s business.”52 However, “[c]ommunications that are primarily personal containing no more than incidental mentions of agency business generally will not constitute public records.”53 Therefore, courts have observed that although a writing is in the possession of the local agency, it is not automatically a public record if it does not also relate to the conduct of the public’s business.54 For example, records containing primarily personal information, such as an employee’s personal address list or grocery list, are considered outside the scope of the PRA.

Prepared, Owned, Used, or Retained
Writings containing information “related to the conduct of the public’s business” must also be “prepared, owned, used or retained by any state or local agency” to be public records subject to the PRA.55 What is meant by “prepared, owned, used or retained” has been the subject of several court decisions.

Writings need not always be in the physical custody of, or accessible to, a local agency to be considered public records subject to the PRA. The obligation to search for, collect, and disclose the material requested can apply to records in the possession of a local agency’s consultants, which are deemed “owned” by the public agency and in its “constructive possession” when the terms of an agreement between the city and the consultant provide for such ownership.56 Where a local agency has no contractual right to control the subconsultants or their files, the records are not considered to be within their “constructive possession.”57 Likewise, documents that otherwise meet the definition of public records (including emails and text messages) are considered “retained” by the local agency even when they are actually “retained” on an employee or official’s personal device or account.58 The California Supreme Court has provided some guidance on how a local agency can discover and manage public records located on their employees’ non-governmental devices or accounts. The Court did not endorse or mandate any particular search method, and reaffirmed that the PRA does not prescribe any specific method for searching, and that the scope of a local agency’s search for public records need only be “calculated to locate responsive documents.” When a local agency receives a request for records that may be held in an employee’s personal account, the local agency’s first step should be to communicate the request not only to the custodian of records but also to any employee or official who may have such information in personal devices or accounts. The Court states that a local agency may then “reasonably rely” on the employees to search their own personal files, accounts, and devices for responsive materials.
59 50 Gov . Code, § 6252(e); Regents of the University of California v. Superior Court (2013) 222 Cal.App.4th 383, 399; Braun v. City of T aft, supra, 154 Cal.App.3d at p. 340; San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d at p.774. 51 Regents of the University of California v. Superior Court, supra, 222 Cal.App.4th at p. 399. 52 Gov . Code, § 6252, subd. (e).
53 City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 618-619. 54 Gov . Code, § 6252, subd. (e); Regents of the University of California v. Superior Court, supra, 222 Cal.App.4th at pp. 403–405; Braun v. City of T aft, supra, 154 Cal.App.3d at p. 340; San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d at p. 774. 55 Gov . Code § 6252,subd. (e).
56 Consolidated Irrigation District v. Superior Court (2013) 205 Cal.App.4th 697, 710; City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 623. 57 Community Y outh Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1428; City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 623. 58 City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 629; Community Y outh Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1428. 59 City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 628. 13 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT The Court’s guidance, which includes a caveat that they “do not hold that any particular search method is required or necessarily adequate[,]” includes examples of policies and practices in other state and federal courts and agencies, including:60 ƒƒ Reliance on employees to conduct their own searches and record segregation, so long as the employees have been properly trained on what are public records;
ƒƒ Where an employee asserts to the local agency that he or she does not have any responsive records on his or her personal device(s) or account(s), he or she may be required by a court (as part of a later court action concerning a records request) to submit an affidavit providing the factual basis for determining whether the record is a public or personal record (e.g., personal notes of meetings and telephone calls protected by deliberative process privilege, versus meeting agendas circulated throughout entire department.)
61 ƒƒ Adoption of policies that will reduce the likelihood of public records being held in an employee’s private account, including a requirement that employees only use government accounts, or that they copy or forward all email or text messages to the local agency’s official recordkeeping system.62
Documents that a local agency previously possessed, but does not actually or constructively possess at the time of the request may not be public records subject to disclosure.63
Regardless of Physical Form or Characteristics
A public record is subject to disclosure under the PRA “regardless of its physical form or characteristics.”64 The PRA is not limited by the traditional notion of a “writing.” As originally defined in 1968, the legislature did not specifically recognize advancing technology as we consider it today. Amendments beginning in 1970 have added references to “photographs,” “magnetic or punch cards,” “discs,” and “drums,”65 with the latest amendments in 2002 providing the current definition of “writing.”66 Records subject to the PRA 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 under the PRA, which includes “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.”67 The legislative intent to incorporate future changes in the character of writings has long been recognized by the courts, which have held that the “definition [of writing] is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed.”68
60 Id. at pp. 627-629.
61 See Grand Cent. Partnership, Inc. v. Cuomo (2d. Cir. 1999) 166 F .3d 473, 481 for expanded discussion on the use of affidavit in FOIA litigation. 62 See 44 U.S.C. Sec. 2911(a).
63 See Am. Small Bus. League v. United States SBA (2010) 623 F .3d 1052, (analyzed under FOIA). See “Practice Tip, ” p. 30 which discusses treatment of FOIA precedence.
64 Gov . Code, § 6252, subd. (e).
65 Gov . Code, § 6252, subd. (e); Stats. 1970, c. 575, p. 1151, § 2. 66 Gov . Code, § 6252, subd. (g); Stats. 2002, c. 1073
67 Gov . Code, § 6252, subd. (g).
68 Braun v. City of T aft (1984) 154 Cal.App.3d 332, 340, citing “ Assembly Committee on Statewide Information Policy California Public Records Act of 1968. 1 Appendix to Journal of Assembly 7, Reg. Sess. (1970). ” 14 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 2: THE BASICS
Metadata
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 PRA expressly addresses metadata, and there are no reported court opinions in California considering whether or the extent to which metadata is subject to disclosure. Evolving law in other jurisdictions has held that local agency metadata is a public record subject to disclosure unless an exemption applies.69 There are no reported California court opinions providing guidance on whether agencies have a duty to disclose metadata when an electronic record contains exempt information that cannot be reasonably segregated without compromising the record’s integrity.

XX PRACTICE TIP:

Agencies that receive requests for metadata or requests for records that include metadata should treat the requests the same way they treat all other requests for electronic information and disclose non- exempt metadata.

Agency-Developed Software
The PRA permits government agencies to develop and commercialize computer software and benefit from copyright protections so that such software is not a “public record” under the PRA. This includes computer mapping systems, computer programs, and computer graphics systems.70 As a result, public agencies are not required to provide copies of agency-developed software pursuant to the PRA. The PRA authorizes state and local agencies to sell, lease, or license agency-developed software for commercial or noncommercial use.
71 The exception for agency-developed software does not affect the public record status of information merely because it is stored electronically.72 Computer Mapping (GIS) Systems
While computer mapping systems developed by local agencies are not public records subject to disclosure, such systems generally include geographic information system (GIS) data. 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 PRA does not expressly address GIS information disclosure. However, the California Supreme Court has held that while GIS software is exempt under the PRA, the data in a GIS file format is a public record, and data in a GIS database must be produced.73
69 Lake v. City of Phoenix, (2009) 218 P .3d 1004, 1008; O’Neill v. City of Shoreline (2010) 240 P .3d 1149, 1154; Irwin v. Onondaga County (2010) 895 N.Y .S.2d 262, 268.
70 Gov . Code, § 6254.9, subds. (a), (b).
71 Gov . Code, § 6254.9, subd. (a).
72 Gov . Code, § 6254.9, subd. (d).
73 Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 170. See also County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301. 15 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Specifically Identified Records
The PRA also expressly makes particular types of records subject to the PRA, or subject to disclosure, or both. For example, the PRA provides that the following are public records:
ƒƒ Contracts of state and local agencies that require a private entity to review, audit, or report on any aspect of the agency, to the extent the contract is otherwise subject to disclosure under the PRA; 74 ƒƒ Specified pollution information that state or local agencies require applicants to submit, pollution monitoring data from stationary sources, and records of notices and orders to building owners of housing or building law violations; 75 ƒƒ Employment contracts between state and local agencies and any public official or employee;76 and ƒƒ Itemized statements of the total expenditures and disbursements of judicial agencies provided for under the State Constitution.
77 What Agencies are Covered?
The PRA applies to state and local agencies. A state agency is defined as “every state office, officer, department, division, bureau, board and commission or other state body or agency.”
78 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.79 This encompasses any committees, boards, commissions, or departments of those entities as well. Private entities that are delegated legal authority to carry out public functions, and private entities (1) that receive funding from a local agency, and (2) whose governing board includes a member of the local agency’s legislative body who is appointed by that legislative body and who is a full voting member of the private entity’s governing board, are also subject to the PRA.80 Nonprofit entities that are legislative bodies under the Brown Act may be subject to the PRA.81 The PRA does not apply to the Legislature or the judicial branch.82 The Legislative Open Records Act covers the Legislature.83 Most court records are disclosable as the courts have historically recognized the public’s right of access to public records maintained by the courts under the common law and the First Amendment of the United States Constitution. 84 74 Gov . Code, § 6253.31.
75 Gov . Code, § 6254.7. But see Masonite Corp. v. County of Mendocino Air Quality Management District (1996) 42 Cal.App.4th 436, 450–453 (regarding trade secret information that may be exempt from disclosure). 76 Gov . Code, § 6254.8. But see V ersaci v. Superior Court (2005) 127 Cal.App.4th 805, 817 (holding that reference in a public employee’s contract to future personal performance goals, to be set and thereafter reviewed as a part of, and in conjunction with, a public employee’s performance evaluation does not incorporate such documents into the employee’s performance for the purposes of the Act). 77 Gov . Code, § 6261.
78 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.
79 Gov . Code, § 6252, subd. (a).
80 Gov . Code, § 6252, subd. (a), 85 Ops.Cal.Atty .Gen 55 (2002). 81 See Open & Public V , Chapter 2.
82 Gov . Code, § 6252, subds. (a) & (b); Michael J. Mack v. State Bar of Cal. (2001) 92 Cal.App.4th 957, 962–963. 83 Gov . Code, § 1070
84 Overstock.com v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 483–486; Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, 263; Champion v. Superior Court (1988) 201 Cal.App.3d 777, 288; Craemer v. Superior Court (1968) 265 Cal.App.2d 216, 220. 16 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 2: THE BASICS
Who Can Request Records?
All “persons” have the right to inspect and copy non-exempt public records. A “person” need not be a resident of California or a citizen of the United States to make use of the PRA.85 “Persons” include corporations, partnerships, limited liability companies, firms, or associations.86 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. 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.87
Local agencies and their officials are entitled to access public records on the same basis as any other person.88 Further, local agency officials might be authorized to access public records of their own agency that are otherwise exempt if such access is permitted by law as part of their official duties.89 Under such circumstances, however, the local agency shall not discriminate between or among local agency officials as to which writing or portion thereof is to be made available or when it is made available.
90 85 San Gabriel T ribune v. Superior Court (1983) 143 Cal.App.3d 762. 86 Gov . Code, § 6252, subd. (c); Connell v. Superior Court (1997) 56 Cal.App.4th 601. 87 Gov . Code, § 6252.5; Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759; Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1279.
88 Gov . Code, § 6252.5.
89 Marylander v. Superior Court (2002) 81 Cal.App.4th 1119; Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661; Dixon v. Superior Court (2009) 170 Cal.App.4th 1271. See “Information That Must Be Disclosed, ” p. 22; “Requests for Journalistic or Scholarly Purposes, ” p. 38. 90 Gov . Code, § 6252.7. See also Gov . Code, § 54957.2. 17 17
LEAGUE OF CALIFORNIA CITIES: THE CALIFORNIA PUBLIC RECORDS ACT Chapter 3
Responding to a
Public Records Request
Local Agency’s Duty to Respond to Public Record Requests The fundamental purpose of the PRA is to provide access to information about the conduct of the people’s business.91 This right of access to public information imposes a duty on local agencies to respond to PRA requests and does not “permit an agency to delay or obstruct the inspection or copying of public records.”92 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.93 Types of Requests — Right to Inspect or Copy Public Records There are two ways to gain access under the PRA to a public record: (1) inspecting the record at the local agency’s offices or on the local agency’s website; or (2) obtaining a copy from the local agency.94 The local agency may not dictate to the requester which option must be used, that is the requester’s decision. Moreover, 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.

XX 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.
91 Gov . Code, § 6250.
92 Gov . Code, § 6253, subd. (d).
93 Gov . Code, §6253
94 Gov . Code, § 6253, subds. (a), (b), & (f).
18 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
XX PRACTICE TIP:

To protect the integrity of the local agency files and preserve the orderly function of the offices, agencies may establish reasonable policies for the inspection and copying of public records.

Right to Inspect Public Records
Public records are open to inspection at all times during the office hours of the local agency and every person has a right to inspect any public record. This right to inspect includes any reasonably segregable portion of a public record after deletion of the portions that are exempted by law.95 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. 96 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.
97 In addition, in lieu of providing inspection access at the local agency’s office, a local agency may post the requested public record on its website and direct a member of the public to the website. If a member of the public requests a copy of the record because of the inability to access or reproduce the record from the website, the local agency must provide a copy. 98 XX PRACTICE TIP:

Local agencies may want limit the number of record inspectors present at one time at a records inspection. The local agency may also want to prohibit the use of cell phones to photograph records where the inspection is of architectural or engineer plans with copyright protection.

Right to Copy Public Records
Except with respect to public records exempt from disclosure by express provisions of law, a local agency, upon receipt of a request for a copy of records that reasonably describes an identifiable record or records, must make the records promptly available to any person upon payment of the appropriate fees.99 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.100 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. 101 As
with the right to inspect public records, the same rule of reasonableness applies to the right to obtain copies of those records.

Thus, the local agency may impose reasonable restrictions on general requests for copies of voluminous classes of documents. 102
95 Gov . Code, § 6253, subd. (a).
96 Bruce v. Gregory (1967) 65 Cal.2d 666, 676; Rosenthal v. Hansen (1973) 34 Cal.App.3d 754, 761; 64 Ops.Cal.Atty .Gen. 317 (1981). 97 See “Timing of Response” p. 20.
98 Gov . Code, §§ 5253, subds. (b), (f).
99 See “Fees, ” p. 25.
100 Gov . Code, § 6253, subd. (b).
101 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754, 759.
102 Id., at p. 761; 64 Ops.Cal.Atty .Gen. 317 (1981).
19 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT The PRA does not provide for a standing or continuing request for documents that may be generated in the future.103 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.104 A person may also make a request to receive local agency notices, such as public work contractor plan room documents,105 and development impact fee,106 public hearing,107 or California Environmental Quality Act notices.108 The local agency may impose a reasonable fee for these requests.

XX PRACTICE TIP:

Agencies may consider the use of outside copy services for oversize records or a voluminous record request, provided that the requester consents to it and pays the appropriate fees in advance. Alternatively, local agencies may consider allowing the requester to use his or her own copy service.

Form of the Request
A public records request may be made in writing or orally, in person or by phone.109 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 cannot 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.

XX 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 in compliance with the PRA. 103 Gov . Code, §§ 6252, subds. (e) & (g); 6253, subds. (a) & (b). 104 Gov . Code, § 54954.1; see also Gov . Code § 65092 (standing request for notice of public hearing), Cal. Code Regs., tit. 14, §§ 15072, 15082 and 15087 (standing requests for notice related to environmental documents). 105 Pub. Contract Code, § 20103.7.
106 Gov . Code, § 66016.
107 Gov . Code, § 65092.
108 Pub. Resources Code, § 21092.2
109 Los Angeles Times v. Alameda Corridor T ransportation Authority (2001) 88 Cal.App.4th 1381, 1392. 20 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
Content of the Request
A public records request must reasonably describe an identifiable record or records.110 It must be focused, specific,111 and reasonably clear, so that the local agency can decipher what record or records are being sought.112 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 has a duty to assist the requester in reformulating the request to make it clearer or less broad.113 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.114 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.
115 A requester does not have to justify or explain the reason for exercising his or her fundamental right of access.116 XX PRACTICE TIP:

A public records request is different than a question or series of questions posed to local agency officials or employees. The PRA 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, it is advisable to either answer the question or provide the record in response to the question.

A PRA request applies only to records existing at the time of the request.117 It does not require a local agency to produce records that may be created in the future. Further, a local agency is not required to provide requested information in a format that the local agency does not use.

Timing of the Response
Inspection of Public Records
Although the law precisely defines the time for responding to a public records request for copies of records, it is less precise in defining the deadline for disclosing records. Because the PRA does not state how soon a requester seeking to inspect records must be provided access to them, it is generally assumed that the standard of promptness set forth for copies of records118 applies to inspection. This assumption is bolstered by the provision in the PRA that states, “[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records,”119 which again signals the importance of promptly disclosing records to the requester. 110 Gov . Code, § 6253, subd. (b).
111 Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 481. 112 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 165. 113 See “Assisting the Requester, ” p. 22 .
114 Cal. First Amend. Coalition v. Superior Court, supra, 67 Cal.App.4th at p. 166. 115 See Gov . Code, § 6257.5.
116 Gov . Code, § 6250; Cal. Const., art I, § 3.
117 Gov . Code § 6254, subd. (c).
118 Gov .t Code, § 6253, subd. (b) [“…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…”]; 88 Ops. Cal. Atty . Gen. 153 (2005); 89 Ops. Cal. Atty . Gen. 39 (2006). 119 Gov . Code, § 6253, subd. (d).
21 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Neither the 10-day response period for responding to a request for a copy of records nor the additional 14-day extension may be used to delay or obstruct the inspection of public records.120 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.

Copies of Public Records
Time is critical in responding to a request for copies of public records. A local agency must respond promptly, but no later than 10 calendar days from receipt of the request, to notify the requester whether records will be disclosed. 121 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 10-day response period starts with the first calendar day after the date of receipt.122 If the tenth day falls on a weekend or holiday, the next business day is considered the deadline for responding to the request.123 XX PRACTICE TIP:

To ensure compliance with the 10-day deadline, it is wise for local agencies to develop a system for identifying and tracking public records requests. For example, a local agency with large departments may find it useful to have a public records request coordinator within each department. It is also very helpful to develop and implement a policy for handling public records requests in order to ensure the agency’s compliance with the law.

XX PRACTICE TIP:

Watch for shorter statutory time periods for disclosure of public records. For example, Statements of Economic Interest (FPPC Form 700) and other campaign statements and filings required by the Political Reform Act of 1974 (Govt Code §§ 81000 et seq) are required to be made available to the public as soon as practicable, and in no event later than the second business day following receipt of the request. 124
Extending the Response Times for Copies of Public Records A local agency may extend the 10-day response period for copies of public records for up to 14 additional calendar days because of the need:
ƒƒ To search for and collect the requested records from field facilities or other establishments separate from the office processing the request;
ƒƒ To search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request;
ƒƒ 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; or ƒƒ 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.
125
No other reasons justify an extension of time to respond to a request for copies of public records. For example, a local agency 120 Gov . Code, § 6253, subd. (d). See also “Extending the Response Times for Copies of Public Records, ” p. 21. 121 Gov . Code, § 6253(c).
122 Civ . Code, § 10.
123 Civ . Code, § 11.
124 Gov . Code, § 81008.
125 Gov . Code, § 6253, subds. (c)(1)-(4).
22 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
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 is 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 reason or reasons for the extension and the anticipated date of the response within the 14-day extension period.126 The agency does not need the consent of the requester to extend the time for response.

XX PRACTICE TIP:

If a local agency is having difficulty responding to a public records request within the 10-day response period and there does not appear to be 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 on such matters as the timing of the response, 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.

Timing of Disclosure
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. 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.

XX 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. If any of these options are used it is advisable that it is documented in writing.

Assisting the Requester
Local agencies must provide assistance to requesters who are having difficulty making a focused and effective request.127 To the extent reasonable under the circumstances, a local agency must:
ƒƒ Assist the requester in identifying records that are responsive to the request or the purpose of the request, if stated; ƒƒ Describe the information technology and physical location in which the record or records exist; and ƒƒ Provide suggestions for overcoming any practical basis for denying access to the record or records.128 126 Gov . Code, § 6253, subd. (c).
127 Gov . Code, § 6253.1; Community Y outh Atheletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1417. 128 Gov . Code, § 6253.1, subds. (a)(1)-(3).
23 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Alternatively, the local agency may satisfy its duty to assist the requester by giving the requester an index of records.129 Ordinarily an inquiry into a requester’s purpose in seeking access to a public record is inappropriate,130 but such an inquiry may be proper if it will help assist the requester in making a focused request that reasonably describes an identifiable record or records.131 Locating Records
Local agencies must make a reasonable effort to search for and locate requested records, including by asking probing questions of city staff and consultants.132 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 that would most likely be in possession of responsive records should be consulted in an effort to locate the records. For a local agency to have a duty to locate records they must qualify as public records.133 “Thus, unless the writing is related ‘to the conduct of the public’s business’ and is ‘prepared, owned, used or retained by’ a public entity, it is not a public record under the PRA, and its disclosure would not be governed by the PRA. No words in the statute suggest that the public entity has an obligation to obtain documents even though it has not prepared, owned, used or retained them.”134 XX PRACTICE TIP:

To ensure compliance with the PRA and in anticipation of court scrutiny of agency diligence in locating responsive records, agencies may want to consider adopting policies similar to those required by state and federal E-discovery statutes to prevent records destruction while a request is pending.

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.135 Nor is it compelled to undergo a search that will produce a “huge volume” of material in response to the request.136 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.137 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.138 129 Gov . Code, §6253., subd. 1(d)(3).
130 See Gov . Code, § 6257.5.
131 Gov . Code, § 6253.1, subd. (a).
132 Community Y outh Athletic Center v. City of National City, supra, 220 Cal.App.4th at pp. 1417–1418; Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 166.
133 See “What Are Public Records” p. 11.
134 Regents of the University of California v. Superior Court (2013) 222 Cal.App.4th 383, 399. 135 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 166. 136 Ibid.
137 Ibid.
138 American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 452–454; see also 64 Ops.Cal.Atty .Gen. 317 (1981). 24 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
Types of Responses
After conducting a reasonable search for requested records, a local agency has only a limited number of possible responses. If the search yielded no responsive records, the agency must so inform the requester. If the agency has located a responsive record, it must decide whether to: (1) disclose the record; (2) withhold the record; or (3) disclose the record in redacted form.

XX PRACTICE TIP:

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

If a written public records request is denied because 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.139
XX 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.

XX PRACTICE TIP:

Although not required, any response that denies in whole or in part an oral public records request should be put in writing.

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 PRA for its decision not to comply fully with the request.140 Statements like “we don’t give up those types of records” or “our policy is to keep such records confidential” will not suffice.

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,
141 unless the burden of redacting the record becomes too great.142 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.
143
139 Gov . Code, §§ 6253, subd. (d), 6255, subd. (b).
140 Gov . Code, § 6255, subd. (a).
141 Gov . Code, § 6253, subd. (a); American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 458. 142 American Civil Liberties Union Foundation v. Deukmejian, supra, 32 Cal.3d , at p. 452–454. 143 Ibid.
25 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT No Duty to Create a Record or a Privilege Log
A local agency has no duty to create a record that does not exist at the time of the request.144 There is also no duty to reconstruct a record that was lawfully discarded prior to receipt of the request. However, an agency may be liable for attorney fees when a court determines the agency was not sufficiently diligent in locating requested records, even when the requested records no longer exist.145
The PRA does not require that a local agency create a “privilege log” or list that identifies the specific records being withheld.146 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.

XX PRACTICE TIP:

To ensure compliance with the PRA or in anticipation of court scrutiny of the agency’s due diligence, the local agency may wish to maintain a separate file for copies of records that have been withheld and those produced (including redacted versions).

Fees
The public records process is in many respects cost-free to the requester. The local agency may only charge a fee for the direct cost of duplicating a record when the requester is seeking a copy,147 or it may charge a statutory fee, if applicable.148 A local agency may require payment in advance, before providing the requested copies;149 however, no payment can be required merely to look at a record where copies are not sought.

Direct cost of duplication is the cost of running the copy machine, and conceivably the expense of the person operating it. “Direct cost” does not include the ancillary tasks necessarily associated with the retrieval, inspection, and handling of the file from which the copy is extracted. 150 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 that expenditure of staff time.

XX PRACTICE TIP:

The direct cost of duplication charged for a PRA request should be supported by a fee study adopted by a local agency resolution.

Although permitted to charge a fee for duplication costs, a local agency may choose to reduce or waive that fee.151 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. 144 Gov . Code, § 6252, subd. (e); Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1075; See Chapter 6 concerning duties and obligations with respect to electronic records.
145 Community Y outh Athletic Center v. National City (2013) 220 Cal.App.4th 1385, 1447. See “ Attorney Fees and Costs, ” p. 61. 146 Haynie v Superior Court, supra, 26 Cal.4th, at p. 1075. 147 Gov . Code, § 6253, subd. (b).
148 Gov . Code, § 6253, subd. (b); 85 Ops.Cal.Atty .Gen. 225 (2002); see, e.g., Gov . Code, § 81008. 149 Gov . Code, § 6253, subd. (b).
150 North County Parents Organization v. Dept. of Education (1994) 23 Cal.App.4th 144, 148. 151 Gov . Code, § 6253, subd. (e); North County Parents Organization v. Dept. of Education, supra, 23 Cal.App.4th at p. 148. 26 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
An agency may also set a customary copying fee for all requests that is lower than the amount of actual duplication costs.

XX PRACTICE TIP:

If a local agency selectively waives or reduces the duplication fee, it should apply standards for waiver or reduction with consistency to avoid charges of favoritism or discrimination toward particular requesters.

Duplication costs of electronic records are limited to the direct cost of producing the electronic copy. However, requesters may be required to bear additional costs of producing a copy of an electronic record, such as programming and computer services costs, if the request requires the production of electronic records that are otherwise only produced at regularly scheduled intervals, or production of the record would require data compilation, extraction, or programming. Agencies are not required to reconstruct electronic copies of records no longer available to the agency in electronic format.

XX PRACTICE TIP:

If there is a request for public records pursuant to Government Code section 6253.9 requiring “data compilation, extraction, or programming to produce the record” the local agency should ask the requester to pay the fees in advance, before the “data compilation, extraction, or programming” is actually done.

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 PRA for all future requests for the same information. The waiver provision in Government Code section 6254.5 applies to an intentional disclosure of privileged documents, and a local agency’s inadvertent release of attorney-client documents does not waive such privilege.152 There are, however, a number of statutory exceptions to the waiver provisions, including, among others, disclosures made through discovery or other legal proceedings, and disclosures made to another governmental agency which agrees to treat the disclosed material as confidential. 152 Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1183; Newark School District v. Superior Court (2015) 245 Cal.App.4th 887, 897. 27 27
LEAGUE OF CALIFORNIA CITIES: THE CALIFORNIA PUBLIC RECORDS ACT Chapter 4
Specific Document Types,
Categories and Exemptions
from Disclosure
Overview of Exemptions
This chapter discusses how to address requests for certain specific types and categories of commonly requested records and many of the most frequently raised exemptions from disclosure that may, or in some cases, must be asserted by local agencies.

Transparent and accessible government is the foundational objective of the PRA. This recently constitutionalized right of access to the writings of local agencies and officials was declared by the Legislature in 1968 to be a “fundamental and necessary right.” While this right of access is not absolute, it must be construed broadly.153 The PRA contains approximately 76 express exemptions, many of which are discussed below, including one for records that are otherwise exempt from disclosure by state or federal statutes,154 and a balancing test, known as the “public interest” or “catchall” provision. This “catchall” provision allows local agencies to justify withholding any record by demonstrating that on the facts of a particular case the public interest in nondisclosure clearly outweighs the public interest in disclosure. 155
When local agencies claim an exemption or prohibition to disclosure of all or a part of a record, they must identify the specific exemption to disclosure in the response.156 Where a record contains some information that is subject to an exemption and other information that is not, the local agency may redact the information that is exempt (identifying the exemption), but must otherwise still produce the record. Unless a statutory exemption applies, the public is entitled to access or a copy.157 153 Cal. Const., art I, § 3(b)(2); Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1254. 154 State of California ex rel Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778, 785; Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1422, fn. 5.
155 Gov . Code, § 6255; Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 66–67; see also “Public Interest Exemption, ” p. 54. 156 Gov . Code, §6255, subd. (a); Long Beach Police Officers Assn. v. City of Long Beach, supra, 59 Cal.4th at p. 67. 157 International Federation of Professional & T echnical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329. 28 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE XX PRACTICE TIP:

When evaluating a record to determine whether it falls within an exemption in the PRA, do not overlook exemptions and even prohibitions to disclosure that are contained in other state and federal statutes, including, for example, evidentiary privileges, medical privacy laws, police officer personnel record privileges, official information, information technology or infrastructure security systems, etc. Many of these other statutory exemptions or prohibitions are also discussed below.

Types of Records and Specific Exemptions
Architectural and Official Building Plans
The PRA recognizes exemptions to the disclosure of a record “which is exempted or prohibited [from disclosure] pursuant to federal or state law ….”158 Under this rule, architectural and official building plans may be exempt from disclosure, because: (1) architectural plans submitted by third parties to local agencies may qualify for federal copyright protections;159 (2) local agencies may claim a copyright in many of their own records; or (3) state laws address inspection and duplication of building plans by members of the public.
“Architectural work,” defined under federal law as the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings,”160 is considered an “original work of authorship,” which has automatic federal copyright protection.161 Architectural plans may be inspected, but cannot be copied without the permission of the owner.162
XX PRACTICE TIP:

Some requesters will cite the “fair use of copyrighted materials” doctrine as giving them the right to copy architectural plans. The fair use rule is a defense to a copyright infringement action only and not a legal entitlement to obtain copyrighted materials.

The official copy of building plans maintained by a local agency’s building department may be inspected, but cannot be copied without the local agency first requesting the written permission of the licensed or registered professional who signed the document and the original or current property owner.163 A request made by the building department via registered or certified mail for written permission from the professional must give the professional at least 30 days to respond and be accompanied by a statutorily prescribed affidavit signed by the person requesting 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.
164 After receiving this required information, the professional cannot withhold 158 Gov . Code, § 6254, subd. (k).
159 17 U.S.C. § 17.
160 17 U.S.C. §§ 101, 102(A)(8).
161 17 U.S.C. §§ 102(A)(8), 106.
162 17 U.S.C. § 107.
163 Health & Saf. Code, § 19851.
164 Ibid.
29 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT written permission to make copies of the plans.165 These statutory requirements do not prohibit duplication of reduced copies of plans that have been distributed to local agency decision-making bodies as part of the agenda materials for a public meeting.166 The California Attorney General has determined that interim grading documents, including geology, compaction, and soils reports, are public records that are not exempt from disclosure.167 Attorney-Client Communications and Attorney Work Product The PRA 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.” 168 The PRA’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.169
Attorney-Client Privilege
The attorney-client privilege protects from disclosure the entirety of confidential communications between attorney and client, as well as among the attorneys within a firm or in-house legal department representing such client, including factual and other information not in itself privileged outside of attorney-client communications.170 The fundamental purpose of the attorney-client privilege is preservation of the confidential relationship between attorney and client. It is not necessary to demonstrate that prejudice would result from disclosure of attorney-client communications to prevent such disclosure. 171 When the party claiming
the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney and client, the communication is protected by the privilege. 172 Unlike the exemption for pending litigation, attorney-client privileged information is still protected from disclosure even after litigation is concluded.173 But note, the attorney-client privilege will likely not protect communication between a public employee and his or her personal attorney if that communication occurs using a public entity’s computer system and the public entity has a computer policy that indicates the computers are intended for the public entity’s business and are subject to monitoring by the employer. 174
The attorney plaintiff in a wrongful termination suit and the defendant insurer may reveal privileged third-party attorney- client communications to their own attorneys to the extent necessary for the litigation, but may not publicly disclose such communications.
175
165 Ibid.
166 Gov . Code, § 54957.5.
167 89 Ops.Cal.Atty .Gen. 39 (2006).
168 Gov . Code, § 6254, subd. (k).
169 Fairley v. Superior Court, supra, 66 Cal.App.4th 1414, 1420–1422; see also “Official Information Privilege, ” p. 43. 170 Costco Wholesale Corporation v. Superior Court (2009) 47 Cal.4th 725, 733; Fireman’s Fund Insurance Company v. Superior Court (2011) 196 Cal.App.4th 1263, 1272–1275; Clark v. Superior Court (2011) 196 Cal.App.4th 37, 49–54. 171 Costco Wholesale Corporation v. Superior Court, supra, 47 Cal.4th at p. 747. 172 Clark v. Superior Court, supra, 196 Cal.App.4th at p. 51. 173 Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371–373; see “Pending Litigation or Claims, ” p. 28. 174 Holmes v. Petrovich Development Co. LLC (2011) 191 Cal.App.4th 1047, 1071–1072. 175 Chubb & Son v. Superior Court (2014) 228 Cal.App.4th 1094, 1106–1109. 30 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Attorney Work Product
Any writing that reflects an attorney’s impressions, conclusions, opinions, legal research, or theories is not discoverable under any circumstances and is thus exempt from disclosure under to the PRA. There is also a qualified privilege against disclosure of materials (e.g., witness statements, other investigative materials) developed by an attorney in preparing a case for trial as thoroughly as possible with a degree of privacy necessary to uncover and investigate both favorable and unfavorable aspects of a case.176
Common Interest Doctrine
The common interest doctrine may also protect communications with third parties from disclosure where the communication is protected by the attorney-client privilege or attorney-work-product doctrine, and maintaining the confidentiality of the communication is necessary to accomplish the purpose for which legal advice was sought. The common interest doctrine is not an independent privilege; rather, it is a nonwaiver doctrine that may be used by plaintiffs or defendants alike.177 For the common interest doctrine to attach, the parties to the shared communication must have a reasonable expectation that the information disclosed will remain confidential. Further, the parties must have a common interest in a matter of joint concern. In other words, they must have a common interest in securing legal advice related to the same matter and the communication must be made to advance their shared interest in securing legal advice on that common matter. 178
Attorney Bills and Retainer Agreements
The courts have established a narrower rule governing disclosure of attorney bills. An attorney’s billing entries remain exempt from disclosure under the attorney-client privilege or attorney-work-product doctrine only insofar as they describe an attorney’s impressions, conclusions, opinions, legal research, or strategy. Neither the attorney-client privilege nor the attorney work product doctrine categorically shields everything in a billing invoice from disclosure, even if the bills concern pending litigation. The court will look at whether, in pending or active matters, the billing entries are so closely related to the attorney-client communications that they “implicate the heartland” of the privilege.
179 Only substantive attorney communications such as legal conclusions, research, or strategy are protected.180
Retainer agreements between a local agency and its attorneys may constitute confidential communications that fall within the attorney-client privilege.
181 A local agency’s governing body may waive the privilege and elect to produce the agreements.182 XX PRACTICE TIP:

Some agencies simplify redaction of attorney bills and production of non-exempt bill information in response to requests by requiring that non-exempt portions of attorney bills, such as the name of the matter, the invoice amount, and date, be contained in separate documents from privileged bill text. 176 Code Civ . Proc., § 2018.030, subds. (a) & (b); Gov . Code, § 6254, subd. (k). 177 OXY Resources LLC v. Superior Court (2004) 115 Cal.App.4th 874, 889. 178 Compare Citizens for Ceres v. Superior Court (2012) 217 Cal.App.4th 889, 914–922 (common interest doctrine inapplicable to communications between developer and city prior to approval of application because, pre-project approval, parties lacked a common interest) with California Oak Foundation v.

County of T ehama (2009) 174 Cal.App.4th 1217, 1222–1223 (sharing of privileged documents with project applicant prepared by county’s outside law firm regarding CEQA compliance was within common interest doctrine). 179 County of Los Angeles v. Superior (2016) 2 Cal.5th 282, 288. 180 County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57; Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639; U.S. v. Amlani (9th Cir. 1999) 169 F .3d 1189; Clarke v. American Commerce Nat. Bank (9th Cir. 1992) 974 F .2d 127. 181 Bus. & Prof. Code, § 6149 (a written fee contract shall be deemed to be a confidential communication within the meaning of section 6068(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).
182 Evid. Code, § 912. See also Gov . Code, § 6254.5 and “W aiver, ” p. 26. 31 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CEQA Proceedings
Increasingly, potential litigants have been submitting public records requests as a prelude to or during preparation of the administrative record for challenges to the adequacy of an agency’s California Environmental Quality Act (CEQA) process or certification of CEQA documents. While there are no specific PRA provisions directly addressing CEQA proceedings, these requests can present multiple challenges as they may seek voluminous amounts of records, such as email communications between staff and consultants, or confidential and privileged documents.

XX PRACTICE TIP:

A request to prepare an administrative record for a CEQA challenge does not excuse or justify ignoring or delaying responses to a CEQA-related PRA request. A failure to properly or fully respond to the PRA request can lead to claims of violations of the PRA and a demand for attorneys’ fees being included in a CEQA lawsuit. Local agencies should, therefore, exercise the same due diligence when responding to CEQA-related PRA requests as they do with any other type of PRA request. As with any litigation or potential litigation, local agencies should also consider invoking internal litigation holds and evidence preservation practices early on in a contentious CEQA process.

Two particularly challenging issues that arise with CEQA-related PRA requests are whether and to what extent a subcontractor’s files are public records subject to disclosure, and whether the deliberative process privilege or public interest exemption apply to the requested documents.

In determining whether a subcontractor’s files are public records in the actual or constructive possession of the local agency, the court will look to the consultant’s contract to determine the extent to which, if any, the local agency had control over the selection of subcontractors, and how they performed services required by the primary consultant.183 XX PRACTICE TIP:

Examine your contracts with consultants and clearly articulate who owns their work product, and that of their subcontractors.

Requests for materials that implicate the deliberative process privilege or public interest exemption are commonly made in CEQA-related PRA requests. While it may seem obvious that local agency staff and their consultants desire and in fact need to engage in candid dialogue about a project and the approaches to be taken, when invoking the deliberative process privilege to protect such communications from disclosure the local agency must clearly articulate why the privilege applies by more than a simple statement that it helps the process.184 Likewise, when invoking the public interest exemption to protect documents from disclosure, local agencies must do more than simply state the conclusion that the public’s interest in nondisclosure is clearly outweighed by the public interest in disclosure.
185
XX PRACTICE TIP:

When evaluating whether the deliberative process privilege applies to documents covered by a PRA request during a pre-litigation CEQA process, keep in mind the close correlation between the drafts exemption, discussed below, and the deliberative process privilege. 183 Consolidated Irrigation District v. Superior Court (2012) 205 Cal.App.4th 697, 710–712. 184 See Deliberative Process Privilege p. 32.
185 Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 307. See also, “Public Interest Examption, ” p. 54. 32 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE 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.186 Records of code enforcement cases being prosecuted administratively do not qualify as law enforcement records.187 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.188
Deliberative Process Privilege
The deliberative process privilege is derived from the public interest exemption, which provides that a local agency may withhold a public record if it can demonstrate that “on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”189 The deliberative process privilege was intended to address concerns that frank discussion of legal or policy matters might be inhibited if subject to public scrutiny, and to support the concept 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. Therefore, California courts invoke the privilege to protect communications to decisionmakers before a decision is made. 190
In evaluating whether the deliberative process privilege applies, the court will still perform the balancing test prescribed by the public interest exemption.
191 In doing so, courts focus “less on the nature of the records sought and more on the effect of the records’ release.”192 Therefore, the key question in every deliberative process privilege case is “whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”193 “Accordingly, the ... courts have uniformly drawn a distinction between predecisional communications, which are privileged [citations]; and communications made after the decision and designed to explain it, which are not.”
194 Protecting the predecisional deliberative process gives the decision-maker “the freedom ‘to think out loud,’ which enables him [or her] to test ideas and debate policy and personalities uninhibited by the danger that his [or her] tentative but rejected thoughts will become subjects of public discussion. Usually the information is sought with respect to past decisions; the need is even stronger if the demand comes while policy is still being developed.” 195
Courts acknowledge that even a purely factual document would be exempt from public scrutiny if it is “actually ... related to the process by which policies are formulated” or “inextricably intertwined” with “policy-making processes.” 196 For example, the
186 Gov . Code, § 6254, subd. (f); State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778, 783–784; Haynie v Superior Court (2001) 26 C4th 1061, 1068–1069; see “Law Enforcement Records, ” p. 35. 187 State of California ex rel. Division of Industrial Safety v Superior Court, supra, 43 Cal.App.3d at pp. 783–784 . See, e.g., 6254, subd. (a); 5 U.S.C. 1325783788788; Haynie v. Superior Court (2001) 26 Cal.4th 1061. 188 San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; see “Official Information Privilege, ” p. 43, “Identity of Informant Privilege, ” p. 45, and “Public Interest Exemption, ” p. 54.
189 Times Mirror Company v. Superior Court (1991) 53 Cal.3d 1325, 1338. 190 Ibid.; 5 USC § 552(b)(5).
191 California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 172. 192 Times Mirror Company v. Superior Court, supra, 53 Cal.3d at pp. 1338, 1342. 193 Times Mirror Company v. Superior Court, supra, 53 Cal.3d at p. 1342, citing Dudman Communications v. Dept. of Air Force (D.C.Cir.1987) 815 F .2d 1565, 1568.
194 NLRB v. Sears, Roebuck & Co. (1975) 421 U.S. 132, 151–152. 195 Times Mirror Company v. Superior Court, supra, 53 Cal.3d at p.1341, citing Cox, Executive Privilege (1974) 122 U Pa L Rev 1383, 1410. 196 Jordan v. United States Dept. of Justice (D.C.Cir.1978) 591 F .2d 753, 774; Ryan v. Department of Justice (D.C.Cir.1980) 617 F .2d 781, 790; Soucie v. David (D.C.Cir.1971) 448 F .2d 1067, 1078.
33 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT California Supreme Court applied the deliberative process privilege in determining that the Governor’s appointment calendars and schedules were exempt from disclosure under the PRA even though the information in the appointment calendars and schedules was based on fact.197 The Court reasoned that such disclosure could inhibit private meetings and chill the flow of information to the executive office.198
Drafts
The PRA exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.”199 The “drafts” exemption provides a measure of privacy for writings concerning pending local agency action. The exemption was adapted from the 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.” 200 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. 201
The “drafts” exemption in the PRA has essentially the same purpose as the “memorandums” exemption in the FOIA. The key question under the FOIA test is whether the disclosure of materials would expose a local agency’s decision-making process in such a way as to discourage candid discussion within the local agency and thereby undermine the local agency’s ability to perform its functions.202 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.203
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.204 Records that are normally retained 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.

XX PRACTICE TIP:

By adopting written policies or developing consistent practices of discarding preliminary deliberative writings, local agencies may facilitate candid internal policy debate. Consider including in such policies when a document should be considered to be “discarded,” which might prevent the need to search through bins of documents segregated and approved for destruction under the policies, yet awaiting appropriate shredding and disposal. 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.
197 Times Mirror Company v. Superior Court, supra, 53 Cal.3d at p. 1338. 198 Ibid.
199 Gov . Code, § 6254, subd. (a).
200 Gov . Code, § 6254, subd. (a); 5 U.S.C. § 552, subd. (b)(5). 201 Times Mirror Co. v. Superior Court, supra, 53 Cal.3d 1325, 1339–1340. 202 Id. at p. 1342.
203 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704, 711–712. 204 Id. at p. 714.
34 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Elections
Voter Registration Information
Voter registration information, including the home street address, telephone number, email address, precinct number or other number specified by the Secretary of State for voter registration purposes is confidential and cannot be disclosed except as specified in section 2194 of the Elections Code.205 Similarly, the signature of the voter shown on the voter registration card is confidential and may not be disclosed to any person, except as provided in the Elections Code.206 Voter registration information may be provided to any candidate for federal, state, or local office; to 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. 207
A California Driver’s License, California ID card, or other unique identifier used by the State of California for purposes of voter identification shown on the affidavit of voter registration of a registered voter, or added to voter registration records to comply with the requirements of the federal Help America Vote Act of 2002, is confidential and may not be disclosed to any person.208 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 against, or adjudicate a challenge. 209
A person may view the signature of a voter to determine whether the signature matches a signature on an affidavit of registration or a petition. The signature cannot be copied, reproduced, or photographed in any way.210 Information or data compiled by local agency officers or employees revealing the identity of persons who have requested bilingual ballots or ballot pamphlets is not a disclosable public record and may not be provided to any person other than those local agency officers or employees who are responsible for receiving and processing those requests. 211
Initiative, Recall, and Referendum Petitions
Nomination documents and signatures filed in lieu of filing fee petitions may be inspected, but not copied or distributed.212 Similarly, any petition to which a voter has affixed his or her signature for a statewide, county, city, or district initiative, referendum, recall, or matters submitted under the Elections Code, is not a disclosable public record and is not open to inspection except by the local agency officers or employees whose duty it is to receive, examine, or preserve the petitions. 213 This prohibition
extends to all memoranda prepared by county and city elections officials in the examination of the petitions indicating which voters have signed particular petitions.214
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.215 205 Gov . Code, § 6254.4, subd. (a).
206 Gov . Code, § 6254.4.
207 Elec. Code, § 2194.
208 Elec. Code, § 2194.
209 Elec. Code, § 2194, subd. (c).
210 Elec. Code, § 2194, subd. (c)(2).
211 Gov . Code, § 6253.6.
212 Elec. Code, § 17100
213 Elec. Code, §§ 17200, 17400
214 Gov . Code, § 6253.5.
215 Gov . Code, § 6253.5.
35 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Identity of Informants
A local agency also 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 the law alleged to be violated.216 This privilege applies where the information purports to disclose a violation of a federal, state, or another public entity’s law, and where the public’s interest in protecting an informant’s identity outweighs the necessity for disclosure.
217 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.218 Information Technology Systems Security Records
An information security record is exempt from disclosure if, on the facts of a particular case, disclosure would reveal vulnerabilities to attack, or would otherwise increase the potential for an attack on a local agency’s information technology system.219
Disclosure of records stored within a local agency’s information technology system that are not otherwise exempt under the law do not fall within this exemption.
220
Law Enforcement Records
Overview
Law enforcement records are generally exempt from disclosure.221 That is, the actual investigation files and records are themselves exempt from disclosure, but the PRA does require local agencies to disclose certain information derived from those files and records.
222 For example, the names of officers involved in a police shooting are subject to disclosure, unless disclosure would endanger an officer’s safety (e.g., if there is a specific threat to an officer or an officer is working undercover).223 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 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.224 Those portions of any file that reflect the analysis and conclusions of the investigating officers may also be withheld.225 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. These exemptions extend indefinitely, even after the investigation is closed.226 216 Evid. Code, § 1041
217 Evid. Code, § 1041; People v. Navarro (2006) 138 Cal.App.4th 146, 164. 218 People v. Hobbs (1994) 7 Cal.4th 948, 961–962.
219 Gov . Code, § 6254.19
220 Gov . Code, § 6254.19; see also Gov . Code, § 6254, subd. (aa). 221 Gov . Code, § 6254, subd. (f).
222 Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1068; 65 Ops.Cal.Atty .Gen. 563 (1982). 223 Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59, 63–68. 224 Gov . Code, § 6254, subd. (f)(2).
225 Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 174. 226 Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1052; Williams v. Superior Court (1993) 5 Cal.4th 337, 361–362; Office of the Inspector General v. Superior Court (2010) 189 Cal.App.4th 695 (Office of the Attorney General has discretion to determine which investigatory records are subject to disclosure in connection with its investigations, and investigatory records in that context may include some documents that were not prepared as part of, but became subsequently relevant to, the investigation). 36 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Release practices vary by local agencies. 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 tapes and booking photos, although this is not required under the PRA.227 XX PRACTICE TIP:

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 PRA generally exempts most law enforcement records from disclosure, including, among others:
ƒƒ Complaints to or investigations conducted by a local or state police agency; ƒƒ Records of intelligence information or security procedures of a local or state police agency; ƒƒ Any investigatory or security files compiled by any other local or state police agency; ƒƒ Customer lists provided to a local police agency by an alarm or security company; and ƒƒ Any investigatory or security files compiled by any state or local agency for correctional, law enforcement, or licensing purposes.228
XX PRACTICE TIP:

Many departments that choose not to release entire reports develop a form that can be filled out with the requisite public information.

Information that Must be Disclosed
There are three general categories of information contained in law enforcement investigatory files that must be disclosed:
information which must be disclosed to victims, their authorized representatives and insurance carriers, information relating to arrestees, and information relating to complaints or requests for assistance.

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:
ƒƒ A victim;
ƒƒ The victim’s authorized representative;
ƒƒ An insurance carrier against which a claim has been or might be made; or ƒƒ Any person suffering bodily injury, or property damage or loss.

The type of crimes listed in this subsection to which this requirement applies include arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime defined by statute.229 227 Haynie v. Superior Court, supra, 26 Cal.4th 1061 (911 tapes); 86 Ops.Cal.Atty .Gen. 132 (2003) (booking photos). 228 Gov . Code, § 6254, subd. (f); Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1276 (coroner and autopsy reports). 229 Gov . Code, § 6254, subd. (f).
37 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT The type of information that must be disclosed under this section (except where it endangers safety of witnesses or the investigation itself) includes:
ƒƒ Name and address of persons involved in or witnesses to incident (other than confidential informants); ƒƒ Description of property involved;
ƒƒ Date, time, and location of incident;
ƒƒ All diagrams;
ƒƒ Statements of parties to incident; and
ƒƒ Statements of all witnesses (other than confidential informants).230 Local agencies may not require a victim or a victim’s authorized representative to show proof of the victim’s legal presence in the United States to obtain the information required to be disclosed to victims. 231 However, if a local agency does require
identification for a victim or authorized representative to obtain information disclosable to victims, the local agency must, at a minimum, accept a current driver’s license or identification card issued by any state in the United States, a current passport issued by the United States or a foreign government with which the United States has a diplomatic relationship, or a current Matricula Consular card.232
The Vehicle Code addresses the release of traffic accident information. A law enforcement agency to whom an accident was reported is required to disclose the entire contents of a traffic accident report to persons who have a “proper interest” in the information, including, but not limited to, the driver(s) involved in the accident, or the authorized representative, guardian, or conservator of the driver(s) involved; the parent of a minor driver; any named injured person; the owners of vehicles or property damaged by the accident; persons who may incur liablity as a result of the accident; and any attorney who declares under penalty of perjury that he or she represents any of the persons described above.233 The local enforcement agency may recover the actual cost of providing the information.

Information Regarding Arrestees
The PRA 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:
ƒƒ Full name and occupation of the arrestee;
ƒƒ Physical description including date of birth, color of eyes and hair, sex, height and weight; ƒƒ Time, date, and location of arrest;
ƒƒ Time and date of booking;
ƒƒ Factual circumstances surrounding arrest;
ƒƒ Amount of bail set;
ƒƒ Time and manner of release or location where arrestee is being held; and ƒƒ All charges the arrestee is being held on, including outstanding warrants and parole or probation holds.234 As previously stated, a PRA request applies only to records existing at the time of the request.235 It does not require a local 230 Gov . Code, § 6254, subd. (f); Buckheit v. Dennis (ND Cal. 2012) 2012 U.S. Dist. LEXIS 49062 (noting that Government Code section 6254, subd. (f) requires disclosure of certain information to a victim. Suspects are not entitled to that same information). 231 Gov . Code, § 6254.30.
232 Gov . Code, § 6254.30.
233 V eh. Code, § 20012.
234 Gov . Code, § 6254, subd. (f)(1).
235 Gov . Code, § 6254, subd. (c).
38 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE agency to produce records that may be created in the future. Further, a local agency is not required to provide requested information in a format that the local agency does not use.

XX PRACTICE TIP:

Most police departments have some form of a daily desk or press log that contains all or most of this information.

Complaints or Requests for Assistance
The Penal Code provides that except as otherwise required by the criminal discovery provisions, no law enforcement officer or employee of a law enforcement agency may 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.236 Subject to the restrictions imposed by the Penal Code, the following information must be disclosed relative to complaints or requests for assistance received by the law enforcement agency:
ƒƒ The time, substance, and location of all complaints or requests for assistance received by the agency, and the time and nature of the response thereto;
ƒƒ 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 the report;
ƒƒ The factual circumstances surrounding crime/incident; ƒƒ A general description of injuries, property, or weapons involved; and ƒƒ The names and ages of victims, 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.
237
Requests for Journalistic or Scholarly Purposes
Where a request states, under penalty of perjury, that (1) it is made for a scholarly, journalistic, political, or governmental purpose, or for an investigative purpose by a licensed private investigator, and (2) it will not be used directly or indirectly, or furnished to another, to sell a product or service, the PRA 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.238 Coroner Photographs or Video
No copies, reproductions, or facsimiles of a photograph, negative, print, or video recording of a deceased person taken by or for the coroner (including by local law enforcement personnel) at the scene of death or in the course of a post mortem examination or autopsy may be disseminated except as provided by statute. 239
236 Pen. Code, § 841.5, subd. (a).
237 Gov . Code, § 6254, subd. (f)(2).
238 Gov . Code, § 6254, subd. (f); Pen. Code, § 841.5; Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999) 528 U.S. 32. 239 Code Civ . Proc., § 129.
39 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Mental Health Detention Information
All information and records obtained in the course of providing services to a mentally disordered individual who is gravely disabled or a danger to others or him or herself, and who is detained and taken into custody by a peace officer, are confidential and may only be disclosed to enumerated recipients and for the purposes specified in state law.240 Willful, knowing release of confidential mental health detention information can create liability for civil damages.241 XX PRACTICE TIP:

All information obtained in the course of a mental health detention (often referred to as a “5150 detention”) is confidential, including information in complaint or incident reports that would otherwise be subject to disclosure under the PRA.

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.242 The prohibition against unauthorized disclosure applies regardless of whether a report of suspected elder abuse or neglect is from someone who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not for compensation (a mandated reporter), or from someone else.243 Unauthorized disclosure of suspected elder abuse or neglect information is a misdemeanor.244 Juvenile Records
Records or information gathered by law enforcement agencies relating to the detention of, or taking of, a minor into custody or temporary custody are confidential and subject to release only in certain circumstances and by certain specified persons and entities.245 Juvenile court case files are subject to inspection only by specific listed persons and are governed by both statute and state court rules.246
XX PRACTICE TIP:

Some local courts have their own rules regarding inspection and they 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.

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.247 In addition, a law enforcement agency must release the name of and descriptive information relating to any juvenile who has escaped from a secure detention facility.
248
240 W elf. & Inst. Code, §§ 5150, 5328.
241 W elf. & Ins. Code, § 5330.
242 W elf. & Inst. Code, § 15633.
243 W elf. & Inst. Code, § 15633.
244 W elf. & Inst. Code, §15633.
245 W elf. & Inst. Code, §§ 827, 828; see W elf & 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.) 246 W elf. & Inst. Code, § 827.
247 W elf & Inst. Code, § 828, subd. (a); Cal. Rules of Court, rule 5.552(g). 248 W elf & Inst. Code, § 828, subd. (b).
40 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Child Abuse Reports
Reports of suspected child abuse or neglect, including reports from those who are “mandated reporters,” such as teachers and public school employees and officials, physicians, children’s organizations, and community care facilities, 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.249 Unauthorized disclosure of confidential child abuse or neglect information is a misdemeanor.250
Library Patron Use Records
All patron use records of any library that is supported in whole or in part by public funds are confidential and may not be disclosed except to persons acting within the scope of their duties within library administration, upon written authorization from the person whose records are sought, or by court order. 251 The term “patron use records” includes written or electronic records that identify the patron, the patron’s borrowing information, or use of library resources, including database search records and any other personally identifiable information requests or inquiries. 252 This exemption does not extend to statistical reports of patron use or records of fines collected by the library.253 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.254 Further, all registration and circulation records of any library that is (in whole or in part) supported by public funds are confidential.255 The confidentiality of library circulation records does not extend to records of fines imposed on borrowers.256
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.
257 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.258 Medical Records
California’s Constitution protects a person’s right to privacy in his or her medical records.259 Therefore, the PRA exempts from disclosure “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”
260 In addition, the PRA exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant 249 Pen. Code, §§ 11165.6, 11165.7, 11167.5, 11169.
250 Pen. Code, § 11167.5, subd. (a).
251 Gov . Code, § 6267.
252 Gov . Code, § 6267.
253 Gov . Code, § 6267.
254 Gov . Code, § 6254, subd. (j).
255 Gov . Code, § 6254, subd. (j).
256 Gov . Code, § 6254, subd. (j).
257 Gov . Code, § 6254, subd. (n).
258 San Gabriel T ribune v. Superior Court (1983) 143 Cal.App.3d 762, 779–780. 259 Cal. Const., Art. I, § 1.
260 Gov . Code, § 6254, subd. (c).
41 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT to federal or state law,”261 including, but not limited to, those described in the Confidentiality of Medical Information Act,262 physician/patient privilege,263 the Health Data and Advisory Council Consolidation Act,264 and the Health Insurance Portability and Accountability Act. 265
XX PRACTICE TIP:

Both subdivision (c) and subdivision (k) of Government Code section 6254 probably apply to most records protected under the physician/patient privilege, the Confidentiality of Medical Information Act, the Health Data and Advisory Council Consolidation Act, and the Health Insurance Portability and Accountability Act.

In addition, individually identifiable health information is probably also exempt from disclosure under the “public interest” exemption in Government Code section 6255.

Health Data and Advisory Council Consolidation Act
Any organization that operates, conducts, owns, or maintains a health facility, hospital, or freestanding ambulatory surgery clinic must file reports with the state that include detailed patient health and financial information.266 Patient medical record numbers, and any other data elements of these reports that could be used to determine the identity of an individual patient are exempt from disclosure.267
Physician/Patient Privilege
Patients may refuse to disclose, and prevent others from disclosing, confidential communications between themselves and their physicians.268 The privilege extends to confidential patient/physician communication that is disclosed to third parties where reasonably necessary to accomplish the purpose for which the physician was consulted.269 XX 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, or will be, consulted, including emergency room physicians.
261 Gov . Code, § 6254, subd. (k).
262 Civ . Code, § 56 et seq.
263 Evid. Code, § 990 et seq.
264 Health & Saf. Code, § 128675 et seq.
265 42 U.S.C. § 1320d.
266 Health & Saf. Code, §§ 128735, 128736, 128737.
267 Health & Saf. Code, § 128745, subd. (c)(6).
268 Evid. Code, § 994.
269 Evid. Code, § 992.
42 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Confidentiality of Medical Information Act
Subject to certain exceptions, health care providers, health care service plan providers and contractors are prohibited from disclosing a patient’s individually identifiable medical information without first obtaining authorization.270 Employers must establish appropriate procedures to ensure the confidentiality and appropriate use of individually identifiable medical information.271 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.
272
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.273 The U.S. Department of Health and Human Services Secretary has issued privacy regulations governing use and disclosure of individually identifiable health information.274 Persons who 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.275 Federal law also permits the Health and Human Services Secretary to impose civil penalties.276 Workers’ Compensation Benefits
Records pertaining to the workers’ compensation benefits for an individually identified employee are exempt from disclosure as “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of privacy.”277 The PRA further prohibits the disclosure of records otherwise exempt or prohibited from disclosure pursuant to federal and state law.278 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.
279
270 Civ . Code, §§ 56.10, subd. (a), 56.05, subd. (g). “Provider of health care” as defined means persons licensed under Business & Professions Code section 500 et seq, or Health & Safety Code section1797 and following, and clinics, health dispensaries, or health facilities licensed under Health and Safety Code section1200 and following. “Health care service plan” as defined means entities regulated under Health & 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. 271 Civ . Code, § 56.20.
272 Civ . Code, § 56.05, subd. (g).
273 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. 274 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 C.F .R. 160.103. The general rules governing use and disclosure of protected health information are in 45 C.F .R. 164.502. 275 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.
276 42 U.S.C. § 1320d-5.
277 Gov . Code, § 6254, subd. (c).
278 Gov . Code, § 6254, subd. (k).
279 Lab. Code, § 138.7, subd. (a). This state statute defines “individually identifiable information” to mean “any data concerning an injury or claim that is linked to a uniquely identifiable employee, employer, claims administrator, or any other person or entity . ” 43 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Certain information may be subject to disclosure once an application for adjudication has been filed.280 If the request relates to pre-employment 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 residential address cannot 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.281 Official Information Privilege
A local agency may refuse to disclose official information.282 “Official information” is statutorily defined 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.”
283 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. 284 Therefore, “official information” includes
information that is protected by a state or federal statutory privilege or information, the disclosure of which is against the public interest, because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.
285
The local agency has the right to assert the official information privilege both to refuse to disclose and to prevent another from disclosing official information.
286 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 PRA — allowing nondisclosure when the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.287 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.288 This is typically done through in camera judicial review.289 There are a number of cases interpreting this statute.290 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.

XX PRACTICE TIP:

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. 280 Lab. Code, §§ 5501.5, 138.7.
281 Lab Code, §138.7.
282 Evid. Code, § 1040.
283 Evid. Code, § 1040, subd. (a).
284 Department of Motor V ehicles v. Superior Court (2002) 100 Cal.App.4th 363, 373–374. 285 White v. Superior Court (2002) 102 Cal.App.4th.Supp. 1, 6. 286 Evid. Code, § 1040, subd. (b).
287 Gov . Code, § 6255.
288 Shepherd v. Superior Court (1976) 17 Cal.3d 107, 126. 289 The term “in camera” refers to a review of the document in the judge’s chambers outside the presence of the requesting party . 290 Department of Motor V ehicles v. Superior Court, supra,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. 44 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Pending Litigation or Claims
The PRA 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.”291 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 PRA to promote access to public records.

Therefore, the claim itself is not exempt from disclosure — the exemption applies only to documents specifically prepared by, or at the direction of, the local agency for use in existing or anticipated litigation. 292
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, the local agency would have to prove that the dominant purpose of the record was to be used in defense of litigation. 293 However, attorney payment and billing
records related to ongoing litigation are not subject to the pending litigation exemption, because such records are not primarily prepared for use in litigation.294
It is important to remember that even members of the public that have filed a claim against or sued a local agency are entitled to use the PRA to obtain documents that may be relevant to the claim or litigation. The mere fact that the person might also be able to obtain the documents in discovery is not a ground for rejecting the request under the PRA. 295
The pending litigation exemption does not prevent members of the public from obtaining records submitted to the local agency pertaining to existing or anticipated litigation, such as a claim for monetary damages filed prior to a lawsuit, because the records were not prepared by the local agency.
296 Moreover, while medical records are subject to a constitutional right of privacy, and generally exempt from production under the PRA and other statutes,297 an individual may be deemed to have waived the right to confidentiality by submitting medical records to the public entity in order to obtain a settlement.298 Once the claim or litigation is no longer “pending,” records previously shielded from disclosure by the exemption must be produced, unless covered by another exemption. For example, the public may obtain copies of depositions from closed cases,299 and documents concerning the settlement of a claim that are not shielded from disclosure by other exemptions.300 Exemptions that may be used to withhold documents from disclosure after the claim or litigation is no longer pending include the exemptions for law enforcement investigative reports, medical records, and attorney-client privileged records and attorney work product.301 Particular records or information relevant to settlement of a closed claim or 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.
302
291 Gov . Code, § 6254, subd. (b).
292 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1420–1421; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1420. 293 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414, 1420; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1419. 294 County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 67. See also the Attorney-Client Privilege, p. 29. 295 Wilder v. Superior Court (1998) 66 Cal.App.4th 77.
296 Poway Unified Sch Dist. v. Superior Court (1998) 62 Cal.App.4th 1496, 1502–1505. 297 See Medical Privacy Laws, p. 40.
298 Poway Unified Sch Dist. v. Superior Court (1998) 62 Cal.App.4th 1496, 1505. 299 City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083, 1089. 300 Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 901. 301 See, e.g., D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411. 302 Gov . Code, § 6255.
45 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT XX 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 PRA. Additionally, if the settlement is approved by the legislative body during a closed session, release of the settlement documents are governed by the Brown Act. It is recommended that you seek the advice of your local agency counsel.

There is considerable overlap between the pending litigation exemption and both the attorney-client privilege303 and attorney- work-product doctrine.304 However, the exemption for pending litigation is not limited solely to documents that fall within either the attorney-client privilege or work product protection.305 Moreover, while the exemption for pending litigation expires once the litigation is no longer pending, the attorney-client privilege and attorney-work-product doctrine continue indefinitely.306 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, i.e., whether the public interest in nondisclosure clearly outweighs the public interest in disclosure.307 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.308 In that instance, the anticipated chilling effect on future citizen complaints weighed heavily in the court’s decision. On the other hand, the courts have ordered disclosure of information contained in applications for licenses to carry firearms, except for information that indicates when or where the applicant is vulnerable to attack or that concern the applicant’s medical or psychological history or that of members of his or her family. 309 Courts have also ordered disclosure of the names and addresses of residential water customers who exceeded their water allocation under a rationing ordinance,310 and the names of donors to a university affiliated foundation, even though those donors had requested anonymity.311 XX 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 under the PRA. 303 Evid. Code, § 950 et seq; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725. 304 Code Civ . Proc. § 2018.030.
305 City of Los Angeles v. Superior Court, supra, 41 Cal.App.4th 1083, 1087. 306 Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373 (attorney-client privilege); Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61–63 (work-product doctrine); Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th 725. But see Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (holding that the attorney-client privilege protects the confidentiality of invoices for work in pending and active legal matters, but that the privilege may not encompass invoices for legal matters that concluded long ago). 307 Gov . Code, § 6255, subd. (a).
308 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008. 309 Gov . Code, § 6254, subd. (u)(1).
310 New Y ork Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579. 311 California State Univ., Fresno Ass’n, Inc., v. Superior Court (2001) 90 Cal.App.4th 810. 46 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Posting Personal Contact Information of Elected/Appointed Officials on the Internet The PRA 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.312 The prohibition against posting home addresses and telephone numbers of elected or appointed officials on the Internet does not apply to a comprehensive database of property- related information maintained by a state or local agency that may incidentally contain such information, where the officials are not identifiable as such from the data, and the database is only transmitted over a limited-access network, such as an intranet, extranet, or virtual private network, but not the Internet.313 The PRA 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.
314 Similarly, the PRA prohibits soliciting, selling, or trading on the Internet the home address or telephone number of any elected or appointed official with the intent of causing imminent great bodily harm to the official or a person residing at the official’s home address.315
In addition, the PRA 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 to the person, business, or association to not to disclose his or her address or phone number.316 Personnel Records
The PRA exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”317 In addition, the public interest exemption may protect certain personnel records from disclosure.318 In determining whether to allow access to personnel files, the courts have determined that the tests under each exemption are essentially the same: the extent of the local agency 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.319
Decisions from the California Supreme Court have determined that local agency employees do not have a reasonable expectation of privacy in their name, salary information, and dates of employment. This interpretation also applies to police officers absent unique, individual circumstances.320
312 See Gov . Code, § 6254.21, subd. (f) (containing a non-exhaustive list of individuals who qualify as “elected or appointed official[s]”). 313 91 Ops.Cal.Atty .Gen. 19 (2008).
314 Gov . Code, § 6254.21, subd. (b).
315 Gov . Code, § 6254.21, subd. (d).
316 Gov . Code, § 6254.21, subd. (c).
317 Gov . Code, § 6254, subd. (c).
318 Gov . Code, § 6255; BRV , Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 755; see also, Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272. 319 International Fed’n of Prof. & T ech. Eng’rs, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 335; Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 300; Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 231; BRV , Inc. v. Superior Court, supra,143 Cal.

App.4th 742, 755; American Fed’n of State, County & Mun. Employees (AFSCME), Local 1650 v. Regents of Univ. of Cal. (1978) 80 Cal.App.3d 913 914–916. 320 International Fed’n of Prof. & T ech. Eng’rs, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th 319, 327; Commission on Peace Officer Standards & Training v. Superior Court, supra, 42 Cal.4th 278, 289–293. 47 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT In situations involving allegations of non-law enforcement local agency employee misconduct, courts have considered the following factors in determining whether disclosure of employment investigation reports or related records would constitute an unwarranted invasion of personal privacy:
ƒƒ Are the allegations of misconduct against a high-ranking public official or a local agency employee in a position of public trust and responsibility (e.g., teachers, public safety employees, employees who work with children)? ƒƒ Are the allegations of misconduct of a substantial nature or trivial? ƒƒ Were findings of misconduct sustained or was discipline imposed? Courts have upheld the public interest against disclosure of “trivial or groundless” charges.321 In contrast, when “the charges are found true, or discipline is imposed,” the public interest likely favors disclosure.322 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.”323 However, even if the local agency employee is exonerated of wrongdoing, disclosure may be warranted if the allegations of misconduct involve a high-ranking public official or local agency employee in a position of public trust and responsibility, given the public’s interest in understanding why the employee was exonerated and how the local agency employer treated the accusations.324 With respect to personnel investigation reports, although the PRA’s personnel exemption may not exempt such a report from disclosure, the attorney-client privilege or attorney-work-product doctrine may apply. 325 Further, discrete portions of the personnel
report may still be exempt from disclosure and redacted, such as medical information contained in a report or the names of third party witnesses.326
The courts have permitted persons who believe their rights may be infringed by a local agency decision to disclose records to bring a “reverse PRA action” to seek an order preventing disclosure of the records.327 Peace Officer Personnel Records
Peace officer personnel records, including internal affairs investigation reports regarding alleged misconduct, are both confidential and privileged. They clearly fall within the category of records, “the disclosure of which is exempted or prohibited pursuant to federal or state law ....”
328
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.329 The appropriate procedure for obtaining information in the 321 AFSCME, Local 1650 v. Regents of Univ. of Cal. (1978) 80 Cal.App.3d 913, 918. 322 Ibid.
323 Ibid.
324 Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 223–224; Marken v. Santa Monica-Malibu Unified Sch. Dist. (2012) 202 Cal.App.4th 1250, 1275– 1276; BR V , Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 759; Bakersfield City Sch. Dist. v Superior Court (2004) 118 Cal.App.4th 1041, 1045–1047; AFSCME, Local 1650 v Regents of University of Cal.ifornia (1978) 80 Cal.App.3d 913, 918. 325 See “Attorney-client Communications and Attorney W ork Product, ” page 29; City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1035–1036.

But see BR V , Inc. v Superior Court, supra, 143 Cal.App.4th 742, where on the facts of that case, an investigation report that arguably was privileged was ordered disclosed.
326 BRV , Inc. v. Superior Court , supra, 143 Cal.App.4th 742, 759 (permitting redaction of names, home addresses, phone numbers, and job titles “of all persons mentioned in the report other than [the subject of the report] or elected members” of the school board); Marken v Santa Monica-Malibu Unified Sch. Dist., supra, 202 Cal.App.4th 1250, 1276 (permitting redaction of the identity of the complainant and other witnesses, as well as other personal information in the investigation report).
327 Marken v Santa Monica-Malibu Unified Sch. Dist., supra, 202 Cal.App.4th 1250, 1264–1271. See also “Reverse PRA Litigation, ” p. 59. 328 Gov . Code, § 6254, subd. (k); Pen. Code, §§ 832.7– 832.8; International Fed’n of Prof.& T ech.Eng’rs, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 341; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1431. 329 Pen. Code, § 832.7; Evid. Code, §§ 1043, 1046.
48 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE 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 and materiality of the information sought and a subsequent confidential review by the court of the files, where warranted.330 Peace officer personnel files are not protected from disclosure, however, when the district attorney, attorney general, or grand jury are investigating the conduct of the officers, including when the district attorney conducts a Brady review of files for exculpatory evidence relevant to a criminal proceeding.331 The other notable exception arises where an officer publishes factual information concerning a disciplinary action that is known by the officer to be false. If the information is published in the media, the employing agency may disclose factual information about the discipline to refute the employee’s false statements. 332
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.333 The names, salary information, and employment dates and departments of peace officers have been determined to be disclosable records absent unique circumstances.
334 Additionally, official service photographs of peace officers are subject to disclosure and are not exempt or privileged as personnel records unless disclosure would pose an unreasonable risk of harm to the peace officer.335 The names of officers involved in a police shooting are subject to disclosure, unless disclosure would endanger an officer’s safety (e.g., if there is a specific threat to an officer or an officer is working undercover). 336 Video captured by a dashboard camera is not a personnel record protected from disclosure.337
While the Penal and Evidence Code privileges are not per se applicable in federal court, federal common law does recognize a qualified privilege for “official information” and considers government personnel files to be “official information.”338 Moreover, independent reports regarding officer-involved shootings are not exempt from disclosure, though portions of the report culled from personnel information or officers’ statements made in the course of an internal affairs investigation of the shooting are protected and may be redacted from the report.339 Such a qualified privilege in federal court results in a very similar weighing of the potential benefits of disclosure against potential disadvantages.340 330 See, e.g., 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.
331 Pen. Code, § 832.7, subd. (a); People v. Superior Court (2015) 61 Cal.4th 696, . 332 Pen. Code, § 832.7, subd. (d).
333 Pen. Code, § 832.8.
334 International Fed’n of Prof. & T ech. Eng’rs, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th 319, 327; Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 289–293. 335 Ibarra v. Superior Court (2013) 217 Cal.App.4th 695, 700–705. 336 Long Beach Police Officers Ass’n v. City of Long Beach (2014) 59 Cal.4th 59, 75; 91 Ops.Cal.Atty .Gen. 11 (2008) (the names of peace officers involved in critical incidents, such as ones involving lethal force, are not categorically exempt from disclosure, however, the balancing test may be applied under the specific factual circumstances of each case to weigh the public interests at stake). 337 City of Eureka v. Superior Court (2016) 1 Cal.App.5th 755, 763–765. See also “Law Enforcement Records, ” p. 35. 338 Sanchez v. City of Santa Ana (9th Cir. 1990) 936 F .2d 1027, 1033–1034, cert denied (1991) 502 U.S. 957; Miller v. Pancucci (C.D.Cal. 1992) 141 F .R.D. 292, 299–300.
339 Pasadena Peace Officers Ass’n v. Superior Court (2015) 240 Cal.App.4th 268, 288–290. See also “Law Enforcement Records, ” p. 35. 340 Evid. Code, § 1043 et seq.; Guerra v. Bd. 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. 49 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Employment Contracts, Employee Salaries, & Pension Benefits Every employment contract between a local agency and any public official or local agency employee is a public record which is not subject to either the personnel exemption or the public interest exemption.341 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 local agency employee’s right to privacy in his personnel file or the public interest exemption.342 With or without an employment contract, the names and salaries (including performance bonuses and overtime) of local agency employees, including peace officers, are subject to disclosure under the PRA.343 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 local agency employees are not subject to either the personnel exemption or the public interest exemption.344 In addition, the courts have held that local agencies are required to disclose the identities of pensioners and the amount of pension benefits received by such pensioners, reasoning that the public interest in disclosure of the names of pensioners and data concerning the amounts of their pension benefits outweighs any privacy interests the pensioners may have in such information.
345 On the other hand, the courts have found that personal information provided to a retirement system by a member or on a member’s behalf, such as a member’s personal email address, home address, telephone number, social security number, birthday, age at retirement, benefits election, and health reports concerning the member, to be exempt from disclosure under the PRA.
346 With regard to the California Public Employees’ Retirement System (CalPERS), the identities of and amount of benefits received by CalPERS pensioners are subject to public disclosure.347 XX PRACTICE TIP:

If a member of the public requests information regarding CalPERS from a local agency, make sure to check the terms of any agreement that may exist between the agency and CalPERS for confidentiality requirements.

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.348 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.349 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 341 Gov . Code, § 6254.8; Gov . Code, § 53262, subd. (b). 342 Braun v. City of T aft (1984) 154 Cal.App.3d 332.
343 International Fed’n of Prof. & T ech. Eng’rs, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th 319, 327. 344 Commission on Peace Officer Standards & T raining v. Superior Court, supra, 42 Cal.4th 278, 299, 303. 345 Sacramento County Employees’ Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 472. 346 Sonoma County Employees’ Retirement Ass’n v. Superior Court (2011) 198 Cal.App.4th 986, 1004. 347 Gov . Code, § 20230; See also SDCERS v. Superior Court (2011) 196 Cal.App.4th 1228, 1238–1239, citing with approval 25 Ops.Cal.Atty .Gen. 90 (1955), which exempts from disclosure employee election of benefits. For peace officer election of benefits see Pen. Code, §§ 832.7 - 832.8 and International Fed’n of Prof.& T ech.Eng’rs, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 343. 348 Lab. Code, § 1776.
349 Lab. Code, § 1776, subd. (b).
50 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE which the request is made prior to being provided the records.350 Contractors are required to file certified copies of the requested records with the requesting entity within ten days after receipt of a written request.351 However, state law also limits access to contractor payroll records. Employee names, addresses, and social security numbers must be redacted from certified payroll records provided to the public or any local agency by the awarding body or the Department of Industrial Relations.352 Only the employee names and social security numbers are to be redacted from certified payroll records provided to joint labor-management committees established pursuant to the federal Labor Management Cooperation Act of 1978.
353 The name and address of the contractor or subcontractor may not be redacted.354 The Department of Industrial Relations Director has adopted regulations governing release of certified payroll records and applicable fees.355 The regulations: (1) require that requests for certified payroll records be in writing and contain certain specified information regarding the awarding body, the contract, and the contractor; (2) require awarding agency acknowledgement of requests; (3) specify required contents of awarding agency requests to contractors for payroll records; and (4) set fees to be paid in advance by persons seeking payroll records.356
Test Questions and Other Examination Data
The PRA 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.
357 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 after the release of test results to the test subject, have limited access to test questions and answers upon request to the test sponsor. 358 This limited access
may be either through an in-person examination or by release of certain information to the test subject.359 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.
360 All such reports and information submitted to the Commission are public records subject to disclosure under the PRA.361
Public Contracting Documents
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.362 When the bids or proposals leading up to the contract become disclosable depends largely upon the type of contract. 350 Lab. Code, § 1776, subd. (c).
351 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).
352 Lab. Code, § 1776, subd. (e); T rustees of Southern Cal. IBEW-NECA Pension Plan v. Los Angeles Unified School District (2010) 187 Cal.App.4th 621. 353 Lab. Code, § 1776, subd. (e).
354 Lab. Code, § 1776, subd. (e).
355 Lab. Code, § 1776, subd. (i); see Lab. Code, § 16400 et seq. 356 8 C.C.R. §§ 16400, 16402.
357 Gov . Code, § 6254, subd. (g).
358 Ed. Code, § 99157, subd. (a) Brutsch v. City of Los Angeles (1982) 3 Cal.App.4th 354. 359 Ed. Code, §§ 99157, subds. (a) & (b).
360 Ed. Code, §§ 99153, 99154.
361 Ed. Code, § 99162.
362 Cal. State Univ., Fresno Ass’n., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 833. 51 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT 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.363 Bids for these contracts are usually submitted to local agencies under seal 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, a 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. 364 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 pre-qualification packages submitted, including questionnaire answers and financial statements, are exempt from disclosure.365 Nevertheless, documents containing the names of contractors applying for pre-qualification status are public records and must be disclosed.366 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.

XX 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.

Real Estate Appraisals and Engineering Evaluations
The PRA requires the disclosure of the contents of real estate appraisals, or engineering or feasibility estimates, and evaluations made for or by 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 agreement on all terms of the contract have been obtained.367 By its plain terms, this exemption only applies while the acquisition or prospective contract is pending. Once all the property is acquired or agreement on all terms of the contract have been obtained, the exemption will not apply. In addition, this exemption is not intended to supersede the law of eminent domain.
368 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.369 XX PRACTICE TIP:

If the exemption for real estate appraisals and engineering evaluations does not clearly apply, consider whether the facts of the situation justify withholding the record under Government Code section 6255. 363 Pub. Contract Code, § 22038.
364 Gov . Code, § 6255; Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1077. 365 Pub. Contract Code, §§ 10165, 10506.6, 10763, 20101, 20111.5, 20209.7, 20209.26, 20651.5. 366 Pub. Contract Code, § 20101, subd. (a).
367 Gov . Code, § 6254, subd. (h).
368 Gov . Code, § 6245, subd. (h).
369 Gov . Code, § 7267.2, subd. (c).
52 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Recipients of Public Services
Disclosure of information regarding food stamp recipients is prohibited.370 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.371 This latter prohibition does not create a privilege.372 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.373 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 which are submitted by prospective or current tenants of the Authority.374
The PRA exempts from disclosure records of 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.375
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 unfair competitive disadvantage to the person supplying the information, the information is exempt from disclosure.376 Sales and use tax records may be used only for administration of the tax laws. Unauthorized disclosure or use of confidential information contained in these records can give rise to criminal liability.377 XX PRACTICE TIP:

Make sure to check your local agency’s codes and ordinances with respect to local taxes when determining what information submitted by the taxpayer is confidential.

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.378
370 W elf. & Inst. Code, § 18909.
371 W elf. & Inst. Code, § 10850.
372 Jonon v. Superior Court (1979) 93 Cal.App.3d 683, 690. 373 Health & Saf. Code, § 34283.
374 Health & Saf. Code, § 34332, subd. (c).
375 Gov . Code, § 6254.1.
376 Gov . Code, § 6254, subd. (i); see also Rev . & T ax. Code, § 7056. 377 Rev . & T ax. Code, §§ 7056, 7056.5
378 See, e.g.,San Gabriel T ribune v. Superior Court (1983) 143 Cal.App.3d 762. 53 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT 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 outweigh 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.379 Courts have further found 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. 380
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.
381
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.
382
The PRA contains several exemptions that address specific types of information that are in the nature of trade secrets, including pesticide safety and efficacy information,383 air pollution data,384 and corporate siting information (financial records or proprietary information provided to government agencies in connection with retaining, locating, or expanding a facility within California).385 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. 386
XX PRACTICE TIP:

Issues concerning trade secrets and proprietary information tend to be complex and fact specific.

Consider seeking the advice of your local agency counsel in determining whether records requested are exempt from disclosure.
379 Cal. State Univ., Fresno Ass’n., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 834; Braun v. City of T aft (1984) 154 Cal.App.3d 332, 347; San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d 762, 781. 380 Cal. State Univ., Fresno Ass’n., Inc. v. Superior Court, supra, 90 Cal.App.4th 810; San Gabriel T ribune v. Superior Court, supra, 143 Cal.App.3d 762. 381 Civ . Code, § 3426.1, subd. (d). This trade secret definition is set forth in the Uniform T rade Secrets Act (“UTSA ”). However, Civil Code section 3426.7, subd. (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 leng t hy. S e e 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. 382 Uribe v. Howie, supra, 19 Cal.App.3d 194, 213.
383 Gov . Code, § 6254.2.
384 Gov . Code, § 6254.7.
385 Gov . Code, § 6254.15.
386 Gov . Code, § 6254, subd. (e).
54 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE Utility Customer Information
Personal information expressly protected from disclosure under the PRA includes names, credit histories, usage data, home addresses, and telephone numbers of local agencies’ utility customers.387 This exception is not absolute, and customers’ names, utility usage data, and home addresses may be disclosable under certain scenarios. For example, disclosure is required when requested by a customer’s agent or authorized family member,388 or an officer or employee of another governmental agency when necessary for performance of official duties,389 by court order or request of a law enforcement agency relative to an ongoing investigation,390 when the local agency determines the customer used utility services in violation of utility policies,391 or if the local agency determines the public interest in disclosure clearly outweighs the public interest in nondisclosure.392 Utility customers who are local agency elected or appointed 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.393 Public Interest Exemption
The PRA 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. 394 Weighing the public interest in nondisclosure and the public interest in disclosure under the public interest exemption is often described as a balancing test.395 The PRA does not specifically identify the public interests that might be served by not making the record public under the public interest exemption, but the nature of those interests may be inferred from specific exemptions contained in the PRA. 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. 396
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:
ƒƒ Local agency records containing names, addresses, and phone numbers of airport noise complainants; ƒƒ Proposals to lease airport land prior to conclusion of lease negotiations; ƒƒ Information kept in a public defender’s database about police officers; and ƒƒ Individual teacher test scores, identified by name, designed to measure each teacher’s effect on student performance on standardized tests.397
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 387 Gov . Code, § 6254.16.
388 Gov . Code, § 6554.16, subd. (a).
389 Gov . Code, § 6254.16, subd. (b).
390 Gov . Code, § 6254.16, subd. (c).
391 Gov . Code, § 6254.16, subd. (d).
392 Gov . Code, § 6254.16, subd. (f).
393 Gov . Code, § 6265.16, subd. (e).
394 Gov . Code, § 6255; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1337–1339. 395 CBS Broadcasting, Inc. v. Superior Court 91 Cal.App.4th 892, 908. 396 Times Mirror Co. v. Superior Court, supra, 53 Cal.3d 1325, 1338. 397 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; Los Angeles Unified School District v. Superior Court (2014) 228 Cal.App.4th 222. 55 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT from nonexempt records when applying the balancing test under the public interest exemption.398 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.399
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.400 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:
ƒƒ The identities of individuals granted criminal conviction exemptions to work in licensed day care facilities and the facilities employing them;
ƒƒ Records relating to unpaid state warrants;
ƒƒ Court records of a settlement between the insurer for a school district and a minor sexual assault victim; ƒƒ Applications for concealed weapons permits;
ƒƒ Letters appointing then rescinding an appointment to a local agency position; ƒƒ The identities and license agreements of purchasers of luxury suites in a university arena; and ƒƒ GIS base map information.401
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. 402 For
example, the courts have held that the public’s interest in information regarding peace officers retained in a database by the public defender in the representation of its clients is slight, and the private interests of the requesters (the police officers listed in the database) were not to be considered in determining whether the database was exempt from disclosure.403 398 American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440. 399 Michaelis, Montanari & Johnson v. Superior Court, supra, 38 Cal.4th 1065. 400 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 657. 401 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 T aft (1984) 154 Cal.App.3d 332; California State University, Fresno Assn. v. Superior Court (2001) 90 Cal.App.4th 810; Sierra Club v. Superior Court (2013) 57 Cal.4th 157; County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301.See also, the discussion of GIS information in Chapter 6 at page 51. 402 Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1015–1016. 403 Id.
56 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 4: SPECIFIC DOCUMENT TYPES, CATEGORIES AND EXEMPTIONS FROM DISCLOSURE 57 57
LEAGUE OF CALIFORNIA CITIES: THE CALIFORNIA PUBLIC RECORDS ACT Chapter 5
Judicial Review and Remedies
Overview
The PRA establishes a special, expedited judicial process to resolve disputes over the public’s right to inspect or receive copies of public records.404 In contrast to other governmental transparency laws such as the Brown Act,405 there are no criminal penalties for a local agency’s failure to comply with the PRA. Rather, the PRA is enforced primarily through an expedited civil judicial process in which any person may ask a judge to enforce their right to inspect or to receive a copy of any public record or class of public records.406 Whether the PRA provides the exclusive judicial remedy for resolving a claim that a local agency has unlawfully refused to disclose a particular record or class of records remains unresolved.407 This chapter discusses the special rules that apply to lawsuits brought to enforce the PRA.

The Trial Court Process
Jurisdiction and Venue
Any person may file a civil action for injunctive or declaratory relief, or writ of mandate, to enforce their right to inspect or receive a copy of any public record or class of public records under the PRA. 408 While the PRA clearly provides specific relief when a local agency denies access or copies of public records, it does not preclude a taxpayer lawsuit seeking declaratory or injunctive relief to challenge the legality of a local agency’s policies or practices for responding to public records requests generally.409 Conversely, a local agency may not commence an action for declaratory relief to determine its obligation to disclose records under the PRA.410 The rationale for this rule is that allowing a local agency to seek declaratory relief to determine whether it must disclose records would require the person requesting documents to defend civil actions they did not commence and discourage 404 Gov . Code, §§ 6258, 6259.
405 Gov . Code, § 54950 et seq.
406 Gov . Code, § 6258.
407 Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59, 66 fn.2. 408 Gov . Code, § 6258.
409 County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 130. 410 Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426. 58 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 5: JUDICIAL REVIEW AND REMEDIES
them from requesting records.411 That would frustrate the 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 PRA and may maintain an action to compel the disclosure of records from another public entity subject to the PRA.412 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.413
Procedural Considerations
Timing
The PRA does not contain a specific time period in which the action or responsive pleadings must be filed. Therefore, any action must be filed in a manner consistent with traditional actions for injunctive or declaratory relief, or writ of mandate, and is subject to any limitations periods or equitable concepts, such as laches, applicable to those actions. In a typical action under the PRA, the parties will file written arguments with the court to explain why the records should be disclosed or can be withheld. The court will also hold a hearing to give the parties an opportunity to argue the case. The judge in each case will establish the deadlines for briefing the issues and for hearings with the object of securing a decision at the earliest possible time. 414
Discovery
The PRA is considered a “special proceeding of a civil nature[,]” and as such, the Civil Discovery Act applies to actions brought under the PRA.
415 Any discovery sought must still, however, be relevant to the subject matter of the pending action and the trial court has the discretion to restrict discovery only where it would be likely to aid in the resolution of the particular issues presented in the proceeding.

A local agency that receives a request for records that would traditionally be sought through a formal discovery mechanism must handle the request in a manner consistent with the PRA rather than pursuant to discovery statutes.416 A litigant using the PRA as an alternative to traditional discovery may not avoid California Environmental Quality Act’s statutory duty to pay for preparation of the administrative record by cloaking its discovery actions under the PRA.417 Burden of Proof
In general, a plaintiff bears the burden of proving the plaintiff made a request for reasonably identifiable public records to a local agency and the agency improperly withheld or failed to conduct a reasonable search for the requested records.418 A local agency may assert, as affirmative defenses, and bears the burden of proving that: (i) a request was unclear and the agency provided adequate assistance to the requestor to identify records but was still unable to identify any records; (ii) the withholding was justified under the PRA;419 or (iii) the local agency undertook a reasonable search for records but was unable to locate the requested records.420
411 Id. at p. 423.
412 Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759, 779. 413 Gov . Code, § 6259, subd. (a).
414 Gov . Code, § 6258.
415 City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272. 416 Bertoli v. City of Sebastopol (2015) 233 Cal. App. 4th 353, 370-371. 417 St. Vincent’s v. City of San Rafael (2008) 161 Cal.App.4th 989, 1019, fn.9. 418 Fredericks v. Superior Court (2015) 233 Cal. App. 4th 209, 227 [“[A] person who seeks public records must present a reasonably focused and specific request, so that the public agency will have an opportunity to promptly identify and locate such records and to determine whether any exemption to disclosure applies”]; American Civil Liberties Union of N. Cal. v. Superior Court (2011) 202 Cal. App. 4th 55, 85 [‘Government agencies are, of course, entitled to a presumption that they have reasonably and in good faith complied with the obligation to disclose responsive information. ”] 419 See, e.g., Los Angeles Unified School Dist. v. Superior Court, supra, 151 Cal.App.4th at p. 767. 420 Community Y outh Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1420. 59 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT In Camera Review
The judge must decide the case based on a review of the record or records (if such review is permitted by the rules of evidence),421 the papers filed by the parties, any oral argument, and additional evidence as the court may allow.422 If permitted, 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.423 However, a judge cannot compel in camera disclosure of records claimed to be protected from disclosure by the attorney-client privilege for the purpose of determining whether the privilege applies.424 Decision and Order
If the court determines, based upon a verified petition, that certain public records are being improperly withheld, the court 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.425 If the court determines the local agency representative was justified in refusing to disclose the record, the court shall return the item to the local agency representative without disclosing its content with an order denying the motion and supporting the decision refusing disclosure.
426 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 portions of the records be redacted and compel the disclosure of the remaining portions of the records.

Reverse PRA Litigation
While there is no specific statutory authority for such an action, a person who believes their rights would be infringed by a local agency decision to disclose documents may bring a “reverse PRA action” to seek an order enjoining disclosure.427 The court has allowed a records requester to join in a reverse PRA action as a real party or an intervener.428 XX PRACTICE TIP:

A local agency that receives a request for records that are or could be statutorily exempt from disclosure (under the PRA or otherwise) might consider notifying affected parties prior to disclosing the records. For example, “affected parties” would be individuals or organizations for whom disclosure could constitute an unwarranted intrusion of privacy if the requested documents contain potentially confidential information, such as trade secrets or confidential information of employees, contractors, or other third-party stakeholders. The notification prior to disclosing the records would allow the third parties to file a reverse PRA action to enjoin the local agency from disclosing the records. 421 Evid. Code, § 915.
422 Gov . Code, § 6259, subd. (a).
423 Gov . Code, § 6259, subd. (a).
424 Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 737. 425 Gov . Code, § 6259, subd. (a).
426 Gov . Code, § 6259, subd. (b).
427 Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1264, 1267. 428 Id. at p. 1269.
60 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 5: JUDICIAL REVIEW AND REMEDIES
Appellate Review
Petition for Review
The PRA establishes an expedited judicial review process. A trial court’s order is not considered to be a final judgment subject to the traditional and often lengthy appeal process. In place of a traditional 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. 429
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. 430 However, the intent
of substituting writ review for the traditional appeal process is to provide for expedited appellate review, not an abbreviated review. Therefore, an appellate court may not deny an apparently meritorious writ petition that has been timely presented and is procedurally sufficient merely because the petition presents no important issue of law or because it considers the case less worthy of its attention.
431 This manner of providing for appellate review through an extraordinary writ procedure rather than a traditional appeal has been held to be constitutional.432 Timing
A party seeking review of a trial court’s order must file a petition for review with the appellate court within 20 days after being 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.
433 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.434
Once a court of appeal accepts a petition for review the appellate process proceeds in much the same fashion as a traditional appeal. Unless the parties stipulate otherwise, the appellate court will establish a briefing schedule and may set the matter for oral arguments once briefing is complete.

Requesting a Stay
If a party wishes to prevent the disclosure of records pending appellate review of the trial court’s decision, then that party must seek a stay of the trial court’s order or judgment.
435 In cases when the trial court’s order requires disclosure of records prior to the time when a petition for review must be filed, the party seeking a stay may apply to the trial court for a stay of the order or judgment. Where there is sufficient time for a party to file a petition for review prior to the date for disclosure, that party may seek a stay from the appellate court. The trial and appellate courts may only grant a stay when the party seeking the stay demonstrates that: (1) the party will sustain irreparable damage because of the disclosure; and (2) it is probable the party will succeed on the merits of the case on appeal.436
Scope and Standard of Review
On appeal, the appellate court will conduct an independent review of the trial court’s ruling, upholding the factual findings made by the trial court if they are based on substantial evidence.437 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. 429 Gov . Code, § 6259, subd. (c); but see Mincal Consumer Law Group v. Carlsbad Police Department (2013) 214 Cal.App.4th 259, 265 (under limited circumstances, an appellate court may exercise its discretion to treat an appeal from a non-appealable order as a petition for writ relief). 430 Gov . Code, § 6259, subd. (c).
431 Powers v. City of Richmond (1995) 10 Cal.4th 85, 113–114. 432 Id. at p. 115.
433 Gov . Code, § 6259, subd. (c).
434 Gov . Code, § 6259, subd. (c).
435 Gov . Code, § 6259, subd. (c).
436 Gov . Code, § 6259, subd. (c).
437 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336. 61 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Appeal of Other Decisions under the PRA
While the trial court’s decision regarding disclosure of records is not subject to the traditional appeal process, other decisions of the trial court related to a lawsuit under the PRA are subject to appeal. Thus, a trial court’s decision to grant or deny a motion for attorneys’ fees and costs under the PRA is subject to appeal and is not subject to the extraordinary writ process. 438 Similarly, an
award of sanctions in a public records case is subject to appeal rather than a petition for an extraordinary writ.439 Attorneys’ Fees and Costs
Attorneys’ fees may be awarded to a prevailing party in an action under the PRA. If the plaintiff prevails in the litigation, the judge must award court costs and reasonable attorneys’ fees to the plaintiff.440 A member of the public may be entitled to an award of attorneys’ fees and costs even when he or she is not denominated as the “plaintiff” in a lawsuit under the PRA, if the party is the functional equivalent of a plaintiff.441 Records requesters that participate in a reverse-PRA lawsuit are not entitled to an award of attorneys’ fees for successfully opposing such litigation.442 Successful local agency defendants may obtain an award of attorneys’ fees and court costs against an unsuccessful plaintiff only when the court finds the plaintiff’s case was clearly frivolous.443 Unless a plaintiff’s case is “utterly devoid of merit or taken for improper motive,” a court is unlikely to find a plaintiff’s case frivolous and award attorneys’ fees to an agency.
444 Only one reported case has upheld an award of attorneys’ fees to a local agency based on a frivolous request.445
Eligibility to Recover Attorneys’ Fees
In determining whether a plaintiff has prevailed, courts have applied several variations of analysis similar to that used under the private attorney general laws, i.e., whether the party has succeeded on any issue in the litigation and achieved some of the public benefits sought in the lawsuit. Some courts, however, have determined a plaintiff may still be a prevailing party entitled to attorneys’ fees under the PRA even without a favorable ruling or other court action. 446
Generally, if a local agency makes a timely effort to respond to a vague document request, then a plaintiff will not be awarded attorneys’ fees as the prevailing party even in litigation resulting in issuance of a writ. 447 However, where the court determines
a local agency was not sufficiently diligent in locating all requested records and issues declaratory relief, stating there has in fact been a violation of the PRA, even if the records sought no longer exist and cannot be produced, the court may still award attorneys’ fees on the basis of the statutory polices underlying the PRA. 448
The trial court has significant discretion when determining the appropriate amount of attorneys’ fees to award.449 Local agencies must pay any award of costs and fees, and not the individual local agency employees or officials who decide not to disclose requested records.450
438 Los Angeles Times v. Alameda Corridor T ransportation Authority (2001) 88 Cal.App.4th 1381, 1388. 439 Butt v. City of Richmond (1996) 44 Cal.App.4th 925, 929. 440 Gov . Code, § 6259, subd. (d); Garcia v. Governing Board of Bellflower Unified School District (2013) 220 Cal.App.4th 1058, 1065; Los Angeles Times v. Alameda Corridor Transportation Authority, supra, 88 Cal.App.4th at p. 1385. 441 Fontana Police Dep’t. v. Villegas-Banuelos (1999) 74 Cal.App.4th 1249, 1253. 442 Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1268. 443 Gov . Code, §6259, subd. (d).
444 Crews v. Willows Unified School Dist. et al. (2013) 217 Cal.App.4th 1368. 445 Butt v. City of Richmond, supra, 44 Cal.App.4th at p. 932. 446 Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 482–483; Belth v . Garamendi (1991) 232 Cal.App.3d 896, 901-902. 447 Motorola Commc’n & Elecs., Inc. v. Dep’t of Gen. Servs. (1997) 55 Cal. App. 4th 1340, 1350–51. 448 Community Y outh Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1446. 449 Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394. 450 Gov . Code, § 6259, subd. (d).
62 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 5: JUDICIAL REVIEW AND REMEDIES
63 63
LEAGUE OF CALIFORNIA CITIES: THE CALIFORNIA PUBLIC RECORDS ACT Chapter 6
Records Management
In addition to the PRA, other California laws support and complement California’s commitment to open government and the right of access to public records. These laws include, among others, open meeting laws under the Ralph M. Brown Act, records retention requirements, and California and federal laws prohibiting the spoliation of public records that might be relevant in litigation involving the local agency. Proper records management policies and practices facilitate efficient and effective compliance with these laws.

Public Meeting Records
Under the Brown Act,451 any person may request a copy of a local agency meeting agenda and agenda packet by mail.452 If requested, the agenda materials must be made available in appropriate alternative formats to persons with disabilities.453 If a local agency receives a written request to send agenda materials by mail, the materials must be mailed when the agenda is either posted or distributed to a majority of the agency’s legislative body, whichever occurs first. 454 Requests for mailed copies of agenda
materials are valid for the calendar year in which they are filed, but must be renewed after January 1 of each subsequent year.455 Local agency legislative bodies may establish a fee for mailing agenda materials.456 The fee may not exceed the cost of providing the service.457 Failure of a requester to receive agenda materials is not a basis for invalidating actions taken at the meeting for which agenda materials were not received.458
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 local agency are public records subject to disclosure, unless specifically 451 Gov . Code, § 54950.5.
452 Gov . Code, § 54954.1. See Open and Public V: A User’s Guide to the Ralph M. Brown Act, 2d Edition, 2016 (Contact the League of California Cities, 1400 K Street, Sacramento, CA 95814; phone (916) 658–8200; website http://www.cacities.org/Resources/Open-Government). 453 Gov . Code, § 54954.1.
454 Ibid.
455 Ibid.
456 Ibid.
457 Ibid.
458 Ibid.
64 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 6: RECORDS MANAGEMENT
exempted by the PRA, and must be made available upon request without delay.459 When non-exempt writings are distributed during a public meeting, in addition to making them available for public inspection at the meeting (if prepared by the local agency or a 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.460 The local agency may charge a fee for a copy of the records; however, no surcharge may be imposed on persons with disabilities.461 When records relating to agenda items are distributed to a majority of all members of a legislative body less than 72 hours prior to the meeting, the records must be made available for public inspection in a designated location at the same time they are distributed.462 The address of the designated location shall be listed in the meeting agenda.463 The local agency may also post the information on its website in a place and manner which makes it clear the records relate to an agenda item for an upcoming meeting.464 Maintaining Electronic Records
“Public records,” as defined by the PRA, includes “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.”465 The PRA does not require a local agency to keep records in an electronic format. But, if a local agency has an existing, non-exempt public record in an electronic format, the PRA does require the agency make those records available in any electronic format in which it holds the records when requested.466 The PRA also requires the local agency to provide a copy of such records in any alternative electronic format requested, if the alternative format is one the agency uses for itself or for provision to other agencies.467 The PRA does not require a local agency to release a public record in the electronic form in which it is held if the release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.
468 Likewise, the PRA does not permit public access to records held electronically, if access is otherwise restricted by statute.469
XX PRACTICE TIP:

Local agencies should consider adopting electronic records policies governing such issues as: what electronic records (e.g., emails, texts, and social media) and what attributes of the electronically stored information and communications are considered “retained in the ordinary course of business” for purposes of the PRA; whether personal electronic devices (such as computers, tablets, cell phones) and personal email accounts may be used to store or send electronic communications concerning the local agency, or whether the agency’s devices must be used; and privacy expectations. Local agencies should consult with information technology officials to understand what information is being stored electronically and the technological limits of their systems for the retention and production of electronic records. 459 Gov . Code, § 54957.5, subd. (a).
460 Gov . Code, § 54957.5, subd. (c).
461 Gov . Code, § 54957.5, subd. (d). See Chapter 3.
462 Gov . Code, § 54957.5, subds. (b)(1), (b)(2).
463 Gov . Code, § 54957.5, subd. (b)(2).
464 Govt C §54957.5, subd. (b)(2).
465 Gov . Code, § 6252, subd. (e).
466 Gov . Code, § 6253.9, subd. (a)(1).
467 Gov . Code, § 6253.9, subd. (a)(2).
468 Gov . Code, § 6253.9, subd. (f).
469 Gov . Code, § 6253.9, subd. (g).
65 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT Duplication costs of electronic records are limited to the direct cost of producing the electronic copy.470 However, requesters may be required to bear additional costs of producing a copy of an electronic record, such as programming and computer services costs, if the request requires the production of electronic records that are otherwise only produced at regularly scheduled intervals, or production of the record would require data compilation, extraction or programming.471 Agencies are not required to reconstruct electronic copies of records no longer available to the agency in electronic format.472 Metadata
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. Although no provision of the PRA expressly addresses metadata, and there are no reported court opinions in California considering whether or to what extent metadata is subject to disclosure, other jurisdictions have held that metadata is a public record subject to disclosure, unless an exemption applies. 473 There are no reported California
court opinions providing guidance on whether agencies have a duty to disclose metadata when an electronic record contains exempt information that cannot be reasonably segregated without compromising the record’s integrity.

Computer Software
The PRA 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 disclosure.474 As a result, public agencies are not required to provide copies of agency-developed software pursuant to the PRA. The PRA authorizes state and local agencies to sell, lease, or license agency-developed software for commercial or noncommercial use. 475 The exception
for agency-developed software does not affect the exempt status of records merely because it is stored electronically.476 Computer Mapping (GIS) Systems
While computer mapping systems developed by local agencies are not public records subject to disclosure, such systems generally include geographic information system (GIS) data. 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 local agency and the public. As with metadata, the PRA does not expressly address GIS information disclosure. However, the California Supreme Court has held, that while GIS software is exempt under the PRA, the data in a GIS file format is a public record, and data in a GIS database must be produced.477
470 Gov . Code, § 6253.9, subd. (a)(2).
471 Gov . Code. § 6253.9, subd. (b)
472 Gov . Code, § 6253.9, subd. (c).
473 Lake v. City of Phoenix, (Ariz. 2009) 218 P .3d 1004, 1008; O’Neill v. City of Shoreline (W ash. 2010) 240 P .3d 1149, 1152–1154; Irwin v. Onondaga County (N.Y . 2010) 895 N.Y .S.2d 262, 265.
474 Gov . Code, § 6254.9, subds. (a), (b).
475 Gov . Code, § 6254.9, subd. (a).
476 Gov . Code, § 6254.9, subd. (d).
477 Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 170; see also County of Santa Clara v Superior Court, (2009) 170 Cal.App.4th 1301, 1323–1336. 66 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT CHAPTER 6: RECORDS MANAGEMENT
Public Contracting Records
State and local agencies subject to the Public Contract Code that receive bids for construction of a public work or improvement, must, upon request from a contractor plan room service, provide an electronic copy of a project’s contract documents at no charge to the contractor plan room.478 The Public Contract Code does not define the term “contractor plan room,” but the term commonly refers to a clearinghouse that contractors can use to identify potential bidding opportunities and obtain bid documents. The term may also refer to an on-line resource for a contractor to share plans and information with subcontractors.

Electronic Discovery
The importance of maintaining a written document retention policy is evident by revisions to the Federal Rules of Civil Procedure, and California’s Civil Discovery Act and procedures, relative to electronic discovery.479 Those provisions and discovery procedures require parties in litigation to address the production and preservation of electronic records. Those rule changes may require a local agency to alter its routine management or storage of electronic information, and illustrate the importance of having and following formal document retention policies.

Once a local agency knows or receives notice that information is relevant to litigation (e.g., a litigation hold notice or a document preservation notice), it has a duty to preserve that information for discovery. In some cases, the local agency may have to suspend the routine operation of its information systems (through a litigation hold) to preserve information relevant to the litigation and avoid the potential imposition of sanctions.

Record Retention and Destruction Laws
The PRA is not a records retention statute. The PRA does not prescribe what type of information a public agency may gather or keep, or provide a method for correcting records.
480 Its sole function is to provide access to public records.481 Other provisions of state law govern retention of public records.

Local agencies generally must retain public records for a minimum of two years.482 However, some records may be destroyed sooner. For example, duplicate records that are less than two years old may be destroyed if no longer required.483 Similarly, the retention period for “recordings of telephone and radio communications” is 100 days484 and “routine video monitoring” need only be retained for one year, and may be destroyed or erased after 90 days if another record, such as written minutes, is kept of the recorded event. “Routine video monitoring” is defined as “video recording by a video or electronic imaging system designed to record the regular and ongoing operations of a [local agency] …, including mobile in-car video systems, jail observation and monitoring systems, and building security recording systems.”485 The Attorney General has opined that recordings by security cameras on public buses and other transit vehicles constitute “routine video monitoring.”486 Whether additional recording technology used for law and parking enforcement such as body cameras and Vehicle License Plate Recognition (“VLPR”) systems also constitute routine video monitoring is an open question and may depend upon its use. While the technology is very similar to in-car video systems, recordings targeting specific activity may not be “routine.” The retention statutes do not provide a specific retention period for e-mails, texts, or forms of social media. 478 Pub. Contract Code, §§ 10111.2, 20103.7.
479 Fed. Rules Civ . Proc., rule 26, 28 U.S.C.; Cal. Rules of Court, rule 3.724(8); Code Civ . Proc. §§ 2016.020, 2031.020–2031.320. 480 Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661, 668. 481 Ibid.
482 Gov . Code, § 34090, subd. (d).
483 Gov . Code, § 34090.7.
484 Gov . Code, § 34090.6.
485 Gov . Code, §§ 34090.6, 34090.7.
486 85 Ops.Cal.Atty .Gen. 256, 258 (2002).
67 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT By contrast, 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.487 In addition, employers are required to maintain personnel records for at least three years after an employee’s termination, subject to certain exceptions, including peace officer personnel records, pre-employment records, and where an applicable collective bargaining agreement provides otherwise.488
To ensure compliance with these laws, most local agencies adopt records retention schedules as a key element of a records management system.

Records Covered by the Records Retention Laws
There is no definition of “public records” or “records” in the records retention provisions governing local agencies.489 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.”490 Under that definition, local agency officials retain some discretion concerning what agency records must be kept pursuant to state records retention laws. Similarly, the PRA allows for local agency discretion concerning what preliminary drafts, notes, or interagency or intra-agency memoranda are retained in the ordinary course of business. 491
XX PRACTICE TIP:

Though there is no definition of “records” for purposes of the retention requirements applicable to local agencies, the retention requirements and the disclosure requirements of the PRA should complement each other. Local agencies should exercise caution in deviating too far from the definition of “public records” in the PRA in interpreting what records should be retained under the records retention statutes. 487 Gov . Code, § 34090, subds. (a), (b), (c) & (e).
488 Lab. Code, § 1198.5, subd. (c)(1).
489 64 Ops.Cal.Atty .Gen. 317, 323 (1981).
490 Id. at p. 324 .
491 Gov . Code, § 6254, subd. (a). See “Drafts, ” p. 33. 68 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT

FREQUENTLY REQUESTED INFORMATION AND RECORDS
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.

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. 63 of “The People’s Business: A Guide to the California Public Records Act,” “the Guide.”
AUDIT CONTRACTS Yes Gov. Code, § 6253.31.

AUDITOR RECORDS Yes, with certain exceptions Gov. Code, § 36525(b).

AUTOMATED TRAFFIC ENFORCEMENT

SYSTEM (RED LIGHT CAMERA) RECORDS
No Veh. Code, § 21455.5(f)(1).

AUTOPSY REPORTS No Gov. Code, § 6254(f); Dixon v. Superior Court (2009) 170 Cal.

App.4th 1271.

CALENDARS OF ELECTED OFFICIALS Perhaps not, but note that there is no published appellate court
decision on this issue post- Prop.

59. 1
See 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.

For additional information, see p. 32 of the Guide.

CLAIMS FOR DAMAGES Yes Poway Unified School District v. Superior Court (1998) 62 Cal.App.4th 1496.

CORONER PHOTOS OR VIDEOS No Civ. Proc. Code, § 129.

DOG LICENSE INFORMATION Unclear See conflict between Health & Safety Code, § 121690(h) which states that license information is confidential,
and Food and Agr. Code,
§ 30803(b) stating license tag
applications shall remain open for public inspection.

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. 34 of the Guide.

EMAILS AND TEXT MESSAGES OF LOCAL

AGENCY STAFF AND/OR OFFICIALS
Yes Emails and text messages relating to local agency business on local agency and/or personal accounts and devices
are public records. Gov. Code § 6252(e); City of San Jose v. Superior Court (2017) 2 Cal. 5th 608. For additional information, see p. 12 of the Guide.

EMPLOYMENT AGREEMENTS/CONTRACTS Yes Gov. Code, §§ 6254.8 and 53262(b). For additional information, see p. 49 of the Guide.

EXPENSE REIMBURSEMENT REPORT
FORMS
Yes Gov. Code, § 53232.3(e).

FORM 700 (STATEMENT OF ECONOMIC

INTERESTS) AND CAMPAIGN

STATEMENTS
Yes2 Gov. Code, § 81008.
69 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT

INFORMATION/RECORDS

REQUESTED

MUST THE INFORMATION/

RECORD GENERALLY BE
DISCLOSED?

APPLICABLE AUTHORITY

GEOGRAPHIC INFORMATION SYSTEM
(GIS) MAPPING SOFTWARE AND DATA
No as to proprietary software.

Yes as to GIS base map
information.

Gov. Code, § 6254.9; 88 Ops.Cal.Atty.Gen. 153 (2005); see Sierra Club v. Superior Court (2013) 57 Cal.4th 157 for data as a public record; see also County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301 for GIS
basemap as public record; Sierra Club v. Superior Court (2011)
195 Cal.App.4th 1537; for additional information,
see p. 14 of the Guide.

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. 29 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. 39 of the Guide.

LEGAL BILLING STATEMENTS Generally, yes, as to amount billed and/or after litigation has ended.

No, if pending or active litigation
and the billing entries are closely
related to the attorney-client
communication. For example,
substantive billing detail
which reflects an attorney’s
impressions, conclusions,
opinions or legal research or
strategy.

Gov. Code, § 6254(k); Evid. Code, § 950, et seq.; County of Los Angeles Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282; Smith v. Laguna Sun Villas Community Assoc. (2000) 79 Cal.App.4th 639; United States v. Amlani, 169 F .3d 1189 (9th Cir. 1999}. But see Gov. Code, § 6254(b) as to the disclosure of billing amounts reflecting legal strategy in pending litigation. County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57 (Pending litigation exemption does not protect legal bills reflecting the hours worked, the identity of the person performing the work, and the amount charged from disclosure; only work product or
privileged descriptions of work may be redacted). For
additional information, see p. 30 of the Guide.

LIBRARY PATRON USE RECORDS No Gov. Code, §§ 6254(j) and 6267. For additional information, see p. 40 of the Guide.

MEDICAL RECORDS No Gov. Code, § 6254(c). For additional information, see p. 40 of the Guide.

MENTAL HEALTH DETENTIONS
(5150 REPORTS)
No Welf. & Inst. Code, § 5328. For additional information, see p. 39 of the Guide.

MINUTES OF CLOSED SESSIONS No Gov. Code, § 54957.2(a). For additional information, see p. 43 of Open and Public V: A User’s Guide to the Ralph M. Brown Act, 2d Edition, 2016 (Contact the League of
California Cities, 1400 K Street, Sacramento, CA 95814; phone (916) 658–8200; website http://www.cacities.org/
Resources/Open-Government ).

NOTICES/ORDERS TO PROPERTY OWNER
RE: HOUSING/BUILDING CODE VIOLATIONS
Yes Gov. Code, § 6254.7(c). For additional information, see p. 1 of the Guide.
70 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT

FREQUENTLY REQUESTED INFORMATION AND RECORDS

INFORMATION/RECORDS

REQUESTED

MUST THE INFORMATION/

RECORD GENERALLY BE
DISCLOSED?

APPLICABLE AUTHORITY

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. 28 of the Guide.

PERSONAL FINANCIAL RECORDS No Gov. Code, §§ 7470, 7471, 7473; see also Gov. Code, § 6254(n). For additional information, see p. 40 of the Guide.

PERSONNEL For additional information, see p. 46 of the Guide. • Employee inspection of own
personnel file
Yes, with exceptions For additional information, see pp. 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. For firefighters, see Gov. Code, § 3256.5.
• Investigatory reports It depends City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023; Marken v. Santa Monica-Malibu Unified Sch. Dist.
(2012) 202 Cal.App.4th 1250; Sanchez v. County of San
Bernardino (2009) 176 Cal.App.4th 516; BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742.
• Name and pension amounts of public
agency retirees
Yes. However, personal or
individual records, including
medical information, remain
exempt from disclosure.

Sacramento County Employees Retirement System v.

Superior Court (2011) 195 Cal.App.4th 440; San Diego
County Employees Retirement Association v. Superior
Court (2011) 196 Cal.App.4th 1228; Sonoma County
Employees Retirement Assn. v. Superior Court (2011) 198 Cal.App.4th 196.
• Names and salaries (including
performance bonuses and overtime)
of public employees, including peace
officers
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).

International Federation of Professional and Technical
Engineers, Local 21, AFL-CIO, et al. v. Superior Court (2007) 42 Cal.4th 319; Commission on Peace Officers Standards
and Training v. Superior Court (2007) 42 Cal.4th 278.
• Officer’s personnel file, including
internal affairs investigation reports
No This information can only be disclosed through a Pitchess motion. Pen. Code, §§ 832.7 and 832.8; Evid. Code, §§
1043-1045; International Federation of Professional &
Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319; People v. Superior Court (2014) 228 Cal.App.4th 1046; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411.
• Test Questions, scoring keys, and
other examination data.

No Gov. Code, § 6254(g).

POLICE/LAW ENFORCEMENT For additional information, see p. 35 of the Guide. • Arrest Information Yes Gov. Code, § 6254(f)(1); County of Los Angeles v. Superior Court (Kusar) (1993) 18 Cal.App.4th 588.
• Charging documents and court filings
of the DA
Yes Weaver v. Superior Court (2014) 224 Cal.App.4th 746. • Child abuse reports No Pen. Code, §11167.5.
71 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT

INFORMATION/RECORDS

REQUESTED

MUST THE INFORMATION/

RECORD GENERALLY BE
DISCLOSED?

APPLICABLE AUTHORITY
POLICE/LAW ENFORCEMENT, Continued
• Citizen complaint policy Yes Pen. Code, § 832.5(a)(1). • Citizen complaints No Pen. Code, § 832.7.
• Citizen complaints – annual summary
report to the Attorney General
Yes Pen. Code, § 832.5.
• Citizen complainant 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.38 of the Guide.
• Concealed weapon permits and
applications
Yes, except for home/
business address and medical/
psychological history
Gov. Code, § 6254(u)(1); CBS, Inc. v. Block (1986) 42 Cal.3d 646.
• Contact information – names,
addresses and phone numbers of
crime victims or witnesses
No Gov. Code § 6254(f)(2). For additional information, see p. 38 of the Guide.
• Criminal history No Pen. Code, § 13300 et seq.; Pen. Code, § 11105 et seq. • Criminal investigative reports
including booking photos, audio
recordings, dispatch tapes, 911 tapes
and in-car video
No Gov. Code, § 6254(f); Haynie v. Superior Court (2001) 26 Cal.4th 1061.
• Crime reports Yes Gov. Code, §§ 6254(f), 6255.
• Crime reports, including witness
statements
Yes, but only to crime victims and
their representatives
Gov. Code, §§ 6254(f), 13951.
• Elder abuse reports No Welf. and Inst. Code, §15633
• Gang intelligence information No Gov. Code, § 6254(f); 79 Ops.Cal.Atty Gen. 206 (1996). • In custody death reports to AG Yes Gov. Code, § 12525 • 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. 39 of the Guide.
• List of concealed weapon permit
holders
Yes Gov. Code, § 6254(u)(1); CBS, Inc. v. Block (1986) 42 Cal.3d 646.
• Mental health detention(5150) reports No Welf. & Inst. Code, § 5328. For additional information, see p. 39 of the Guide.
• Names of officers involved in critical
incidents
Yes, absent unique, individual
circumstances
Pasadena Peace Officers Ass’n v Superior Court (2015) 240 Cal.App.4th 268; Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59; 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; 91 Ops. Cal.Atty.Gen. 11 (2008). 72 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT

FREQUENTLY REQUESTED INFORMATION AND RECORDS

INFORMATION/RECORDS

REQUESTED

MUST THE INFORMATION/

RECORD GENERALLY BE
DISCLOSED?

APPLICABLE AUTHORITY
POLICE/LAW ENFORCEMENT, Continued
• Official service photographs of peace
officers
Yes, unless disclosure would pose
an unreasonable risk of harm to
the officer
Ibarra v. Superior Court (2013) 217 Cal.App.4th 695.
• Peace officer’s name, employing
agency and employment dates
Yes, absent unique, individual
circumstances
Commission on Peace Officer Standards and Training v.

Superior Court (2007) 42 Cal.4th 278.
• Traffic accident reports Yes, in their entirety, but only to certain parties
Veh. Code, §§ 16005, 20012 [only disclose to those needing the information, such as insurance companies, and the
individuals involved].

PUBLIC CONTRACTS
• Bid Proposals, RFP proposals Yes, except competitive
proposals may be withheld until
negotiations are complete to
avoid prejudicing the public
Michaelis v. Superior Court (2006) 38 Cal. 4th 1065; but see Gov. Code, § 6255 and Evid. Code, § 1060. For additional information, see p. 50 of the Guide.
• Certified payroll records Yes, but records must be
redacted to protect employee
names, addresses, and social
security number from disclosure
Labor Code, § 1776.
• Financial information submitted
for bids
Yes, except some corporate
financial information may be
protected
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. 51 of the Guide.
• Trade secrets No Evid. Code, § 1060; Civ. Code, § 3426, et seq. For additional information, see p. 52 of the Guide.

PURCHASE PRICE OF REAL PROPERTY Yes, after the agency acquires the property
Gov. Code, § 7275.

REAL ESTATE For additional information, see p. 51 of the Guide. • Property information (such as selling
assessed value, square footage,
number of rooms)
Yes 88 Ops.Cal.Atty.Gen. 153 (2005).
• Appraisals and offers to purchase Yes, but only after conclusion of the property acquisition
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. 44 of the Guide.

SOCIAL SECURITY NUMBERS No Gov. Code § 6254.29.
73 LEAGUE OF CALIFORNIA CITIES: CALIFORNIA PUBLIC RECORDS ACT

INFORMATION/RECORDS

REQUESTED

MUST THE INFORMATION/

RECORD GENERALLY BE
DISCLOSED?

APPLICABLE AUTHORITY
SPEAKER CARDS Yes Gov. Code, § 6255.

TAX RETURN INFORMATION No Gov. Code, § 6254(k); Internal Revenue Code, § 6103.

TAXPAYER INFORMATION RECEIVED IN

CONNECTION WITH COLLECTION OF

LOCAL TAXES
No Gov. Code, § 6254(i). For additional information, see p. 52 of the Guide.

TEACHER TEST SCORES, IDENTIFIED BY
NAME, SHOWING TEACHERS’ EFFECT
ON STUDENTS’ STANDARDIZED TEST

PERFORMANCE
No Gov. Code, § 6255; Los Angeles Unified School Dist. v.

Superior Court (2014) 228 Cal.App.4th 222.

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.

UTILITY USAGE DATA No, with certain exceptions. Gov. Code, § 6254.16. For additional information, see p. 54 of the Guide.

VOTER INFORMATION No Gov. Code, § 6254.4. For additional information, see p. 34 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.
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.

Revised April 2017

EXHIBIT 3

Design Review Committee Charter

Oct. 19, 2021
Item #7 Page 21 of 47
EXHIBIT 1-ATTAC HMENT B
The Village & Barrio Master Plan Objective
Design Standards for Multifamily Housing and
Mixed-use Development Project
Design Review Committee
Charter
C cityof
Carlsbad
October 2021
Community Development Department
Planning Division
Oct. 19, 2021
Item #7 Page 22 of 47
Table of Contents
( City of
Carlsbad
lntroduct ion .................................................................................................................................. ............ ..... 3 Mission Statement .................................................................. ...................................................................... 3 Principles of Participation .......................................................................................................................... ... 3 Representation and Appointment ................................................................................................................ 4 Discussion Process ............................................................................ ............................................................. 4 Role of Chair and Vice-chair ............................................................................................................. ............. 5 Meeting Schedule ............................... ................................................................... ........................................ 5 Meeting Attendance ........................................................ ............................................................................. 5 Meeting Quorum .............................................................................................................................. ............. 6 Open Meeting Requirements .................................. ...................................................................................... 6 Meeting Agendas ............................................................................... ........................................................... 6 External Communications .......................................................................................................................... ... 6 Information Sharing ...................................................................................................................................... 7 Work Products ............................................................................... ................................................................ 7 Design Review Committee Charter Page 2 of 8
Oct. 19, 2021
Item #7 Page 23 of 47
{ City of
Carlsbad
Introduction
The Village and Barrio Master Plan objective design standards for multifamily housing and mixed-use development project is an approximately 20-month community outreach process, the purpose of which is to expedite the planning permitting process by replacing existing Village and Barrio Master Plan subjective design standards for multifamily housing and mixed-use development projects with objective design standards and creating a potential new palette of architectural design styles, consistent with the Village and Barrio's small beach-town community character.

Mission Statement
The mission of the Design Review Committee (DRC) is to participate in and provide guidance in developing new objective design standards for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area. The DRC must also review and provide guidance on a potential new palette of architectural design styles for multifamily housing and mixed-use development projects.

Principles of Participation
Role of Design Review Committee Members
To achieve the mission of the DRC, the City Council is asking members to constructively provide input into the development of the new objective design guidelines for achieving the following:
• Become familiar with state housing law and housing needs, constraints, and opportunities in the state, regional, and local context • Become familiar with the Village and Barrio Master Plan's existing design standards/guidelines related to multifamily residential development and mixed-use development projects
• Become familiar with the historic background of the Village and Barrio Master Plan area • Become familiar with the existing historic structures within the Village and Barrio neighborhoods
• Attend a minimum of three (3) meetings over an approximately one-year period • Adhere to the project schedule and respond to established deadlines • Keep interested commun ity members informed of the progress of the project • Encourage community participation throughout the development of the objective design standards
• Listen to and respect diversity in perspectives, facts and opinions • Provide constructive feedback to city staff and consultants on works in progress at key points during the development of the project
D~sign Review Committee Charter Page 3 of8
Oct. 19, 2021
Item #7 Page 24 of 47
( Cityof
Carlsbad
• In decision-making, balance individual and group stakeholder goals with the larger public interest and legal requirements
• Work collaboratively with other DRC members in reaching decisions and making recommendations to the City Council
Representation and Appointment
The committee will be composed of a total of nine members as follows:
• One Planning Commissioner
• One Historic Preservation Comm issioner
• Two Village resident representative
• Two Barrio resident representative
• Two professionals with expertise designing and/or developing multifamily housing/mixed-use development in the City of Carlsbad; preferably in the Village and Barrio Master Plan area.
• One Village or Barrio Business Owner representative
Each respective commiss ion will nominate a commissioner to serve as a member of the DRC.

The Planning Commission and Historic Preservation Comm ission will nominate one commissioner each. The nominated commissioner must have at least 18 months remaining on his or her term at the time of appointment . The Mayor/Mayor Pro Tern will consider and confirm the recommended nominations.

The City Council Member for District 1 will recommend the four residents and business owner.

The Mayor/Mayor Pro Tern will recommend the two profess ionals. The full City Council will make the final decision on all non-commiss ioner appointment recommendations.

Discussion Process
. During DRC meetings, committee members agree to abide by the following discussion process:
• The committee will select a Chair and Vice-chair
• The committee will establish ground rules for how members should conduct themselves during meetings
• The preferred decision-making process is collaborative problem-solv ing • Consensus of the DRC will take precedence over individual preferences • In cases of non-consensus, the Chair may call for majority vote of the committee; however, alternative perspectives will be documented
• Planning staff and the project consultant will be present at all meetings to assist in the facilitation of meet ing discussion with the Chair and committee as needed Design Review Committee Charter Page 4 of 8
Oct. 19, 2021
Item #7 Page 25 of 47
Role of Chair and Vice-chair
( City of
Carlsbad
The Chair will ensure that the DRC meetings are conducted fairly and efficiently, that proper order and mutual respect among all participants is maintained, that there is full participation during meetings, that all relevant matters are discussed, that all committee members have an opportunity to participate in committee discussions, and that necessary decisions are made. To the extent reasonable, the Chair will seek consensus of the committee in decision- making. In instances where consensus cannot be reached, the Chair may call for majority vote of the committee following procedures set forth in Carlsbad Municipal Code Chapter 1.20. However, the Chair will ensure that minority viewpoints are heard and documented.

The Chair will ensure that Principles of Participation and agreed-upon "ground rules" are adhered to.

The Chair is responsible for ensuring that members of the public desiring to address the committee can do so at the appropriate time.

The Chair may speak to members of the media on behalf of the DRC, and represent the committee at public workshops, hearings and other public events as appropriate.

The role of the Vice-chair is to serve as the Chair in the Chair's absence.

Meeting Schedule
DRC members are expected to make an approximate one-year commitment. The DRC will be formed soon after the City Council appointments are made and will have its first meeting approximately in December 2021/January 2022. The DRC will meet two additional times to review an administrative draft and public draft of the proposed objective design standards including a potential new palette of architectural design styles for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area. It is anticipated the DRC will conclude its work by approximately November 2022, however, the committee chair or committee member(s) so authorized may wish to continue project involvement by representing the DRC during public hearings on the Village and Barrio Master Plan Amendment to incorporate Objective Design Standards for multifamily housing and mixed­ use development projects in early/mid 2023.

Meeting Attendance
Full participation of committee members is essential to the effectiveness of the DRC, and members are expected to attend all DRC meetings. If a committee member is unable to attend a meeting, that person shall notify city staff as soon as possible.

Design Review Committee Charter Page 5 of8
Oct. 19, 2021
Item #7 Page 26 of 47
{ City of
Carlsbad
If a committee member resigns their appointment before the committee's work has concluded, that person shall notify the Mayor/Mayor Pro Tern and City Council in writing, with copies sent to the City Clerk, City Manager and the objective design standards project manager. At their next scheduled meeting, the DRC will consider whether to recommend that the Mayor/Mayor Pro Tern and City Council fill the vacated position.

Meeting Quorum
For meeting purposes, a quorum of the DRC is met with five members in attendance.

Open Meeting Requirements
All DRC meetings and committee members are subject to the open meeting requirements of the Ralph M. Brown Act (Brown Act). The Brown Act imposes public notice and access requirements on committee meetings, and places certain limitations on when and how committee members may communicate with one another. At the first DRC meeting, committee members will be given a briefing by the City Attorney's Office about the basic requirements of the Brown Act.

In addition to meeting as a committee approximately three times within a 11 to 12-month timeframe, committee members are encouraged to attend other activities scheduled for the benefit of the public, such as public hearings or other potential committee/commission workshops. Member attendance at these activities also may be subject to the Brown Act.

Meet ing Agendas
City staff will prepare meeting agendas and supporting materials in consultation with the Chair or a majority of the DRC following the procedures of the Brown Act. At the end of each meeting, the Chair and city staff will summarize: 1) the committee's recommendations for the Village and Barrio Master Plan's objective design standards and potential palette of architectural styles for multifamily housing and mixed-use development projects; 2) any additional research on items as determined by the committee; and 3) new items suggested for discussion at future meetings. Agendas for future meetings will be established by consensus of the DRC with concurrence of the Chair and city staff.

Members of the public have a right to attend DRC meetings and will have an opportunity to address the committee on any issues under its purview. Agendas will include time for public comment.

External Commun ications
The overriding consideration in all communications is to honor and sustain the constructive, collaborative process of the committee. DRC members are encouraged to communicate with Design Review Committee Charter Page 6 of 8
Oct. 19, 2021
Item #7 Page 27 of 47
( City of
Carlsbad
their constituencies to keep them informed of the objective design standards for the Village and Barrio Master Plan area and to encourage direct participation.

Should committee members speak to the media, members shall provide accurate information to inform the public about the project, but are asked to refrain from engaging in speculation, advocating a position on a specific issue/topic, speaking on behalf of the DRC ( except for the Chair or unless authorized by the committee to do so), or otherwise making public statements that would tend to hamper construct ive committee discussions.

Committee members are asked to notify city staff of any media contact related to the committee and its work. City staff will be available to assist in any communications to the media, if desired.

Informat ion Sharing
To ensure all DRC members have the same information available to them, all documents will be distributed thro ugh city staff. If a member has information, they would like to share with other committee members, the information should be given to staff for distribution to the entire committee. Maintaining this flow of informat ion will facilitate a respectful, collaborative process, and help avoid unintended violations of open meeting laws (e.g., serial meetings).

Work Products
In addition to its role as representatives of and conduits to community stakeholders, the DRC will be responsible for reviewing and providing guidance on draft work products, specifically on objective design standards including a potential palette of architectura l styles for developers to choose from when developing multifami ly and/or mixed-use development projects in the Village and/or Barrio. The DRC is not responsib le for reviewing the permit streamlining process update that is being proposed as part of the project. As previously requested by City Council, the DRC is charged with reviewing only the objective design standards including a new palette of architectural design styles.

The primary purpose of the DRC in review ing the work products is to ensure that the objective design standards accurately replaces all subjective design standards.

The draft work products that the DRC will likely review include but are not limited to:
• Staff, consultant, and subject matter expert reports and presentations on objective design standards, sample architectural design styles, and other relevant documents related to the development of multifam ily housing and mixed-use development projects;
Design Review Committee Charter Page 7 of 8
Oct. 19, 2021
Item #7 Page 28 of 47
( City of
Carlsbad
• Sites analysis related to existing historic structures within the Village and Barrio Master Plan area;
• Recommendation on draft objective design standards including a potential new palette of architectural styles to choose from; and
• Meeting minutes
Design Review Committee Charter Page 8 of 8

EXHIBIT 4

City Council Resolution 2021-241, adopting
the Design Review Committee Charter

Oct. 19, 2021
Item #7 Page 6 of 47
RESOLUTION NO. 2021-241

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH AVRP STUDIOS, INC.

TO PREPARE OBJECTIVE DESIGN STANDARDS AND PROCEDURES TO STREAMLINE

THE PERMITTING PROCESS FOR MULTIFAMILY HOUSING AND MIXED-USE

DEVELOPMENT PROJECTS WITHIN THE VILLAGE AND BARRIO MASTER PLAN

AREA, APPROVING A CHARTER FOR A DESIGN REVIEW COMMITTEE TO REVIEW

AND PROVIDE RECOMMENDATIONS ON THE DRAFT OBJECTIVE DESIGN STANDARDS; AND APPROPRIATING GRANT FUNDING OF $160,000 TO THE GENERAL FUND TO IMPLEMENT THE PROJECT IN FISCAL YEAR 2021-2022 EXHIBIT 1
WHEREAS, the City Council on Jan. 19, 2021, authorized application for, and receipt of, Local Early Action Planning grant program funds from the California Department of Housing and Community Development; and
WHEREAS, the City of Carlsbad was awarded a LEAP grant in the amount of $500,000, of which $120,000 was awarded to prepare the city's permit-ready accessory dwelling unit program, $220,000 was awarde d to assist the city with its Housing Element update, and $160,000 was awarded to prepare objective design standards and a streamlined permitting process for multifamily housing and mixed­ use development projects with in the Village and Barrio Master Plan area; and WHEREAS, staff issued a request for proposals in compliance with Carlsbad Municipal Code Section 3.28.060(D), to obtain professional services to prepare objective design standards and procedures to streamline the permitting process for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area; and WHEREAS, after review of the three proposals submitted in response to the request for proposa ls, staff recommends AVRP Studios, Inc. as the most qualified consultant for the project; and WHEREAS, city staff and AVRP Studios, Inc. negotiated a scope of work and schedule with an associated fee for an amount not to exceed $160,000, which is to be fully funded by the LEAP grant; and
WHEREAS, the consultant costs to complete the scope of work will be paid by the City of Carlsbad and the city will be reimbursed through the LEAP grant funds program; and WHEREAS, the proposed professional services agreement with AVRP Studios, Inc., including the scope of work, fee, and schedule, is provided as Attachment A; and Oct. 19, 2021
Item #7 Page 7 of 47
WHEREAS, on Dec. 10, 2019, City Council directed staff to return to City Council on the formation of an ad-hoc design review committee to work with the consultant (AVRP Studios, Inc.) on developing objective design standards including a potential palette of architectural design styles for the Village and Barrio Master Plan area; and
WHEREAS, committee members will voluntarily serve for approximately one year as described in the design review committee charter and will review objective design standards including a new palette of architectural design styles for multifamily housing and mixed-use development projects in the Village and Barrio Master Plan area; and
WHEREAS, the proposed design review committee charter, which includes a mission statement, principles of participation, member roles, and meeting requirements, is provided as Attachment B; and WHEREAS, the City Planner determined on October 1, 2021, the Professional Services Agreement with AVRP Studios, Inc. is an activity that is not a project as defined by the California Environmental Quality Act Section 21065 and State CEQA Guidelines Section 15378(b)(4), because the activity involves execution of a contract which, on its own accord, will not cause significant environmental impact. As such, this activity is not subject to CEQA pursuant to Section 15060(c)(3) .

This determination is predicated on Section 15004 of the guidelines, which provide direction to lead agencies on the appropriate timing for environmental review; and WHEREAS, the City Planner determined on October 1, 2021, the design review committee charter is an activity that is exempt from the requirements of the California Environmental Quality Act {CEQA) in accordance with CEQA Guidelines Section 15378(b)(S), in that initiating enabling legislation for the design review committee does not meet CEQA's definition of a "project," because the action constitutes organizational or administrative activities of government that will not result in direct or indirect physical changes in the environment.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:

1. 2.

That the above recitations are true and correct.

That the City Manager is authorized and directed to execute the professional services agreement with AVRP Studios, Inc. (Attachment A), to assist in the preparation of objective design standards, including a new palette of architectural design styles, and Oct. 19, 2021
Item #7 Page 8 of 47
procedures to streamline the permitting process for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area.

3. That the City Manager is authorized to execute the City of Carlsbad Local Early Action Planning Grants Program application, the LEAP grant documents, and any amendments to the documents, on behalf of the City of Carlsbad as required by the California State Department of Housing and Community Development for receipt of the Local Early LEAP grant funds.

4. That the Deputy City Manager, Administrative Services is authorized to appropriate $160,000 in funding to the General Fund to be reimbursed by LEAP grant funds.

5. That the City Council approves a charter for a design review committee to review objective design standards, including a potential new palette of architectural design styles, for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area (Attachment B).

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 19th day of October 2021, by the following vote, to wit:

AYES:

NAYS:

ABSENT:

Blackburn, Bhat-Patel, Acosta, Norby.

None.

Hall.
lerk Services Manager
CA Review ______

Meeting Date: April 25, 2022

To: Design Review Committee

From: Shelley Glennon, Associate Planner

Staff Contact: Shelley Glennon, Associate Planner
[email protected] or 442-339-2600

Subject: Committee Business

Recommended Action
Receive presentations from city staff and consultants on the following topics:
• Committee Ground Rules Development – The Committee will work together to establish ground rules for how the wish group members conduct themselves during meetings
• Committee Chair and Vice Chair Election – The Committee will receive information on the roles and responsibilities of the Committee Chair and Vice Chair and elect a Chair and Vice Chair
• Village and Barrio Objective Design Standards Project – Receive information on the Village and Barrio Objective Design Standards Project and project schedule • Self-Guided Walking Tour – Receive information for a self-guided walking tour

Environmental Evaluation
In keeping with California Public Resources Code Section 21065, this action does not constitute a “project” within the meaning of the California Environmental Quality Act in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. Therefore, it does not require environmental review.

Public Notification and Outreach
This item was noticed in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date.

Exhibits

1. Ground Rules Examples

2. Village and Barrio Objective Design Standards Background Information

3. Tentative Project Schedule

4. Self-Guided Walking Tour Handout

DESIGN REVIEW COMMITTEE

Ground Rules Examples

Chair & Vice Chair (when the Chair is absent)

• The Chair/Vice-chair must adhere to the “Role of Chair and Vice-chair” as outlined in the Design Review Committee Charter

• The Chair is to conduct the meeting(s) in a logical and legal manner, making sure that all sides of the matter are fairly heard, and that anyone wishing to provide testimony on the matter has an opportunity to do so.

• The Chair is to keep the meeting(s) “on-target” and should the meeting begin to go off in various directions, bring it back in focus. Take a recess if the meeting appears to be going side-ways. This allows time for staff to discuss whatever the issues may be and attempt to respond to the Committee’s concerns.

• The Chair will follow the Robert’s Rules of Order (i.e., Call the meeting to order, introduce each Agenda Item and Adjourn the meeting)

All Committee Members
• All committee members must follow the Principles of Participation and all other applicable meeting guidelines provided in the Design Review Charter (see Pages 4-8)

• Comments of both the Committee and the public will be recorded therefore Committee members are encouraged to leave their microphones ON all the time; this way, their mic is on and ready for use when they begin to speak. This will be particularly important since the meetings are televised and live streamed online.

• Follow the Robert’s Rules of Order (Provides a motion, a second motion, all members vote, items can be passed via a majority vote and when there is a quorum).

HOW TYPICAL MOTIONS ARE MADE
Minutes
For the minutes , one committee member can state, “I move approval of the minutes dated [state date ],” or “I move approval of the minutes dated [state date] as amended…”

Committee Business
If a committee member agrees with staff’s recommendation, they can state , “I move [read the Recommendation portion of the staff report].” If a committee member proposes an amendment, they can state, “I move [read the recommendation portion AND THEN the amendment].”
Village and Barrio Objective Design Standards Project Background WHAT IS THE CITY DOING?
In response to new state legislation, the city is modifying existing subjective development standards and guidelines related to site planning and building design for all new multifamily (condos and apartments) and mixed-use projects (multifamily and non-residential uses in the same development).

The city is creating objective design standards through two separate but concurrent efforts:
1) Village & Barrio Objective Design Standards for multifamily and mixed-use projects within the Village and Barrio Master Plan area; and
2) Citywide Objective Design Standards for future multifamily and mixed-use projects outside the Village and Barrio Master Plan area; and

The City Council voted to separate the two objective design standards projects so that Carlsbad’s two oldest neighborhoods (the Village and Barrio) can receive focused attention. The Village and Barrio project includes a Design Review Committee and the development of a palette of architectural styles, whereas the citywide project does not include a committee or development of architectural styles.

WHY IS THE PROJECT HAPPENING NOW?
Creating objective standards and a streamlined permitting process for multifamily and mixed- use projects is necessary to comply with state laws, specifically, CA Senate Bill 330 (SB-330) commonly referred to as the Housing Crisis Act of 2019 and CA Senate Bill 35 (SB-35) commonly referred to as the Housing Accountability Act. Both laws require that, if the criteria of state law are met, multifamily housing and mixed-use projects be subject only to objective design standards. Development standards that are subject to interpretation and subjective in nature cannot be applied to the project. SB-35 also requires a streamlined ministerial review process for certain multifamily housing projects1. The streamlined review process does not allow public hearings and must be ministerial.

HOW IS THE PROJECT FUNDED?
In 2021, the city was awarded a Local Early Action Planning (LEAP) grant from the state in the amount of $500,000, of which $160,000 was awarded to prepare objective design standards and a streamlined permitting process for multifamily housing and mixed-use development projects within the Village and Barrio Master Plan area. The remaining portions of that grant fund other programs.

Citizens Design Review Committee Background
WHY WAS THE COMMITTEE FORMED AND WHAT IS ITS MISSION?
In Dec. 10, 2019, the City Council passed a minute motion to form an ad hoc design review committee to help develop new objective design standards for the Village and Barrio Master Plan area including a new palette of architectural styles.

1 https://www.carlsbadca.gov/home/showpublisheddocument/8423/637725752020200000

On Oct. 19, 2021, the City Council approved a charter and mission for the design review committee. The committee’s mission is to assist the city in developing new Village and Barrio objective design standards, per state law, and a new palette of architectural styles. The committee is not responsible for reviewing the permit streamlining process update that is being developed separately.

Implementing the Village and Barrio Objective Design Standards Project WHAT WILL THE VILLAGE & BARRIO OBJECTIVE DESIGN STANDARDS APPLY TO? • All new multifamily housing projects (condominiums and apartments) within the Village and Barrio Master Plan area
• All new mixed-use projects (residential and non-residential uses in the same project) within the Village and Barrio Master Plan area

WHAT DOES THIS PROJECT DO (AND NOT DO) TO THE VILLAGE AND BARRIO MASTER PLAN? • The Village and Barrio Master Plan contains development standards that regulate building height, setbacks, density/intensity, and various other development controls that are already objective in their application.
o The new objective design standards will not replace existing objective development standards found within the Village and Barrio Master Plan. o Existing objective development controls for height, setbacks, density/intensity, etc. will not change.
• The objective design standards recommended by the committee will guide a future amendment of the master plan to modify existing subjective design guidelines and standards.
• The new objective design standards will provide clear and measurable criteria that will then provide clear and specific direction for project design. • The objective design standards will also include a new palette of architectural design styles for new multifamily residential homes and mixed-use development projects.

WILL OBJECTIVE DESIGN STANDARDS ELIMINATE DESIGN REVIEW FOR MULTIFAMILY HOUSING AND MIXED-USE DEVELOPMENT PROJECTS?
The city will continue to evaluate development projects for conformance with city standards; however, the design review process will be limited to determining conformance with objective standards (not subjective guidelines that require discretionary review).

CAN WE STILL APPLY EXISTING VILLAGE & BARRIO DESIGN GUIDELINES? Existing design guidelines will continue to be used for certain projects, such as:
• Projects not subject to SB 35/SB 330 streamlining (i.e. single-family housing as well a commercial and industrial projects that aren’t part of a mixed-use project with residential units.)
• Other projects subject to discretionary review

SUBJECTIVE DESIGN GUILDEINES VS OBJECTIVE DESIGN STANDARDS Below is a comparison of subjective design guidelines and objective design standards:

• SUBJECTIVE DESIGN GUIDELINES
o Provides design preferences and flexibility when implementing development standards/guidelines
o Provides ambiguous and unmeasurable direction for when and how to apply development requirements.
o Involves personal judgement by a public official or decision maker in the application of development requirements.

• OBJECTIVE STANDARDS
o Provides measurable and predictable direction for when and how to apply development requirements.
o Utilizes photographs and graphics, where needed, to clarify standards. o Involves no personal judgment by a public official or decision maker.

Example of subjective design guidelines are provided below:

Example of an objective design standards graphic is provided below:

Figure 1- Objective Design Standard Graphic
Cities without sufficient objective design standards (ODS) in place, can create design outcomes for multifamily housing (MFH) projects that are minimal/one-size-fits-all and not reflective of high quality design, whereas cities with sufficient objective design standards in place can create design outcomes that are more predictable and that deliver high quality design.

Figure 2- MFH implemented with minimal ODS

Figure 3- MFH implemented with sufficient ODS

OBJECTIVE DESIGN STANDARDS PROJECT TIMELINE
• The city anticipates the project will
be completed by Summer 2023.

• The next two Design Review
Committee meetings are
tentatively scheduled for
November 2022 and February 2023.

NOTE: Specific dates will be
announced at least one month prior
to meeting and will be dependent
on when draft documents are
available for the Committee to
review.

Self-Guided Walking Tour
Village and Barrio Master Plan
Objective Design Standards (ODS) and
Streamlined Permit Processing Project
April 25, 2022

1.1. WWalking Talking Tour Loopour Loop
(10 minute walk)
From the Village’s Grand
Avenue to Oak Avenue
along State Street and the
Barrio’s Madison Street to
Pine Avenue to Harding
Street and back to Grand
Avenue.
1 2
2 3
3 4 4 5
5 6
6 1

2.2. Let Us KnoLet Us Knoww
OvOvererall Fall Feelings about theeelings about the
Building Design?Building Design?
Do yDo you Likou Like thise this
ArArchitchitecturectural Styal Style?le?
SpecificallSpecificallyy, Lik, Like/Dislike/Dislike?e?
[Please RPlease reply to
[email protected]
Council Chamber
1200 Carlsbad Village Drive
Carlsbad, CA 92008

DESIGN REVIEW COMMITTEE
August 22, 2022, 3 p.m.

W
elcome to the Design Review Committee Meeting
We welcome your interest and involvement in the city’s legislative process. This agenda includes information about topics coming before the Design Review Committee and the action recommended by city staff. You can read about each topic in the staff reports, which are available on the city website.

How to watch
In Person Online
Design Review Committee Meetings take place at
City Hall, 1200 Carlsbad Village Drive
Watch the livestream and replay past
meetings on the city website,
carlsbadca.gov/residents/communication/city-
tv-channel
H
ow to participate
If you would like to provide comments to the Design Review Committee, please:
• Fill out a speaker request form, located in the foyer. • Submit the form to the Committee Secretary before the item begins. • When it’s your turn, the Committee Secretary will call your name and invite you to the podium. • Speakers have three minutes, unless the presiding officer (usually the chair) changes that time. • You may not give your time to another person, but groups can select a single speaker as long as three o
ther members of your group are present. Group representatives have 10 minutes unless that time is changed by the presiding officer or the commission.
• In writing: Email comments to [email protected] Comments received by 1 p.m. the day of the meeting will be shared with the commission prior to the meeting. When e-mailing comments, please identify in the subject line the agenda item to which your comments relate. All comments received will be included as part of the official record. Written comments will not be read out loud.

Reasonable accommodations
Persons with a disability may request an agenda packet in appropriate alternative formats as require by the Americans with Disabilities Act of 1990. Reasonable accommodations and auxiliary aids will be provided to effectively allow participation in the meeting. Please contact the City Manager’s Office at 760-434-2821 (voice), 711 (free relay service for TTY users), 760-720-9461 (fax) or [email protected] by noon on the Thursday before the meeting to make arrangements.

Attachment F

CALL TO ORDER:

ROLL CALL:

APPROVAL OF MINUTES:

PUBLIC COMMENT:

The Brown Act allows any member of the public to comment on items not on the agenda. Please treat others with courtesy, civility, and respect. In conformance with the Brown Act, public comment is provided so members of the public may participate in the meeting by submitting comments as provided on the front page of this agenda. The Design Review Committee will receive comments at the beginning of the meeting.

In conformance with the Brown Act, no action can occur on these items.

DISCUSSION ITEMS:

1. COMMITTEE BUSINESS: Collaborate and discuss the following topics:

a. Village & Barrio Objective Design Standards Project Status Staff will update the committee on the project status
b. Design Elements, Architectural Styles and Streamlined Review Process Presentation The committee will receive a presentation on architectural styles, design elements and a brief overview of a streamlined review process.
c. Public Input Results
The committee will receive a public input report summarizing community feedback received on different architectural styles, which was gathered through a workshop and online survey in July 2022.
d. Design Review Committee Self-Guided Walking Tour Comments The committee will receive an overview of the committee’s comments on the self-guided walking tour.
e. Project Implementation Overview and Next Steps
Staff will provide information on implementing the new standards and streamlined review process, and what the next steps are.
(Staff Contact: Shelley Glennon, Community Development Dept. Planning Division)