B. Balanced Budget
The City will strive to maintain a balanced budget over the Five -Year Financial Forecast, by meeting the following targets:.
1. Operating revenues must fully cover operating expenditures;
2. Ending fund balance must meet minimum policy levels. For the General Fund, this level has been established at 20% of operating expenditures for economic uncertainties and to support the City's credit worthiness, cash flow, and response to local disasters.
C. Five -Year Financial Forecast
The City will prepare a five-year financial forecast bi-annually to assist in long range planning and policy development. The five-year forecast provides a tool to evaluate the ability of the City to fund proposed programs, operating and maintenance costs, capital expenditures, as well as operating costs related to future capital improvement projects.
1. Revenues are projected using a realistic approach, and are based on historical trends, stable residential development projections, internal analysis, and commercial growth that incorporates known development projects. Separate sets of assumptions are developed for major revenue types such as sales tax, property tax, community development fees, transient occupancy taxes, and investment income;
2. Departmental expenditure projections are developed using anticipated cost of living increases for general administrative operating costs. Additional assumptions are incorporated for major expenditure categories such as public safety to ensure that commercial and residential growth projections are addressed to main current service levels.
The five-year capital improvement program is reviewed with the annual operating budget, and maintenance costs of each proposed project are identified and included in the forecast;
3. The five-year forecast indicates whether projected revenue growth will support anticipated expenditures for current levels of service. However, as the City continues to grow, it is important to ensure that it can meet increasing demands and be in a position to respond to possible changes in economic conditions. The five-year forecast is a dynamic tool that requires bi-annual update and review of its underlying assumptions to keep the City in a position of strong fiscal condition.
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D. Capital Improvement Program (CIP)
1. CIP Purpose - The purpose of the Capital Improvement Program (CIP) budget document is to serve as a planning tool, which coordinates the level ranking, financing, and scheduling of major projects undertaken by the City. All projects presented in the five-year CIP budget are carefully programmed to ensure the community's capital improvement needs are met both now and in the future. In addition, the projects provide additional opportunities and access to the City and improve the overall quality of life as identified in the Quality of Life Master Plan (QLMP).
This document is dynamic and must be revised annually to address changing needs, level rankings, and financial conditions. The City's goal in providing a CIP Budget is to develop a multi -year plan for capital improvements, update it annually, and follow through with all capital improvements in accordance with the plan. It also allows staff to budget operating and maintenance costs into the five-year projection in order to determine the total cost of each project before it is undertaken.
2. CIP Development - This CIP budget document is developed by incorporating input from City Council and key management team members, based on community comments and feedback received throughout the year. This team then, through several workshops, identifies and evaluates community needs in the areas of roads/streets, bridges, public buildings, parks and recreation facilities, and affordable housing projects. Each proposed project is reviewed and discussed to ensure funding, timing, and necessity. The budget workshop is held annually to provide the City Council with an opportunity to review each project in detail, and to receive public comments concerning the five-year program.
3. CIP Proiects: $30,000 or More - The capital improvements presented in the budget are the City's major projects, which exceed $30,000 in cost, have long-term life spans, and are generally non -recurring. These projects include land and right of way acquisition, design, construction or rehabilitation of public buildings or facilities, public infrastructure design and construction, park design and construction, and affordable housing projects.
4. Project Manager - Every CIP project will have a project manager who will prepare the project proposal, ensure that required phases are completed on schedule, authorize all project expenditures, ensure that all regulations and laws are observed, and periodically report project status.
5. Project Benefit - Projects must identify a benefit and reference a Core Value (QLMP) goal.
6. CIP Review Committee - In determining the relative merit of a proposed project, key management team members evaluate projects for feasibility, community enhancement, infrastructure and historic preservation, and safety.
7. CIP Levels - Projects in the CIP are scheduled in each of five fiscal years based on community needs, as determined by the City Council and availability of funding. Level rankings in each major category (Circulation, Infrastructure/Other, Parks and Recreation, Affordable Housing, and Projects Funded By Community Facilities Districts) are assigned in accordance with the following guidelines:
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a. LEVEL I: The project is urgent and must be completed as soon as feasible. Failure to address the project may impact the health, safety, or welfare of the community or have a potential significant impact on the financial well-being of the City. The project must be initiated, or financial opportunity losses may result. b. LEVEL II: The project is important and addressing it is necessary. The project impacts safety, law enforcement, health, welfare, economic base, quality of life, and has been identified as a priority in the Quality of Life Master Plan.
C. LEVEL III: The project will enhance quality of life and will provide a benefit to the community. Completion of the project will improve the community by providing cultural, recreational, and/or aesthetic value, or is deemed as a necessary improvement to a public facility.
d. Future Years Projects: The project will be an improvement to the community but does not necessarily need to be completed within a five-year capital improvement program time frame.
8. CIP Administrative Costs - The administrative costs associated with managing CIP projects are estimated (generally as five to ten percent of estimated construction costs) and included in each project budget.
9. CIP Operations and Maintenance (O & M) - Future operations and maintenance costs that result from CIP projects are estimated and identified in the CIP project sheets. These incremental future operating costs are incorporated into the five-year forecast.
10. CIP Phases - The CIP will emphasize project planning, with projects progressing through at least two and up to ten of the following phases:
a. Designate (Assigned). Appropriates funds based on projects designated for funding by the Council through adoption of the Capital Improvement Program budget. b. Study. Concept design, site selection, feasibility analysis, schematic design, environmental determination, property appraisals, scheduling, grant application, grant approval, specification preparation for equipment purchases.
C. Environmental Review. Compliance with CEQA, NEPA and other environmental studies, if necessary.
d. Real Property Acquisitions. Property acquisition for projects, if necessary. e. Site Preparation. Demolition, hazardous materials abatements, other pre- construction work.
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Equipment Acquisitions. Vehicles, heavy machinery, computers, office furnishings, other equipment items acquired and installed independently from construction contracts.
11. CIP Appropriation - The City's annual CIP appropriation for study, design, acquisition and/or construction is based on the projects designated by the Council through adoption of the Capital Improvement Program budget. If project costs at the time of bid award are less than the budgeted amount, the balance will be unappropriated and returned to fund balance or allocated to another project. If project costs at the time of bid award are greater than budget amounts, five basic options are available:
a. Eliminate the project;
b. Defer the project for consideration to the next Capital Improvement Program budget period;
C. Rescope or change the phasing of the project to meet the existing budget; d. Transfer funding from another specified, lower -level ranking project. e. Appropriate additional resources as necessary from fund balance.
12. CIP Budget Carryover - Project accounts, which have been appropriated, will not lapse until completion of the project phase.
13. Program Obiectives - Project phases will be listed as objectives in the program narratives of the programs, which manage the projects.
14. General Plan Consistency Review - All projects are evaluated by the City's Planning Commission to ensure consistency with the provisions of the City of Temecula General Plan, while considering the City's long-term vision as developed by the City Council. The proposed capital projects are also reviewed by the Traffic Safety Commission, and the Parks and Recreation Commission.
II. Financial Reporting
A. Annual Reporting
The City will prepare annual financial statements as follows:
1. The City will contract for an annual audit by a qualified independent certified public accountant (or accounting firm). The City will strive for an unqualified auditors' opinion.
2. The City will use generally accepted accounting principles in preparing its annual financial statements and will strive to meet the requirements of the GFOA's Award for Excellence in Financial Reporting program.
3. The City will issue audited financial statements within 180 days after year-end.
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B. Interim Reporting
The City will prepare and issue timely interim reports on the City's fiscal status to the Council and staff. This includes online access to the City's financial management system by City staff; quarterly reports to the Council and Department Directors; and mid -year budget reviews.
C. Budget Amendments
The Council may amend or supplement the budget at any time after its adoption by majority vote of the Council members. The City Manager has the authority to make administrative adjustments to the budget as long as those changes will not have a significant policy impact nor affect budgeted year-end fund balances.
D. Extended Annual Reporting
The City will prepare extended annual reports as required by Federal and State requirements including, but not limited to:
1. State Controller Reports
2. Street Report
III. Fund Balance and Reserves
A. Fund Balance Policy
Fund balance represents the accumulation of actual revenues and other financing sources in excess of actual expenditures and other uses at year-end. In general terms, it represents the City's accumulated "savings" from year to year, as any fund balance realized at year-end is added to (or deducted from if expenditures exceeded revenues for that particular year) the previous year's fund balance. Fund balance is often referred to as "reserves." B. Reserve for Economic Uncertainty
The City will maintain a minimum fund balance of at least 20% of operating expenditures in the General Fund, in order to adequately provide resources in the event of an unexpected draw on City finances. Eligible uses of these reserve funds include:
• Expenditures due to local disasters/acts of nature
• Loss of major revenue source(s) due to financial hardship or economic downturn • State -imposed take of local revenue/mandated payments • Significant unanticipated expenditures
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C. Secondary Reserve for Contingencies
In addition to the Reserve for Economic Uncertainty, the City will strive to maintain an operating reserve within the General Fund in the amount of 5% of General Fund operating expenditures. Use of these reserve funds shall be limited to:
• Covering annual operating expenditures if revenue falls short of projections, creating an annual operating deficit.
• Making one-time investments in Capital infrastructure that will create long-term operational savings to the General Fund, leverage available grant funds, or provide funding for projects that will create an economic benefit to the City.
D. Future Capital Project Designations
The Council may designate specific fund balance levels for future development of capital projects that it has determined to be in the best long-term interests of the City.
E. Other Designations and Reserves
In addition to the designations noted above, fund balance levels will be sufficient to meet funding requirements for projects approved in prior years which are carried forward into the new year; debt service reserve requirements; reserves for encumbrances; and other reserves or designations required by contractual obligations, state law, or generally accepted accounting principles.
F. Fund Balance Components
This policy establishes the procedures for reporting unrestricted fund balance in the General Fund financial statements, as well as a fund balance expenditures hierarchy. Fund Balance commitments and assignments ensure that there will be adequate financial resources to protect the City against circumstances such as revenue shortfalls and unanticipated expenditures. The Policy also authorizes and directs the Director of Finance to prepare financial reports and categorize fund balance per Governmental Accounting Standards Board (GASB) Statement No. 54, Fund Balance Reporting and Governmental Fund Type Definitions.
There are five separate components of fund balance which identify the specific purposes for which amounts can be spent: (1) Non -expendable Fund Balance — inherently non -expendable; (2) Restricted Fund Balance — externally enforceable limitations on use; (3) Committed Fund Balance — self-imposed limitations on use; (4) Assigned Fund Balance— limitation resulting from intended use; (5) Unassigned Fund Balance —residual net resources.
1. Non -expendable Fund Balance - Amounts that cannot be spent because they are either (a) not in spendable form, such as prepaid items or inventories; or (b) legally required to be maintained intact, such as the principal portion of an endowment.
2. Restricted Fund Balance - Amounts for a specific purpose that are either (a) externally imposed by creditors (such as through debt covenants), grantors, contributors, other governments' regulations; or (b) imposed by law through constitutional provisions or enabling legislation.
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3. Committed Fund Balance - Amounts authorized for specific purposes by a government's highest level of decision -making authority (City Council). These committed amounts cannot be used for any other purpose unless the City Council removes or changes the specified use through the same formal action taken to establish the commitment. City Council action to commit fund balance needs to occur within the fiscal reporting period however, the amount can be determined subsequently. The City's committed fund balance includes a reserve for economic uncertainty. Amounts are committed to finance any significant unanticipated revenue shortfalls, negative State budget impacts or impacts from natural disasters or other catastrophic events.
4. Assigned Fund Balance - Amounts that are constrained for specific purposes but are neither restricted nor committed. For all governmental funds other than the General Fund, any remaining amounts not classified as non -expendable, restricted, or committed are considered assigned. For the General Fund, this policy delegates the authority to assign amounts to be used for specific purposes to the Director of Finance in consultation with the City Manager for the purpose of reporting these amounts in annual financial statements.
5. Unassigned Fund Balance - Residual net resources of the General Fund in excess of what can be classified in one of the other four categories.
G. Hierarchy of Spending Fund Balance
Restricted fund balance should be spent first when an expenditure is incurred for which both restricted and unrestricted fund balance is available. When an expenditure is incurred for purposes where amounts in any of the unrestricted classifications of fund balance could be used, committed amounts are to be spent first, followed by assigned amounts and then unassigned amounts.
H. Unassigned Fund Balance — General Fund
At the end of each fiscal year, the Finance Department will report on the audited year-end financial results. In the event that actual General Fund revenues exceed expenditures and encumbrances, a year-end operating surplus shall be reported. Any year-end operating surplus which exceeds the levels required by the reserve policies, noted above, will be deemed as Unassigned Fund Balance, and shall be appropriated for one-time (non -recurring) expenditures in accordance with the following guidelines, subject to City Council approval. Ongoing, or recurring expenditures, are not appropriate uses of available Unassigned Fund Balance.
1. Public Safety equipment or non -recurring programs
2. Asset Management reserves
3. Capital improvement projects
4. Reduction of unfunded liabilities related to CalPERS pension and Other Post -Employment Benefits (OPEB)
5. Reduction, or avoidance, of City deb
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IV. Transactions and Use Tax Funding (Measure S)
A. Measure S Revenue
Pursuant to Ordinance 16-06, on November 8, 2016, the people of Temecula approved a local 1% Transactions and Use Tax, effective on April 1, 2017, to maintain 9-1-1 emergency response times, prevent cuts to local paramedic, police, fire protection, school safety patrols, youth/after-school programs, senior services, disabled services, improve freeway interchanges, reduce traffic and provide for other general services.
B. Appropriation Priorities of Measure S Revenue
In accordance with the approved ballot language related to Measure S, maintaining public safety services is the City's top priority, followed by the appropriate maintenance and replacement of City assets to ensure long-term viability of City operations. As surplus funds are available, the City Council may allocate Measure S funding to capital projects identified in the Capital Improvement Program as well as any associated general services.
1. Public Safety
a. Within the Police Department, the City will strive to maintain a target staffing ratio of one sworn officer per 1,000 residents (1:1,000), as outlined in the City's General Plan.
Upon receiving Population Estimate from the California Department of Finance, in May of each year, the Police staffing ratio shall be evaluated, and if the ratio falls below 1:1,000, the City Council may allocate available Measure S resources to meet the target staffing ratio.
b. Desired Fire Department staffing levels include four persons perfire engine or fire truck (4-0 staffing). During the Annual Operating Budget process, the Fire staffing ratio shall be evaluated, and if the ratio falls below 4-0 staffing, the City Council may allocate available Measure S resources to meet the target staffing ratio.
2. Asset Management/Investment
In accordance with the Asset Management and Replacement Policy, noted in Section VII., the City strategically manages the life cycle and replacement of its assets; including capital infrastructure, City facilities and parks, fleet vehicles and equipment, and the City's technology and communication systems. Ensuring adequate reserves are set -aside for the future replacement of City -owned assets is critical to the long-term viability of the City's operations.
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The City's Street and road network serves as the capital infrastructure for public transportation in and around the City. A Pavement Management Study is designed to evaluate the current condition of the road network and establish a recommended level of investment necessary to properly maintain the condition of the street and road network. The City Council will strive to allocate an amount up to the recommended level of investment, as stated in the most recent Pavement Management Study, to the Capital Improvement Program — Pavement Rehabilitation Program, or other appropriate capital infrastructure projects designated for street and road network improvements.
The City Council will strive to allocate an amount to be deposited into each asset replacement fund, based on the results of the specific asset management plan conducted periodically for each grouping of asset types (i.e., facilities, parks, vehicles and technology).
3. Capital Improvement Projects
A Capital Improvement Project is defined as a major project, which exceeds $30,000 in cost, has a long-term life span, and is generally non -recurring. The City Council may allocate available Measure S resources to fund projects identified in the Capital Improvement Program.
4. General Services
Operations and maintenance costs associated with City programs, administration and general services to the public are considered eligible appropriations of Measure S resources, so long as the abovementioned priorities are considered first.
a. Operations and maintenance costs related to the addition of a new City facility, program or service funded by Measure S, shall have priority over existing City general services.
V. Contingency Planning
In response to adverse financial and economic conditions that could negatively impact the City's fiscal health, a Contingency Plan will provide for a measured response to potential fiscal challenges, as opposed to reactionary decision -making that could hinder the long-term financial solvency of the City.
In accordance with Budget Policies 111.E and III.C, the City will strive to maintain reserves in the amount of 25% of General Fund operating expenditures. Eligible uses of these reserve funds are outlined in the aforementioned policy; however this Contingency Plan will address the hierarchy of utilizing reserve funds, in the event the City experiences significant or sudden fiscal constraints.
The type of fiscal challenge will dictate the appropriate budgetary measure to implement in order to ensure solvency. If the fiscal constraint cannot be absorbed by annual budgetary savings, the following hierarchy shall be followed:
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In the event the City is faced with a non -recurring fiscal constraint, such as a State mandated payment or a natural disaster, the use of reserve funds is an appropriate mitigation. The Secondary Reserve for Contingencies shall be utilized first, and fully exhausted prior to utilizing the Economic Uncertainty Reserve.
B. Ongoing Fiscal Constraints
In the event the City experiences the loss of a major revenue source outside of the City's control (i.e. acts of legislation, corporate decisions and/or economic downturn), the City will need to adjust its operations in order to maintain a balanced budget. Circumstances may arise when the City is unable to react quick enough to offset a sudden loss in revenue, and will be required to utilize reserves to supplant the current Operating Budget. The Secondary Reserve for Contingencies shall be utilized first, and fully exhausted prior to utilizing the Economic Uncertainty Reserve. Continued use of reserve funds shall not exceed two budget cycles, to allow adequate time for the implementation of operational changes, while limiting the ongoing dependency on reserves.
Implementation of Contingency Plan actions requires the majority approval of the City Council.
VI. Staffing Policy
A. Regular Staffing
1. The budget will fully appropriate the resources needed for authorized regular staffing.
2. Regular benefitted employees will represent the core work force and the preferred means of staffing ongoing, year-round program activities and services. The City will strive to provide competitive compensation and benefits for its authorized regular workforce. Each regular employee will:
a. Fill a position on the Schedule of Authorized Positions in the applicable, approved Annual Operating Budget;
b. Receive compensation and benefits consistent with labor agreements or other City Council approved compensation plans.
3. To manage the growth of the regular work force and overall staffing costs, the City will follow these procedures:
a. The Council will authorize all regular positions.
b. The Human Resources Department will coordinate and approve the hiring of all regular employees.
C. Supplement core staff with a balanced workforce consisting of part-time, contract, and independent contractors.
d. All requests for additional regular positions will include evaluations of:
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• Staffing and material costs including salary, benefits, equipment, uniforms, clerical support and facilities;
• The ability of private industry to provide the services being demanded; • Additional revenues or cost savings, which may be realized. e. Periodically, and before any request for additional regular positions, existing programs will be re-evaluated to determine if services can be provided with existing regular employees.
B. Project Staffing
1. The hiring of project employees will not be used as a method for expanding the City's regular workforce on a long-term basis.
2. Project employees include all employees other than regular employees, temporary staffing, elected officials and volunteers. Project employees will generally augment regular City staffing as extra -help employees, seasonal employees, and interns.
3. The City Manager and Department Directors will encourage the use of project employees to meet temporary peak workload requirements, fill interim vacancies, and accomplish tasks where less than full-time, year-round staffing is required. Under this guideline, project employees will be hired for up to one year at a time in conjunction with the annual operating budget on an at -will basis. Moreover, project employee hours will generally not exceed 50% of a regular, full-time position (1,000 hours annually). There may be limited circumstances where the use of project employees on an ongoing basis in excess of this target may be appropriate due to unique programming or staffing requirements. However, any such exceptions must be approved by the City Manager based on the review and recommendation of the Human Resources Department.
C. Temporary Staffing
1. Temporary Staffing agencies can be contacted only in the case of a short-term assignment such as sick leave, disability leave, maternity leave, isolated peak in workload, etc.
2. The City will pay the Temporary Staffing Agency a fair base rate for the employee with a negotiated markup while the temporary employee is providing work for the City.
D. Work Hours
1. Regular employee, project employee, and temporary employee work hours will be based on the needs of the City and the position.
2. Employee work hours may be flexed in an effort to minimize overtime.
E. Overtime Management
1. Overtime should be used only when necessary and when other alternatives are not feasible or cost effective.
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2. All overtime must be pre -authorized by a Department Director or delegated in accordance with existing policy.
3. Departmental operating budgets should reflect anticipated annual overtime costs and departments will regularly monitor overtime use and expenditures.
4. When considering the addition of regular, project, or temporary staffing, the use of overtime as an alternative will be considered. The department will take into account:
a. The duration that additional staff resources may be needed; b. The cost of overtime versus the cost of additional staff; C. The skills and abilities of current staff;
d. Training costs associated with hiring additional staff; e. The impact of overtime on existing staff;
f. The impact on quality of services.
F. Independent Contractors
Independent contractors are not City employees. They may be used in two situations:
1. Short-term, peak workload assignments to be accomplished using personnel contracted through an outside employment agency (OEA). In this situation, it is anticipated that City staff will closely monitor the work of OEA employees and minimal training will be required.
However, they will always be considered the employees of the OEA and not the City. All placements through an OEA will be coordinated through the Human Resources Department and subject to the approval of the Human Resources Department.
2. Construction of public works projects and delivery of operating, maintenance or specialized professional services not routinely performed by City employees. Such services will be provided without close supervision by City staff, and the required methods, skills and equipment will generally be determined and provided by the contractor. Contract awards will be guided by the City's purchasing policies and procedures.
G. Productivity
The City will continually monitor and review the City's methods of operation to ensure that services continue to be delivered in the most cost-effective manner possible. This review process encompasses a wide range of productivity issues, including:
1. Analyzing systems and procedures to identify and remove unnecessary review requirements.
2. Evaluating the ability of new technologies and related capital investments to improve productivity.
3. Developing the skills and abilities of all City employees.
4. Developing and implementing appropriate methods of recognizing and rewarding exceptional employee performance.
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5. Evaluating the ability of the private sector to perform the same level of service at a lower cost.
6. Periodic formal reviews of operations on a systematic, ongoing basis.
7. Maintaining a decentralized approach in managing the City's support service functions.
Although some level of centralization is necessary for review and control purposes, decentralization supports productivity by:
a. Encouraging accountability by delegating responsibility to the lowest possible level; b. Stimulating creativity, innovation and individual initiative; C. Reducing the administrative costs of operation by eliminating unnecessary review procedures;
d. Improving the ability of the organization to respond to changing needs, and identify and implement cost -saving programs;
e. Assigning responsibility for effective operations and citizen responsiveness to the department.
H. Contracting for Services — Private Sector
1. General Policy Guidelines
a. Contracting with the private sector for the delivery of services may provide the City with a significant opportunity for cost containment and productivity enhancements. As such, the City is committed to using private sector resources in delivering municipal services as a key element in our continuing efforts to provide cost-effective programs. b. Private sector contracting approaches under this policy include construction projects, professional services, outside employment agencies and ongoing operating and maintenance services.
C. In evaluating the costs of a private section contracts compared with in-house performance of the service, indirect, direct, and contract administration costs of the City will be identified and considered.
d. Whenever private sector providers are available and can meet established service levels, they will be seriously considered as viable service delivery alternatives using the evaluation criteria outlined below.
e. For programs and activities currently provided by City employees, conversions to contract services will generally be made through attrition reassignment to absorption by the contractor.
2. Evaluation Criteria — Within the general policy guidelines stated above, the cost effectiveness of contract services in meeting established service levels will be determined on a case -by - case basis using the following criteria:
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a. Is a sufficient private sector market available to competitively deliver this service and assure a reasonable range of alternative service providers? b. Can the contract be effectively and efficiently administered? C. What are the consequences if the contractor fails to perform, and can the contract reasonably be written to compensate the City for any such damages? d. Can a private section contractor better respond to expansions, contractions or special requirements of the service?
e. Can the work scope be sufficiently defined to ensure that competing proposals can be fairly and fully evaluated, as well as contractor's performed after bid award? f. Does the use of contract services provide us with an opportunity to redefine service levels?
g. Will the contract limit our ability to deliver emergency or other high priority services? h. Overall, can the City successfully delegate the performance of the service but still retain accountability and responsibility for this delivery?
I. Contracting for Services — Government Service Contracts
1. General Policy Guidelines:
a. Contracting with other government entities for the delivery of services such as police and fire provides the City with significant opportunities for cost containment and productivity enhancements. The City utilizes government service contracts to deliver municipal services as a key element in the City's continuing efforts to provide cost- effective programs.
b. Police Contract Services — The City contracts with Riverside County Sheriff's Department for police services. Under this contract the City maintains a ratio of one (1) uniformed police officer for every one thousand (1,000) residents. The City will ensure that contracted staffing levels are compatible with the City population and needs.
Contracting with the County facilitates an efficient, effective and affordable model of policing for the community. The police contract allows the City to partner with the County to leverage resources to reduce costs for supervision, administration, training, clerical support, vehicles and equipment.
C. Fire Contract Services - The City contracts with the Riverside County Fire Department for all fire services. Contracting with the County facilitates an efficient, effective and affordable model of fire protection, disaster preparedness, fire prevention, and emergency operation services for the community. The fire contract allows the City to partner with the County to leverage resources to reduce costs for supervision, administration, training, clerical support, vehicles and equipment.
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J. Contracting for Services — Regional Approach
1. A regional approach to public services leverages economies of scale to improve outcomes and services to the citizens. Therefore, prior to entering into private or government service contracts, the City will require the completion of a systematic assessment to determine whether a regional approach to providing services is necessary. a. Animal Control Services - The City contracts with Animal Friends of the Valleys for animal control services and the County of Riverside (via the Southwest Community Financing Authority) for animal sheltering services. Contracting with multi -agencies for these services demonstrates a regional approach of leveraging resources to provide efficient services (at a reduced cost).
K. Comprehensive Annual Leave Payout
1. Upon an employee's separation from City service, the employee shall have the option to defer their official separation date to that which corresponds to the exhaustion of the employee's Comprehensive Annual Leave (CAL) balance in accordance with established personnel policies and/or labor agreements.
2. When an employee vacates a position using paid time off (e.g. Comprehensive Annual Leave) for an extended period of time, the vacant position will be evaluated by the Department Director, and upon City Manager approval, the Department Director may fill the vacant position in order to continue operations without disruption to City services. In the event the department does not have adequate savings to offset the cost to fill the vacancy, the City Manager is authorized to transfer an amount equal to the funding shortfall from the General Fund Non -Departmental Account No. 001.199.999.5353 — Staffing Continuity Reserve to the affected department.
VII. Asset Management and Replacement Policy
The City has established multiple asset management and replacement funds to accumulate the necessary financial resources to properly maintain City assets over the long-term. The replacement funds are designated for the purpose of purchasing replacement assets at the end of the item's useful life.
Vehicles, equipment, technology, and facilities are tracked on separate replacement schedules, used to determine the annual contribution amounts for each department owning an eligible asset. The annual contribution amounts are equivalent to the estimated cost to replace the asset at the end of its useful life divided by the number of years of useful life.
A. Replacement Funds
1. Fund 310 — Vehicles and Equipment Fund. Eligible assets include vehicles and large equipment items that have a useful life longer than three years and cost in excess of $10,000.
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3. Fund 335 — Support Services Replacement Fund. Eligible assets include copier machines utilized by all City departments and maintained by the Information Technology/Support Services department.
4. Fund 350 — Facilities Replacement Fund. Eligible assets include City buildings, systems, and infrastructure necessary to properly operate and maintain all City facilities.
5. Fund 191— Streetlight Replacement Fund. This fund was established when the City acquired the streetlight network from Southern California Edison, in order to have available resources to repair and replace the light standards, bulbs and other infrastructure of the streetlight network. Resources for this fund are accumulated through Service Level B rate and charges assessed on the properties utilizing the Citywide residential streetlight network.
The funds are discretionary in nature and may be reappropriated by the City Council to provide financial reserves to respond to natural disasters and other emergencies; provide a source for internal loans and liquidity; or serve as collateral for City debt issues.
VIII. Capital Financing and Debt Management
A. Capital Financing
1. The City will consider the use of debt financing only for one-time capital improvement projects and only under the following circumstances:
a. When the project's useful life will exceed the term of the financing; b. When project revenues or specific resources will be sufficient to service the long-term debt.
2. The City will integrate debt issuances with the objectives of the Capital Improvement Program and will incorporate such integration in the formulation of the City's Five -Year Financial Forecast.
3. Debt financing will not be considered appropriate for any recurring purpose such as current operating and maintenance expenditures. The issuance of short-term instruments such as revenue, tax or bond anticipation notes is excluded from this limitation. (See Investment Policy)
4. Capital improvements will be financed primarily through user fees, service charges, assessments, special taxes or developer contributions when benefits can be specifically attributed to users of the facility. Accordingly, development impact fees should be created and implemented at levels sufficient to ensure that new development pays its fair share of the cost of constructing necessary community facilities.
S. Transportation -related impact fees are a major funding source in financing transportation system improvements. However, revenues from these fees are subject to significant fluctuation based on the rate of new development. Accordingly, the following guidelines will be followed in designing and building projects funded with transportation impact fees:
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a. The availability of transportation impact fees in funding a specific project will be analyzed on a case -by -case basis as plans and specifications, or contract awards are submitted for City Manager or Council approval.
b. If adequate funds are not available at that time, the Council will make one of two determinations:
• Defer the project until funds are available;
• Based on the high priority of the project, advance funds from the General Fund, which will be reimbursed as soon as funds become available.
Repayment of General Fund advances will be the first use of transportation impact fee funds when they become available.
6. The City will use the following criteria to evaluate pay-as-you-go versus long-term financing in funding capital improvements:
a. Factors Favoring Pay -As -You -Go Financing:
• Current revenues and adequate fund balances are available, or project phasing can be accomplished;
• Existing debt levels adversely affect the City's credit rating; • Market conditions are unstable or present difficulties in marketing. b. Factors Favoring Long Term Financing:
• Revenues available for debt service are deemed sufficient and reliable so that long-term financings can be marketed with investment grade credit ratings; • The project securing the financing is of the type, which will support an investment grade credit rating;
• Market conditions present favorable interest rates and demand for City financings;
• A project is mandated by State or Federal requirements, and resources are insufficient or unavailable;
• The project is immediately required to meet or relieve capacity needs and current resources are insufficient or unavailable.
B. Debt Management
1. The City will not obligate the General Fund to secure long-term financings except when marketability can be significantly enhanced.
2. An internal feasibility analysis will be prepared for each long-term financing which analyzes the impact on current and future budgets for debt service and operations. This analysis will also address the reliability of revenues to support debt service. 326 1 Annual Operating Budget
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3. The City will generally conduct financings on a competitive basis. However, negotiated financings may be used due to market volatility or the use of an unusual or complex financing or security structure.
4. The City will seek an investment grade rating (Baa/BBB or greater) on any direct debt and will seek credit enhancement such as letters of credit or insurance when necessary for marketing purposes, availability, and cost-effectiveness.
5. The City will monitor all forms of debt annually coincident with the City's Five -Year Financial Forecast preparation and review process and report concerns and remedies, if needed, to the Council.
6. The City will diligently monitor its compliance with bond covenants, including but not limited to any Federal tax compliance requirements with respect to any tax-exempt debt obligations, and ensure its adherence to applicable regulations.
7. The City will maintain good, ongoing communications with bond rating agencies about its financial condition. The City will follow a policy of full disclosure on every financial report and bond prospectus (Official Statement).
8. The City will periodically review the requirements of, and will remain in compliance with, any continuing disclosure undertakings, particularly under Rule 15c2-12 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934 with respect to debt issues.
9. The City will diligently monitor the use of proceeds from its debt issues, to ensure that the proceeds will be directed to the intended use. The City will maintain records of the intended use of the proceeds when the debt was originally issued (by keeping related documents, such as the Official Statements, tax certificates, as applicable) and the use of the proceeds at the time they are expended. Such records shall be retained so long as the debt issue (and any subsequent debt issue which refunded the debt) remains outstanding and for three years following the final maturity or redemption. The City shall consult legal counsel regarding the use of proceeds that is different from the original intended purpose.
10. So long as required by California Government Code Section 8855(k), the City shall file annual report(s) to the California Debt and Investment Advisory Commission ("CDIAC") in accordance with CDIAC's requirements on a timely basis. The City shall retain a copy of each such annual report.
11. In connection with each debt issue, the City will file or cause Bond Counsel or another applicable member of the financing team to file on behalf of the City, a report of proposed issuance and a report of final sale, as required by California Government Code Section 8855(i) and (j).
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C. Debt Capacity
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1. General Purpose Debt Capacity. The City will carefully monitor its levels of general-purpose debt. Because the general-purpose debt capacity is limited, it is important that the City only use general-purpose debt financing for high -priority projects where it cannot reasonably use other financing methods for two key reasons:
a. Funds borrowed for a project today are not available to fund other projects tomorrow; b. Funds committed for debt repayment today are not available to fund operations in the future. In evaluating debt capacity, general-purpose annual debt service payments should generally not exceed 10% of General Fund revenues; and in no case should they exceed 15%. Further, direct debt will not exceed 2% of assessed valuation; and no more than 60% of capital improvement outlays will be funded from long-term financings.
D. Independent Disclosure Counsel
For any public offering debt issue, the City will retain independent disclosure counsel to assist with the preparation of the official statement or any other similar offering document and the continuing disclosure agreement. The roles of bond counsel and disclosure counsel may be served by the same firm, based on the City's determination on a case -by -case basis.
E. Land -Based Financings
1. Public Purpose. There will be a clearly articulated public purpose in forming an assessment or special tax district in financing public infrastructure improvements. This should include a finding by the Council as to why this form of financing is preferred over other funding options such as impact fees, reimbursement agreements or direct developer responsibility for the improvements_
2. Eligible Improvements. Except as otherwise determined by the Council when proceedings for district formation are commenced, preference in financing public improvements through a special tax district will be given for those public improvements that help achieve clearly identified community facility and infrastructure goals in accordance with adopted facility and infrastructure plans as set forth in key policy documents such as the General Plan, Specific Plan, Facility or Infrastructure Master Plans, or Capital Improvement Plan.
Such improvements include study, design, construction and/or acquisition of:
a. Public safety facilities;
b. Major transportation system improvements, such as freeway interchanges; bridges; intersection improvements; construction of new or widened arterial or collector streets (including related landscaping and lighting); sidewalks and other pedestrian paths; transit facilities; and bike paths;
C. Storm drainage, creek protection and flood protection improvements; d. Parks, trails, community centers and other recreational facilities; 328 1 Annual Operating Budget
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e. Open space;
f. Cultural and social service facilities;
g. Other governmental facilities and improvements such as offices, information technology systems and telecommunication systems.
3. Active Role. Even though land -based financings may be a limited obligation of the City, staff will play an active role in managing the district. This means that the City will select and retain the financing team, including the financial advisor, bond counsel, trustee, appraiser, disclosure counsel, assessment engineer, special tax consultant and underwriter, as appropriate. Any costs incurred by the City in retaining these services will generally be the responsibility of the property owners or developer and will be advanced via a deposit when an application is filed; or will be paid on a contingency fee basis from the proceeds from the bonds.
4. Credit Quality. When a developer requests a district, the City will carefully evaluate the applicant's financial plan and ability to carry -out the project, including the payment of assessments and special taxes during build -out. This may include detailed background, credit and lender checks, and the preparation of independent appraisal reports and market absorption studies. For districts where one property owner accounts for more than 25% of the annual debt service obligation, a letter of credit further securing the financing may be required.
S. Reserve Fund. A reserve fund should be established in the lesser amount of: the maximum annual debt services; 125% of the annual average debt service; or 10% of the bond proceeds.
6. Value -to -Debt Ratios. The minimum value -to -debt ratio should generally be 4:1. This means the value of the property in the district, with the public improvements, should be at least four times the amount of the assessment or special tax debt. In special circumstances, after conferring and receiving the concurrence of the City's financial advisor and bond counsel that a lower value -to -debt ratio is financially prudent under the circumstances; the City may consider allowing a value -to -debt ratio of 3:1. The Council should make special findings in this case.
7. Appraisal Methodology. Determination of value of property in the district will be based upon the full case value as shown on the ad valorem assessment roll or upon an appraisal by an independent Member Appraisal Institute (MAI). The definitions, standards and assumptions to be used for appraisals will be determined by the City on a case -by -case basis, with input from City consultants and district applicants, and by reference to relevant materials and information promulgated by the State of California, including the Appraisal Standards for Land Secured Financings prepared by the California Debt and Investment Advisory Commission.
8. Capitalized Interest During Construction. Decisions to capitalize interest will be made on a case -by -case basis, with the intent that if allowed, it should improve the credit quality of the bonds and reduce borrowing costs, benefiting both current and future property owners.
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9. Maximum Burden. Annual assessments (or special taxes in the case of Mello -Roos or similar districts) should generally not exceed 1% of the sales price of the property; and total property taxes, special assessments and special taxes payments collected on the tax roll should generally not exceed 2%, with priority going toward special assessments and/or special taxes used to offset any negative fiscal impact of providing municipal services, as determined by a Fiscal Impact Analysis.
10. Benefit Apportionment. Assessments and special taxes will be apportioned according to a formula that is clear, understandable, equitable and reasonably related to the benefit received by, or burden attributed to, each parcel with respect to its financed improvement.
No annual escalation factor will be permitted for special assessments or special taxes that support debt service on bonds utilized to finance public infrastructure. Annual escalation factors on special assessments and/or special taxes used to fund municipal services shall be as identified in the Fiscal Impact Analysis.
11. Special Tax District Administration. In the case of Mello -Roos or similar special tax districts, the total maximum annual tax should not exceed 110% of annual debt service. The rate and method of apportionment should include a back-up tax in the event of significant changes from the initial development plan and should include procedures for prepayments.
12. Foreclosure Covenants. In managing administrative costs, the City will establish minimum delinquency amounts per owner, and for the district as a whole, on a case -by -case basis before initiating foreclosure proceedings.
13. Disclosure to Bondholders. In general, each property owner who accounts for more than 10% of the annual debt service or bonded indebtedness must provide ongoing disclosure information annually as described under SEC Rule 15(c)-12.
14. Disclosure to Prospective Purchasers. Full disclosure about outstanding balances and annual payments should be made by the seller to prospective buyers at the time that the buyer bids on the property. It should not be deferred to after the buyer has made the decision to purchase. When appropriate, applicants or property owners may be required to provide the City with a disclosure plan.
F. Conduit Financings
1. The City will consider requests for conduit financing on a case -by -case basis using the following criteria:
a. The City's bond counsel will review the terms of the financing, and render an opinion that there will be no liability to the City in issuing the bonds on behalf of the applicant;
b. There is a clearly articulated public purpose in providing the conduit financing; C. The applicant is capable of achieving this public purpose.
2. The review of requests for conduit financing will generally be a two-step process:
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a. First, obtaining Council's interest in the request, and establishing the ground rules for evaluating it;
b. Second, return to Council with the results of this evaluation and recommend approval of appropriate financing documents, if warranted.
This two-step approach ensures that the issues are clear for both the City and applicant, and that key policy questions are answered.
3. The work scope necessary to address these issues will vary from request to request and will have to be determined on a case -by -case basis. Additionally, the City should generally be fully reimbursed for costs incurred in evaluating the request; however, this should also be determined on a case -by -case basis.
G. Refinancings
1. General Guidelines. Periodic reviews of all outstanding debt will be undertaken to determine refinancing opportunities. Refinancings will be considered (within Federal tax law constraints) under the following conditions:
a. There is a net economic benefit;
b. It is needed to modernize covenants that are adversely affecting the City's financial position or operations;
C. The City wants to reduce the principal outstanding in order to achieve future debt service savings, and it has available working capital to do so from other sources.
2. Standards for Economic Savings. In general, refinancing for economic savings will be undertaken whenever net present value savings of at least five percent (5%) of the refunded debt can be achieved.
a. Refinancings that produce net present value savings of less than five percent will be considered on a case -by -case basis, provided that the present value savings are at least three percent (3%) of the refunded debt.
b. Refinancings with savings of less than three percent (3%), or with negative savings, will not be considered unless there is a compelling public policy objective.
H. Types of Debt That May be Issued
1. To implement the financing (or refinancing) objectives, the City will consider the issuance of generally accepted types of debt, including:
a. Revenue Bonds— limited -liability obligations tied to a specific enterprise or special fund revenue stream where the projects financed clearly benefit or relate to the enterprise or are otherwise permissible uses of the special revenue; b. Special Assessment/Special Tax Bonds — limited liability obligations secured by special assessments or special taxes as described above under "Land -Based Financings"; Annual Operating Budget 1 331
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C. General Fund Suoaorted Lease Revenue Bonds or Certificates of Particiaation — generally involves a lease arrangement between the City and a joint powers authority (or another entity), whereby bonds are issued by the authority for the financing of the project, and the City agrees to make lease payments in sufficient amounts to secure debt service payments on the bonds.
d. General Obligation Bonds — bonds secured by a dedicated property tax override (i.e., a property tax in excess of the 1% basic ad valorem property tax rate) that will be issued only after voter approval pursuant to the State Constitution and other applicable laws. e. Tax Increment Bonds — bonds secured by a portion of ad valorem property tax that are allocated to a successor agency (to a former redevelopment agency) or another entity formed pursuant by law (such as an enhanced infrastructure financing district or a community revitalization infrastructure district). The successor agency will consider issuance of bonds for refunding purposes. The City has not yet formed any enhanced infrastructure financing district, community revitalization infrastructure district or any similar entity, and will undertake applicable legal and feasibility analysis at the time of consideration of the formation of any such entity.
f. Conduit Financing Bonds — bonds as described above under "Conduit Financings," for which debt service will be secured by the applicant's payments and the role of the City (or the City affiliated entity) will be limited to be the conduit issuer, without financial liability.
2. The above list is not exhaustive. The City may from time to time consider other types of debt to accommodate its financing and refinancing objectives.
I. Policy Goals Related to Planning Goals and Objectives
1. It is a policy goal of the City to protect taxpayers and constituents by utilizing conservative financing methods and techniques so as to obtain the highest practical credit ratings (if applicable) and the lowest practical borrowing costs.
2. The City is committed to financial planning, maintaining appropriate reserves levels and employing prudent practices in governance, management and budget administration, including debt issuance and management.
3. The City will comply with applicable State and Federal law as it pertains to the maximum term of debt and the procedures for levying and imposing any related taxes, assessments, rates and charges.
J. Creation of Services Community Facilities Districts
1. Introduction
a. It is the City's goal to support new development projects that address public need and provide a public benefit. In consideration of these projects, the City desires to ensure that the provision of both general services and public safety services are addressed. 332 1 Annual Operating Budget
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b. The City shall require developments that propose an increase in a higher density residential use than what is currently allowed by the General Plan or Zoning Code to form, or annex into, a Community Facilities District (CFD) pursuant to the Mello -Roos Community Facilities Act of 1982, as amended, for the purposes of providing municipal services and public safety services.
C. The City shall make the final determination as to which public financing mechanism, if any, shall be used to assist in the funding of a service. The City may confer with the applicant to learn of any unique circumstances before making its final determination.
2. Eligible Expenses
a. All City and any consultant costs incurred in evaluating applications requesting the establishment of CFDs shall be paid by the applicant by advance deposit increments, or as otherwise agreed upon in writing by the City. The City shall not incur any non - reimbursable expense for processing such applications. Expenses not chargeable to the District shall be borne by the applicant.
b. In general, the services to be financed by a public services CFD are those identified in the Mello -Roos Community Facilities Act which are provided by the City including:
i. Police protection services, including put not limited to, criminal justice services. ii. Fire protection and suppression services, and ambulance and paramedic services.
iii. Provision of municipal services including, but not limited to, parks and park maintenance, street maintenance, facility maintenance, parkway maintenance, recreation funding, library services, open space, flood and storm protection services, and operation of museums and cultural facilities. iv. Other services as may be permitted pursuant to the Mello -Roos Community Facilities Act as it may be amended from time to time.
3. Selection of Consultants
a. The City shall select and solely manage, coordinate, and direct the work of the special tax consultant, assessment engineer, financial advisor, special district administrator, and other professionals and consultants it deems appropriate in relation to the formation of, or annexation into, a Services CFD.
4. Fiscal Impact Analysis (FIA)
a. The City shall enter into an agreement with a third -party consultant to conduct a fiscal impact analysis that analyzes the cost of the provision of services to the proposed development.
i. The applicant shall be responsible for incurring all costs of the FIA and pay a deposit in advance, or as otherwise agreed upon, in writing, by the City.
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The FIA shall utilize the final project description, as provided by the applicant, for analysis. The project description must also match that description used for the necessary California Environmental Quality Act (CEQA) analysis. iii. The FIA shall utilize the most current adopted budget data, to be provided by the City, to develop the projected cost of services relative to the proposed development. The most current available data regarding CPI and other inflators, contract increases, expenditure and revenue trends, and future known legislation affecting the City's budget shall be used. iv. The FIA shall maintain a 1:1,000 police officer ratio, as the population of the City continues to increase.
V. If the FIA is completed more than one year prior to the completion of the entitlement process, the FIA shall be updated to reflect the most recent budget data.
vi. If a significant change in in the City's fiscal environment occurs between the finalization of the FIA and the completion of the entitlement process, the City may require an updated FIA to be completed.
5. Rate and Method of Apportionment
a. The findings of the FIA will be utilized in the determination of the rate and method of apportionment (RMA) for the CFD, as calculated by a third -party special tax consultant, after the proposed development has received its entitlements. b. The RMA should provide for an annual increase in the maximum special tax.
C. For residential components of development projects, the projected ad valorem tax and other direct and overlapping debt for the proposed CFD shall not exceed 2.0% of the anticipated initial sales price to the ultimate home buyer, per City policy. Any deviations from the foregoing will not be permitted unless specifically approved by the City Council.
d. The term of the Services CFD shall be in perpetuity, unless otherwise agreed to by the City Council.
e. The City will consider the apportionment of assessments to those properties that are found by the assessment engineer to be benefited by the municipal services provided.
The assessment engineer will review the services provided to each parcel in order to comply with the requirements of Proposition 218 and applicable State statutes. f. The rate and method of special taxes will be structured in such a manner as to result in a fair and reasonable taxing structure. The City and its special tax consultant will consider input from the proponent of the development project, but the City will make the final determination.
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6. Deposit/Reimbursement Agreement
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a. As stipulated earlier in this policy, all City and any consultant costs incurred in evaluating applications requesting the establishment of CFDs shall be paid by the applicant by advance deposit increments, or as otherwise agreed upon in writing by the City.
b. The City and the applicant shall enter into a Deposit/Reimbursement Agreement that stipulates the terms of payment for the costs in conducting proceedings for the formation of the Services Community Facility District.
C. The Director of Finance may draw upon the deposits to pay costs including, but not limited to fees and expenses of any consultants employed in connection with the formation or annexation of the CFD; the costs of publication of notices; appraisal or other studies determined necessary; and reasonable charges for City staff time.
7. Conditions for Project Approval for New Projects
a. Effective upon adoption of this policy, the City shall require all developments that propose an increase in a higher density residential use than what is currently allowed by the General Plan or Zoning Code to form or annex into a CFD pursuant to the Mello - Roos Community Facilities Act of 1982, as amended, for the purposes of providing general municipal services and public safety services, for the purpose of offsetting the cost of providing said services to new residents. Determination of an eligible CFD will be made at the discretion of the City. If an eligible CFD does not exist, a new services CFD formation will be required. It is the City's goal to provide a consistent level of service to all City residents.
b. The City may choose to enter into a Development Agreement with the applicant, requiring the development to form, or annex into, the Services CFD.
C. If no Development Agreement is entered into between the City and the applicant, a condition of approval will be placed upon the project during the entitlement phase, stipulating that prior to the approval of any map, it will be required that the development form, or annex into, a Services CFD.
d. The City, in conjunction with its financial advisors, shall determine whether the aggregate cost of public services, allowable under statute, shall equal an amount that renders the formation of a District economically both cost-effective and efficient. e. The City will work, on a case by case basis, to determine the appropriate tax rate to be levied for proposed projects, in conjunction with a Services CFD applying for the development of affordable housing, as defined by the California Health and Safety Code.
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IX. Interfund Transfers and Loans Policy
A. Establishment of Various Funds
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The City has established various funds to account for revenues whose use should be restricted to certain activities. Accordingly, each fund exists as a separate financing entity from other funds, with its own revenue sources, expenditures and fund equity.
B. Transfer Between Funds
Any transfers between funds for operating purposes are set forth in the budget. These operating transfers, under which financial resources are transferred from one fund to another, are distinctly different from interfund borrowings, which are usually made for temporary cash flow reasons, and are not intended to result in a transfer of financial resources. In summary, interfund transfers result in a change in fund equity; interfund borrowings do not, as the intent is to repay the loan in the nearterm.
C. Interfund Loans
Interfund loans may be appropriate whenever the loan is expected to be repaid within the immediate future. The most common use of interfund loans is for grant programs, where costs are incurred before drawdowns are initiated and received. Receipt of funds is typically received shortly after the request for funds has been made.
X. Appropriations Limitation
A. Adopting a Resolution
The Council will annually adopt a resolution establishing the City's appropriations limit calculated in accordance with Article XIII-B of the Constitution of the State of California, Section 7900 of the State of California Government Code, and any other voter approved amendments or state legislation that affect the City's appropriations limit.
B. Supporting Documentation Available for Review
The supporting documentation used in calculating the City's appropriations limit and projected appropriations subject to the limit will be available for public and Council review at least fifteen days before Council consideration of a resolution to adopt an appropriations limit. The Council will generally consider this resolution in connection with final approval of the budget.
C. Calculating Appropriations
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D. Review of User Fees and Charges
The City will annually review user fees and charges and report to the Council the amount of program subsidy, if any, that is being provided by the General Fund. An annual inflator is automatically calculated each year based on changes in the Consumer Price Index.
E. Support of Legislation or Initiatives
The City will actively support legislation or initiatives sponsored or approved by League of California Cities which would modify Article XIII-B of the Constitution in a manner which would allow the City to retain projected tax revenues resulting from growth in the local economy for use as determined by the Council.
F. Voter Approval to Amend Appropriation Limit
The City will seek voter approval to amend its appropriation limit at such time that tax proceeds are in excess of allowable limits.
XI. Pension Rate Stabilization Policy
A. Establishment of an Internal Revenue Code (IRC) Section 115 Irrevocable Trust The City contracts with the California Public Employees Retirement System (CAPERS) to provide pension benefits to its employees. The pension is funded with a combination of employer and employee contributions. To mitigate the volatility in the employer contribution rates, the City has established a Section 115 Trust to prefund its pension obligations. Assets from the Trust are restricted for the payment of pension obligations.
B. Funding of an Internal Revenue Code (IRC) Section 115 Irrevocable Trust The primary benefit of a Section 115 Trust is the flexibility of investment options available to the Trust that cities are prohibited from utilizing. The broader investment options have the ability to generate higher yields and investment earnings, thereby increasing the assets held in trust.
To establish the Section 115 Trust, a one-time contribution of $8 million was deposited as seed funding during Fiscal Year 2017-18.
Effective Fiscal Year 2018-19 and every year thereafter until amended by Council;
1. At a minimum, an amount equivalent to 26% of Total Payroll may be deposited into the Section 115 Trust in July for the ensuing fiscal year, so long as the City has adequate cash flow for operations.
2. Thirty percent (30%) of the Operating Budget Surplus within the General Fund may be deposited into the Section 115 Trust, up to a maximum contribution of $2 million per year.
The Operating Budget Surplus is defined as the excess amount over the budgeted Revenue over Expenditures calculation.
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3. Additional Trust contributions may be programmed through the Annual Operating Budget process each year, as approved by Council.
Annual pension liability payments to CalPERS shall be made from the proceeds of the Section 115 Trust, so long as adequate proceeds are available in the Section 115 Trust.
XII. Signature Delegation Policy
A. Delegation of City Manager Signature Authority
In accordance with the Budget Resolution Section 1.E-F., the City Manager may authorize expenditures of funds in the amounts up to one -hundred thousand dollars ($100,000). Any expenditures in excess of $100,000 requires City Council action.
With regard to contracts and agreements, the City Manager hereby delegates his signature authority, up to $100,000 to the Assistant City Manager, and up to $60,000 as follows:
1. Temecula Community Service District contracts and agreements may be approved by the Director of Community Services for the following contract types:
a. Entertainment, Performance and Event Agreements
2. Public Works contracts and agreements may be approved by the Deputy City Manager or the Director of Public Works for the following contract types:
a. Maintenance Agreements
b. Minor Construction Agreements
3. "Approved As To Form" approval on all agreements, with the exception of those noted below, may be approved by the Assistant Director of Finance, up to $10,000. All contracts and agreements in excess of $10,000, must be Approved As To Form by the City Attorney, or his/her designee.
a. Successor Agency Agreements
b. Housing Authority Agreements
C. Preservation of Cultural Resource Agreements
d. Leases
e. Licenses Agreements
f. Settlement Agreements
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B. Delegation of City Manager Settlement Authority
In accordance with the Budget Resolution Section 1.G., the City Manager, in consultation with the City Attorney, is authorized to settle personal injury and property damage lawsuits and enter into settlement agreements on behalf of the City, Temecula Community Services District, and the Successor Agency to the Temecula Redevelopment Agency where the amount of the settlement does not exceed one -hundred thousand dollars ($100,000).
1. For all Personal Injury, Property, and Employment Claim settlements, the City Manager hereby delegates his signature authority to the Director of Human Resources/Risk Management to negotiate settlements up to $10,000.
XIII. Emergency Appropriation Policy
In the event of an emergency resulting from acts of nature or other unforeseen activity, the City Manager is authorized to appropriate budgetary funds for the emergency purchase of goods and services to address such emergency.
In the event the emergency requires a significant Public Works response, an emergency exemption to the Public Works bidding requirements must be approved by the City Council via an Emergency Exemption Resolution.
XIV. Debt/Liability Paydown Strategy Policy
At their meeting December 13, 2022, the Council adopted the City's Debt/Liability Paydown Strategy, which provides for a 7-year paydown schedule for the City's outstanding facility debt, the unfunded pension liability and the unfunded Other Post -Employment Benefits (OPEB) liability. As the economic conditions change, it will be necessary to reevaluate the Paydown Strategy to ensure adequate funding exists to maintain the paydown schedule and reach the goal of a 7-year paydown.
The Paydown Strategy consists of a 15-year Financial Plan and includes the use of Available General Fund Balance and available resources in the IRC Section 115 Irrevocable Pension Trust to pay off the City's outstanding debt/liabilities in accordance with the table below (updated in January 2024):
As of January 2024
Funding Sources
Payoff Schedule
Annual
Updated
Pension
Available
OPEB
Pension
Civic Center
MRC
Budgetary
Change
Year #
Fiscal Year
Trust
Fund Balance
Liability
Liability
Loan
Loan
Savings
From Original
1 2022-23
5,000,000
19,913,606
7,2S0,000
12,624,607
5,038,999
(1,620,001)
(364,988)
2 2023-24
7,000,000
10,792,003
3,254,000
14,538,003
(3,253,835)
1,893,000
3 2024-25
5,000,000
2,913,492
7,913,492
(5,522,203)
(321,458)
4 2025-26
2,000,000
6,267,833
8,267,833
(5,598,373)
1,448,821
5 2026-27
8,455,217
8,455,217
(5,680,108)
6,277,059
6 2027-28
9,019,970
9,019,970
(5,763,328)
(1,184,698)
7 2028-29
6,304,545
6,304,545
(5,851,032)
(1,125,490)
8 2029-30
(5,938,215)
9 2030-31
(5,566,423)
10 2031-32
(4,356,798)
19,000,000
63,666,666
3,254,000
61,749,060
12,624,607
5,038,999
(49,150,315)
6,622,246
Change from
Original
2,000,000
1,885,165
(2,107,000)
9,095,257
(327,393)
(38,618)
8,999,878
Total Interest S
30,763,360
2,187,894
1,036,267
Annual Operating Budget 1 339
City of Temecula
Fiscal Year 2024-2025
Annual Operating Budget
BUDGET AND FISCAL POLICIES
The original OPEB and Pension liability amounts were determined as of June 30, 2020 valuation reports and are subject to change as CalPERS investment returns fluctuate each year. Annual Budgetary Savings generated by the payoff of a specific debt/liability is redirected back into Available Fund Balance and applied to the payoff of future unfunded liabilities until all obligations are paid off.
The CalPERS Pension Unfunded Liability will be considered "paid off" when the City Pension Plan's Funded Status, as defined by CalPERS, is equal to or greater than 100%. To achieve this Funded Status within the 7-year target, annual Additional Discretionary Payments (ADPs) will be made directly to CalPERS, as noted in the above schedule.
Any deviations from the Paydown Strategy's 15-Year Financial Plan that trigger less than $4 million in Available Fund Balance in any year of the forecast is cause for reevaluating the paydown timeline.
Economic impacts that could trigger the reevaluation include:
(1) Economic conditions, including recession or potential recession, (2) Decrease in General Fund revenue,
(3) Increase in General Fund expenditures,
(4) Declining interest earnings in CaIPERS' Public Employees' Retirement Fund (PERF) portfolio,
(5) Declining investment earnings in the City's IRC Section 115 Irrevocable Pension Trust
Each year, as part of the Annual Operating Budget process and the Mid -Year Budget process, the 15-Year Financial Plan shall be updated and reevaluated to ensure adequate Available General Fund Balance and Pension Trust balances exist to make the Pension Liability payments, or ADPs, as outlined in the table above. If the funding sources are not adequate to maintain Available Fund Balance in excess of $4 million each year of the forecast, an alternative paydown schedule shall be presented for City Council consideration.
An Operating Budget Surplus is defined as the excess amount over the budgeted Revenue over Expenditures calculation. In the event of any remaining Operating Budget Surplus after contributions are made to the City's IRC Section 115 Irrevocable Pension Trust in accordance with Budget Policy XI, additional ADPs may be made from the remaining surplus, up to $2 million per fiscal year. Additional ADPs may be programmed through the Annual Operating Budget process each year, as approved by Council.
340 1 Annual Operating Budget
APPENDIX A
SUMMARY OF
RALPH M. BROWN ACT
r,I) Brown Act
C HANDBOOK
r*4 Summary of the Major Provisions and Requirements
of the Ralph M. Brown Act
) Summary and Discussion of the Major Provisions of the Brown Act Text of the Ralph M. Brown Act
Updated including changes effective January 1, 2023
Table of Contents
INTRODUCTION...............................................................................................................................................iii PART
ONE: SUMMARY OF THE MAJOR PROVISIONS AND REQUIREMENTS OF THE RALPH M.
BROWNACT......................................................................................................................................1 I.
APPLICATION OF BROWN ACT TO "LEGISLATIVE BODIES".........................................................2 II.
DEFINITION OF "MEETING"...............................................................................................................3 III.
EXCEPTIONS TO MEETING REQUIREMENT......................................................................................3 A. The Individual Contact Exception...................................................................................4 B. The Seminar or Conference Exception...........................................................................4 C. The Community Meeting Exception................................................................................4 D. The Other Legislative Body Exception.............................................................................4 E. The Social or Ceremonial Occasion Exception............................................................5 F. The Standing Committee Exception...............................................................................5 IV.
PERMITTED LOCATIONS OF MEETINGS AND TELECONFERENCING...........................................5 A. Permitted Locations of Meetings.....................................................................................5 B. Teleconferencing................................................................................................................5 1) Background on the COVID-19 pandemic.......................................................6 V.
ADA COMPLIANCE...........................................................................................................................9 VI.
SIMULTANEOUS OR SUCCESSIVE MEETINGS................................................................................10 VII.
SERIAL MEETINGS.............................................................................................................................10 A. Contacts with Staff...........................................................................................................11 B. Contacts with Constituents, Developers and Lobbyists............................................12 C. Contacts with Fellow Members of the Same Legislative Body................................13 D. Contacts on Social Media..............................................................................................13 VIII.
NOTICE, AGENDA AND REPORTING REQUIREMENTS................................................................14 A. Time of Notice and Content of Agenda......................................................................14 B. Action and Discussion on Non -agenda Items.............................................................17 Ralph M. Brown Act Page i
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C. Reporting of Actions.........................................................................................................18 IX.
PUBLIC PARTICIPATION...................................................................................................................18 A. Regular Meetings..............................................................................................................18 B. Public Comments at Special Meetings........................................................................19 C. Limitations on the Length and Content of Public Comments.................................19 D. Additional Rights of the Public.......................................................................................20 X.
CLOSED SESSIONS...........................................................................................................................22 A.
ENFORCEMENT................................................................................................................................24 Al.
CONCLUSION..................................................................................................................................25 PART
TWO: THE RALPH M. BROWN ACT...................................................................................................24 Ralph M. Brown Act Page ii
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INTRODUCTION
This Handbook is prepared to provide you with a summary of the major provisions of California's open meeting law for local governments - the Ralph M. Brown Act, including rules about calling and holding various types of meetings and closed sessions, as well as guidelines for how to avoid serial meetings. The second part contains the complete text of the Brown Act. This Handbook is designed for local government officials and staff and we hope you will find it useful. Should you have any questions about the information included in this Handbook, please do not hesitate to contact us.
Richards, Watson & Gershon
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PART ONE:
SUMMARY OF THE MAJOR PROVISIONS
AND REQUIREMENTS OF THE RALPH M.
BROWN ACT
//RWG
W01"I
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Summary of the Major Provisions
and Requirements of the Ralph M. Brown Act
The Ralph M. Brown Act, more commonly known as the "Brown Act," is California's "sunshine" law for local government. The Brown Act is found in the California Government Code commencing with Section 54950. In a nutshell, the Brown Act requires local government business to be conducted at open and public meetings, except in certain limited situations. This Handbook briefly summarizes and discusses the major provisions of the Brown Act.
I. APPLICATION OF BROWN ACT TO
"LEGISLATIVE BODIES"
The requirements of the Brown Act apply to "legislative bodies" of local governmental agencies. The term "legislative body" is defined to include the governing body of a local agency (e.g., the city council or the board of supervisors) and any commission, committee, board, or other body of the local agency, whether permanent or temporary, decision -making or advisory, that is created by formal action of a legislative body. § 54952(a)-(b).
Standing committees of a legislative body, that have either "continuing subject matter jurisdiction" or a meeting schedule fixed by formal action of the legislative body, are also subject to the requirements of the Brown Act. Some common examples include the finance, personnel, or similar policy subcommittees of a legislative body. Standing committees exist to make routine, regular recommendations on a specific subject matter. These committees continue to exist over time and survive resolution of any one issue or matter. They are also a regular part of the governmental structure.
The Brown Act does not apply to "ad hoc" committees comprised solely of members of the legislative body that are less than a quorum of the body, provided these committees do not have a "continuing subject matter jurisdiction," or a meeting schedule fixed by formal action of the legislative body. Such ad hoc committees are purely advisory; they generally serve only a limited or single purpose, are not perpetual, and are dissolved when their specific task is completed.
Advisory and standing committees, but not ad hoc committees, are required to have agendas, and to have their agendas posted at least 72 hours in advance of their meetings. If this is done, the meeting is considered to be a regular meeting for all purposes. § 54954(a). If the agenda is not posted at least 72 hours in advance, the meeting must be treated as a special meeting, and all of the limitations and requirements for special meetings apply, as discussed later in Section VIII of this Handbook.
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Summary of the Major Provisions of the Ralph M. Brown Act The governing boards of some private corporations, limited liability companies, and private entities may be subject to the Brown Act under certain circumstances. A private entity's governing board constitutes a legislative body within the meaning of the Brown Act if either of the following applies: (i) the private entity is created by an elected legislative body to exercise lawfully delegated authority of the legislative body; or (ii) the private entity receives funds from a local agency and its governing board includes a member of the legislative body of the local agency who was appointed by the legislative body to the governing board as a full voting member. § 54952(c). Additionally, charter schools and entities managing charter schools may also be subject to the Brown Act.
Ed uc. Code, § 47604.1 (b) (1) .
The Brown Act also applies to persons who are elected to serve as members of a legislative body of a local agency even before they assume the duties of office. § 54952.1. Under this provision, the statute is applicable to newly elected, but not -yet - sworn -in, members of the legislative body.
II. DEFINITION OF "MEETING"
The central provision of the Brown Act requires that all "meetings" of a legislative body be open and public. The Brown Act defines the term "meeting" very broadly in § 54952.2(a), and encompasses almost every gathering of a majority of legislative body members, including:
"[A]ny congregation of a majority of the members of a legislative body at the same time and location, including a teleconference, . . . to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body."
In plain English, this definition means that a meeting is any gathering of a majority of council members, board of directors or other applicable legislative body, to hear, discuss or deliberate any item of local agency business or potential local agency business. It is important to emphasize that a meeting occurs if a majority gathers to hear, discuss or deliberate on a matter and not just voting or taking action on the issue.
III. EXCEPTIONS TO MEETING
REQUIREMENT
There are six types of gatherings that are not subject to the Brown Act. We commonly refer to these exceptions as: (1) the individual contact exception; (2) the seminar or conference exception; (3) the community meeting exception; (4) the other legislative body exception; (5) the social or ceremonial occasion exception; and (6) the standing committee exception. Unless a gathering of a majority of the members of a legislative body falls within one of the exceptions discussed below, even if a majority of members are merely in the same room listening to a discussion of local agency business, they will Ralph M. Brown Act Page 3
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Summary of the Major Provisions of the Ralph M. Brown Act be participating in a meeting within the meaning of the Brown Act that requires notice, an agenda, and a period for public comment.
A. The Individual Contact Exception
Conversations, whether in person, by telephone, video conferencing, or other means, between a member of a legislative body and any other person do not constitute a meeting under the Brown Act. § 54952.2(c) (1). However, such contacts may constitute a "serial meeting" (discussed below) in violation of the Brown Act, if the individual also makes a series of individual contacts with other members of the legislative body, and communications with these other members are used to "discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body." § 54952.2(a).
B. The Seminar or Conference Exception
Attendance by a majority of the legislative body at a seminar, conference or similar educational gathering is generally exempted from Brown Act requirements. § 54952.2(c)(2). However, in order to qualify under this exception, the seminar or conference must be open to the public and must involve issues of general interest to the public or to local agencies. Attendance at a California League of Cities or California Contract Cities seminar is an example of an educational gathering that fulfills these requirements. However, as with many of the exceptions, this exception will not apply if a majority of legislative body members discuss among themselves items of specific business relating to their own local agency other than as part of the scheduled program.
C. The Community Meeting Exception
The community meeting exception allows a majority of legislative body members to attend privately sponsored neighborhood meetings, town hall forums, chamber of commerce lunches or other community meetings at which issues of local interest are discussed. § 54952.2(c) (3). In order to fall within this exception, however, the community meeting must satisfy specific criteria. First, the community meeting must be "open and publicized." Therefore, a homeowners' association meeting restricted to the residents of a particular development and only publicized to those residents cannot be attended by a majority of the legislative body without following the Brown Act requirements because the meeting does not qualify for the exception. And again, for those meetings that fall within the community meeting exception, a majority of legislative body members cannot discuss among themselves items of business of their own local agency other than as part of the scheduled program.
D. The Other Legislative Body Exception
This exception allows a majority of members of any legislative body to attend open and noticed meetings of other legislative bodies of their local agency, or of another local agency, without treating such attendance as a meeting of the body. § 54952.2(c)(4).
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Summary of the Major Provisions of the Ralph M. Brown Act Of course, the legislative body members are prohibited from discussing items of business of their local agency among themselves other than as part of the scheduled meeting.
E. The Social or Ceremonial Occasion Exception
As has always been the case, the Brown Act does not apply to attendance by a majority of the legislative body members at purely social or ceremonial occasions. § 54952.2(c)(5). This exception only applies if a majority of legislative body members do not discuss among themselves items of business of their local agency.
F. The Standing Committee Exception
The standing committee exception allows members of a legislative body, who are not members of a standing committee of that body, to attend an open and noticed meeting of the committee without making the gathering a meeting of the full legislative body itself. § 54952.2(c)(6). If a majority of the legislative body is created by the attendance of the additional members, the legislative body members who are not members of the standing committee may attend only as "observers." This means that the noncommittee members of the legislative body should not speak at the standing committee's meeting, sit in their usual seat on the dais, or otherwise participate in the meeting. It is generally recommended that, if a standing committee meeting is likely to be attended by other legislative body members, then the meeting should be agendized as a meeting of the whole legislative body. This will allow full participation by all members of the legislative body.
IV. PERMITTED LOCATIONS OF MEETINGS
AND TELECONFERENCING
A. Permitted Locations of Meetings
The Brown Act generally requires all meetings of a legislative body to occur within the boundaries of the local agency. § 54954(b). There are limited exceptions to this rule, however, such as allowing meetings with a legislative body of another local agency in that agency's jurisdiction. Meetings held outside of a local agency's boundaries pursuant to an exception still must comply with agenda and notice requirements, as discussed below.
B. Teleconferencing
The role of "teleconferencing," or using telephonic and/or video technology in public meetings was expanded significantly during the COVID-19 pandemic.
Because the Brown Act relies on physical, in -person meetings as the primary means to achieve its goals of public participation and transparency, the law has traditionally limited a local agency's ability to use teleconferencing to hold public meetings.
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Summary of the Major Provisions of the Ralph M. Brown Act Generally, teleconferencing may only be used by members of a legislative body as a way to participate fully in the meeting from remote locations. § 54953(b). If one or more members participate in a meeting via teleconferencing, the following requirements apply to that meeting: (1) the remote location must be connected to the main meeting location by telephone, video or both; (2) the notice and agenda of the meeting must identify the remote location; (3) the remote location must be posted and accessible to the public; (4) all votes must be by roll call; and (5) the meeting must comply with the Brown Act, which includes allowing participation by members of the public present in remote locations. A quorum of the legislative body must participate from locations within the jurisdiction, but other members may participate from outside the jurisdiction. These teleconferencing rules only apply to members of the legislative body. Staff members, attorneys or consultants may participate remotely without following the posting and public access requirements of the teleconferencing rules.
On March 17, 2020, Governor Newsom issued Executive Order ("EO") N-29-20, which temporarily relaxed these traditional teleconferencing requirements in response to the COVID-19 pandemic. That order expired on September 30, 2021, but recent amendments to the Brown Act, described below, now provide other alternatives to the standard teleconferencing rules under specific conditions. The Brown Act's standard teleconferencing rules described in the preceding paragraph remain available in lieu of the alternatives described below.
1) Assembly Bill 361
AB 361 built upon EO N-29-20 to provide a statutory basis in the Brown Act for relaxed teleconferencing requirements during the COVID-19 declared emergency. As described below, however, there must be a proclaimed state of emergency for an agency to rely on AB 361. Because The Governor has announced that the current COVID-19 state of emergency will end on February 28, 20231, agencies will be unable to rely on AB 361 after that date absent a new emergency declaration.
By its terms, AB 361 will sunset on January 1, 2024. § 54953(f). Until then, AB 361 authorizes local agencies to continue meeting remotely during a state of emergency proclaimed by the Governor without following the Brown Act's standard teleconferencing provisions, including the requirement that meetings be conducted in physical locations, if either of the following applies: (1) state or local officials have imposed or recommended measures to promote social distancing; or (2) the agency has already determined or is determining whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. § 54953(e)(1)(A)-(C). "State of emergency" means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act.
AB 361 generally requires legislative bodies to make remote public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe 1 Governor Newsom to End the COVID-19 State of Emergency (Oct. 17, 2022), available at:
9-state-of-
emergency/ https://www.gov.ca.gov/2022/10/17/governor-newsom-to-end-the-covid-1_(as of Dec. 7. 2022).
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Summary of the Major Provisions of the Ralph M. Brown Act and to address the local legislative body, and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of the Brown Act. AB 361 provides the following procedures and requirements for conducting remote meetings as follows:
Public Comment Opportunities in Real Time: A legislative body that meets remotely pursuant to AB 361 must allow members of the public to access the meeting via a call -in option or an internet-based service option, and the agenda for the remote meeting must provide an opportunity for members of the public to directly address the body in real time. Although the agency may still ask for public comments to be submitted in advance, the agency cannot require public comments to be submitted in advance of the meeting. § 54953(e) (2) (E).
Agencies may not close a public comment period until members of the public are given the opportunity to register and the time for that comment period has elapsed, whether it is for a specific agenda item or a general comment period. If an agency does not provide a timed public comment period, but takes public comment separately on each agenda item, it must allow a reasonable amount of time per agenda item to allow members of the public the opportunity to provide public comment, including time to register or "otherwise be recognized for the purpose of providing public comment." § 54953(e) (2) (G) (ii).
2. No Action During Disruptions: In the event of a disruption that prevents the local agency from broadcasting the remote meeting, or in the event of a disruption within the local agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, AB 361 prohibits the legislative body from taking any further action on items appearing on the meeting agenda until public access to the meeting via the call - in or internet-based options is restored. § 54953(e) (2) (D).
3. Periodic Findings: To continue meeting remotely pursuant to AB 361, an agency must make periodic findings that: (1) the body has reconsidered the circumstances of the declared emergency; and (2) the emergency impacts the ability of the body's members to meet safely in person, or state or local officials continue to impose or recommend measures to promote social distancing. § 54953(e) (3). These findings must be made not later than 30 days after teleconferencing for the first time pursuant to AB 361, and every 30 days thereafter. We recommend that after the agency makes these findings for the first time, it place on the agenda (as a placeholder) "reconsideration" of the findings every month thereafter. § 54953(e) (3).
2) Assembly Bill 2449
AB 2449 provides alternate authority, separate from both the traditional Brown Act teleconferencing requirements and the relaxed teleconferencing requirements during declared emergencies under AB 361. The provisions of AB 2449 are effective for a period of three years beginning January 1, 2023 and ending January 1, 2026.
AB 2449 requires at least a quorum of the legislative body to participate in person from a singular, physical location clearly identified on the agenda, open to the public, and Ralph M. Brown Act Page 7
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Summary of the Major Provisions of the Ralph M. Brown Act situated within the boundaries of the territory over which the agency exercises jurisdiction. § 54953(f)(1). AB 2449 allows other individual members to participate remotely without posting agendas at all teleconference locations, identifying all such locations in the agendas, or making each teleconference location open to the public in two specified circumstances: (1) "just cause" or (2) "emergency circumstances." "Just cause" means any of the following: (A) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely; (B) a contagious illness that prevents a member from attending in person; (C) a need related to a physical or mental disability not otherwise accommodated by the agency's procedures for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the Americans with Disabilities Act; or (D) travel while on official business of the legislative body or another state or local agency. § 54953(j) (2).
To participate remotely for just cause, a member must notify the legislative body "at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause." This notification must include a general description of the circumstances relating to their need to appear remotely at the given meeting. "Emergency circumstances" means a physical or family medical emergency that prevents a member from attending a meeting in person. § 54953(j) (1).
To participate remotely due to emergency circumstances, the member must request the legislative body to allow them to participate in the meeting remotely due to emergency circumstances and the legislative body must take action to approve the request. § 54953(f) (2) (A) (ii). If the legislative body does not approve the request, the member may not participate via teleconference under AB 2449 at that meeting other than as a member of the public. The legislative body must request a general description of the circumstances relating to the member's need to appear remotely at the given meeting.
A general description need not exceed 20 words and does not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law. A legislative body member should request to participate remotely at a meeting due to emergency circumstances as soon as possible, and a separate request is required for each meeting in which they seek to participate remotely. § 54953(f) (2) (A) (i) (1). The legislative body may approve such a request by a majority vote. §§ 54953(f) (2) (A) (i) (II); 54954.2(b) (4). If the request is received at least 72 hours before a regular meeting, the legislative body's action on the request should be included on the agenda. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting, the legislative body may take action at the beginning of the meeting. § 54953(f) (2) (A) (i) (11).
There are strict limits on how often AB 2449 may be used for individual members. For "just cause," legislative members are only allowed to participate remotely up to two meetings per calendar year. Otherwise, legislative members may not participate solely by teleconference from a remote location for a period of more than three consecutive months or 20 percent of the regular meetings for the legislative body within a calendar Ralph M. Brown Act Page 8
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Summary of the Major Provisions of the Ralph M. Brown Act year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year.
At the meeting before any action is taken, members of the legislative body participating remotely pursuant to AB 2449 must publicly disclose whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member's relationship with any such individuals. § 54953(f)(2)(B). Members must also participate through both audio and visual technology so that the public can remotely hear and visually observe them. § 54953 (f) (2) (C) .
Local agencies relying on AB 2449 must follow certain requirements for noticing and conducting remote meetings similar to those required by AB 361. Meeting notices and agendas must identify the means by which members of the public may access the meeting and offer public comment. § 54953(f) (1) (B). Meeting agendas must identify and include an opportunity for all persons to attend and address the legislative body directly via a call -in option, via an internet-based service option, and at the in -person location of the meeting. § 54953(f) (1) (C). In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call -in option or internet-based service option, or in the event of a disruption within the agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, the legislative body may take no further action on items appearing on the meeting agenda until public access to the meeting via the call -in option or internet-based service option is restored. § 54953(f) (1) (D). The legislative body may not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. § 54953(f) (1) (E).
V. ADA COMPLIANCE
Pursuant to Section 54953.2, all meetings of a legislative body, other than closed session meetings or parts of meetings involving a closed session, are required to be held in a location and conducted in a manner that complies with the Americans with Disabilities Act of 1990.
However, local agencies must ensure that remote meetings are conducted in a manner that allows persons with a disability to participate to the fullest extent possible.
Additionally, if requested, the agenda and documents in the agenda packet shall be made available in alternative formats to persons with a disability. § 54954.1. The agenda shall include information regarding how, to whom and when a request for disability - related modification or accommodation, including auxiliary aids or services, may be made by a person with a disability who requires a modification or accommodation in order to participate in the meeting. § 54954.2.
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Summary of the Maior Provisions of the Ralph M. Brown Act VI. SIMULTANEOUS OR SUCCESSIVE
MEETINGS
A legislative body that has convened a meeting and whose membership constitutes a quorum of any other legislative body may convene a meeting of that other legislative body, simultaneously or successively, only if a clerk or a member of the convened legislative body announces the following prior to convening the simultaneous or successive meeting:
1) There is a subsequent legislative body;
2) The amount of compensation or stipend, if any, each member may receive as a result of the multiple meetings; and
3) The form of the compensation or stipend that will be provided.
The amount of compensation and stipend is not required to be announced if it is listed in a statute without additional compensation authorized by the local agency, and in any case, the announced compensation must not include amounts reimbursed for actual and necessary expenses incurred by a member in the performance of his or her official duties. § 54952.3.
VI I. SERIAL MEETINGS
In addition to regulating all gatherings of a majority of the members of a legislative body, the Brown Act also addresses certain contacts between individual members of the legislative body. On the one hand, the Brown Act specifically provides that nothing in the Act is intended to impose requirements on individual contacts or conversations between a member of a legislative body and any other person. § 54952.2(c)(1). This provision even applies to individual contacts between two members of the legislative body (the individual contact exception to the "meeting" described above). Despite this exception, however, the Brown Act prohibits "serial meetings." § 54952.2(b)(1).
A serial meeting is a series of meetings or communications, either in person or by other means, between individual members of the legislative body in which ideas are exchanged among a majority of a legislative body regarding an item of business that is within the subject matter jurisdiction of the legislative body. A serial meeting can occur even though a majority of legislative body members never gather in a room at the same time. For example, an email response concerning an agency's business circulating among a majority of the members of the legislative body, such as "reply to all," could be considered a serial meeting. A serial meeting typically occurs in one of two ways. The first is when a staff member, a legislative body member or some other person individually contacts a majority of legislative body members and shares ideas among the majority (e.g., "I've talked to members A and B and they will vote `yes.' Will you?"). Alternatively, Ralph M. Brown Act Page 10
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Summary of the Major Provisions of the Ralph M. Brown Act member A calls member B, who then calls member C and so on, until a majority of the legislative body has discussed or deliberated or has taken action on the item of business.
The prohibition against serial meetings does not, however, prohibit communications between staff and legislative body members for the purpose of answering questions or providing information regarding a matter that is within the subject matter jurisdiction of the local agency, as long as the staff person does not communicate with other members of the legislative body, the comments or positions of any other member of the legislative body. § 54952.2 (b) (2) .
Social media interactions between or among members of a legislative body can also raise serial meeting concerns. However, the prohibition against serial meetings does not prevent communication between members of a legislative body and members of the public on internet-based social media platforms to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body provided that: (i) a majority of the members of the legislative body do not use the social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body, and (ii) members of the legislative body do not respond directly to any communication on a social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body. § 54952.2(b) (3).
Observing the following guidelines can avoid inadvertent violation of the serial meeting rule.
A. Contacts with Staff
Staff can inadvertently become a conduit among a majority of a legislative body in the course of providing briefings on items of local agency business. Originally, the California Court of Appeal held that staff briefings of individual city council members do not constitute an illegal serial meeting under the Brown Act unless there was additional evidence that: (1) staff acted as a personal intermediary for other members of the legislative body; and (2) the meetings led to a collective concurrence among members of the legislative body. Following that decision, the state legislature amended Government Code Section 54952.2 in 2008, effective in 2009, to further clarify that staff briefings of individual city council members for the purpose of answering questions or providing information regarding an item of business do not constitute an illegal serial meeting under the Brown Act as long as a staff person does not communicate the comments or positions of a member of the legislative body to other members. Staff briefings must therefore be handled carefully. To avoid having a staff briefing become a serial meeting:
• Staff briefings of members of the legislative body should be "unidirectional" when done on an individual basis for a majority of the legislative body. This means that information should flow from staff to the member, and the member's participation should be limited to asking questions and acquiring information. Otherwise, if multiple members separately give staff direction Ralph M. Brown Act Page 1 1
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Summary of the Major Provisions of the Ralph M. Brown Act thereby causing staff to shape or modify their ultimate recommendations in order to reconcile the views of a majority of the members, a violation might occur.
• A legislative body member should not ask staff to describe the views of any other members of the legislative body, and staff should not volunteer those views if known.
• Staff may present their views to a legislative body member during an individual contact, but staff should not ask for that member's views unless it is absolutely clear that staff is not discussing the matter with a majority of the legislative body.
B. Contacts with Constituents, Developers and Lobbyists A constituent, developer or lobbyist can also inadvertently become an intermediary among a majority of members of a legislative body thereby creating an illegal serial meeting in violation of the Brown Act. Such person's unfamiliarity with the requirements of the Brown Act aggravate this potential problem because they may expect a legislative body member to be willing to commit to a position in a private conversation in advance of a meeting. To avoid violations arising from contacts with constituents, developers and lobbyists:
• State the ground rules "up front." Ask if the person has talked, or intends to talk, with other members of the legislative body about the same subject. If the answer is "yes," then make it clear that the person should not disclose the views of other legislative body member(s) during the conversation. • Explain to the person that you will not make a final decision on a matter prior to the meeting. For example: "State law prevents me from giving you a commitment outside a noticed meeting. I will listen to what you have to say and give it consideration as I make up my mind."
• Do more listening and asking questions than expressing opinions. If you disclose your thoughts about a matter, counsel the person not to share them with other members of the legislative body.
• Be especially careful with discussions about matters involving "quasi- judicial" land use decisions such as subdivision maps, site development plans, conditional use permits or variances. Consult with your city attorney or legal counsel before the meeting in order to avoid any potential problems involving illegal prejudice against the project or illegally receiving evidence about the project outside of the administrative record.
Ralph M. Brown Act Page 12
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Summary of the Maior Provisions of the Ralph M. Brown Act C. Contacts with Fellow Members of the Same Legislative Body
Direct contacts concerning local agency business with fellow members of the same legislative body - whether through face-to-face or telephonic conversations, notes, letters, online exchanges, email with or to staff members - are the most obvious means by which an illegal serial meeting can occur. This is not to say that a member of a legislative body is precluded from discussing items of local agency business with another member of that legislative body outside of a meeting; as long as the communication does not involve a majority of the legislative body, no "meeting" has occurred. There is, however, always the risk that one participant in the communication will disclose the views of the other participant to a third or fourth legislative body member, creating the possibility of a discussion of an item of business outside a noticed public meeting.
Therefore, avoid discussing city business with a majority of the members of your legislative body and communicating the views of other legislative body members outside a meeting.
D. Contacts on Social Media
Social media engagement can also inadvertently lead to concerns of creating an illegal serial meeting in violation of the Brown Act. The Brown Act was previously silent regarding social media and its use by members of a legislative body, leading to uncertainty as to whether certain uses of social media could result in unintended violations of the Brown Act. Assembly Bill 992, passed in 2020 and effective January 1, 2021, amended certain provisions of the Brown Act until January 1, 2026 to clarify allowable uses of social media under the Act.
A member of a legislative body may engage in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body. However, a majority of the members of the legislative body cannot use the internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body. Further, a member of the legislative body is prohibited from responding directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body. § 54952.2(b) (3) (A). Unlike other serial meeting restrictions that are invoked when there are contacts of a majority of the legislative body, this provision is triggered when there is interaction between as little as two members of a body. For purposes of these provisions, such interaction includes commenting or using digital icons that express reactions to communications made by other members of the legislative body. § 54952.2(b) (3) (B) (i). Thus, it is now clear that "liking" a post or using a digital icon is considered a discussion under the Brown Act.
Therefore, to avoid violations arising from social media engagement, members of a legislative body should avoid interacting on social media platforms with any other Ralph M. Brown Act Page 13
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Summary of the Major Provisions of the Ralph M. Brown Act members of their legislative body regarding matters within the subject matter jurisdiction of the legislative body.
These suggested rules of conduct may seem unduly restrictive and impractical, and may make acquiring important information more difficult or time-consuming. Nevertheless, following them will help assure that your conduct comports with the Brown Act's goal of achieving open government. If you have questions about compliance with the Act in any given situation, you should seek advice from your city attorney or legal counsel.
Adherence to the foregoing guidelines is not a substitute for securing advice from your legal counsel.
VIII. NOTICE, AGENDA AND REPORTING
REQUIREMENTS
A. Time of Notice and Content of Agenda
Two key provisions of the Brown Act which ensure the public's business is conducted openly are the requirements that legislative bodies publicly post agendas prior to their meetings, (§§ 54954.2, 54955, 54956 and 54957.5) and that no action or discussion may occur on items or subjects not listed on the posted agenda (§ 54954.2). The limited exceptions to the rule against discussing or taking action not on a posted agenda are discussed further below.
Legislative bodies, except advisory committees and standing committees, are required to establish a time and place for holding regular meetings. § 54954(a). A "regular" meeting is a meeting that occurs on the legislative body's established meeting day.
Generally, agendas for a regular meeting must be publicly posted 72 hours in advance of the meeting in a place that is freely accessible to the public.
Agendas must contain a brief general description of each item of business to be transacted or discussed at the meeting. § 54954.2(a). The description should inform the public of the "essential nature" of the matter, but need not exceed 20 words. San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637 (2016).
Courts will not uphold a challenge to the sufficiency of an agenda item description when the description provides fair notice of what the agency will consider. The San Diegans for Open Government case provides an example of a sufficient agenda description that provides fair notice. In San Diegans for Open Government, the Oceanside City Council approved a subsidy agreement with a hotel developer using the following agenda item description:
Adoption of a resolution to approve: 1. An Agreement Regarding Real Property (Use Restrictions) between the City of Oceanside and SD Malkin Properties Inc. to guarantee development and use of the property as a full service resort consistent with the entitlements for the project; 2. An Agreement Regarding Real Property to provide a Ralph M. Brown Act Page 14
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Summary of the Major Provisions of the Ralph M. Brown Act mechanism to share Transient Occupancy Tax (TOT) generated by the Project; 3. A Grant of Easement to permit construction of a subterranean parking garage under Mission Avenue; 4. A report required by AB 562 prepared by Paul Marra of Keyser Marston and Associates documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, the public purpose of the subsidy, the amount of the tax revenue and jobs generated by the project; and 5. A License Agreement to permit construction staging for the project on a portion of Lot 26.
The court ruled that this agenda description complied with the requirements of Government Code Section 54954.2 because the agenda description expressly gave the public notice that the council would consider a fairly substantial development of publicly owned property as a hotel, that the City would share the transient occupancy tax generated by the project and that the transaction would involve a subsidy by the City.
Additional information, while helpful, was not necessary to provide fair notice of the essential nature of the action under state law. The court found that the language of the agenda, considered as a whole, provided more than a "clue" that the City planned to provide the developer with a substantial and ongoing financial subsidy in exchange for the project.
In contrast, in Hernandez v. Town of Apple Valley, 7 Cal. App. 5th 194 (2017), the court held that the Apple Valley Town Council's agenda description was insufficient. There, the Apple Valley Town Council adopted three resolutions that called for a special election related to an initiative to adopt a commercial specific plan and the filing of arguments and rebuttal arguments for and against the initiative. In addition, the Town Council adopted a Memorandum of Understanding ("MOU") that authorized the acceptance of a gift from an interested party, Wal-Mart, to pay for the special election.
The agenda description for the matter read "Wal-Mart Initiative Measure" and included a recommendation for action that read "[p]rovide direction to staff." The court reiterated that the Brown Act requires that each item of business be placed on the agenda. Specifically, the court highlighted that nothing in the agenda description, or even in the agenda packet, indicated that the Town Council was going to consider an MOU to accept a gift from Wal-Mart to pay for a special election to pass the initiative.
The court concluded that the City violated the Brown Act by omitting the MOU from the agenda description because the omission meant that the plaintiff was given no notice of the item of business.
Furthermore, agendas should make clear whether items may be acted on or whether they are informational only. Thus, if an agenda for a meeting states that the legislative body will only "discuss" an item, the legislative body may not take an "action" on that item.
Agendas must also be posted on the local agency's website, if one exists, for City Council meetings, and meetings of any other legislative body where some members are City Council members and are compensated for their appearance. While the language of the 72 hour posting requirement appears absolute, the California Attorney General Ralph M. Brown Act Page 15
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Summary of the Major Provisions of the Ralph M. Brown Act opined that technical difficulties, such as a power failure, cyber-attack or other third - party interference that prevents a local agency from posting its agenda on its website for the full 72 hours will not necessarily preclude the legislative body from lawfully holding its meeting. 99 Ops. Cal. Atty. Gen. 11 (2016). Whether a public meeting may continue as scheduled requires a fact specific analysis that turns on whether the local agency has otherwise "substantially complied" with the Brown Act's agenda posting requirements by properly posting a physical agenda and making other "reasonably effective efforts" (such as making the agenda available on social media or some other alternative website) to notify the public of the meeting.
Please note that the proposed adoption of a CEQA exemption or approval of a CEQA document, such as an environmental impact report or a negative declaration, by a Planning Commission or a City Council is a distinct item of business separate from the item approving the project and must be expressly described in an agenda. G.I. Industries v.
City of Thousand Oaks (2022) 84 Cal.App.5th 814.
A "special" meeting is a meeting that is held at a time or place other than the time and place established for regular meetings. For special meetings, the "call and notice" of the meeting and the agenda must be posted in a publicly accessible area, including in some cases on the local agency's website, at least 24 hours prior to the meeting. § 54956(a).
Additionally, each member of the legislative body must personally receive written notice of the special meeting either by personal delivery or by "any other means" (such as facsimile, email or U.S. mail) at least 24 hours before the time of the special meeting, unless they have previously waived receipt of written notice. Members of the press (including radio and television stations) and other members of the public can also request written notice of special meetings and, if they have, then that notice must be given at the same time notice is provided to members of the legislative body.
An "emergency" meeting may be called to address certain emergencies, such as a terrorist act or crippling disaster, without complying with the 24-hour notice requirement.
Certain requirements apply for notifying the press and for conducting closed sessions as part of those meetings and except as specified, all other rules governing special meetings apply. § 54956.5.
Both regular and special meetings may be adjourned to another time. Notices of adjourned meetings must be posted on the door of the meeting chambers where the meeting occurred within 24 hours after the meeting is adjourned. § 54955. If the adjourned meeting occurs more than five days after the prior meeting, a new agenda for that adjourned meeting must be posted 72 hours in advance of the adjourned meeting. § 54954.2(b)(3).
The Brown Act requires local agencies to mail the agenda or the full agenda packet to any person making a written request no later than the time the agenda is posted or is delivered to the members of the body, whichever is earlier. Additionally, a local agency with an internet website must send a website link to or a copy of the agenda or the full agenda packet by email, if a person requests that the documents be sent by email. A local agency may charge a fee to recover its costs of copying and mailing. Any person may make a standing request to receive these materials, in which event the request must Ralph M. Brown Act Page 16
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Summary of the Major Provisions of the Ralph M. Brown Act be renewed annually. Failure by any requestor to receive the agenda does not constitute grounds to invalidate any action taken at a meeting. § 54954.1.
B. Action and Discussion on Non -agenda Items
The Brown Act also ensures the public's business is conducted openly by restricting a legislative body's ability to deviate from posted agendas. The statute affords a legislative body limited authority to act on or discuss non -agenda items at regular meetings, but forbids doing so at special meetings.
As a general rule, a legislative body may not act on or discuss any item that does not appear on the agenda posted for a regular meeting. § 54954.2(a) (3). This rule does not, however, preclude a legislative body from acting on a non -agenda item that comes to the local agency's attention subsequent to the agenda posting which requires immediate action. § 54954.2(b) (2). In order to utilize this exception, the legislative body must make findings of both components of the exception by a two-thirds vote of those present (by unanimous vote if less than two-thirds of the body is present). This means that if four members of a five -member body are present, three votes are required to add the item; if only three are present, a unanimous vote is required. In addition, an item not appearing on an agenda may be added if the legislative body determines by a majority vote that an emergency situation exists. § 54954.2(b) (1). For purposes of this exception, the term "emergency situation" refers to work stoppages or crippling disasters that severely impair public health, safety, or both.
Assembly Bill 2449, discussed above, also allows a legislative body act at the beginning of a meeting on a request from a member to participate in a meeting remotely due to emergency circumstances pursuant to AB 2449 if the member's request to participate remotely does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. § 54953(f) (2) (A) (i) (ll); § 54954.2(b)(4). The legislative body may approve such a request by a majority vote of the legislative body. § 54954.2(b)(4).
In addition to the general exceptions discussed above, a legislative body may also discuss non -agenda items at a regular meeting under the following five additional exceptions:
• Members of the legislative body or staff may briefly respond to statements made or questions posed by persons during public comment periods; • Members of the legislative body or staff may ask a question for clarification, make a brief announcement or make a brief report on their own activities; • Members of the legislative body may, subject to the procedural rules of the body, provide a reference to staff or other resources for factual information; • Members of the legislative body may, subject to the procedural rules of the body, request staff to report back to the legislative body at a subsequent meeting concerning any matter; and
Ralph M. Brown Act Page 17
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Summary of the Major Provisions of the Ralph M. Brown Act • Members of the legislative body may, subject to the procedural rules of the body, take action to direct staff to place a matter of business on a future agenda.
Therefore, spending a few minutes to discuss whether a matter should be placed on a future agenda or asking staff procedural questions is permissible. Cruz v. City of Culver City, 2 Cal.App. 5th 239 (2016). The legislative body may not, however, discuss non - agenda items to any significant degree. This means there should not be long or wide- ranging question and answer sessions on non -agenda items between the legislative body and the public or between the legislative body and staff. It is important to follow these exceptions carefully and construe them narrowly to avoid tainting an important and complex action by a non-agendized discussion of the item.
The Brown Act contains even more stringent regulations to restrict action on and discussion of non -agenda items at special meetings. In particular, the statute mandates that only business that is specified in the "call and notice" of the special meeting may be considered by the legislative body. § 54956. Notwithstanding, a special meeting may not be called to discuss compensation of a local agency executive. § 54956(b).
C. Reporting of Actions
The Brown Act mandates the public reporting of individual votes or abstentions by members of legislative bodies on any given motion or action. This requirement may be satisfied in most situations by reporting the individual vote or abstention of each member in the minutes of a meeting. § 54953(c). The Brown Act also requires that the legislative body orally report a summary of recommendations made with respect to the salary, salary schedule or compensation paid to a local agency executive. The legislative body must issue the report at the same meeting in which the final action on compensation is being considered. § 54953(c) (3).
IX. PUBLIC PARTICIPATION
A. Regular Meetings
The Brown Act mandates that every agenda for a regular meeting provide an opportunity for members of the public to directly address the legislative body on any matter that is within the subject matter jurisdiction of the legislative body. § 54954.3(a).
In addition, the Brown Act requires the legislative body to allow members of the public to comment on any item on the agenda either before or during the body's consideration of that item. § 54954.3(a). Also, although not required under the Brown Act, local agencies may consider reading written comments received into the public record by the city clerk, or his or her designee, subject to reasonable time and content limitations imposed in accordance with the requirements outlined below in Section C (titled Limitations on the Length and Content of Public Comments).
Ralph M. Brown Act Page 18
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Summary of the Major Provisions of the Ralph M. Brown Act Some local agencies accomplish both public comment requirements by placing a general audience comment period at the beginning of the agenda where the public can comment on both agenda and non -agenda items. Others provide public comment periods as each item or group of items comes up on the agenda, and then leave the general public comment period to the end of the agenda. Either method is permissible, though public comment on public hearing items must be taken during the hearing.
The Brown Act allows a legislative body to preclude public comments on an agenda item in one limited situation sometimes referred to as the "committee exception" -where the item was considered by a committee, composed solely of members of the body, that held a meeting where public comments on that item were allowed. So, if the legislative body has standing committees (which are required to have agendized and open meetings with an opportunity for the public to comment on agenda items) and the committee has previously considered an item, then at the time the item comes before the full legislative body, the body may choose not to take additional public comments on that item. However, if the version presented to the full legislative body is different from the version presented to, and considered by, the committee, then the public must be given another opportunity to speak on that item at the meeting of the full body. § 54954.3(a).
B. Public Comments at Special Meetings
The Brown Act requires that agendas for special meetings provide an opportunity for members of the public to address the legislative body concerning any item listed on the agenda before or during the body's consideration of that item. § 54954.3(a). Unlike regular meetings, though, the legislative body does not have to allow public comment on non -agenda matters at a special meeting. Additionally, unlike regular meetings, the exception to the requirement for public comment opportunity for items already considered by a committee (i.e., the "committee exception") does not apply to special meetings. Preven v. City of Los Angeles, 32 Cal. App. 5th 925, 936 (2019).
C. Limitations on the Length and Content of Public
Comments
A legislative body may adopt reasonable regulations limiting the total amount of time allocated to each person for public testimony. § 54954.3(b). Typical time limits restrict speakers to three or five minutes. If an individual utilizes a translator to give testimony and simultaneous translation equipment is not used, the legislative body must allot at least twice the standard amount of time to the speaker. § 54954.3(b) (2). A legislative body may also adopt reasonable regulations limiting the total amount of time allocated for public testimony on legislative matters, such as a zoning ordinance or other regulatory ordinance. However, setting total time limits per item for any quasi-judicial matter, such as a conditional use permit application, is not recommended because the time restriction could violate the due process rights of those who were not able to speak to the body during the time allotted.
Ralph M. Brown Act Page 19
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Summary of the Major Provisions of the Ralph M. Brown Act The Brown Act precludes a legislative body from prohibiting public criticism of the policies, procedures, programs or services of the local agency or the acts or omissions of the body. § 54954.3(c). This restriction does not mean that a member of the public may say anything during public testimony. If the topic of the public's comments falls outside the subject matter jurisdiction of the local agency, the legislative body may stop a speaker's comments if the comments are disruptive, as described below.
A legislative body also may adopt reasonable rules of decorum that preclude a speaker from disrupting, disturbing or otherwise impeding the orderly conduct of its meetings. § 54954.3(b). The right to publicly criticize a public official does not include the right to slander that official, though the line between criticism and slander is often difficult to determine in the heat of the moment. Care must be given to avoid violating the free speech rights of speakers by suppressing opinions relevant to the business of the legislative body.
Finally, in some circumstances, the use of profanity may serve as a basis for stopping a speaker. It will depend, however, upon what profane words or comments are made and the context of those comments. Therefore, no one should be ruled out of order for profanity unless the language both is truly objectionable and causes a disturbance or disruption in the proceeding.
The presiding officer of a legislative body may remove an individual from a meeting for actual disruptive behavior if they first warn the individual that their behavior is disruptive and that failure to cease their disruptive behavior could result in removal from the meeting. § 54957.95(a). Behavior is disruptive only if it actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting. § 54957.95(b)(1). Disruptive behavior may include noncompliance with the legislative body's established rules of decorum, such as speaking out of turn or exceeding established time limits on how long an individual can speak on a particular topic during public comment. § 54957.95(b) (1) (A). If the individual disrupting the meeting is using force or a true threat of force — meaning serious enough that a reasonable observer would perceive the threat to be an actual threat to use force by the person making the threat — they may be removed without a prior warning to cease their behavior. § 54957.95.
D. Additional Rights of the Public
The Brown Act grants the public the right to videotape or broadcast a public meeting, as well as the right to make a motion picture or still camera record of such meeting. § 54953.5(a). A legislative body may prohibit or limit recording of a meeting, however, if the body finds that the recording cannot continue without noise, illumination or view obstruction that constitutes, or would constitute, a disruption of the proceedings. § 54953.6.
Any audio or videotape record of an open and public meeting that is made, for whatever purpose, by or at the direction of the local agency is a public record and is subject to inspection by the public consistent with the requirements of the Public Records Act. § 54953.5(b). The local agency must not destroy the tape or film record for at least 30 days following the date of the taping or recording. Inspection of the audiotape or Ralph M. Brown Act Page 20
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Summary of the Major Provisions of the Ralph M. Brown Act videotape must be made available to the public for free on equipment provided by the local agency.
The Brown Act requires written material distributed to a majority of the body by any person to be provided to the public without delay. This rule is inapplicable, to attorney - client memoranda, the confidentiality of which was affirmed by the California Supreme Court in Roberts v. City of Palmdale, 5 Cal. 4th 363, 381 (1993). However, if non -privileged material is distributed during the meeting and prepared by the local agency, it must be available for public inspection at the meeting. If it is distributed during the meeting by a member of the public, it must be made available for public inspection after the meeting. § 54957.5(c).
If material related to an agenda item is distributed to a majority of the body less than 72 hours prior to an open session of a regular meeting, the writing must be made available at the same time for public inspection at a public office or location that has been designated in advance for such purpose. Each local agency must list the address of the designated office or location on the agendas for all meetings of the legislative body of that agency. § 54957.5(b). Although this Brown Act provision technically requires an agency to list the designated office address on closed session meeting agendas, it does not require an agency to make such closed session documents and materials available for public inspection.
A local agency may also post all documents made available for public inspection pursuant to Section 54957.5(b) on the agency's Internet Web site. However, a local agency may not post the writings to its website in lieu of designating a public office or location for inspection of physical copies of the documents.
There is a limited exception for certain supplemental materials to the requirement described above regarding making a writing distributed to a majority of the legislative body less than 72 hours in advance of a meeting immediately available for public inspection at a physical location. § 54957.5(b) (2) (B). The exception only applies to materials that are supplementing an initial staff report or similar document containing an executive summary and the staff recommendation, if any, relating to that agenda item that was made available for public inspection at the office or location designated at least 72 hours before the meeting. The exception allows the agency to make the materials available for public inspection the next business day commencing at least 24 hours in advance of the meeting during regular hours if the agency posts the materials on the agency's website immediately upon distributing them to the majority of the body, making it clear they relate to the item at the upcoming meeting, and the agenda posted for all meetings of the legislative body contains the agency's website address.
We recommend that local agencies implement the following procedures to comply with Section 54957.5(b):
• Place a binder at the agency's principal place of business next to the public counter agenda packet that identifies the contents as follows:
"Disclosable public documents related to an open session agenda item on Ralph M. Brown Act Page 21
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Summary of the Major Provisions of the Ralph M. Brown Act the Agenda Packet distributed by the [AGENCY] to a majority of the [LEGISLATIVE BODY] less than 72 hours prior to the meeting." • On the agenda template for all meetings, there should be a standard footer or statement that indicates the following: "Any disclosable public writings related to an open session item on a regular meeting agenda and distributed by the [AGENCY] to at least a majority of the [LEGISLATIVE BODY] less than 72 hours prior to that meeting are available for public inspection at the Counter at [AGENCY'S PLACE OF BUSINESS] located at [ADDRESS] and [optional] the Counter at the Library located at [LIBRARY ADDRESS] during normal business hours. [Optional] In addition, the Agency may also post such documents on the Agency's Website at [WEBSITE ADDRESS]." Agencies should make these documents available online to the greatest extent possible, when public buildings or facilities are temporarily closed to public access.
• On the agency's website, create a subfolder under the agenda packet folder that identifies the contents of the subfolder as follows: "Disclosable public documents related to an open session agenda item on the Agenda Packet distributed by the [AGENCY] to a majority of the [LEGISLATIVE BODY] less than 72 hours prior to the meeting." • On all documents made available for public inspection pursuant to Section 54957.5(b), make a notation of the date when distributed to at least a majority of the legislative body and placed in the binder at agency's place of business, [optional] the Library, or [optional] on the agency's Website.
• Charge customary photocopying charges for copies of such documents.
One problem left unaddressed by Section 54957.5(b) is what to do when written materials are distributed directly to a majority of the legislative body without knowledge of staff, or even without the legislative body members knowing that a majority has received it. The law still requires these materials to be treated as public records. Thus, it is a good idea for at least one member of the legislative body to ensure that staff gets a copy of any document distributed to members of the legislative body so that copies can be made for the local agency's records and for members of the public who request a copy.
X. CLOSED SESSIONS
The Brown Act allows a legislative body to convene a "closed session" during a meeting in order to meet privately with its advisors on specifically enumerated topics. Sometimes people refer to closed sessions as "executive sessions," which is a holdover term from the statute's early days. Examples of business that may be conducted in closed session include personnel actions and evaluations, threats to public safety, labor negotiations, pending litigation, real estate negotiations and consideration of a response to an audit Ralph M. Brown Act Page 22
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Summary of the Major Provisions of the Ralph M. Brown Act report. §§ 54956.8, 54956.9, 54957, 54957.6, 54956.75. Political sensitivity of an item is not a lawful reason for a closed session discussion.
The Brown Act requires that closed session business be described on the public agenda.
For a litigation threat against a city made outside an open and public meeting to be discussed in closed session it must be included in the agenda packet made available upon request before the meeting. Fowler v. City of Lafayette, 46 Cal. App. 5th 360, 370 (2020), as modified on denial of reh'g (Mar. 11, 2020), review denied (July 22, 2020).
Moreover, there is a "safe harbor" for using prescribed language to describe closed session items on an agenda in that legal challenges to the adequacy of the description are precluded when such language is used. § 54954.5. This so-called "safe harbor" encourages many local agencies to use a very similar agenda format, especially in light of a California Court of Appeal ruling that a local agency substantially complied with the Brown Act's requirement to describe closed session agenda items even though the notice referred to the wrong subsection of Section 54956.9. Castaic Lake Water Agency v. Newhall County Water District, 238 Cal.App. 4th 1196, 1207 (2015). Audio recording of closed sessions is not required unless a court orders such recording after finding a closed session violation. § 54960.
Closed sessions may be started in a location different from the usual meeting place as long as the location is noted on the agenda and the public can be present when the meeting first begins. Moreover, public comment on closed session items must be allowed before convening the closed session.
After a closed session, the legislative body must reconvene the public meeting and publicly report certain types of actions if they were taken and the vote on those actions. § 54957.1. There are limited exceptions for specified litigation decisions and to protect the victims of sexual misconduct or child abuse. Contracts, settlement agreements or other documents that are finally approved or adopted in closed session must be provided at the time the closed session ends to any person who has made a standing request for all documentation in connection with a request for notice of meetings (typically members of the media) and to any person who makes a request within 24 hours of the posting of the agenda, if the requestor is present when the closed session ends. § 54957.1.
One perennial area of confusion is whether a legislative body may discuss the salary and benefits of an individual employee (such as a city manager) as part of a performance evaluation session under Section 54957. It may not. However, the body may designate a negotiator or negotiators, such as two members of a five -member legislative body, to negotiate with that employee and then meet with the negotiator(s) in closed session under Section 54957.6 to provide directions on salary and compensation issues. The employee in question may not be present in such a closed session. The Brown Act prohibits attendees from disclosing confidential information obtained during a closed session, unless the legislative body authorizes the disclosure. Violations can be addressed through injunctions, disciplinary action, and referral to the grand jury. § 54963.
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Summary of the Major Provisions of the Ralph M. Brown Act XI. ENFORCEMENT
There are both civil remedies and criminal misdemeanor penalties for Brown Act violations. The civil remedies include injunctions against further violations, orders nullifying any unlawful action, orders determining that an alleged act violated the Brown Act, orders determining the validity of any rule to penalize or discourage the expression of a member of the legislative body, and remedies for breaching closed session confidences. §§ 54960, 54960.1, 54960.2, 54963.
The procedures for claiming there was a Brown Act violation vary depending upon what the complaining party is seeking. If the complaining party is seeking to invalidate an action based on a violation of the Brown Act, the procedures for doing so are set forth in Section 54960.1, as summarized below. If the complaining party is merely seeking a determination that a Brown Act violation occurred or desires the court to impose an order preventing further violations, the procedures for doing so are set forth in Section 54960.2, also as summarized below.
Under Section 54960.1, prior to filing suit to obtain a judicial determination that an action is null and void because of an alleged Brown Act violation, the complaining party must make a written demand on the legislative body to cure or correct the alleged violation. § 54960.1 (b). The written demand must be made within 90 days after the challenged action was taken. However, if the challenged action was taken in open session and involves a violation of the agenda requirements of Section 54954.2, then the written demand must be made within 30 days. § 54960.1 (c) (1). The legislative body is required to cure or correct the challenged action and inform the party who filed the demand of its correcting actions or its decision not to cure or correct, within 30 days. § 54960.1 (c) (2).
The complaining party must file suit within 15 days after receipt of the written notice from the legislative body or if there is no written response, within 15 days after the 30-day cure period expires. § 54960.1 (c). Under Section 54960.2, prior to filing suit to obtain a judicial determination that an alleged Brown Act violation occurred after January 1, 2013, the district attorney or interested person must submit a cease and desist letter to the legislative body clearly describing the legislative body's past action and the nature of the alleged violation within nine months of the alleged violation. § 54960.2(a). Second, the legislative body may respond within 30 days, including responding with an unconditional commitment to cease and desist from, and not repeat the past action that is alleged to violate the Brown Act. § 54960.2(b). If the legislative agency responds with an unconditional commitment, that commitment must be approved by the legislative body in open session at a regular or special meeting as a separate item of business not on the consent calendar and must be in substantially the form set forth in Section 54960.2(c)(1). Also, a legislative body may resolve to rescind an unconditional commitment with proper notice to the public and to each person to whom the unconditional commitment was made. § 54960.2(e). Upon rescission, the district attorney or any interested person may file an action pursuant to Section 54960(a). Finally, Section 54960.2 provides further deadlines and requirements that must be met when filing an action in connection with an unconditional commitment. § 54960.2. Note that even where a plaintiff can satisfy the threshold procedural requirements, a Brown Act violation will not automatically invalidate the action taken by the legislative body absent a Ralph M. Brown Act Page 24
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Summary of the Major Provisions of the Ralph M. Brown Act showing that the violation caused prejudice. Mortis Camp Cmty. Ass'n v. Cty. of Placer, 53 Cal. App. 5th 569, 592 (2020).
A member of a legislative body will not be criminally liable for a violation of the Brown Act unless the member intends to deprive the public of information which the member knows or has reason to know the public is entitled to under the Brown Act. § 54959. This standard became effective in 1994 and is a different standard from most criminal standards. Until it is applied and interpreted by a court, it is not clear what type of evidence will be necessary to prosecute a Brown Act violation.
XII. CONCLUSION
The Brown Act's many rules and ambiguities can be confusing, and compliance with it can be difficult. In the event that you have any questions regarding any provision of the law, you should contact your legal counsel for advice.
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PART TWO:
THE RALPH M. BROWN ACT
Updated including changes effective January 1, 2023
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The Ralph M. Brown Act
Government Code §§ 54950-54963
Section 54950. Declaration of public policy
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.
Section 54950.5. Title of act
This chapter shall be known as the Ralph M. Brown Act.
Section 54951. "Local agency"
As used in this chapter, "local agency" means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof or other local public agency.
Section 54952. "Legislative body"
As used in this chapter, "legislative body" means:
(a) The governing body of a local agency or any other local body created by state or federal statute.
(b) A commission, committee, board or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution or formal action of a legislative body are legislative bodies for purposes of this chapter. (c) (1) A board, commission, committee or other multimember body that governs a private corporation, limited liability company or other entity that either:
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(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company or other entity. (B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full -voting member by the legislative body of the local agency.
(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee or other multimember body that governs a private corporation, limited liability company or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full -voting member to a nonvoting member. (d) The lessee of any hospital, the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises any material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority.
Section 54952.1. Conduct and treatment of electee
Any person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office.
Section 54952.2. Specified communications of legislative body of local agency prohibited outside meeting thereof
(a) As used in this chapter, "meeting" means 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 action on any item that is within the subject matter jurisdiction of the legislative body. (b) (1) A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, 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. (2) Paragraph (1) shall not be construed as preventing an employee or official of a local agency, from engaging in separate conversations or communications outside of a meeting authorized by this chapter 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 Ralph M. Brown Act Page 28
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of the legislative body the comments or position of any other member or members of the legislative body.
(3) (A) Paragraph (1) shall not be construed as preventing a member of the legislative body from engaging in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body provided that a majority of the members of the legislative body do not use the internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body. A member of the legislative body shall not respond directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body.
(B) For purposes of this paragraph, all of the following definitions shall apply:
(i) "Discuss among themselves" means communications made, posted, or shared on an internet-based social media platform between members of a legislative body, including comments or use of digital icons that express reactions to communications made by other members of the legislative body. (ii) "Internet -based social media platform" means an online service that is open and accessible to the public.
(iii) "Open and accessible to the public" means that members of the general public have the ability to access and participate, free of charge, in the social media platform without the approval of the social media platform or a person or entity other than the social media platform, including any forum and chatroom, and cannot be blocked from doing so, except when the internet-based social media platform determines that an individual violated its protocols or rules. (c) Nothing in this section shall impose the requirements of this chapter upon any of the following:
(1) Individual contacts or conversations between a member of a legislative body and any other person that do not violate subdivision (b). (2) The attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering at which the organizers have required other participants or registrants to pay fees or charges as a condition of attendance.
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(3) The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.
(4) The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency or at an open and noticed meeting of a legislative body of another local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.
(5) The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (6) The attendance of a majority of the members of a legislative body at an open and noticed meeting of a standing committee of that body, provided that the members of the legislative body who are not members of the standing committee attend only as observers.
(d) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
Section 54952.3. Simultaneous or serial order meetings authorized; Requirements; Compensation or stipend
(a) A legislative body that has convened a meeting and whose membership constitutes a quorum of any other legislative body may convene a meeting of that other legislative body, simultaneously or in serial order, only if a clerk or a member of the convened legislative body verbally announces, prior to convening any simultaneous or serial order meeting of that subsequent legislative body, the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the simultaneous or serial meeting of the subsequent legislative body and identifies that the compensation or stipend shall be provided as a result of convening a meeting for which each member is entitled to collect compensation or a stipend. However, the clerk or member of the legislative body shall not be required to announce the amount of compensation if the amount of compensation is prescribed in statute and no additional compensation has been authorized by a local agency.
(b) For purposes of this section, compensation and stipend shall not include amounts reimbursed for actual and necessary expenses incurred by a member in the performance of the member's official duties, including, but not limited to, reimbursement of expenses relating to travel, meals, and lodging.
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Section 54952.6. "Action taken"
As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.
Section 54952.7. Copy of chapter
A legislative body of a local agency may require that a copy of this chapter be given to each member of the legislative body and any person elected to serve as a member of the legislative body who has not assumed the duties of office. An elected legislative body of a local agency may require that a copy of this chapter be given to each member of each legislative body all or a majority of whose members are appointed by or under the authority of the elected legislative body.
Section 54953. Requirement that meetings be open and public; Teleconferencing; Teleconference meetings by health authority
(a) 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.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. If the legislative body of a local agency elects to use teleconferencing, the legislative body of a local agency shall comply with all of the following:
(A) All votes taken during a teleconferenced meeting shall be by roll call. (B) The teleconferenced meetings shall be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency.
(C) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(D) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3.
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(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e).
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action. (3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 351 1.1, during the open meeting in which the final action is to be taken.
This paragraph shall not affect the public's right under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1) to inspect or copy records created or received in the process of developing the recommendation. (d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting.
(2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section. (3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38 and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code and any advisory committee to a county -sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
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(e) (1) The legislative body of a local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call -in option or an internet-based service option.
(B) In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call -in option or internet- based service option, or in the event of a disruption within the local agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, the legislative body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call -in option or internet-based service option is restored. Actions taken on agenda items during a disruption that prevents the legislative body from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(C) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. (D) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third -party internet website or online platform to participate.
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(E) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed. (ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment.
(iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed.
(3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency.
(B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) This subdivision shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (f) (1) The legislative body of a local agency may use teleconferencing without complying with paragraph (3) of subdivision (b) if, during the teleconference meeting, at least a quorum of the members of the legislative body participates in person from a singular physical location clearly identified on the agenda, which location shall be open to the public and situated within the boundaries of the territory over which the local agency exercises jurisdiction and the legislative body complies with all of the following:
(A) The legislative body shall provide at least one of the following as a means by which the public may remotely hear and visually observe the meeting, and remotely address the legislative body:
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(i) A two-way audiovisual platform.
(ii) A two-way telephonic service and a live webcasting of the meeting.
(B) In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment.
(C) The agenda shall identify and include an opportunity for all persons to attend and address the legislative body directly pursuant to Section 54954.3 via a call - in option, via an internet-based service option, and at the in -person location of the meeting.
(D) In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call -in option or internet- based service option, or in the event of a disruption within the local agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, the legislative body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call -in option or internet-based service option is restored. Actions taken on agenda items during a disruption that prevents the legislative body from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third -party internet website or online platform to participate.
(2) A member of the legislative body shall only participate in the meeting remotely pursuant to this subdivision, if all of the following requirements are met:
(A) One of the following circumstances applies:
(i) The member notifies the legislative body at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause, including a general description of the circumstances relating to their need to appear remotely at the given meeting. The provisions of this clause shall not be used by any member of the legislative body for more than two meetings per calendar year.
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(ii) The member requests the legislative body to allow them to participate in the meeting remotely due to emergency circumstances and the legislative body takes action to approve the request. The legislative body shall request a general description of the circumstances relating to their need to appear remotely at the given meeting. A general description of an item generally need not exceed 20 words and shall not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law, such as the Confidentiality of Medical Information Act (Chapter 1 (commencing with Section 56) of Part 2.6 of Division 1 of the Civil Code). For the purposes of this clause, the following requirements apply:
(1) A member shall make a request to participate
remotely at a meeting pursuant to this clause as soon as possible. The member shall make a separate request for each meeting in which they seek to participate remotely. (II) The legislative body may take action on a request to participate remotely at the earliest opportunity. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting for which the request is made, the legislative body may take action at the beginning of the meeting in accordance with paragraph (4) of subdivision (b) of Section 54954.2. (B) The member shall publicly disclose at the meeting before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member's relationship with any such individuals.
(C) The member shall participate through both audio and visual technology.
(3) The provisions of this subdivision shall not serve as a means for any member of a legislative body to participate in meetings of the legislative body solely by teleconference from a remote location for a period of more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year.
(g) The legislative body shall have and implement a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and resolving any doubt in favor of accessibility. In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the procedure for receiving and resolving requests for accommodation.
(h) The legislative body shall conduct meetings subject to this chapter consistent with applicable civil rights and nondiscrimination laws.
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(i) (1) Nothing in this section shall prohibit a legislative body from providing the public with additional teleconference locations.
(2) Nothing in this section shall prohibit a legislative body from providing members of the public with additional physical locations in which the public may observe and address the legislative body by electronic means.
(j) For the purposes of this section, the following definitions shall apply:
(1) "Emergency circumstances" means a physical or family medical emergency that prevents a member from attending in person. (2) "Just cause" means any of the following:
(A) A childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely. "Child," "parent," "grandparent," "grandchild," and "sibling" have the same meaning as those terms do in Section 12945.2.
(B) A contagious illness that prevents a member from attending in person.
(C) A need related to a physical or mental disability as defined in Sections 12926 and 12926.1 not otherwise accommodated by subdivision (g). (D) Travel while on official business of the legislative body or another state or local agency.
(3) "Remote location" means a location from which a member of a legislative body participates in a meeting pursuant to subdivision (f), other than any physical meeting location designated in the notice of the meeting. Remote locations need not be accessible to the public.
(4) "Remote participation" means participation in a meeting by teleconference at a location other than any physical meeting location designated in the notice of the meeting. Watching or listening to a meeting via webcasting or another similar electronic medium that does not permit members to interactively hear, discuss, or deliberate on matters, does not constitute remote participation. (5) "State of emergency" means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(6) "Teleconference" means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
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(7) "Two-way audiovisual platform" means an online platform that provides participants with the ability to participate in a meeting via both an interactive video conference and a two-way telephonic function.
(8) "Two-way telephonic service" means a telephone service that does not require internet access, is not provided as part of a two-way audiovisual platform, and allows participants to dial a telephone number to listen and verbally participate. (9) "Webcasting" means a streaming video broadcast online or on television, using streaming media technology to distribute a single content source to many simultaneous listeners and viewers.
(k) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.
Section 54953.1. Grand jury testimony
The provisions of this chapter shall not be construed to prohibit the members of the legislative body of a local agency from giving testimony in private before a grand jury, either as individuals or as a body.
Section 54953.2. Meetings to conform to Americans with Disabilities Act All meetings of a legislative body of a local agency that are open and public shall meet the protections and prohibitions contained in Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof.
Section 54953.3. Registration of attendance
A member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his or her name, to provide other information, to complete a questionnaire or otherwise to fulfill any condition precedent to his or her attendance.
If an attendance list, register, questionnaire or other similar document is posted at or near the entrance to the room where the meeting is to be held or is circulated to the persons present during the meeting, it shall state clearly that the signing, registering or completion of the document is voluntary and that all persons may attend the meeting regardless of whether a person signs, registers or completes the document.
Section 54953.5. Recording proceedings
(a) Any person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings with an audio or video recorder or a still or motion picture camera in the absence of a reasonable finding by the legislative body of the local agency that the recording cannot continue without noise, Ralph M. Brown Act Page 38
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illumination or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.
(b) Any audio or video recording of an open and public meeting made for whatever purpose by, or at the direction of the local agency, shall be subject to inspection pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), but, notwithstanding Section 34090, may be erased or destroyed 30 days after the recording. Any inspection of an audio or video recording shall be provided without charge on equipment made available by the local agency.
Section 54953.6. Restrictions on broadcasts of proceedings No legislative body of a local agency shall prohibit or otherwise restrict the broadcast of its open and public meetings in the absence of a reasonable finding that the broadcast cannot be accomplished without noise, illumination or obstruction of view that would constitute a persistent disruption of the proceedings.
Section 54953.7. Access to meetings beyond minimal standards Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter. In addition thereto, an elected legislative body of a local agency may impose such requirements on those appointed legislative bodies of the local agency of which all or a majority of the members are appointed by or under the authority of the elected legislative body.
Section 54954. Rules for conduct of business; Time and place of meetings (a) Each legislative body of a local agency, except for advisory committees or standing committees, shall provide by ordinance, resolution, bylaws or by whatever other rule is required for the conduct of business by that body, the time and place for holding regular meetings. Meetings of advisory committees or standing committees for which an agenda is posted at least 72 hours in advance of the meeting pursuant to subdivision (a) of Section 54954.2, shall be considered for purposes of this chapter as regular meetings of the legislative body.
(b) Regular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction, except to do any of the following:
(1) Comply with state or federal law or court order, or attend a judicial or administrative proceeding to which the local agency is a party. (2) Inspect real or personal property which cannot be conveniently brought within the boundaries of the territory over which the local agency exercises jurisdiction, provided that the topic of the meeting is limited to items directly related to the real or personal property.
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(3) Participate in meetings or discussions of multiagency significance that are outside the boundaries of a local agency's jurisdiction. However, any meeting or discussion held pursuant to this subdivision shall take place within the jurisdiction of one of the participating local agencies and be noticed by all participating agencies as provided for in this chapter.
(4) Meet in the closest meeting facility if the local agency has no meeting facility within the boundaries of the territory over which the local agency exercises jurisdiction, or at the principal office of the local agency if that office is located outside the territory over which the agency exercises jurisdiction. (5) Meet outside their immediate jurisdiction with elected or appointed officials of the United States or the State of California 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. (6) Meet outside their immediate jurisdiction if the meeting takes place 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.
(7) Visit the office of the local agency's legal counsel for a closed session on pending litigation held pursuant to Section 54956.9, when to do so would reduce legal fees or costs.
(c) Meetings of the governing board of a school district shall be held within the district, except under the circumstances enumerated in subdivision (b) or to do any of the following:
(1) Attend a conference on non -adversarial collective bargaining techniques. (2) Interview members of the public residing in another district with reference to the trustees' potential employment of an applicant for the position of the superintendent of the district.
(3) Interview a potential employee from another district. (d) Meetings of a joint powers authority shall occur within the territory of at least one of its member agencies or as provided in subdivision (b). However, a joint powers authority which has members throughout the state may meet at any facility in the state which complies with the requirements of Section 54961.
(e) If, by reason of fire, flood, earthquake or other emergency, it shall be unsafe to meet in the place designated, the meetings shall be held for the duration of the emergency at the place designated by the presiding officer of the legislative body or his or her designee in a notice to the local media that have requested notice pursuant to Section 54956, by the most rapid means of communication available at the time.
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Section 54954.1. Request for notice; Renewal; Fee
Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person. If a local agency has an internet website, the legislative body or its designee shall email a copy of, or website link to, the agenda or a copy of all the documents constituting the agenda packet if the person requests that the item or items be delivered by email. If the local agency determines it is technologically infeasible to send a copy of all documents constituting the agenda packet or a link to a website that contains the documents by email or by other electronic means, the legislative body or its designee shall send by mail a copy of the agenda or a website link to the agenda and mail a copy of all other documents constituting the agenda packet in accordance with the mailing requirements established pursuant to this section. If requested, the agenda and documents in the agenda packet shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. Upon receipt of the written request, the legislative body or its designee shall cause the requested materials to be mailed at the time the agenda is posted pursuant to Section 54954.2 and 54956 or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. Any request for mailed copies of agendas or agenda packets shall be valid for the calendar year in which it is filed, and must be renewed following January 1 of each year. The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service. Failure of the requesting person to receive the agenda or agenda packet pursuant to this section shall not constitute grounds for invalidation of the actions of the legislative body taken at the meeting for which the agenda or agenda packet was not received.
Section 54954.2. Posting of agenda; Actions not on agenda (a) (1) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing 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. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency's Internet Web site, if the local agency has one. If requested, the agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof. The agenda shall include information regarding how, to whom and when a request for disability -related modification or accommodation, including auxiliary aids or services, may be made by a person with a disability who requires a modification or accommodation in order to participate in the public meeting.
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(2) For a meeting occurring on and after January 1, 2019 of a legislative body of a city, county, city and county, special district, school district or political subdivision established by the state that has an Internet Web site, the following provisions shall apply:
(A) An online posting of an agenda shall be posted on the primary Internet Web site homepage of a city, county, city and county, special district, school district or political subdivision established by the state that is accessible through a prominent, direct link to the current agenda. The direct link to the agenda shall not be in a contextual menu; however, a link in addition to the direct link to the agenda may be accessible through a contextual menu.
(B) An online posting of an agenda including, but not limited to, an agenda posted in an integrated agenda management platform shall be posted in an open format that meets all of the following requirements:
(i) Retrievable, downloadable, indexable and electronically searchable by commonly used Internet search applications. (ii) Platform independent and machine readable.
(iii) Available to the public free of charge and without any restriction that would impede the reuse or redistribution of the agenda. (C) A legislative body of a city, county, city and county, special district, school district or political subdivision established by the state that has an Internet Web site and an integrated agenda management platform shall not be required to comply with subparagraph (A) if all of the following are met:
(i) A direct link to the integrated agenda management platform shall be posted on the primary Internet Web site homepage of a city, county, city and county, special district, school district or political subdivision established by the state. The direct link to the integrated agenda management platform shall not be in a contextual menu. When a person clicks on the direct link to the integrated agenda management platform, the direct link shall take the person directly to an Internet Web site with the agendas of the legislative body of a city, county, city and county, special district, school district or political subdivision established by the state. (ii) The integrated agenda management platform may contain the prior agendas of a legislative body of a city, county, city and county, special district, school district or political subdivision established by the state for all meetings occurring on or after January 1, 2019.
(iii) The current agenda of the legislative body of a city, county, city and county, special district, school district or political subdivision established by the state shall be the first agenda available at the top of the integrated agenda management platform.
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(iv) All agendas posted in the integrated agenda management platform shall comply with the requirements in clauses (i), (ii) and (iii) of subparagraph (B)•
(D) For the purposes of this paragraph, both of the following definitions shall apply:
(i) "Integrated agenda management platform" means an
Internet Web site of a city, county, city and county, special district, school district or political subdivision established by the state dedicated to providing the entirety of the agenda information for the legislative body of the city, county, city and county, special district, school district or political subdivision established by the state to the public. (ii) "Legislative body" has the same meaning as that term is used in subdivision (a) of Section 54952.
(E) The provisions of this paragraph shall not apply to a political subdivision of a local agency that was established by the legislative body of the city, county, city and county, special district, school district or political subdivision established by the state.
(3) No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.
(b) Notwithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below.
Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.
(1) Upon a determination by a majority vote of the legislative body that an emergency situation exists as defined in Section 54956.5. (2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).
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(3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.
(4) To consider action on a request from a member to participate in a meeting remotely due to emergency circumstances, pursuant to Section 54953, if the request does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. The legislative body may approve such a request by a majority vote of the legislative body.
(c) This section is necessary to implement and reasonably within the scope of paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution. (d) For purposes of subdivision (a), the requirement that the agenda be posted on the local agency's Internet Web site, if the local agency has one, shall only apply to a legislative body that meets either of the following standards:
A legislative body as that term is defined by subdivision (a) of Section 54952. (2) A legislative body as that term is defined by subdivision (b) of Section 54952, if the members of the legislative body are compensated for their appearance, and if one or more of the members of the legislative body are also members of a legislative body as that term is defined by subdivision (a) of Section 54952. (e) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
Section 54954.3. Public testimony at regular meetings
(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. (b) (1) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, Ralph M. Brown Act Page 44
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regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.
(2) Notwithstanding paragraph (1), when the legislative body of a local agency limits time for public comment, the legislative body of a local agency shall provide at least twice the allotted time to a member of the public who utilizes a translator to ensure that non-English speakers receive the same opportunity to directly address the legislative body of a local agency.
(3) Paragraph (2) shall not apply if the legislative body of a local agency utilizes simultaneous translation equipment in a manner that allows the legislative body of a local agency to hear the translated public testimony simultaneously. (c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs or services of the agency or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
Section 54954.4. Legislative findings and declarations relating to reimbursements; Legislative intent; Review of claims
(a) The Legislature hereby finds and declares that Section 12 of Chapter 641 of the Statutes of 1986 authorizing reimbursement to local agencies and school districts for costs mandated by the state pursuant to that act, shall be interpreted strictly. The intent of the Legislature is to provide reimbursement for only those costs which are clearly and unequivocally incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986.
(b) In this regard, the Legislature directs all state employees and officials involved in reviewing or authorizing claims for reimbursement or otherwise participating in the reimbursement process, to rigorously review each claim and authorize only those claims, or parts thereof, which represent costs which are clearly and unequivocally incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986 and for which complete documentation exists. For purposes of Section 54954.2, costs eligible for reimbursement shall only include the actual cost to post a single agenda for any one meeting.
(c) The Legislature hereby finds and declares that complete, faithful and uninterrupted compliance with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code) is a matter of overriding public importance. Unless specifically stated, no future Budget Act or related budget enactments, shall, in any manner, be interpreted to suspend, eliminate or otherwise modify the legal obligation and duty of local agencies to fully comply with Chapter 641 of the Statutes of 1986 in a complete, faithful and uninterrupted manner.
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Section 54954.5. Description of closed session items
For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format. (a) With respect to a closed session held pursuant to Section 54956.7:
LICENSE/PERMIT DETERMINATION
Applicant(s): (Specify number of applicants)
(b) With respect to every item of business to be discussed in closed session pursuant to Section 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: (Specify street address, or if no street address, the parcel number or other unique reference of the real property under negotiation) Agency negotiator: (Specify names of negotiators attending the closed session) (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator so long as the name of the agent or designee is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent)) Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment or both)
(c) With respect to every item of business to be discussed in closed session pursuant to Section 54956.9:
CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION
(Paragraph (1) of subdivision (d) of Section 54956.9)
Name of case: (Specify by reference to claimant's name, names of parties, case or claim numbers)
or
Case name unspecified: (Specify whether disclosure would jeopardize service of process or existing settlement negotiations)
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Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9: (Specify number of potential cases) (In addition to the information noticed above, the agency may be required to provide additional information on the agenda or in an oral statement prior to the closed session pursuant to paragraphs (2) to (5), inclusive of subdivision (e) of Section 54956.9.)
Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: (Specify number of potential cases)
(d) With respect to every item of business to be discussed in closed session pursuant to Section 54956.95:
LIABILITY CLAIMS
Claimant: (Specify name unless unspecified pursuant to Section 54961) Agency claimed against: (Specify name)
(e) With respect to every item of business to be discussed in closed session pursuant to Section 54957:
THREAT TO PUBLIC SERVICES OR FACILITIES
Consultation with: (Specify name of law enforcement agency and title of officer, or name of applicable agency representative and title)
PUBLIC EMPLOYEE APPOINTMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: (Specify position title of employee being reviewed)
PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE
(No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes potential reduction of compensation.)
(f) With respect to every item of business to be discussed in closed session pursuant to Section 54957.6:
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CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of designated representatives attending the closed session). (If circumstances necessitate the absence of a specified designated representative, an agent or designee may participate in place of the absent representative so long as the name of the agent or designee is announced at an open session held prior to the closed session) Employee organization: (Specify name of organization representing employee or employees in question)
or
Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations)
(g) With respect to closed sessions called pursuant to Section 54957.8:
CASE REVIEW/PLANNING
(No additional information is required in connection with a closed session to consider case review or planning)
(h) With respect to every item of business to be discussed in closed session pursuant to Sections 1461, 32106 and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code:
REPORT INVOLVING TRADE SECRET
Discussion will concern: (Specify whether discussion will concern proposed new service, program or facility)
Estimated date of public disclosure: (Specify month and year)
HEARINGS
Subject matter: (Specify whether testimony/deliberation will concern staff privileges, report of medical audit committee, or report of quality assurance committee)
(i) With respect to every item of business to be discussed in closed session pursuant to Section 54956.86:
CHARGE OR COMPLAINT INVOLVING INFORMATION PROTECTED BY FEDERAL LAW (No additional information is required in connection with a closed session to discuss a charge or complaint pursuant to Section 54956.86)
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(j) With respect to every item of business to be discussed in closed session pursuant to Section 54956.96:
CONFERENCE INVOLVING A JOINT POWERS AGENCY (Specify by name) Discussion will concern: (Specify closed session description used by the joint powers agency)
Name of local agency representative on joint powers agency board: (Specify name)
(Additional information listing the names of agencies or titles of representatives attending the closed session as consultants or other representatives) (k) With respect to every item of business to be discussed in closed session pursuant to Section 54956.75:
AUDIT BY CALIFORNIA STATE AUDITOR'S OFFICE
Section 54954.6. Public meeting on general tax or assessment; Notice (a) (1) Before adopting any new or increased general tax or any new or increased assessment, the legislative body of a local agency shall conduct at least one public meeting at which local officials shall allow public testimony regarding the proposed new or increased general tax or new or increased assessment in addition to the noticed public hearing at which the legislative body proposes to enact or increase the general tax or assessment.
For purposes of this section, the term "new or increased assessment" does not include any of the following:
(A) A fee that does not exceed the reasonable cost of providing the services, facilities or regulatory activity for which the fee is charged. (B) A service charge, rate or charge, unless a special district's principal act requires the service charge, rate or charge to conform to the requirements of this section.
(C) An ongoing annual assessment if it is imposed at the same or lower amount as any previous year.
(D) An assessment that does not exceed an assessment formula or range of assessments previously specified in the notice given to the public pursuant to subparagraph (G) of paragraph (2) of subdivision (c) and that was previously adopted by the agency or approved by the voters in the area where the assessment is imposed. (E) Standby or immediate availability charges.
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(2) The legislative body shall provide at least 45 days' public notice of the public hearing at which the legislative body proposes to enact or increase the general tax or assessment. The legislative body shall provide notice for the public meeting at the same time and in the same document as the notice for the public hearing, but the meeting shall occur prior to the hearing.
(b) (1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased general tax shall be accomplished by placing a display advertisement of at least one -eighth page in a newspaper of general circulation for three weeks pursuant to Section 6063 and by a first- class mailing to those interested parties who have filed a written request with the local agency for mailed notice of public meetings or hearings on new or increased general taxes. The public meeting pursuant to subdivision (a) shall take place no earlier than 10 days after the first publication of the joint notice pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. Notwithstanding paragraph (2) of subdivision (a), the joint notice need not include notice of the public meeting after the meeting has taken place. The public hearing pursuant to subdivision (a) shall take place no earlier than 45 days after the first publication of the joint notice pursuant to this subdivision. Any written request for mailed notices shall be effective for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for mailed notices shall be filed on or before April 1 of each year. The legislative body may establish a reasonable annual charge for sending notices based on the estimated cost of providing the service. (2) The notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following:
(A) The amount or rate of the tax. If the tax is proposed to be increased from any previous year, the joint notice shall separately state both the existing tax rate and the proposed tax rate increase.
(B) The activity to be taxed.
(C) The estimated amount of revenue to be raised by the tax annually. (D) The method and frequency for collecting the tax.
(E) The dates, times and locations of the public meeting and hearing described in subdivision (a).
(F) The telephone number and address of an individual, office or organization that interested persons may contact to receive additional information about the tax.
(c) (1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased assessment on real property or businesses shall be accomplished through a mailing, postage prepaid, in the United States mail and shall be deemed given when so deposited. The public meeting Ralph M. Brown Act Page 50
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pursuant to subdivision (a) shall take place no earlier than 10 days after the joint mailing pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. The envelope or the cover of the mailing shall include the name of the local agency and the return address of the sender. This mailed notice shall be in at least 10-point type and shall be given to all property owners or business owners proposed to be subject to the new or increased assessment by a mailing by name to those persons whose names and addresses appear on the last equalized county assessment roll, the State Board of Equalization assessment roll or the local agency's records pertaining to business ownership, as the case may be. (2) The joint notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following:
(A) In the case of an assessment proposed to be levied on property, the estimated amount of the assessment per parcel. In the case of an assessment proposed to be levied on businesses, the proposed method and basis of levying the assessment in sufficient detail to allow each business owner to calculate the amount of assessment to be levied against each business. If the assessment is proposed to be increased from any previous year, the joint notice shall separately state both the amount of the existing assessment and the proposed assessment increase.
(B) A general description of the purpose or improvements that the assessment will fund.
(C) The address to which property owners may mail a protest against the assessment.
(D) The telephone number and address of an individual, office or organization that interested persons may contact to receive additional information about the assessment.
(E) A statement that a majority protest will cause the assessment to be abandoned if the assessment act used to levy the assessment so provides. Notice shall also state the percentage of protests required to trigger an election, if applicable. (F) The dates, times and locations of the public meeting and hearing described in subdivision (a).
(G) A proposed assessment formula or range as described in subparagraph (D) of paragraph (1) of subdivision (a) if applicable and that is noticed pursuant to this section.
(3) Notwithstanding paragraph (1), in the case of an assessment that is proposed exclusively for operation and maintenance expenses imposed throughout the entire local agency or exclusively for operation and maintenance assessments proposed to be levied on 50,000 parcels or more, notice may be provided pursuant to this subdivision or pursuant to paragraph (1) of subdivision (b) and shall include the estimated amount of the assessment of various types, amounts or uses of property and the Ralph M. Brown Act Page 51
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information required by subparagraphs (B) to (G), inclusive, of paragraph (2) of subdivision (c).
(4) Notwithstanding paragraph (1), in the case of an assessment proposed to be levied pursuant to Part 2 (commencing with Section 22500) of Division 2 of the Streets and Highways Code by a regional park district, regional park and open -space district or regional open -space district formed pursuant to Article 3 (commencing with Section 5500) of Chapter 3 of Division 5 of, or pursuant to Division 26 (commencing with Section 35100) of the Public Resources Code, notice may be provided pursuant to paragraph (1) of subdivision (b).
(d) The notice requirements imposed by this section shall be construed as additional to, and not to supersede existing provisions of law, and shall be applied concurrently with the existing provisions so as to not delay or prolong the governmental decision making process.
(e) This section shall not apply to any new or increased general tax or any new or increased assessment that requires an election of either of the following:
(1) The property owners subject to the assessment.
(2) The voters within the local agency imposing the tax or assessment. (f) Nothing in this section shall prohibit a local agency from holding a consolidated meeting or hearing at which the legislative body discusses multiple tax or assessment proposals.
(g) The local agency may recover the reasonable costs of public meetings, public hearings and notice required by this section from the proceeds of the tax or assessment.
The costs recovered for these purposes, whether recovered pursuant to this subdivision or any other provision of law, shall not exceed the reasonable costs of the public meetings, public hearings and notice.
(h) Any new or increased assessment that is subject to the notice and hearing provisions of Article XIII C or XIII D of the California Constitution is not subject to the notice and hearing requirements of this section.
Section 54955. Adjournment of meetings
The legislative body of a local agency may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular or adjourned regular meeting, the clerk or secretary of the legislative body may declare the meeting adjourned to a stated time and place and he or she shall cause a written notice of the adjournment to be given in the same manner as provided in Section 54956 for special meetings, unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned Ralph M. Brown Act Page 52
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regular, special or adjourned special meeting was held within 24 hours after the time of the adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings by ordinance, resolution, bylaw or other rule.
Section 54955.1. Continuance of hearing
Any hearing being held, or noticed or ordered to be held by a legislative body of a local agency at any meeting may by order or notice of continuance be continued or re - continued to any subsequent meeting of the legislative body in the same manner and to the same extent set forth in Section 54955 for the adjournment of meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance of hearing shall be posted immediately following the meeting at which the order or declaration of continuance was adopted or made.
Section 54956. Special meetings; call; notice; meetings regarding local agency executive salaries, salary schedules or compensation in form of fringe benefits; posting on Internet Web site
(a) A special meeting may be called at any time by the presiding officer of the legislative body of a local agency or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing and posting a notice on the local agency's Internet Web site, if the local agency has one. The notice shall be delivered personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body. The written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the legislative body a written waiver of notice. The waiver may be given by telegram. The written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes.
The call and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. (b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1.
However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency's budget.
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(c) For purposes of subdivision (a), the requirement that the agenda be posted on the local agency's Internet Web site, if the local agency has one, shall only apply to a legislative body that meets either of the following standards:
(1) A legislative body as that term is defined by subdivision (a) of Section 54952. (2) A legislative body as that term is defined by subdivision (b) of Section 54952, if the members of the legislative body are compensated for their appearance, and if one or more of the members of the legislative body are also members of a legislative body as that term is defined by subdivision (a) of Section 54952.
Section 54956.5. Emergency meetings; Notice
(a) For purposes of this section, "emergency situation" means both of the following:
(1) An emergency, which shall be defined as a work stoppage, crippling activity or other activity that severely impairs public health, safety or both, as determined by a majority of the members of the legislative body.
(2) A dire emergency, which shall be defined as a crippling disaster, mass destruction, terrorist act or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one -hour notice before holding an emergency meeting under this section may endanger the public health, safety or both, as determined by a majority of the members of the legislative body. (b) (1) Subject to paragraph (2), in the case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, a legislative body may hold an emergency meeting without complying with either the 24-hour notice requirement or the 24-hour posting requirement of Section 54956, or both, of the notice and posting requirements. (2) Each local newspaper of general circulation and radio or television station that has requested notice of special meetings pursuant to Section 54956 shall be notified by the presiding officer of the legislative body or designee thereof, one hour prior to the emergency meeting, or, in the case of a dire emergency, at or near the time that the presiding officer or designee notifies the members of the legislative body of the emergency meeting. This notice shall be given by telephone and all telephone numbers provided in the most recent request of a newspaper or station for notification of special meetings shall be exhausted. In the event that telephone services are not functioning, the notice requirements of this section shall be deemed waived and the legislative body or designee of the legislative body, shall notify those newspapers, radio stations or television stations of the fact of the holding of the emergency meeting, the purpose of the meeting and any action taken at the meeting as soon after the meeting as possible. (c) During a meeting held pursuant to this section, the legislative body may meet in closed session pursuant to Section 54957 if agreed to by a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present.
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(d) All special meeting requirements as prescribed in Section 54956, shall be applicable to a meeting called pursuant to this section, with the exception of the 24-hour notice requirement.
(e) The minutes of a meeting called pursuant to this section, a list of person(s) who is the presiding officer of the legislative body or designee of the legislative body, notified or attempted to notify, a copy of the rollcall vote and any actions taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible.
Section 54956.6. Fees
No fees may be charged by the legislative body of a local agency for carrying out any provision of this chapter, except as specifically authorized by this chapter.
Section 54956.7. Closed sessions regarding application from person with criminal record
Whenever a legislative body of a local agency determines that it is necessary to discuss and determine whether an applicant for a license or license renewal, who has a criminal record is sufficiently rehabilitated to obtain the license, the legislative body may hold a closed session with the applicant and the applicant's attorney, if any, for the purpose of holding the discussion and making the determination. If the legislative body determines, as a result of the closed session, that the issuance or renewal of the license should be denied, the applicant shall be offered the opportunity to withdraw the application. If the applicant withdraws the application, no record shall be kept of the discussions or decisions made at the closed session and all matters relating to the closed session shall be confidential. If the applicant does not withdraw the application, the legislative body shall take action at the public meeting during which the closed session is held or at its next public meeting denying the application for the license, but all matters relating to the closed session are confidential and shall not be disclosed without the consent of the applicant, except in an action by an applicant who has been denied a license challenging the denial of the license.
Section 54956.75. Closed session for response to final draft audit report (a) Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency that has received a confidential final draft audit report from the Bureau of State Audits from holding closed sessions to discuss its response to that report. (b) After the public release of an audit report by the Bureau of State Audits, if a legislative body of a local agency meets to discuss the audit report, it shall do so in an open session unless exempted from that requirement by some other provision of law.
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lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange or lease.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern and the person or persons with whom its negotiators may negotiate.
For purposes of this section, negotiators may be members of the legislative body of the local agency.
For purposes of this section, "lease" includes renewal or renegotiation of a lease.
Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section 54956.9.
Section 54956.81. Closed sessions regarding purchase or sale of pension fund investments
Notwithstanding any other provision of this chapter, a legislative body of a local agency that invests pension funds may hold a closed session to consider the purchase or sale of particular specific pension fund investments. All investment transaction decisions made during the closed session shall be made by rollcall vote entered into the minutes of the closed session as provided in subdivision (a) of Section 54957.2.
Section 54956.86. Closed session for health plan member Notwithstanding any other provision of this chapter, a legislative body of a local agency which provides services pursuant to Section 14087.3 of the Welfare and Institutions Code may hold a closed session to hear a charge or complaint from a member enrolled in its health plan if the member does not wish to have his or her name, medical status or other information that is protected by federal law publicly disclosed. Prior to holding a closed session pursuant to this section, the legislative body shall inform the member, in writing, of his or her right to have the charge or complaint heard in an open session rather than a closed session.
Section 54956.87. Disclosure of records and information; Meetings in closed session (a) Notwithstanding any other provision of this chapter, the records of a health plan that is licensed pursuant to the Knox -Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code) and that is governed by a county board of supervisors, whether paper records, records maintained in the management information system or records in any other form, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments, formulas or calculations for these payments and contract negotiations with providers of health care for alternative rates are exempt from disclosure for a period of three years after the contract is fully executed. The transmission of the records, or the information contained therein in an alternative form to the board Ralph M. Brown Act Page 56
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of supervisors shall not constitute a waiver of exemption from disclosure and the records and information once transmitted to the board of supervisors shall be subject to this same exemption.
(b) Notwithstanding any other provision of law, the governing board of a health plan that is licensed pursuant to the Knox -Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code) and that is governed by a county board of supervisors may order that a meeting held solely for the purpose of discussion or taking action on health plan trade secrets, as defined in subdivision (f), shall be held in closed session. The requirements of making a public report of action taken in closed session and the vote or abstention of every member present, may be limited to a brief general description without the information constituting the trade secret.
(c) Notwithstanding any other provision of law, the governing board of a health plan may meet in closed session to consider and take action on matters pertaining to contracts and contract negotiations by the health plan with providers of health care services concerning all matters related to rates of payment. The governing board may delete the portion or portions containing trade secrets from any documents that were finally approved in the closed session held pursuant to subdivision (b) that are provided to persons who have made the timely or standing request. (d) Nothing in this section shall be construed as preventing the governing board from meeting in closed session as otherwise provided by law. (e) The provisions of this section shall not prevent access to any records by the Joint Legislative Audit Committee in the exercise of its powers pursuant to Article 1 (commencing with Section 10500) of Chapter 4 of Part 2 of Division 2 of Title 2. The provisions of this section also shall not prevent access to any records by the Department of Managed Health Care in the exercise of its powers pursuant to Article 1 (commencing with Section 1340) of Chapter 2.2 of Division 2 of the Health and Safety Code. (f) For purposes of this section, "health plan trade secret" means a trade secret, as defined in subdivision (d) of Section 3426.1 of the Civil Code, that also meets both of the following criteria:
(1) The secrecy of the information is necessary for the health plan to initiate a new service, program, marketing strategy, business plan or technology, or to add a benefit or product.
(2) Premature disclosure of the trade secret would create a substantial probability of depriving the health plan of a substantial economic benefit or opportunity.
Section 54956.9. Closed sessions concerning pending litigation; Lawyer -client privilege
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with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.
(b) For purposes of this chapter, all expressions of the lawyer -client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer -client privilege for purposes of conducting closed -session meetings pursuant to this chapter.
(c) For purposes of this section, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court or administrative body exercising its adjudicatory authority, hearing officer or arbitrator.
(d) For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:
Litigation, to which the local agency is a party, has been initiated formally. (2) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. (3) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (2).
(4) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. (e) For purposes of paragraphs (2) and (3) of subdivision (d), "existing facts and circumstances" shall consist only of one of the following:
(1) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed. (2) Facts and circumstances, including, but not limited to, an accident, disaster, incident or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced. (3) The receipt of a claim pursuant to the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5. (4) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.
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(5) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body, so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicly disclosed. (f) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1). (g) Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the paragraph of subdivision (d) that authorizes the closed session. If the session is closed pursuant to paragraph (1) of subdivision (d), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.
(h) A local agency shall be considered to be a "party" or to have a "significant exposure to litigation" if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment.
Section 54956.95. Closed sessions regarding liability
(a) Nothing in this chapter shall be construed to prevent a joint powers agency formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 for purposes of insurance pooling, or a local agency member of the joint powers agency from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses or workers' compensation liability incurred by the joint powers agency or a local agency member of the joint powers agency. (b) Nothing in this chapter shall be construed to prevent the Local Agency Self - Insurance Authority formed pursuant to Chapter 5.5 (commencing with Section 6599.01) of Division 7 of Title 1, or a local agency member of the authority, from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses or workers' compensation liability incurred by the authority or a local agency member of the authority.
(c) Nothing in this section shall be construed to affect Section 54956.9 with respect to any other local agency.
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Section 54956.96. Disclosure of specified information in closed session of joint powers agency, Clean Power Alliance of Southern California; Authorization of designated alternate to attend closed session; Closed session of legislative body of local agency member
(a) Nothing in this chapter shall be construed to prevent the legislative body of a joint powers agency formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1, from adopting a policy or a bylaw, or including in its joint powers agreement provisions that authorize either or both of the following:
(1) All information received by the legislative body of the local agency member in a closed session related to the information presented to the joint powers agency in closed session shall be confidential. However, a member of the legislative body of a local agency member may disclose information obtained in a closed session that has direct financial or liability implications for that local agency to the following individuals:
(A) Legal counsel of that local agency member for purposes of obtaining advice on whether the matter has direct financial or liability implications for that local agency member.
(B) Other members of the legislative body of the local agency present in a closed session of that local agency member.
(2) Any designated alternate member of the legislative body of the joint powers agency who is also a member of the legislative body of a local agency member and who is attending a properly noticed meeting of the joint powers agency in lieu of a local agency member's regularly appointed member to attend closed sessions of the joint powers agency.
(b) (1) In addition to the authority described in subdivision (a), the Clean Power Alliance of Southern California or its successor entity, may adopt a policy or a bylaw or include in its joint powers agreement a provision that authorizes both of the following:
(A) A designated alternate member of the legislative body of the Clean Power Alliance of Southern California or its successor entity, who is not a member of the legislative body of a local agency member and who is attending a properly noticed meeting of the Clean Power Alliance of Southern California or its successor entity, in lieu of a local agency member's regularly appointed member to attend closed sessions of the Clean Power Alliance of Southern California or its successor entity. (B) All information that is received by a designated alternate member of the legislative body of the Clean Power Alliance of Southern California or its successor entity, who is not a member of the legislative body of a local agency member and that is presented to the Clean Power Alliance of Southern California or its successor entity, in closed session, shall be confidential. However, the designated alternate member may disclose information obtained in a closed session that has direct financial or liability Ralph M. Brown Act Page 60
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implications for the local agency member for which the designated alternate member attended the closed session, to the following individuals:
(i) Legal counsel of that local agency member for purposes of obtaining advice on whether the matter has direct financial or liability implications for that local agency member.
(ii) Members of the legislative body of the local agency present in a closed session of that local agency member.
(2) If the Clean Power Alliance of Southern California or its successor entity, adopts a policy or bylaw or includes in its joint powers agreement a provision authorized pursuant to paragraph (1), the Clean Power Alliance of Southern California or its successor entity, shall establish policies to prevent conflicts of interest and to address breaches of confidentiality that apply to a designated alternate member who is not a member of the legislative body of a local agency member who attends a closed session of the Clean Power Alliance of Southern California or its successor entity. (c) If the legislative body of a joint powers agency adopts a policy or a bylaw or includes provisions in its joint powers agreement pursuant to subdivision (a) or (b), then the legislative body of the local agency member, upon the advice of its legal counsel, may conduct a closed session in order to receive, discuss and take action concerning information obtained in a closed session of the joint powers agency pursuant to paragraph (1) of subdivision (a) or paragraph (1) of subdivision (b). (d) This section shall remain in effect only until January 1, 2025 and as of that date is repealed.
Section 54956.97. Public bank; governing board or committee of governing board; closed session
Notwithstanding any provision of law, the governing board or a committee of the governing board of a public bank, as defined in Section 57600 of the Government Code, may meet in closed session to consider and take action on matters pertaining to all of the following:
(a) A loan or investment decision.
(b) A decision of the internal audit committee, the compliance committee or the governance committee.
(c) A meeting with a state or federal regulator.
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Section 54956.98. Public bank; policy or bylaw; information from a closed session considered confidential
(a) For purposes of this section, the following definitions shall apply:
(1) "Shareholder, member, or owner local agency" or "shareholder, member, or owner" means a local agency that is a shareholder of a public bank. (2) "Public bank" has the same meaning as defined in Section 57600. (b) The governing board of a public bank may adopt a policy or a bylaw or include in its governing documents provisions that authorize any of the following:
(1) All information received by a shareholder, member or owner of the public bank in a closed session related to the information presented to the governing board of a public bank in closed session shall be confidential. However, a member of the governing board of a shareholder, member or owner local agency may disclose information obtained in a closed session that has direct financial or liability implications for that local agency to the following individuals:
(A) Legal counsel of that shareholder, member or owner local agency for purposes of obtaining advice on whether the matter has direct financial or liability implications for that shareholder local agency.
(B) Other members of the governing board of the local agency present in a closed session of that shareholder, member or owner local agency. (2) A designated alternate member of the governing board of the public bank who is also a member of the governing board of a shareholder, member or owner of the local agency and who is attending a properly noticed meeting of the public bank governing board in lieu of a shareholder, member or owner of the local agency's regularly appointed member may attend a closed session of the public bank governing board.
(c) If the governing board of a public bank adopts a policy or a bylaw or includes provisions in its governing documents pursuant to subdivision (b), then the governing board of the shareholder, member or owner of the local agency, upon the advice of its legal counsel, may conduct a closed session in order to receive, discuss and take action concerning information obtained in a closed session of the public bank governing board pursuant to paragraph (1) of subdivision (b).
Section 54957. Closed session regarding public security, facilities, employees, examination of witness
(a) This chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions with the Governor, Attorney General, district attorney, agency counsel, sheriff or chief of police, or their respective deputies or a security consultant or a security operations manager, on matters posing a threat to the Ralph M. Brown Act Page 62
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security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service and electric service, or a threat to the public's right of access to public services or public facilities. (b) (1) Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting 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 by another person or employee unless the employee requests a public session.
(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.
(3) The legislative body also may exclude from the public or closed meeting during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.
(4) For the purposes of this subdivision, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. This subdivision shall not limit local officials' ability to hold closed session meetings pursuant to Sections 1461, 32106 and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code. Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.
Section 54957.1. Public report of action taken in closed session; Form; Availability; Actions for injury to interests
(a) The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention on that action of every member present, as follows:
(1) Approval of an agreement concluding real estate negotiations pursuant to Section 54956.8 shall be reported after the agreement is final, as follows:
(A) If its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting during which the closed session is held.
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(B) If final approval rests with the other party to the negotiations, the local agency shall disclose the fact of that approval and the substance of the agreement upon inquiry by any person as soon as the other party or its agent has informed the local agency of its approval.
(2) Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. (3) Approval given to its legal counsel of a settlement of pending litigation, as defined in Section 54956.9, at any stage prior to or during a judicial or quasi-judicial proceeding shall be reported after the settlement is final, as follows:
(A) If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held. (B) If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final and upon inquiry by any person, the local agency shall disclose the fact of that approval and identify the substance of the agreement.
(4) Disposition reached as to claims discussed in closed session pursuant to Section 54956.95 shall be reported as soon as reached in a manner that identifies the name of the claimant, the name of the local agency claimed against, the substance of the claim and any monetary amount approved for payment and agreed upon by the claimant.
(5) Action taken to appoint, employ, dismiss, accept the resignation of or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any. (6) Approval of an agreement concluding labor negotiations with represented employees pursuant to Section 54957.6 shall be reported after the agreement is final and Ralph M. Brown Act Page 64
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has been accepted or ratified by the other party. The report shall identify the item approved and the other party or parties to the negotiation. (7) Pension fund investment transaction decisions made pursuant to Section 54956.81 shall be disclosed at the first open meeting of the legislative body held after the earlier of the close of the investment transaction or the transfer of pension fund assets for the investment transaction.
(b) Reports that are required to be made pursuant to this section may be made orally or in writing. The legislative body shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section 54954.1 or 54956, if the requester is present at the time the closed session ends, copies of any contracts, settlement agreements or other documents that were finally approved or adopted in the closed session. If the action taken results in one or more substantive amendments to the related documents requiring retyping, the documents need not be released until the retyping is completed during normal business hours, provided that the presiding officer of the legislative body or his or her designee orally summarizes the substance of the amendments for the benefit of the document requester or any other person present and requesting the information. (c) The documentation referred to in subdivision (b) shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when any necessary retyping is complete. (d) Nothing in this section shall be construed to require that the legislative body approve actions not otherwise subject to legislative body approval. (e) No action for injury to a reputational, liberty or other personal interest may be commenced by or on behalf of any employee or former employee with respect to whom a disclosure is made by a legislative body in an effort to comply with this section. (f) This section is necessary to implement, and reasonably within the scope of, paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution.
Section 54957.2. Minute book for closed sessions
(a) The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), and shall be kept confidential. The minute book shall be available only to members of the legislative body or, if a violation of this chapter is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist of a recording of the closed session.
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(b) An elected legislative body of a local agency may require that each legislative body all or a majority of whose members are appointed by or under the authority of the elected legislative body keep a minute book as prescribed under subdivision (a).
Section 54957.5. Agendas and other writings as public records (a) Agendas of public meetings are disclosable public records under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), and shall be made available upon request without delay and in compliance with Section 54954.2 or Section 54956, as applicable. However, this section shall not apply to a writing, or portion thereof, that is exempt from public disclosure. (b) (1) If a writing is a public record related to an agenda item for an open session of a regular meeting of the legislative body of a local agency and is distributed to all, or a majority of all, of the members of a legislative body of a local agency by a person in connection with a matter subject to a discussion or consideration at an open meeting of the body less than 72 hours before that meeting, the writing shall be made available for public inspection pursuant to paragraph (2) at the time the writing is distributed to all, or a majority of all, of the members of the body.
(2) (A) Except as provided in subparagraph (B), a local agency shall comply with both of the following requirements:
(i) A local agency shall make any writing described in
paragraph (1) available for public inspection at a public office or location that the agency shall designate for this purpose.
(ii) A local agency shall list the address of the office or location designated pursuant to clause (i) on the agendas for all meetings of the legislative body of that agency.
(B) A local agency shall not be required to comply with the requirements of subparagraph (A) if all of the following requirements are met:
(i) An initial staff report or similar document containing an executive summary and the staff recommendation, if any, relating to that agenda item is made available for public inspection at the office or location designated pursuant to clause (i) of subparagraph (A) at least 72 hours before the meeting. (ii) The local agency immediately posts any writing described in paragraph (1) on the local agency's Internet Website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting. (iii) The local agency lists the web address of the local agency's internet website on the agendas for all meetings of the legislative body of that agency. (iv) (1) Subject to subclause (II), the local agency makes physical copies available for public inspection, beginning the next regular business hours Ralph M. Brown Act Page 66
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for the local agency, at the office or location designated pursuant to clause (i) of subparagraph (A).
(ll) This clause is satisfied only if the next regular business hours of the local agency commence at least 24 hours before that meeting. (c) Writings that are public records described in subdivision (b) and distributed during a public meeting shall be made 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 some other person. These writings shall be made available in appropriate alternative formats upon request by a person with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof.
(d) This chapter shall not be construed to prevent the legislative body of a local agency from charging a fee or deposit for a copy of a public record pursuant to Section 7922.530, except that a surcharge shall not be imposed on persons with disabilities in violation of Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof.
(e) This section shall not be construed to limit or delay the public's right to inspect or obtain a copy of any record required to be disclosed under the requirements of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), including, but not limited to, the ability of the public to inspect public records pursuant to Section 7922.525 and obtain copies of public records pursuant to either subdivision (b) of Section 7922.53 or Section 7922.535. This chapter shall not be construed to require a legislative body of a local agency to place any paid advertisement or any other paid notice in any publication.
Section 54957.6. Closed sessions regarding employee matters (a) Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency's designated representatives regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives.
Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency's designated representatives.
Closed sessions, as permitted in this section, may take place prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees.
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Closed sessions with the local agency's designated representative regarding the salaries, salary schedules or compensation paid in the form of fringe benefits may include discussion of an agency's available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency's designated representative.
Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.
For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings. (b) For the purposes of this section, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee, but shall not include any elected official, member of a legislative body or other independent contractors.
Section 54957.7. Disclosure of items to be discussed at closed session (a) Prior to holding any closed session, the legislative body of the local agency shall disclose in an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda. In the closed session, the legislative body may consider only those matters covered in its statement. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law. (b) After any closed session, the legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by Section 54957.1 of action taken in the closed session.
(c) The announcements required to be made in open session pursuant to this section may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location for the purpose of hearing the announcements.
Section 54957.8. Closed sessions of multijurisdictional drug law enforcement agencies
(a) For purposes of this section, "multijurisdictional law enforcement agency" means a joint powers entity formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 that provides law enforcement services for the parties to the joint powers agreement for the purpose of investigating criminal activity involving drugs; gangs; sex crimes; firearms trafficking or felony possession of a firearm; high technology, computer or identity theft; human trafficking; or vehicle theft. (b) Nothing contained in this chapter shall be construed to prevent the legislative body of a multijurisdictional law enforcement agency, or an advisory body of a multijurisdictional law enforcement agency, from holding closed sessions to discuss the Ralph M. Brown Act Page 68
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case records of any ongoing criminal investigation of the multijurisdictional law enforcement agency or of any party to the joint powers agreement, to hear testimony from persons involved in the investigation and to discuss courses of action in particular cases.
Section 54957.9. Authorization to clear room where meeting willfully interrupted; Readmission
In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.
Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.
Section 54957.95 Removal of Disruptive Individuals
(a) (1) In addition to authority exercised pursuant to Sections 54954.3 and 54957.9, the presiding member of the legislative body conducting a meeting or their designee may remove, or cause the removal of, an individual for disrupting the meeting. (2) Prior to removing an individual, the presiding member or their designee shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. The presiding member or their designee may then remove the individual if they do not promptly cease their disruptive behavior.
This paragraph does not apply to any behavior described in subparagraph (B) of paragraph (1) of subdivision (b).
(b) As used in this section:
(1) "Disrupting" means engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes, but is not limited to, one of the following:
(A) A failure to comply with reasonable and lawful regulations adopted by a legislative body pursuant to Section 54954.3 or any other law. (B) Engaging in behavior that constitutes use of force or a true threat of force.
(2)"True threat of force" means a threat that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive it to be an actual threat to use force by the person making the threat.
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Section 54957.10. Closed sessions regarding application for early withdrawal of deferred compensation plan funds
Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions to discuss a local agency employee's application for early withdrawal of funds in a deferred compensation plan when the application is based on financial hardship arising from an unforeseeable emergency due to illness, accident, casualty or other extraordinary event, as specified in the deferred compensation plan.
Section 54958. Application of chapter
The provisions of this chapter shall apply to the legislative body of every local agency notwithstanding the conflicting provisions of any other state law.
Section 54959. Criminal penalty for violation of chapter Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows, or has reason to know, the public is entitled under this chapter, is guilty of a misdemeanor.
Section 54960. Proceeding to prevent violation of chapter; Recording closed sessions; Procedure for discovery of tapes
(a) The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to 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 or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.
(b) The court in its discretion may, upon a judgment of a violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957 or 54957.6, order the legislative body to audio record its closed sessions and preserve the audio recordings for the period and under the terms of security and confidentiality the court deems appropriate. (c) (1) Each recording so kept shall be immediately labeled with the date of the closed session recorded and the title of the clerk or other officer who shall be custodian of the recording.
(2) The audio recordings shall be subject to the following discovery procedures:
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(A) In any case in which discovery or disclosure of the audio recording is sought by either the district attorney or the plaintiff in a civil action pursuant to Section 54959, 54960 or 54960.1 alleging that a violation of this chapter has occurred in a closed session that has been recorded pursuant to this section, the party seeking discovery or disclosure shall file a written notice of motion with the appropriate court with notice to the governmental agency that has custody and control of the audio recording.
The notice shall be given pursuant to subdivision (b) of Section 1005 of the Code of Civil Procedure.
(B) The notice shall include, in addition to the items required by Section 1010 of the Code of Civil Procedure, all of the following:
(i) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the date and time of the meeting recorded and the governmental agency that has custody and control of the recording.
(ii) An affidavit that contains specific facts indicating that a violation of the act occurred in the closed session.
(3) If the court, following a review of the motion, finds that there is good cause to believe that a violation has occurred, the court may review, in camera, the recording of that portion of the closed session alleged to have violated the act. (4) If, following the in camera review, the court concludes that disclosure of a portion of the recording would be likely to materially assist in the resolution of the litigation alleging violation of this chapter, the court shall, in its discretion, make a certified transcript of the portion of the recording a public exhibit in the proceeding. (5) This section shall not permit discovery of communications that are protected by the attorney -client privilege.
Section 54960.1. Proceeding to determine validity of action; Demand for correction (a) The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section.
(b) Prior to any action being commenced pursuant to subdivision (a), the district attorney or interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5. The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation.
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(c) (1) The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken.
(2) Within 30 days of receipt of the demand, the legislative body shall cure or correct the challenged action and inform the demanding party in writing of its actions to cure or correct or inform the demanding party in writing of its decision not to cure or correct the challenged action.
(3) If the legislative body takes no action within the 30-day period, the inaction shall be deemed a decision not to cure or correct the challenged action, and the 15- day period to commence the action described in subdivision (a) shall commence to run the day after the 30-day period to cure or correct expires. (4) Within 15 days of receipt of the written notice of the legislative body's decision to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30-day period to cure or correct, whichever is earlier, the demanding party shall be required to commence the action pursuant to subdivision (a) or thereafter be barred from commencing the action.
(d) An action taken that is alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 shall not be determined to be null and void if any of the following conditions exist:
(1) The action taken was in substantial compliance with Sections 54953, 54954.2, 54954.5, 54954.6, 54956 and 54956.5.
(2) The action taken was in connection with the sale or issuance of notes, bonds, or other evidences of indebtedness or any contract, instrument or agreement thereto.
(3) The action taken gave rise to a contractual obligation, including a contract let by competitive bid other than compensation for services in the form of salary or fees for professional services, upon which a party has, in good faith and without notice of a challenge to the validity of the action, detrimentally relied. (4) The action taken was in connection with the collection of any tax. (5) Any person, city, city and county, county, district or any agency or subdivision of the state alleging noncompliance with subdivision (a) of Section 54954.2, Section 54956 or Section 54956.5, because of any defect, error, irregularity or omission in the notice given pursuant to those provisions, had actual notice of the item of business at least 72 hours prior to the meeting at which the action was taken, if the meeting was noticed pursuant to Section 54954.2, or 24 hours prior to the meeting at which the action was taken if the meeting was noticed pursuant to Section 54956, or prior to the meeting at which the action was taken if the meeting is held pursuant to Section 54956.5.
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(e) During any action seeking a judicial determination pursuant to subdivision (a) if the court determines, pursuant to a showing by the legislative body that an action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 has been cured or corrected by a subsequent action of the legislative body, the action filed pursuant to subdivision (a) shall be dismissed with prejudice. (f) The fact that a legislative body takes a subsequent action to cure or correct an action taken pursuant to this section shall not be construed or admissible as evidence of a violation of this chapter.
Section 54960.2 Proceeding to determine the applicability of chapter to past actions of legislative body; Conditions; Cease and desist letter (a) The district attorney or any interested person may file an action to determine the applicability of this chapter to past actions of the legislative body pursuant to subdivision (a) of Section 54960 only if all of the following conditions are met:
(1) The district attorney or interested person alleging a violation of this chapter first submits a cease and desist letter by postal mail or facsimile transmission to the clerk or secretary of the legislative body being accused of the violation, as designated in the statement pertaining to that public agency on file pursuant to Section 53051, or if the agency does not have a statement on file designating a clerk or a secretary, to the chief executive officer of that agency, clearly describing the past action of the legislative body and nature of the alleged violation.
(2) The cease and desist letter required under paragraph (1) is submitted to the legislative body within nine months of the alleged violation. (3) The time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b) has expired and the legislative body has not provided an unconditional commitment pursuant to subdivision (c). (4) Within 60 days of receipt of the legislative body's response to the cease and desist letter, other than an unconditional commitment pursuant to subdivision (c), or within 60 days of the expiration of the time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b), whichever is earlier, the party submitting the cease and desist letter shall commence the action pursuant to subdivision (a) of Section 54960 or thereafter be barred from commencing the action. (b) The legislative body may respond to a cease and desist letter submitted pursuant to subdivision (a) within 30 days of receiving the letter. This subdivision shall not be construed to prevent the legislative body from providing an unconditional commitment pursuant to subdivision (c) at any time after the 30-day period has expired, except that in that event the court shall award court costs and reasonable attorneys' fees to the plaintiff in an action brought pursuant to this section in accordance with Section 54960.5.
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(c) (1) If the legislative body elects to respond to the cease and desist letter with an unconditional commitment to cease, desist from and not repeat the past action that is alleged to violate this chapter, that response shall be in substantially the following form:
To
The [name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and desist letter submitted pursuant to subdivision (a)]
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from and not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Rescission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
Very truly yours,
[Chairperson or acting chairperson of the legislative body] (2) An unconditional commitment pursuant to this subdivision shall be approved by the legislative body in open session at a regular or special meeting as a separate item of business, and not on its consent agenda. (3) An action shall not be commenced to determine the applicability of this chapter to any past action of the legislative body for which the legislative body has provided an unconditional commitment pursuant to this subdivision. During any action seeking a judicial determination regarding the applicability of this chapter to any past action of the legislative body pursuant to subdivision (a), if the court determines that the legislative body has provided an unconditional commitment pursuant to this subdivision, the action shall be dismissed with prejudice. Nothing in this subdivision shall be construed to modify or limit the existing ability of the district attorney or any interested person to Ralph M. Brown Act Page 74
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commence an action to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body.
(4) Except as provided in subdivision (d), the fact that a legislative body provides an unconditional commitment shall not be construed or admissible as evidence of a violation of this chapter.
(d) If the legislative body provides an unconditional commitment as set forth in subdivision (c), the legislative body shall not thereafter take or engage in the challenged action described in the cease and desist letter, except as provided in subdivision (e).
Violation of this subdivision shall constitute an independent violation of this chapter, without regard to whether the challenged action would otherwise violate this chapter.
An action alleging past violation or threatened future violation of this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
(e) The legislative body may resolve to rescind an unconditional commitment made pursuant to subdivision (c) by a majority vote of its membership taken in open session at a regular meeting as a separate item of business not on its consent agenda, and noticed on its posted agenda as "Rescission of Brown Act Commitment," provided that not less than 30 days prior to such regular meeting, the legislative body provides written notice of its intent to consider the rescission to each person to whom the unconditional commitment was made, and to the district attorney. Upon rescission, the district attorney or any interested person may commence an action pursuant to subdivision (a) of Section 54960. An action under this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
Section 54960.5. Costs and attorneys' fees
A court may award court costs and reasonable attorneys' fees to the plaintiff in an action brought pursuant to Section 54960, 54960.1 or 54960.2 where it is found that a legislative body of the local agency has violated this chapter. Additionally, when an action brought pursuant to Section 54960.2 is dismissed with prejudice because a legislative body has provided an unconditional commitment pursuant to paragraph (1) of subdivision (c) of that section at any time after the 30-day period for making such a commitment has expired, the court shall award court costs and reasonable attorneys' fees to the plaintiff if the filing of that action caused the legislative body to issue the unconditional commitment. The costs and fees shall be paid by the local agency and shall not become a personal liability of any public officer or employee of the local agency.
A court may award court costs and reasonable attorneys' fees to a defendant in any action brought pursuant to Section 54960 or 54960.1 where the defendant has prevailed in a final determination of such action and the court finds that the action was clearly frivolous and totally lacking in merit.
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Section 54961. Meeting place with discriminatory admission policies; Identification of victim of sexual or child abuse
(a) No legislative body of a local agency shall conduct any meeting in any facility that prohibits the admittance of any person or persons, on the basis of ancestry or any characteristic listed or defined in Section 11135, or which is inaccessible to disabled persons, or where members of the public may not be present without making a payment or purchase. This section shall apply to every local agency as defined in Section 54951. (b) No notice, agenda, announcement or report required under this chapter need identify any victim or alleged victim of tortious sexual conduct or child abuse unless the identity of the person has been publicly disclosed.
Section 54962. Prohibition against closed sessions except as expressly authorized Except as expressly authorized by this chapter, or by Sections 1461, 1462, 32106 and 32155 of the Health and Safety Code, or by Sections 37606, 37606.1 and 37624.3 of the Government Code as they apply to hospitals, or by any provision of the Education Code pertaining to school districts and community college districts, no closed session may be held by any legislative body of any local agency.
Section 54963. Disclosure of confidential information acquired in closed session prohibited; Disciplinary action for violation
(a) A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8 or 54957.10 to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information. (b) For purposes of this section, "confidential information" means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter. (c) Violation of this section may be addressed by the use of such remedies as are currently available by law, including, but not limited to:
(1) Injunctive relief to prevent the disclosure of confidential information prohibited by this section.
(2) Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section.
(3) Referral of a member of a legislative body who has willfully disclosed confidential information in violation of this section to the grand jury. (d) Disciplinary action pursuant to paragraph (2) of subdivision (c) shall require that the employee in question has either received training as to the requirements of this section or otherwise has been given notice of the requirements of this section.
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(e) A local agency may not take any action authorized by subdivision (c) against a person, nor shall it be deemed a violation of this section, for doing any of the following:
(1) Making a confidential inquiry or complaint to a district attorney or grand jury concerning a perceived violation of law, including disclosing facts to a district attorney or grand jury that are necessary to establish the illegality of an action taken by a legislative body of a local agency or the potential illegality of an action that has been the subject of deliberation at a closed session if that action were to be taken by a legislative body of a local agency.
(2) Expressing an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action. (3) Disclosing information acquired by being present in a closed session under this chapter that is not confidential information.
(f) Nothing in this section shall be construed to prohibit disclosures under the whistleblower statutes contained in Section 1102.5 of the Labor Code or Article 4.5 (commencing with Section 53296) of Chapter 2 of this code.
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APPENDIX B
SUMMARY OF PUBLIC
RECORDS LAWS
m Public Records Act
o HANDBOOK
r*4 Summary of the Major Provisions and Requirements
of the Public Records Act and Related Topics
) Electronic Records
) Text of the Public Records Act
) Updated including changes effective January 1, 2023
Table of Contents
INTRODUCTION................................................................................................................................................ii PART ONE. COMPLIANCE
WITH THE PUBLIC RECORDS ACT.............................................................1 I.
WHAT IS THE PUBLIC RECORDS ACT?.................................................................2 II.
WHAT RIGHTS DOES THE PUBLIC RECORDS ACT AFFORD TO
THEPUBLIC?............................................................................................................2 III.
IS THE PUBLIC RECORDS ACT RELATED TO THE FREEDOM OF
INFORMATION ACT?..............................................................................................3 IV.
TO WHICH LOCAL AGENCIES DOES THE PUBLIC RECORDS
ACTAPPLY?............................................................................................................3 V.
WHAT ARE "PUBLIC RECORDS?...........................................................................4 V1.
HOW DOES A LOCAL AGENCY DETERMINE THE SCOPE OF A
PUBLIC RECORDS REQUEST?................................................................................6 VII.
CAN A LOCAL AGENCY RELINQUISH ITS PUBLIC RECORDS
ACT OBLIGATIONS TO SOMEONE ELSE?............................................................7 VIII.
MUST A PUBLIC RECORDS ACT REQUEST BE MADE IN
WRITING, OR MAY IT BE MADE ORALLY?...........................................................8 IX.
WHAT PUBLIC RECORDS ARE EXEMPT FROM DISCLOSURE
UNDER THE PUBLIC RECORDS ACT?...................................................................8 X.
WHAT IS THE PROPER PROCEDURE FOR COMPLYING WITH A
PUBLIC RECORDS ACT REQUEST?......................................................................30 A.
WHAT ARE THE PENALTIES FOR FAILURE TO COMPLY WITH THE
PUBLIC RECORDS ACT?......................................................................................33 X11.
CONCLUSION.......................................................................................................34 PART TWO. ELECTRONIC RECORDS....................................................................................................35
1. EMAI L..................................................................................................................... 38 II.
DOCUMENTS CREATED USING WORD PROCESSORS, GIS
AND OTHER SOFTWARE.......................................................................................51 III.
CITY WEBSITES.......................................................................................................61 IV.
CONCLUSIONS.....................................................................................................78 PART THREE. THE CALIFORNIA PUBLIC RECORDS ACT.......................................................................81 Public Records Act Page i
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Introduction
This Handbook, designed for City officials and staff, provides a summary of the major provisions of California's Public Records Act and related topics. Part One of the Handbook summarizes the basic provisions of the Public Records Act, including documents that are exempt from disclosure and the proper procedure for complying with the Act. Part Two highlights the unique issues raised by electronic records. Part Three contains the complete text of the Public Records Act. We hope you find this Handbook useful. Should you have any questions about the information included in this Handbook, please do not hesitate to contact our office.
Richards, Watson & Gershon
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PART ONE.
COMPLIANCE WITH THE PUBLIC RECORDS ACT
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COMPLIANCE WITH THE PUBLIC RECORDS ACT:
KEY QUESTIONS AND ANSWERS
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.
CAL. CONST. ART. I, § 3(b)(I ).
In enacting [the California Public Records Act], the
Legislature, mindful of the right of individuals to privacy, finds and declares that access to information
concerning the conduct of the people's business is a
fundamental and necessary right of every person in this state.
GOv'T CODE § 7921.000.
California's Public Records Act is a key part of the philosophy that government at all levels in this State must be open and accessible to all.1 Under the Public Records Act, a local government agency must disclose virtually any public document; only a statutory exemption or a need for confidentiality that clearly outweighs the public's right to access will legally justify withholding a public document. The purpose of this Handbook is to provide a general overview of the Public Records Act and recent amendments to it, along with a general road map for compliance. Pursuant to AB 473, operative January 1, 2023, the Public Records Act has been reorganized and recodified in new Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code. While the Public Records Act has been recodified, the substance of the Public Records Act has not materially changed. The legislature specifically noted that its intent was not to substantively change the law, and revisions to the Public Records Act are intended to be entirely nonsubstantive in effect.2 Additionally, cases interpreting the former Code sections may be used to analyze the equivalent recodified sections. This Handbook addresses the questions most frequently asked of us by our local government clients.
1 Rogers v. Superior Ct. (City of Burbank), 19 Cal. App. 4th 469 (2 Dist. 1993). 2 Gov't Code §7920.100
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Part One: Comoliance with the Public Records Act
I. WHAT IS THE PUBLIC RECORDS ACT?
The Public Records Act is a California statute that affords the public the right to inspect, and obtain a copy of, most of the information retained by State and local agencies in the course of business. The Public Records Act regulates the public's access to records and sets out the specific statutory circumstances under which particular records need not be disclosed. The Public Records Act states that public records are open to inspection at all times during the office hours of a local agency.3
The California Constitution also guarantees that public records are open to public scrutiny.4 It provides that a law, such as the Public Records Act, should be "broadly construed" if it furthers the people's right of access to public records, and "narrowly construed" if it limits the right of access.5 II. WHAT RIGHTS DOES THE PUBLIC RECORDS ACT AFFORD TO THE PUBLIC?
Under the Public Records Act, every person has the right to inspect and to obtain a copy of any identifiable public record.6 It is irrelevant whether the person making the Public Records Act request already has possession of the public records requested.? The term "person" includes individuals, and various types of business entities.$ A "person" need not be a citizen of California or of the United States to make use of the Public Records Act.9 A local agency must supply an exact copy of the record on request, unless it is "impracticable" to make an exact copy.10 The word "impracticable" in the Public Records Act does not necessarily refer to situations where a copying request would be "inconvenient" or time consuming to the agency. Rather, the term "impracticable" modifies the requirement that the agency provide an "exact" copy. If a requested document is subject to the Public Records Act, the agency must provide the best or most 3 Gov't Code § 7922.525.
4 CAL. CoNST. art. I, § 3(b)(1).
5 CAL. CoNST. art. I, § 3(b)(2).
6 Gov't Code §§ 7922.525, 7922.530(a). A requestor inspecting a disclosable record on the agency's premises generally has the right to use their own equipment, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record. Gov't Code § 7922.530(b).
7 The motive of the requester seeking public records is immaterial; an individual already in possession of requested documents may seek the documents so he or she may publicly disseminate them without fear of liability for doing so.
Caldecott v. Superior Court, 243 Cal. App. 4th 212, 219 (4 Dist. 2015). 8 Both cities and city attorneys have been deemed "persons" under the Act. Los Angeles Unified School Dist. v. Superior Court (City of Long Beach), 151 Cal. App. 4th 759 (2 Dist. 2007) (holding that the city, as well as the city attorney, were entitled to obtain records of a school district relating to a school construction project). 9 Gov't Code § 7920.520; Connell v. Superior Court (Intersource, Inc.), 56 Cal. App. 4th 601 (3 Dist. 1997). 10 Gov't Code § 7922.530(a).
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complete copy of that document reasonably possible.11 Any reasonably segregable portion must be made available after deletion of any portion exempt from disclosure.12
The requirements of the Public Records Act are the minimum standards which must be met by local agencies. The Public Records Act specifically provides that agencies may adopt procedures to allow greater access to records, except where the law otherwise prohibits access.13
The person who is the subject of a particular record does not have a specific right under the Public Records Act to prevent disclosure of any particular record.14 Even in cases where the subject of a particular record has argued that disclosure would violate the individual right to privacy guaranteed by the California Constitution, disclosure has been compelled.15
III. IS THE PUBLIC RECORDS ACT RELATED TO THE FREEDOM OF INFORMATION ACT?
Persons who request access to public records frequently reference the Freedom of Information Act (the "FOIA") as the basis for their request. The FOIA is a federal statute that does not apply to local government agencies.16 However, the Public Records Act was modeled after the FOIA, and we recommend that agencies respond to otherwise valid records requests even if the requester cites the FOIA instead of the Public Records Act.17
IV. TO WHICH LOCAL AGENCIES DOES THE PUBLIC RECORDS ACT APPLY? The Public Records Act applies to all local government agencies. Under the Public Records Act, a "local agency" includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; any board, commission or agency of any of these; and 11 See Rosenthal v. Hansen, 34 Cal. App. 3d 754 (3 Dist. 1973) (holding that under the former Section 6256, an agency need not provide exact copies if doing so would be impracticable, but this does not excuse a public entity from producing the records at all).
12 Gov't Code § 7922.525.
13 Gov't Code § 7922.505. It is unclearwhether a local public agency can, through a sunshine ordinance, seek to regulate other agencies, but such an ordinance would not override a state agency's determination on whether its internal documents were subject to disclosure. SF Urban Forest Coal. v. City & Cty. of San Francisco, 43 Cal. App. 5th 796, 807 (Ct.
App. 2019), review denied (April 1, 2020).
14 LAPD v. Superior Court (Church of Scientology), 65 Cal. App. 3d 661, 668 (2 Dist. 1977). 15 Poway Unified Sch. Dist. v. Superior Court (Copley Press), 62 Cal. App. 4th 1496 (4 Dist. 1998). 16 5 U.S.C. § 552 et seq.
17 See ACLU v. Deukmejian, 32 Cal. 3d 440, 447 (1982) (Public Records Act modeled on FOIA, judicial construction and legislative history of federal act illuminate the interpretation of its California counterpart); Cook v. Craig, 55 Cal. App. 3d 773, 781 (3 Dist. 1976) (noting the similarity between the provisions of state and federal law).
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certain non-profit organizations of local agencies which are supported by public funds.18
V. WHAT ARE "PUBLIC RECORDS?"
The Public Records Act defines "public records" as follows:
Public records 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.
The term "writing" means:
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.19
These definitions encompass much more than written or printed documents.
Public records include computer data, and an agency must provide computer records in any electronic format in which the agency holds the information. If a requester asks for the records in a particular format, the agency must provide the records in that format, provided it is a format used by the agency to create copies for its own use or for provision to other agencies, unless an exception applies.20 Note, however, that computer software developed by a local agency is not a "public record" subject to the Public Records Act.21
On the other hand, a requester's rights under the Public Records Act are not unlimited. A local agency is not required to create a document or compile a list in response to a request under the Public Records Act.22 18 Gov't Code § 7920.510. The Public Records Act also applies to charter schools and entities managing charter schools.
Ed. Code § 47604.1.
19 Gov't Code § 7920.530 and 7920.545.
20 Gov't Code § 7922.570 For further discussion of the exception to this rule, see Part Two. Electronic Records, Section II.B. "Metadata" of this Handbook.
21 Gov't Code § 7922.585.
22 Based upon the definition of "writing," Gov't Code § 7920.545, and the requirement that a requested record be "identifiable," Gov't Code § 7922.530(a); See also Sander v. State Bar of California, 26 Cal. App. 5th 651, 665-66 (1 Dist.
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While these definitions are general, over the years the courts have both broadened and limited the scope of the definition of "public record." First, it is clear that the term "public records" encompasses more than simply those documents that public officials are required by law to keep as official records.
Rather, courts have held that a public record is one that is kept because it is "necessary or convenient to the discharge of [an] official duty."23 Second, courts have observed that merely because the writing is in the possession of the local agency, it is not automatically a public record. It must relate in some substantive way to the conduct of the public's business.24 Thus, personal notes and personal records, such as shopping lists or letters from friends that are totally void of public business, are not public records.25 In City of San Jose v. Superior Court, the California Supreme Court provided several factors to consider when analyzing whether a writing is a public record, including: the content of the writing; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.26 In addition, it is important to note that a record need not be a "document" to fall within the ambit of the Public Records Act. A public record is subject to disclosure under the Public Records Act "regardless of physical form or characteristics."27 Further, local agencies are obligated to determine whether a public records request seeks copies of disclosable public records in the "possession" — either actual or constructive possession — of the agency.28 On occasion, a local agency prepares, uses, or owns a document containing information related to the conduct of the public's business, but does not physically possess it, such as when a local agency hires a private consultant to conduct work on behalf of the agency. When the public record is in the possession of a private consultant or sub -consultant who does work for the local agency, the contractual relationship between the local agency and consultant or sub -consultant will likely determine whether the local agency has the right to control the records and therefore "constructive possession" of the documents.29 In Community Youth Athletic 2018) (stating that "the CPRA ... does not require [public agencies] to create new records to satisfy a request."); Steinle v.
City & Cty. of San Francisco, 919 F.3d 1154, 1 166 (9th Cir. 2019). 23 City of San Jose v. Superior Court (Smith), 2 Cal. 5th 608, 618 (2017); Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (5 Dist. 1984); San Gabriel Tribune v. Superior Court (City of West Covina), 143 Cal. App. 3d 762, 774 (2 Dist. 1983); People v.
Tomalty, 14 Cal. App. 224, 231 (1 Dist. 1910).
24 City of San Jose, 2 Cal. 5th at 618; Braun, 154 Cal. App. 3d at 340; San Gabriel Tribune, 143 Cal. App. 3d at 774; Gov't Code § 7920.530.
25 San Gabriel Tribune, 143 Cal. App. 3d at 774.
26 City of San Jose, 2 Cal. 5th at 618.
27 Gov't Code § 7920.530.
28 Gov't Code § 7922.535. City of San Jose, 2 Cal. 5th at 623. 29 Consolidated Irrigation District v. Superior Court (City of Selma), 205 Cal. App. 4th 697, 709-1 1 (5 Dist. 2012); Community Youth Athletic Center v. City of National City, 220 Cal. App. 4th 1385, 1427-29 (4 Dist. 2013); see also Regents of the University of California v. Superior Court (Reuters America LLC), 222 Cal. App. 4th 383, 398 (1 Dist. 2013) as modified on denial of reh'g (Jan. 14, 2014).
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Center v. City of National City, the court found that under the contract between the City and its consultant, the City had the right to possess and control the record that was the subject of a public records request, even if that local agency had not previously enforced its ownership right.30 The court held that the City had an obligation "to make reasonable efforts to facilitate the location and release of the information."31 The City's failure to assert its contractual right to obtain the record from the consultant violated the Public Records Act.32 On the other hand, in Anderson -Barker v. Superior Court of Los Angeles County, the court held that a city's ability to access privately held, electronically -stored data did not equate to a form of possession of the data when a city does not direct what information a third party contractor places on its databases, and has no authority to modify the data in any way.33 Similarly, in Consolidated Irrigation District v. Superior Court, the court found that the City had no control over a sub -consultant's records.34 The sub -consultant had been hired by the City's primary consultant, and based on the facts in that case, the City had no obligation under the Public Records Act to obtain and produce the records of the sub -consultant.
VI. HOW DOES A LOCAL AGENCY DETERMINE THE SCOPE OF A PUBLIC RECORDS REQUEST?
Most public records requests are straightforward. The public is familiar with records regularly kept by a local agency, such as meeting minutes, staff reports, financial reports, and other documents discussed at public meetings. Requests for those records are easy to fulfill. Many of these records may be available on a local agency's website, and the Public Records Act allows a local agency to satisfy a request for public records by directing the requester to that website.35 Sometimes, the public is unfamiliar with the types of records maintained by local agencies. The requester may not be able to provide the specificity necessary to identify a public record, or the request may be so broadly stated that a local agency cannot reasonably determine which records fall within the scope of the request.
Under those circumstances, the Public Records Act imposes duties on both local agencies and requesters. Local agencies must assist a requester to formulate a "focused and effective request that reasonably describes an identifiable record or records," by following certain procedural requirements.36 Likewise, the 30 Community Youth Athletic Center, 220 Cal. App. 4th at 1428. 31 Id. at 1429.
32 Id.
33 Anderson -Barker v. Superior Court (City of Los Angeles), 31 Cal. App. 5th 528 (2 Dist. 2019). 34 Consolidated Irrigation District, 205 Cal. App. 4th at 711. 35 Gov't Code § 7922.545.
36 Gov't Code § 7922.600. Further discussion of these procedural requirements is in Section X, below.
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requester is obligated to engage in this process, and to provide the scope of the public information requested, which the City must communicate to the custodian of records. Both the local agency and the requester must be reasonable in this process.37
In some instances, there may be many records responsive to a request. When faced with a voluminous request, agencies should work with the requester to narrow down the request, ask if they would consent to an extended deadline for responding, and providing responsive records on a rolling basis. Even where requests return a significant number of responsive records, courts have held that agencies must process the request.38
VII. CAN A LOCAL AGENCY RELINQUISH ITS PUBLIC RECORDS ACT OBLIGATIONS TO SOMEONE ELSE?
A local agency cannot sell or provide a public record subject to disclosure under the Public Records Act to a private entity in a manner that prevents the local agency from providing the record directly.39 For example, the county recorder cannot transfer all birth and death records to a private company and insist that the public obtain birth certificates from the private entity.
Similarly, a local agency may not enter into a contract that allows another party to control the disclosure of information that is subject to the Public Records Act.40 For example, a contract provision that requires the consent of a contractor before a local agency may release a public record prepared by the contractor violates the Public Records Act. Additionally, if a local agency enters into a contract that requires a private entity to review, audit, or report on any aspect of the local agency, that contract must be made available to the public upon request, unless the contract is exempt from disclosure pursuant to another exemption in the Public Records Act.41
37 Community Youth Athletic Center v. National City, 220 Cal. App. 4th 1385, 1427 (4 Dist. 2013). 38 Getz v. Superior Court, 2021 WL 5879194 (3 Dist. 2021), ordered published (December 13, 2021) (holding that it is not unduly burdensome to require El Dorado County to review more than 42,000 emails that were potentially responsive to a request for "any/all emails" by or between "anyone" employed by the County and "anyone" at one of four email domains associated with a real estate developer, its legal counsel, and its public relations consultants). 39 Gov't Code § 7921.010(a).
40 Gov't Code § 7921.005.
41 Gov't Code § 7928.700.
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Vill. MUST A PUBLIC RECORDS ACT REQUEST BE MADE IN WRITING, OR MAY IT BE MADE ORALLY?
Nothing in the Public Records Act requires a member of the public to place his or her request for public records in writing.42 While many local agencies provide forms on their website or at their offices for making a written Public Records Act request, a requester is not required to use the form offered. An oral request is sufficient to trigger the requirements of the Public Records Act.
Additionally, an argumentative or disruptive requester cannot be permanently banned from the premises by a local agency or forced to make their requests in writing.43 However, the right to inspect public records is subject to the implied rule of reason that enables the custodian of public records to formulate regulations necessary to prevent interference with the orderly functioning of the agency's office.44 If faced with a loud or angry person who is making an oral request, and the records are not immediately available, it is advisable for staff to write down the request and tell the requester the agency will respond in writing within the time limits specified in the Public Records Act. Your city attorney can provide additional guidance in the event a member of the public is repeatedly abusive towards staff.
IX. WHAT PUBLIC RECORDS ARE EXEMPT FROM DISCLOSURE UNDER THE PUBLIC RECORDS ACT?
A. Disclosure of Exempt Records Waives Confidentiality
The Public Records Act specifically exempts a number of categories of records from disclosure requirements. If documents are exempt from disclosure, it is important that confidentiality be maintained. Once an otherwise exempt record is knowingly released to any member of the public, disclosure constitutes a waiver of the exemption for that record, and the record must be provided to any subsequent requesting member of the public.45 This waiver ensures a public agency does not carry out "selective disclosure," wherein some members of the public are provided the right of access to specific records, while some requests for the same records are denied by the public agency for the same materials.46 42 Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 1392 (2 Dist. 2001). 43 Galbiso v. Orosi Public Utility District, 167 Cal. App. 4th 1063, 1088-89 (5 Dist. 2008). 44 Bruce v. Gregory, 65 Cal. 2d 666, 676 (1967); Rosenthal v. Hansen, 34 Cal. App. 3d 754, 761 (3 Dist. 1973); 64 Ops. Cal.
Atty. Gen. 317 (1981).
45 Gov't Code § 7921.505.
46 Black Panther Party v. Kehoe, 42 Cal. App. 3d 646, 658 (3 Dist. 1974).
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There are a few situations where the knowing disclosure of an otherwise exempt record does not constitute a waiver of exemption. Exemptions are not waived when disclosures are made:
• Through discovery procedures associated with lawsuits or in court proceedings;
• Pursuant to a statute that limits disclosure for specified purposes; • When not required by law and prohibited by formal action of the elected legislative body of the local agency; or
• To another government agency that agrees to treat the records as confidential.47
The California Supreme Court held that a public agency's inadvertent disclosure resulting from human error does not waive an exemption.48 In Ardon v. City of Los Angeles, the City of Los Angeles inadvertently disclosed several attorney -client and attorney work product documents in response to a PRA request. The requester was an attorney actively involved in pending litigation against the City.49 After becoming aware of the inadvertent disclosure, the City filed a motion in court seeking the return of the privileged materials.50 The California Supreme Court held that the Public Records Act's waiver provision5l applied only to intentional and not inadvertent disclosure.52 The court justified this distinction by finding that the City of Los Angeles had not engaged in selective disclosure:
"[r]ather, it seeks no disclosure; it is trying to force plaintiff's attorney to return the privileged documents unread."53
The California Supreme Court's decision in Ardon v. City of Los Angeles allows a public agency to argue that a disclosure was inadvertent and ask for return of exempt records that were released in error. However, nothing in the Public Records Act compels the requester to return the records. Instead, the public agency must go to court to obtain a judicial order directing the requester to return or destroy the inadvertently disclosed records.54 This presents a number of problems. First, the circumstances surrounding the dissemination of those materials would have to be evaluated on a case -by -case basis by the reviewing court.55 The court may not agree with the public agency's assertion that the 47 Gov't Code § 7921.505. Additional exceptions apply to specific state agencies. 48 Ardon v. City of Los Angeles, 62 Cal. 4th 1 176 (2016). 49 Ardon, 62 Cal. 4th at 1 180-82.
50 Id. at 1181.
51 Gov't Code § 7921.505.
52 Ardon, 62 Cal. 4th at 1180.
53 Id. at 1 185-86.
54 See Newark Unified School District v. Superior Court (Brazil), 245 Cal. App. 4th 887 (1 Dist. 2015). 55 Id. at 910.
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disclosure was inadvertent. Second, if the exempt records were given wide- spread distribution before the error was found, a court may decide not to order return of the records. Once the information is in the public sphere, the bell cannot be unrung. Third, it is costly to go to court to seek injunctive relief.
Consequently, public agencies should continue to conduct a thorough and exhaustive review of responsive documents before releasing any materials in response to a Public Records Act request. The California Supreme Court acknowledged that its decision was limited to "truly inadvertent disclosures and must not be abused to permit the type of selective disclosure" prohibited by the Public Records Act.56 Further, the California Supreme Court emphasized that a public agency's own characterization of its intent is not dispositive.57 The best practice continues to be to complete a thorough review before releasing responsive records.
B. Statutory Exemptions for Confidential Records
The following is a list of the statutory exemptions. This list is not exhaustive. (1) Public agency employees' personal information.
Gov't Code § 7928.300.
The Public Records Act contains protections for specified personal information of all public agency employees. The home addresses, home telephone numbers, personal cellular telephone numbers and birth dates of all public agency employees are not considered to be public records subject to disclosure, except in limited circumstances. Personal e-mail addresses of public employees are also not public records subject to disclosure, unless a personal e-mail address is used by an employee to conduct public business or if the address is necessary to identify a person in an otherwise disclosable communication. The Public Records Act also requires local agencies to redact social security numbers from records before disclosing the records to the public in response to a Public Records Act request.58
56 Ardon, 62 Cal. 4th at 1190.
57 Id.
58 Gov't Code § 7922.200. State agencies are prohibited from sending outgoing U.S. mail to an individual that contains the individual's social security number unless the number is truncated to its last four digits, except in specified circumstances. Gov't Code § 11019.7.
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(2) Referendum, recall and initiative petitions, ballots and related material.
Gov't Code §§ 7924.100-7924.1 10.
Election -related petitions and all memoranda prepared by the county elections officials in their examination of the petitions indicating which registered voters signed the petitions are strictly confidential. These materials may be viewed only by elections officials and their deputies. Other officials, including agency attorneys, must obtain a court order to view petitions. If the elections officials determine that a petition is legally insufficient, petition proponents and their representatives designated in writing must be permitted to review these materials.
Election ballots themselves are exempt from disclosure.59 (3) The identity of persons who have requested bilingual ballots or ballot pamphlets.
Gov't Code § 7924.005.
Election -related information revealing the identity of people who have requested bilingual ballots or ballot pamphlets or other related data that would reveal the identity of the people requesting bilingual materials is exempt from disclosure.
Persons otherwise authorized to review this material, such as elections officials, may examine these materials.
(4) Preliminary drafts, notes, or interagency or intro -agency memoranda.
Gov't Code § 7927.500.
Public officials should be aware that preliminary drafts and notes, along with interagency and intra-agency memoranda, are exempt from disclosure as public records if those documents are not customarily retained by the local agency in the ordinary course of business, and the public interest in withholding those records clearly outweighs the public interest in disclosure.60 In considering whether to use this exemption, agencies should determine whether the disclosure of a preliminary draft, note, or interagency or intra-agency memorandum would further the interest of the Act in open government. The fact that the document is merely a step in the process and does not provide important information about the public's business probably weighs in favor of nondisclosure. 59 Elec. Code §§ 15370 and 17301; Citizens Oversight, Inc. v. Vu, 35 Cal. App. 5th 612, 619-20 (4 Dist. 2019). 60 Gov't Code § 7927.500.
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The key questions in this area generally may be boiled down to whether a draft, note, or interagency or intra-agency memorandum is one which:
• Is not normally kept by the agency in the ordinary course of business; • Is not prepared or kept to document or memorialize the day-to-day transaction of the public's business;
• Is merely a temporary step in the process of preparing a final document, reaching a final decision, or determining a course of action; and
• Would expose the agency's decision -making process if disclosed,61 and the public interest in nondisclosure clearly outweighs the public interest in disclosure.
If the document qualifies under all four categories above, the document probably is exempt from disclosure under the Public Records Act. Documents that do not satisfy one or more of the categories above probably are public records that must be disclosed unless another exemption applies. You should keep in mind, however, that any doubt or question in this regard likely will be decided in favor of disclosure of the record.
In discussing whether a record has not been retained in the ordinary course of business, one court observed, "[i]f preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed."62 One of the purposes of this condition is to prevent "secret law," that is an undisclosed collection of written rules guiding the agency's decisions.63 Consequently, a record that must be retained pursuant to a local agency's records retention schedule, policies, or customs does not fall within this exemption.
For example, if a policy decision is made to retain drafts in order to document the bargaining history after an agreement is negotiated; those drafts likely are not exempt under Section 7927.500. Also, if it is permissible under an agency's records retention schedule to destroy preliminary documents, but the agency retained such a document after the final report is prepared, the preliminary document arguably is not exempt under Section 7927.500.
61 Citizens fora Better Environment v. Dep't of Food and Agriculture, 171 Cal. App. 3d 704, 715-16 (3 Dist. 1985) (concluding that "[t] he interest in fostering robust agency debate" is the only public interest that can justify nondisclosure under Section 7927.500) .
62 Id. at 714.
63 Id. at 714 n.7.
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(5) Records pertaining to pending litigation to which the agency is a party.
Gov't Code § 7927.200.
Under this exemption, records actually created by an agency for its own use in litigation are exempt from disclosure under the Public Records Act.64 Previously created or disclosed records may not be retroactively re-classified as being exempt under this Section.65 Generally, courts will examine the "dominant purpose" behind the document's creation.66 Documents prepared "by a public entity for its own use in anticipation of litigation, which documents it reasonably has an interest in keeping to itself until litigation is finalized" are protected by the exemption.67 Thus, while documents created prior to the commencement of litigation appear to receive greater scrutiny to determine their dominant purpose, the exemption can apply to documents created before litigation has commenced, that is, before a claim has been made with the local agency under the Government Claims Act or a complaint filed with a court. Once litigation is concluded, however, the exemption will no longer apply.68 This exemption also applies to litigation -related documents, even if not created by an agency, when sought by persons or entities not a party to the litigation and which the parties to the litigation do not intend to be revealed outside the litigation. This exemption does not cover deposition transcripts because they are available to the public under another statute.69 And where a plaintiff generally is required to file a claim under the Government Claims Act to initiate litigation against a local agency, the actual claim form filed with the local agency is not exempt under this Section as "[f]here is no unfair disadvantage [in the pending litigation] to the public entity from disclosure of the mere claim form."70 64 Fairley v. Superior Court (City of Long Beach), 66 Cal. App. 4th 1414, 1421-22 (2 Dist. 1998). 65 City of Hemet v. Superior Court (Press -Enterprise Co.), 37 Cal. App. 4th 1411, 1420 & n.1 1 (4 Dist. 1995). 66 Fairley, 66 Cal. App. 4th at 1420
67 Id. at 1421.
68 Gov't Code § 7927.200 (noting that the exemption applies "until the pending litigation or claim has been finally adjudicated or otherwise settled."); City of Los Angeles v. Superior Court (Axelrod), 41 Cal. App. 4th 1083, 1089 (2 Dist. 1996).
69 Board of Trustees of California State Univ. v. Superior Court (Copley Press, Inc.), 132 Cal. App. 4th 889, 901-902 (4 Dist. 2005); Civ. Proc. Code § 2025.570.
70 Poway Unified Sch. Dist. v. Superior Court (Copley Press, Inc.), 62 Cal. App. 4th 1496, 1505 (4 Dist. 1998).
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(6) Personnel, medical, or similar records.
Gov't Code §§ 7927.700; 7928.300.
When the disclosure of personnel,71 medical, or similar files would constitute an unwarranted invasion of personal privacy, this exemption applies. In determining whether personnel records should be disclosed, courts first decide whether disclosure would compromise the individual's substantial privacy interest. If it does, the court determines whether the potential harm to those interests caused by disclosure outweighs the public interest in disclosure.72 As will be discussed below, the California Supreme Court has concluded that public employees in general have a significantly reduced expectation of privacy in their salaries, and that the strong public interest in knowing how the government spends its money justifies disclosure of salary information.73 Courts have recognized the privacy interest implicated by records of employee misconduct and wrongdoing.74 However, at least one appellate court has found that where the public employee is in a position of authority, such as a superintendent of a school district, the individual has "a significantly reduced expectation of privacy in the matters of his [or her] public employment."75 This exemption for personnel, medical or similar records does not justify withholding employment agreements. By statute, employment agreements between a local agency and any public official or public employee is a public record not subject to an exemption.76 This exemption for personnel records also does not justify withholding personnel records concerning incidents involving the discharge of a firearm at a person by a peace officer that resulted in death or great bodily injury, records concerning a sustained finding that a peace officer engaged in sexual assault or dishonesty, a sustained finding of unreasonable or excessive force, a sustained finding of failure to intervene against another officer using unreasonable or excessive force, or a sustained finding of discrimination against a protected class.77 71 The scope of personnel records generally covers records relating to an employee's performance or to any grievance concerning an employee, and would include personal information to which access is limited to an employee's supervisors.
Such records do not need to be stored in a personnel file to be exempt; it is the contents of the document which makes them confidential. Associated Chino Teachers v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 539-41 (4 Dist. 2018). 72 Versaci v. Superior Court (Palomar Cmty. Coll. Dist.), 127 Cal. App. 4th 805, 818-820 (4 Dist. 2005). 73 International Federation of Professional and Technical Engineers, LOCAL 21, AFL-CIO, v. Superior Court, (Contra Costa Newspapers, Inc.), 42 Cal. 4th 319, 329-333 (2007) (International Federation). 74 Associated Chino Teachers, 30 Cal. App. 5th at 541.
75 BRV, Inc. v. Superior Court (DunsmuirJoint Union High School District), 143 Cal. App. 4th 742, 758 (3 Dist. 2006) (ordering reports investigating allegations of misconduct disclosed, as the public's interest in why the district entered into a termination agreement with the superintendent that appeared to the public to be a "sweetheart deal" outweighed the superintendent's interest in preventing disclosure of the reports). 76 Gov't Code § 7928.400.
77 Penal Code §§ 832.7, 832.8.
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Disclosure of Public Employee Salaries
The California Supreme Court has held that salaries of public employees are not exempt from disclosure. In International Federation of Professional and Technical Engineers v. Superior Court, (Contra Costa Newspapers, Inc.),78 the California Supreme Court held that individually identifiable salary information is not exempt from disclosure under the Public Records Act, the California Constitution or the Penal Code. In this case, a newspaper sought disclosure from the City of Oakland of names, job titles and gross salaries of City employees earning $100,000 or more each year, including overtime. The City provided salary and overtime information for each job classification but refused to provide salary information linked to individual employees. The newspaper sued to obtain disclosure of the records under the Public Records Act. The Supreme Court held that a public entity's payroll expenditures are public records, and that disclosure of salary records for City employees earning $100,000 or more each year is not an unwarranted invasion of personal privacy.79
With regard to peace officers, the Supreme Court rejected the police union's argument that Penal Code Sections 832.7 and 832.8 bar disclosure of the amount of a peace officer's salary.80 The Supreme Court ruled that salary information of peace officers does not constitute "personnel records" under Penal Code Sections 832.7 or 832.8, and is not information obtained from personnel records.81 As such, the Penal Code does not mandate that peace officer salary information be excluded from disclosure under the Public Records Act.
The Supreme Court also rejected the argument that each public records request must be evaluated on a case -by -case basis to evaluate the individual employee's privacy interests and the particular public interest at issue.82 The Court stated that this would reverse the presumption of openness of public records mandated by the Public Records Act, and the public entity bears the burden of demonstrating that particular records are exempt.83 The Court, however, left open the possibility that a public entity may, on a case -by -case basis, decline to 78 International Federation, 42 Cal. 4th 319 (2007).
79 The Supreme Court also narrowed the precedential value of Teamsters Local 856 v. Priceless, LLC., 112 Cal. App. 4th 1500 (1 Dist. 2003). The appellate court in Priceless held that names, job titles, and W-2 information of City employees was confidential information and not subject to disclosure under the Public Records Act because the City in question had a prior practice of treating that information as confidential. To the extent that Priceless could be read as holding that a City's practice of refusing to disclose certain information had created a privacy interest in those records, the California Supreme Court disagreed and refused to adopt that holding. International Federation, 42 Cal. 4th at 336. 80 Id., at 343.
81 Id.
82 Id. at 336.
83 Id. at 336-37.
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release records pertaining to individual employees where anonymity is essential to their safety, such as undercover narcotics officers.
Although this decision arose in the context of a public records request for the names and salaries of City employees earning more than $100,000 per year, the Supreme Court's reasoning may have general application to salary information for all City employees, regardless of level of salary.
In a companion case, Commission on Peace Officer Standards and Training v.
Superior Court, the California Supreme Court addressed the confidentiality of certain non -salary information.84 In this case, the Commission refused to provide the names, employing departments, and hiring and termination dates of peace officers from its database. The Commission maintains the database to monitor participating law enforcement departments' compliance with Peace Officer Standards and Training ("POST") regulations. The California Supreme Court held that the names, employing departments, and hiring and termination dates of peace officers are not confidential under Penal Code Sections 832.7 and 832.8, and are not exempt from disclosure under the Public Records Act. The California Supreme Court, however, remanded the case to the lower courts to allow the Commission the opportunity to establish that information regarding particular officers or categories of officers should be excised from the disclosed records in order to protect the safety or efficacy of those peace officers.85 (7) Arrest records, complaint reports, investigatory, and security files.
Gov't Code §§ 7923.600-7923.630.
This exemption strictly limits the information required to be disclosed about arrests, complaints and investigations.86 Records of complaints to or investigations conducted by police agencies generally may be withheld. Investigatory or security files compiled by a local agency for law enforcement or licensing purposes are also covered by the exemption, provided "there is a concrete and 84 Commission on Peace Officer Standards and Training v. Superior Court (Los Angeles Times Communications LLC), 42 Cal. 4th 278 (2007).
85 Id. at 303; see also, Long Beach Police Officers Assn. v. City of Long Beach, 59 Cal. 4th 59 (2014) (holding the Act did not protect from disclosure the names of officers involved in on -duty shootings). 86 The scope of "records of investigation" is narrowly construed. American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1039 (2017). Records of investigation exempted under Section 7923.600 et seq. "encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency." Haynie v. Superior Court, 26 Cal. 4th 1061, 1071 (2001). In American Civil Liberties Union of Southern California v. Superior Court, the California Supreme Court declined to extend the meaning of "investigation" to cover bulk raw data obtained as part of a mass personal data collection, because there was no targeted "investigation" into a particular criminal act. 3 Cal. 5th 1032, 1042.
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definite prospect of criminal law enforcement proceedings."87 This exemption extends indefinitely, even after investigations are concluded.$$ In most cases, agencies are required to disclose to the public89 the full name, current address, and occupation of every person arrested by the agency, including a general physical description, along with the date and time of arrest. This disclosure, however, is not required where it would endanger the safety of a person involved in an investigation or jeopardize the successful completion of the pending investigation or a related investigation.
While investigations conducted by police agencies are generally not disclosable, investigations of police agencies may be subject to PRA requests. When releasing records pertaining to investigations of police agencies, the agency must redact or otherwise withhold any information that is part of a police officer's confidential personnel file.90 Counsel should be consulted to ensure that confidential information is not disclosed.
In addition, local agencies are required to disclose to the public the time, substance, and general location of all complaints and requests for assistance, and the time and nature of the agency's response. However, no disclosure may be made to any arrested person or defendant in a criminal action of the address and telephone number of any person who is a victim or witness in an alleged offense.91 Further, this disclosure is not required where it would endanger the safety of a person involved in an investigation or jeopardize the successful completion of the pending investigation or a related investigation.
In all cases, the address of a victim of an alleged sex offense or human trafficking offense must be withheld.92 Additionally, the name of the victim of an alleged sex offense must be withheld if the victim or a minor victim's parent or guardian requests it be withheld. While the law refers to "sex offenses," the crimes listed in Section § 7923.615 include sexual assault, child molestation, child abuse, hate crimes, and stalking.
The Public Records Act prohibits the commercial use of arrest and arrestee information, and requires that persons requesting such information sign a declaration, under penalty of perjury, that the request is made for a scholarly, journalistic, political, or governmental purpose, or for investigation by a licensed 87 Dixon v. Superior Court (Neves), 170 Cal. App. 4th 1271, 1277 (3 Dist. 2009) (internal quotation omitted). 88 Rackauckas v. Superior Court (Los Angeles Times Communications), 104 Cal. App. 4th 169, 174-178 (4 Dist. 2002). 89 Sections 7923.600-7923.630 also authorize release of certain limited information to the victim of a crime and other interested parties, above and beyond that information released to the public generally. 90 Pasadena Police Officers Association v. City of Pasadena, 22 Cal. App. 5th 147 (2 Dist. 2018). 91 Penal Code § 841.5.
92 Penal Code § 293.
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private investigator.93 This requirement, however, may have limited applicability given the outcome of litigation by United Reporting Publishing Corporation against the California Highway Patrol.94 Subsequent to that case, the Attorney General issued an opinion that a law enforcement agency may not require that a requester present subscriber lists, copies of publications, or other verification of a journalistic purpose and the requester is not required to monitor subscribers to prohibit them from using the information for commercial purposes.95 Disclosure of Certain Police Department Records
Penal Code sections 832.7 and 832.8 previously provided that peace officer personnel records are confidential and subject to disclosure only after a granted Pitchess Motion. Those statutes were amended in 2019 to provide that certain peace officer personnel records and records relating to specified incidents, complaints, and investigations must be made available to the public under the Public Records Act. Under further amendments in 2021, disclosure of additional categories of information is required effective on January 1, 2022. Penal Code sections 832.7 and 832.8 now provide that an agency must disclose any record relating to the report, investigation, or finding of:
• An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
• An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury. • When a sustained finding was made that a peace officer or custodial officer engaged in sexual assault involving a member of the public. • When a sustained finding was made of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying or concealing of evidence, or perjury. 93 Gov't Code § 7923.620. A commercial publisher of criminal records challenged the constitutionality of this limitation on disclosure, but the United States Supreme Court held that the statute did not violate the First Amendment to the U.S.
Constitution. Los Angeles Police Dept v. United Reporting Publ'g Corp., 528 U.S. 32 (1999). 94 United Reporting Publ'g Corp. v. California Highway Patrol, No. 96-CV-0888-B (S.D. Cal. Aug. 13, 2001) (final judgment on consent) ("As applied to United Reporting's activities as described in this lawsuit, section 6254(f)(3) (now § 7923.620) violates United Reporting's rights under the First Amendment to the United States Constitution by preventing United Reporting from engaging in its journalistic activities as described above."). 95 89 Ops. Cal. Atty Gen. 97 (2006).
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• When a sustained finding was made involving a complaint that alleged unreasonable or excessive force.
• When a sustained finding was made that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.
• When a sustained finding was made that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
• When a sustained finding was made that the peace officer made an unlawful arrest or conducted an unlawful search.
A sustained finding means that the public agency has determined that misconduct occurred and the officer had an opportunity for an administrative appeal, even if that administrative appeal was not actually completed.96 These disclosure requirements apply regardless of whether the disclosable records sought pertain to officers employed by the agency or by another public agency and regardless of whether the agency or another public agency created the records.97 These requirements also apply to records created prior to 2019 if a public records request is submitted after January 1, 2019.98 Note, however, that the catchall exemption to disclosure under the Public Records Act (Government Code section 7922.540), can apply to exempt otherwise disclosable records under Penal Code Section 832.7 where, based on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.99 96 Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039 (1 Dist. 2021), review denied (June 30, 2021) (court held that the city manager's decision in favor of an officer's termination following a pre -discipline Skelly meeting constituted a sustained finding of dishonesty, even though the officer's subsequent administrative arbitration was not completed because the officer resigned as part of a settlement with the city). 97 Becerra v. Superior Court of City & Cty. of San Francisco, 44 Cal. App. 5th 897 (1 Dist. 2020) review denied (May 13, 2020) .
98 Ventura County Deputy Sheriffs' Assn v. Cty. of Ventura, 61 Cal. App. 5th 585, 590, 594 (2 Dist. 2021); Walnut Creek Police Officers' Assn v. City of Walnut Creek, 33 Cal. App. 5th 940, 941-942 (1 Dist. 2019). 99 Becerra, 44 Cal. App. 5th at 927-929.
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Further, as of July 1, 2019, the Act requires an agency to disclose audio and video recordings that relate to a "critical incident." A recording relates to a critical incident if it depicts an incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or an incident in which the use of force by a peace officer or custodial officer resulted in death or great bodily injury.loo Additionally, recent legislation has imposed requirements on law enforcement agencies to make available online all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the Public Records Act.101
The foregoing is a brief overview of this detailed and complex exemption. Police and code enforcement staff should familiarize themselves with the complete requirements of this Section prior to responding to requests for arrest and complaint information.
(8) Information required from any taxpayer in connection with the collection of local taxes.
Gov't Code § 7925.000.
This exemption applies to information that a city or other local agency requires from any taxpayer in connection with the collection of local taxes if that information is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information. One frequent example of this is the submittal of sales or income information under a business license tax requirement where the city has indicated in its business license tax ordinance that the financial information provided will be kept confidential. If the business license is required by ordinance to list the amount of tax paid and be posted at the place of business, however, the amount of tax paid arguably is not confidential.
(9) Library circulation records.
Gov't Code §7927.100.
While this exemption protects from disclosure library circulation records kept for the purpose of identifying the borrower of items available in libraries, it is not applicable to records of fines imposed on the borrowers. 100 Gov't Code § 7923.625.
101 Penal Code §13650.
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(10) Records exempt from disclosure under other laws including, but not limited to, the Evidence Code sections relating to privilege.
Gov't Code § 7927.705.
This provision of the Public Records Act exempts from disclosure every document held by a local agency that is legally privileged or confidential under some law outside the Public Records Act. The most common example of this exemption protects documents subject to the attorney -client privilege or the attorney work - product doctrine. It is important to note that neither the Public Records Act nor the Brown Act abrogate those important privileges for communications between a local agency and its legal counsel.102
For example, in Los Angeles County Board of Supervisors v. Superior Court, the Supreme Court ruled that the attorney -client privilege protects the confidentiality of invoices for legal work in pending and active legal matters.103 The Court reasoned that such invoices are so closely related to attorney -client communications that they may reveal legal strategy or consultation. The Court emphasized, however, that the attorney -client privilege does not categorically shield everything in a billing invoice from PRA disclosure.
This case also reaffirms the principle that the Public Records Act does not permit public agencies to withhold an entire document that contains both exempt and nonexempt information. On this point, the Supreme Court ruled that agencies must "use the equivalent of a surgical scalpel to separate those portions of a record subject to disclosure from privileged portions" unless records are not "reasonably segregable."104 Further, the Court stressed that any ambiguity must be construed in "whichever way will further the people's right of access."105 On remand, the Court of Appeal clarified that specific billing entries and descriptions of work contained in attorney invoices are not subject to disclosure under the PRA, whether they related to pending, ongoing or long -concluded legal matters. The Court further found that cumulative fee totals contained in attorney invoices for pending or ongoing legal matters are also protected from disclosure by the attorney -client privilege. And finally, it found that cumulative fee totals for matters concluded long ago may be subject to disclosure only if the cumulative fee totals do not reveal anything about the legal consultation or 102 Roberts v. City of Palmdale, 5 Cal. 4th 363, 377 (1993). 103 Los Angeles County Board of Supervisors v. Superior Court (ACLU of Southern California), 2 Cal. 5th 282 (2016). 104 Id. at 292.
105 Id. (citing Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1 190 (2016), and Cal. Const., art. I, § 3, subd. (b) (2)).
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provide any insight into legal strategy.106 Whether or not any particular fee total must be disclosed is a factual inquiry for the trial court.107 While a full discussion of attorney -client privilege and attorney work product is outside the scope of this Handbook, it is worth noting that a court may find waiver of the privilege when a city and developer share communications prior to approval of a development project under the California Environmental Quality Act (CEQA). In Citizens for Ceres v. Superior Court, the appellate court held that a city waived those privileges for communications it sent to a developer prior to approval of a development project under CEQA.108 The court held that the "common interest doctrine," which generally allows disclosure of privileged communications to third parties with a common interest in a legal matter, did not apply to prevent the city's waiver.109 As a result, the city was required to include its attorneys' communications with the developer in the administrative record it prepared. In contrast, in another more recent CEQA case, Golden Door Properties, LLC v. Superior Court, the appellate court ruled a common interest existed between a county and developer prior to project approval because the plaintiffs had previously sued both the applicant and the lead agency twice before project approval.110 In light of these differing opinions, local agencies should be cautious in sharing documents and legal opinions prepared by the agency's attorney with a project developer, and recognize that in the event it does share such documents and opinions of its attorneys, in some cases those disclosures may waive the agency's privilege.
In Labor and Workforce Development Agency v. Superior Court, the Court of Appeal extended the protection afforded by Section 7927.705 to documents revealing the deliberative process of an agency, even going so far as to prevent the disclosure of the identities of persons with whom the agency confidentially communicated, and the general subject matter of the communications.111 Determining which other confidentiality laws are incorporated into the Public Records Act has always been difficult and time-consuming. In 1998, the Legislature attempted to address this problem by enacting a statute that lists most of the exemptions found in other laws.112 The list now begins at Government Code Section 7930.005 and continues for more than 20 pages. Although the Public Records Act cautions that this list may not be complete, it is a helpful list. 106 County of Los Angeles v. Superior Court, 12 Cal. App. 5th 1264, 1274 (2 Dist. 2017). 107 Id.
108 Citizens for Ceres v. Superior Court (City of Ceres), 217 Cal. App. 4th 889, 922 (5 Dist. 2013). 109 Id. at 914-921 .
110 Golden Door Properties, LLC v. Superior Court of San Diego County, 53 Cal. App. 5th 733, 755-756 (4 Dist. 2020), review denied (Nov 10, 2020).
111 Labor & Workforce Dev. Agency v. Superior Court, 19 Cal. App. 5th 12 (3 Dist. 2018). 112 Stats. 1997, c. 620 (S.B. 143- Kopp).
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(11) Personal financial information required of licensees.
Gov't Code § 7925.005.
When a local agency requires that applicants for licenses, certificates, or permits submit personal financial data, that information is confidential. This exemption, however, does not apply to financial information filed by a franchisee to justify a rate increase, presumably because those affected by a rate increase have a right to know its basis.113 The term "license" was narrowly construed by the court in San Gabriel Tribune v. Superior Ct. to exempt financial information of applicants whose business with the agency is only public because they must comply with licensing requirements and regulations. To give effect to the Public Records Act policy that favors disclosure over secrecy in government, the court concluded that a franchisee is akin to a contractual relationship and is not an applicant for a license under Section 7925.005.
(12) Terrorist assessment reports.
Gov't Code § 7929.200.
A document prepared for or by a local agency that assesses its vulnerability to terrorist attacks or other criminal acts intended to disrupt the local agency's operations is exempt from disclosure if the document is prepared for distribution or consideration in a closed session of the local agency. (13) Voter registration information.
Gov't Code § 7924.000.
The home address, telephone number, email address, precinct number, and prior registration information shown on voter registration cards is confidential.
Disclosure of that information is permitted only to candidates and campaigns, and to any person for election, scholarly, journalistic, or political purposes pursuant to Section 2194(a) (3) of the Elections Code. The driver's license number, social security number and signature of the voter shown on the voter registration card are also confidential and cannot be disclosed to any person.114 We believe that this exemption extends to any document that by law must include the information made confidential by this Section, including applications for absentee ballots and returned absentee ballot packages. However, voter registration information identified under Section 7924.000 of the Government 113 San Gabriel Tribune v. Superior Court (City of West Covina), 143 Cal. App. 3d 762, 779-780 (2 Dist. 1983). 114 Elec. Code § 2194(b) (1).
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Code must be made available to the public if the information is at least one hundred years old.115
(14) Utility customer information.
Gov't Code § 7927.410.
The name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies are exempt from disclosure, except in certain circumstances. This information may be disclosed to authorized family members of the person to whom the information pertains or his or her agent, to an officer or employee of another governmental agency when necessary to perform official duties, or upon court order or the request of law enforcement for an ongoing investigation. In addition, the information may be disclosed if the utility customer has used the utility services in a manner inconsistent with applicable local utility usage policies. If the utility customer is a public official with authority to determine utility usage policies, the information may be disclosed except that the home address of an appointed official may not be disclosed without the official's consent. Lastly, the information may be disclosed if the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure .
(15) Unauthorized Internet posting of officials' addresses and telephone numbers.
Gov't Code §§ 7928.205 - 7928.230
The posting of the home address or telephone number of any elected or appointed official on the internet by a local agency without that individual's written permission is prohibited. The definition of "elected or appointed officials" includes, but is not limited to, members of a city council, members of a board of supervisors, mayors, city attorneys, police chiefs, and sheriffs. It is a misdemeanor for any person to post such information with the intent to cause bodily injury to the official, his or her spouse or child. The official may bring an action for damages under certain circumstances. If bodily injury occurs as a result of the posting, then the posting could become a felony.
If a person, business, or association publicly posts on the internet the home address or telephone number of any elected or appointed official, the official may make a written demand to have the information removed. An official may bring an action in court to seek injunctive relief in the event the posting is not 115 Elec. Code § 2194.1.
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removed or is posted again during the four years that the written demand is in effect.116
(16) Social Security Numbers.
Gov't Code § 7922.200.
Local agencies must redact social security numbers from records before disclosing them to the public.
(17) Records and Information of the Controller Obtained pursuant to the Unclaimed Property Law.
Gov't Code § 7527.425 and 7925.015
AB 2280 amended the Public Records Act to exempt records and information of the Controller obtained pursuant to the Unclaimed Property Law. This exempts records that the Controller and any third -party auditors obtain as a result of an examination of records pursuant to Section 1571 of the Code of Civil Procedure, other than records of property that should have been reported to the Controller as unclaimed property. It also exempts records related to statements of personal worth or personal financial data, including, but not limited to, wills, trusts, account statements, earnings statements, or other similar records and personal information as defined by Section 1798.3 of the Civil Code,
(18) General public interest exemption.
Gov't Code § 7922.540.
In cases where a specific statutory exemption does not apply, a record still might be exempt from disclosure if:
on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.117
The numerous cases examining this "balancing test" make it clear that the burden is on the local agency to show that the public interest in confidentiality outweighs the public interest in disclosure. In fact, given the public policy involved, courts demand a demonstration of "clear overbalance" to justify non-disclosure.118 116 Note, however, that at least one court has indicated that this law may be unconstitutional where applied to prohibit the publication of contact information that is truthful information about a matter of public concern where the information published was lawfully obtained. Publius v. Boyer -Vine, 237 F. Supp. 3d 997, 1016, 1021 (E.D. Cal. 2017). 117 Gov't Code § 7922.000 and 7922.540.
118 City of Hemet, 37 Cal. App. 4th at 1421; see also Black Panther Party, 42 Cal. App. 3d at 657.
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In practice, very few local agencies have been able to convince reviewing courts that the public interest in confidentiality outweighs the interest in disclosure. In the absence of a specific statutory exemption, this "catch-all" distinction rarely has been successfully relied upon to justify nondisclosure. Thus, local agencies must in good faith find a relatively rare "clear overbalance" to justify confidentiality on this ground.119
The right of privacy may provide a basis to shield disclosure of information under Government Code Section 7922.540. For example, relying on the right of privacy, the California Supreme Court ruled that disclosure of raw automated license plate reader data collected by a police department was protected from disclosure under this catch-all exemption.12o The unaltered license plate scan data consisted of the plate number, date, time, and location information of each license plate record.121 The Supreme Court found that the act of revealing the data would jeopardize the privacy of everyone associated with a scanned plate which was a significant threat to privacy because more than one million scans were conducted per week, and on that basis concluded that the public interest in preventing such disclosure "clearly outweighs the public interest served by disclosure of" these records. 122
In a recent case during the COVID-19 pandemic, an appellate court upheld San Diego County's withholding of the specific location of COVID-19 outbreaks from a "confirmed outbreaks spreadsheet" disclosed to news media under the catchall exemption.123 The county provided uncontradicted evidence from the public health officer that disclosing the exact name and address of an outbreak location would have a chilling effect on the public's willingness to cooperate with contact tracing efforts.124 The court ruled that the value of the county's ability to conduct effective contact tracing clearly outweighed the public's interest in obtaining information about the exact outbreak locations, concluding that the evidence did not support the news media's contentions that a member of the public can better avoid COVID-19 infection if he or she knows of the particular locations where outbreaks occurred.125
119 See, e.g., Michaelis, Montanari & Johnson v. Superior Court (City of Los Angeles Dept. of Airports), 38 Cal. 4th 1065 (2006) (holding under "catch-all" exemption that proposals for lease and development of a hangar facility at public airport were exempt from disclosure until City had completed negotiations where negotiations were part of the competitive process).
120 American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1043-1044 (2017). 121 Id. at 1043.
122 Id. at 1044.
123 Voice of San Diego v. Superior Court of San Diego County, 66 Cal. App. 5th 669, 672-673 (4 Dist. 2021), review denied (Oct. 27, 2021).
124 Id. at 692-693.
125 Id.
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Two other areas in which a public interest in nondisclosure has been upheld involve public records disclosure that would adversely affect the deliberative process of a local agency, or the personal security of a public official. In Times Mirror Co. v. Superior Court,126 for example, the State's refusal to release the Governor's schedule and appointment calendar out of concern for the Governor's personal safety was upheld. Additionally, the State asserted that the disclosure of appointment calendars and schedules would "chill the flow of information" to the Governor and inhibit the free exchange of ideas in private meetings. The breadth of the request, however, may affect the balancing of interests. The public interest in nondisclosure may be less where the request is carefully focused and confined to a few documents.127
The Governor's office won another Public Records Act case on the "deliberative process privilege" and the exemption for "correspondence of and to the Governor"128 justifications in 1998 when the office refused to disclose applications submitted to the Governor for an appointment to a vacancy on a board of supervisors.129
On the local level, a city's refusal to disclose the telephone records of council members was upheld to protect the same "deliberative process privilege."13o Far more often, however, courts have found the public interest in disclosure outweighs the interest in confidentiality. Similarly, the Attorney General has issued several opinions favoring disclosure. Some illustrative cases and Attorney General opinions in this area include the following:
• Becerra v. Superior Court of City & Cty. of San Francisco (First Amendment Coalition et aQ131
Penal Code Section 832.7 generally requires disclosure of all responsive records in the possession of the Department of Justice, regardless of whether the records pertain to officers employed by the department or by another public agency and regardless of whether the department or another public agency created the records. Government Code Section 7922.540 may apply to records that are subject to disclosure under Penal Code Section 832.7, but while an agency may invoke the exception based on the concern that segregating nonexempt from exempt information would be unduly burdensome, for the exception to apply to withhold responsive records the agency must establish a clear overbalance on 126 Times Mirror Co. v. Superior Court (State of California), 53 Cal. 3d 1325 (1991). 127 Id. at 1344-46.
128 Gov't Code § 7928.000.
129 California First Amendment Coalition v. Superior Court (Wilson), 67 Cal. App. 4th 159 (3 Dist. 1998); see also Wilson v.
Superior Court (Los Angeles Times), 51 Cal. App. 4th 1 136 (2 Dist. 1997), as modified. 130 Rogers v. Superior Court (City of Burbank), 19 Cal. App. 4th 469 (2 Dist. 1993). 131 44 Cal. App. 5th 897 (1 Dist. 2020).
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the side of confidentiality. The Department of Justice failed to make such a sufficient showing, despite arguing they faced an "`onerous burden of reviewing, redacting, and disclosing records regarding other agencies' officers, which involves `potentially millions of records"' to disclose records under Penal Code Section 832.7.
• Connell v. Superior Court (Intersource, Inc.) 132
Records relating to unpaid state warrants are public records and must be disclosed. The public interest in disclosure outweighs the public interest in preventing possible fraud that could be assisted through the release of too much information about the State's warrant system. The fact that the request was made solely for commercial purposes and profit did not affect the balancing test.133 • Copley Press, Inc. v. Superior Court (M.P.R. - a minor)134 As a matter of law, no compelling reason exists to seal the court records of a settlement reached between the insurer for a school district and a minor student who was sexually assaulted at school. The amount of settlement is a matter of public record.
• CBS, Inc. v. Block135
The possibility that public disclosure of applications for concealed weapons permits would discourage the filing of new applications, or that such disclosure might increase applicants' vulnerability to attack, did not justify nondisclosure.
Braun v. City of Taft (Polston)136
A City's nondisclosure of personnel records and letters appointing an employee and then rescinding the appointment was not justified by the theory that future applicants would not be candid if they knew personal information would be made public.
132 56 Cal. App. 4th 601 (3 Dist. 1997).
133 Government Code section 7921.300 states that the Public Records Act "does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure." 134 63 Cal. App. 4th 367 (4 Dist. 1998).
135 42 Cal. 3d 646 (1986).
136 154 Cal. App. 3d 332 (5 Dist. 1984).
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• Humane Society of U.S. v. Superior Court
(The Regents of the University of California)137
A public university's nondisclosure of certain information relating to an academic study was justified because the interest in protecting the academic research process outweighed the interest in public disclosure. Disclosure would "fundamentally impair" the academic research process and the public would suffer because the "`quantity and quality' of ... academic research on important issues of public interest would be adversely affected."138 • Los Angeles Unified School District v. Superior Court (Los Angeles Times) 139
A school district's decision to redact the names of teachers in a statistical model measuring each teacher's effect on students' standardized test scores was proper because the detrimental interference with the district's ability to function properly clearly outweighed the interest in public disclosure. The scores had already been released to the public categorized by school, grade, subject, and demographics; to require additional disclosure would sow discord among parents and teachers.
• Long Beach Police Officers Assn. v. City of Long Beach (Los Angeles Times) 140
In a request by a newspaper for the names of peace officers involved in a fatal shooting, the California Supreme Court held that vague safety concerns - which apply equally to all officers involved in shootings that result in severe injury or death - were outweighed by the public's interest in such incidents.141 The California Supreme Court held that in order for names of peace officers involved in such incidents to be exempt from disclosure, there must be a particularized showing of safety concerns regarding those officers.
• 90 Ops. Cal. Atty Gen. 40 (2007)
County recorder's accounting records that include a payment receipt showing the documentary transfer tax amount is subject to inspection under the Public Records Act. While the statutory scheme allows the documentary transfer tax to appear on a separate paper rather than on the recorded property conveyance 137 214 Cal. App. 4th 1233 (3 Dist. 2013).
138 Id. at 1263.
139 228 Cal. App. 4th 222 (2 Dist. 2014).
140 59 Cal. 4th 59 (2014).
141 Since the Long Beach decision, amendments to Penal Code Section 832.7 require that peace officer records relating to an incident involving the discharge of a firearm at a person by a peace officer or custodial officer or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury must be made available to the public under the Public Records Act.
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document, that procedure provides only limited privacy protection for property owners and does not make the documentary transfer tax amount confidential. • 81 Ops. Cal. Atty Gen. 383 (1998)
Claims for senior citizens' exemptions from assessment of a parcel tax levied by a school district are subject to inspection by members of the general public. The concern that the residents' privacy would be compromised by solicitors targeting senior citizens was insufficient to overcome the public interest in disclosure.
X. WHAT IS THE PROPER PROCEDURE FOR COMPLYING WITH A PUBLIC RECORDS ACT REQUEST?
The following is a brief outline of the proper response procedure, as required by Government Code Sections 7922.525 et seq.
A. The agency has ten calendar days to determine whether to grant the request. Grounds for refusing a request include:
• The request does not seek records which are "reasonably segregable" from records which are exempt from disclosure;142 • The request does not reasonably describe an identifiable record;143 • The request would require the agency to create new records not currently in existence; or144
• The request seeks records which are exempt from disclosure.145 Note, however, that the Public Records Act requires the disclosure of "reasonably segregable" portions of records. This means that if portions of a record are exempt and other parts of the same record are not, the non-exempt portions of the document must be disclosed.146
142 Gov't Code § 7922.525.
143 Gov't Code § 7922.530(a).
144 Based upon the definition of "writing," Gov't Code § 7920.545, and the requirement that a requested record be "identifiable," Gov't Code § 7922.530(a). See note 22.
145 Gov't Code § 7922.530(a).
146 Gov't Code § 7922.525.
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B. In "unusual circumstances" the agency may take up to an additional 14 calendar days to make the determination whether to grant the request. "Unusual circumstances" must be one of the following:
• The need to search for and collect the requested records from field facilities or other locations separate from the office processing the request;147
• The need to search for, collect, and examine a voluminous amount of separate and distinct records demanded in a single request;148 • The need for consultation with another agency having a substantial interest in the request or among two or more components of the agency having an interest in the subject matter of the request;149 or • The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.15o
If the agency intends to use this additional time to respond, the agency must provide written notification to the requester that the additional time is required, the reason for the delay, and the date on which a determination will be given.151 C. When the agency has made a determination, the requester must be promptly notified of the agency's determination. This notification should be in writing and should include the following information:
• Whether the request is being granted or denied;152
• If the request is being granted, the estimated date and time when the records will be made available (or where the records are located on the agency's website);153
147 Gov't Code § 7922.535(c)(1).
148 Gov't Code § 7922.535(c)(2).
149 Gov't Code § 7922.535(c)(3).
150 Gov't Code § 7922.535(c)(4).
151 Gov't Code § 7922.535(b).
152 Gov't Code § 7922.535(a).
153 Gov't Code § 7922.535(a).
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• If the request was made in writing and is being denied, in whole or in part, the response must be in writing and include the extent and the reasons for the denial;154
• The name and title or position of the person responsible for the denial;155
• The cost or an estimate of the cost of copying the records, if a copy is requested, and a request for pre -payment. Note that this is only the direct cost of duplication, or a statutory fee, if applicable, and does not include staff time to research, retrieve, or compile the records.156 However, if the document requested is in electronic form, the agency may charge the full cost of reproducing the document when the record is one that is produced only at otherwise regularly scheduled intervals, or the request would require data compilation, extraction, or programming to produce the record.157
• The option to inspect the requested records at a mutually convenient time during office hours.158
• A requester who inspects a disclosable record on the agency's premises has the right to use their own equipment on those premises, within reasonable limits necessary to protect the safety of the records or to prevent unnecessary burden on the orderly function of the agency and its employees, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record.159
• If in response to a public records request the agency directs a member of the public to the location of that public record on its website, the agency must still promptly provide a copy of the record itself if the member of the public requests a copy due to his or her inability to access or reproduce the public record from the website.160 154 Gov't Code §§ 7922.540, 7922.535.
155 Gov't Code §7922.540(b).
156 Gov't Code § 7922.530(a); North County Parents Organization v. Dep't of Education, 23 Cal. App. 4th 144 (4 Dist. 1994). 157 Gov't Code § 7922.575 ; see also Nat'l Lawyers Guild v. City of Hayward, 9 Cal. 5th 488 (2020) (finding that retrieving and editing raw video footage in response to a public records request does not qualify as "data extraction" within the meaning of the Public Records Act and therefore public agencies may not recover their costs for that process). 158 Gov't Code § 7922.525.
159 Gov't Code §7922.530(c). However, Health and Safety Code Section 19851 provides separate procedures for obtaining duplicates of official copies of building plans. 160 Gov't Code §7922.545.
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D. In addition to the above requirements, if the local agency determines that the request should be denied and the reason for the denial is not solely because of a statutory exemption, the agency must also:
• Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated;161
• Describe the information technology and physical location in which the records exist;162
• Provide suggestions for overcoming any practical basis for denying access to the records or the information sought.163
Alternatively, a local agency may forego these requirements if it instead makes available an index of the record.164
E. Upon payment of the cost of duplication, the agency must make the records "promptly available."165
F. Please note that the agency may not use this procedure to "delay or obstruct the inspection or copying" of public records.166 G. The local agency may provide guidelines for "faster, more efficient, or greater" access to records than provided by the Act.167 XI. WHAT ARE THE PENALTIES FOR FAILURE TO COMPLY WITH THE PUBLIC RECORDS ACT?
Unlike other open government laws, the Public Records Act does not criminally penalize a local agency for its failure to comply with the Act. Nor does it subject a local agency to money damages for a violation.168 However, if a person requesting public records believes records have been improperly withheld, he or 161 Gov't Code § 7922.600.
162 Gov't Code § 7922.600.
163 Gov't Code § 7922.600.
164 Gov't Code § 7922.605.
165 Gov't Code § 7922.530(a).
166 Gov't Code § 7922.500.
167 Gov't Code § 7922.505.
168 County of Santa Clara v. Superior Court (Naymark), 171 Cal. App. 4th 119, 130 (6 Dist. 2009).
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she may ask a court to compel a local agency to disclose the records.169 Any person who prevails in enforcing his or her rights under the Act in court is entitled to receive court costs and reasonable attorneys' fees.170 Courts have deemed a person to be the "prevailing party" for purposes of awarding costs and fees if filing of the lawsuit motivated the local agency to produce any documents.171 The production of just one document can be sufficient to trigger an award of costs and fees.172 In the past, where the court determined the litigation was not what ultimately motivated the release of records, costs and fees were denied.173 One court held that an award of attorneys' fees was appropriate even though no additional records were produced as a result of the lawsuit.174 The local agency in that case had repeatedly refused to accept a requester's oral request to inspect public records and forced the requester to make her request in writing, constituting a general denial of access to all public records and justifying an award of attorneys' fees under the circumstances.
XII. CONCLUSION
This Handbook provides a brief overview of some of the most important provisions of the Public Records Act that frequently arise for local government agencies.
There are, however, many other provisions not covered by the scope of this Handbook. Additionally, each factual situation contains nuances specific to the particular situation that may impact the analysis. Because it is important to comply with the Public Records Act within a relatively short time frame, it is critical to seek the advice of counsel if there is any question as to the appropriate course of action.
169 Gov't Code §§ 7923.000 and 7923.005; see also Stevenson v. City of Sacramento, 55 Cal. App. 5th 545 (3 Dist. 2020) (appellant seeking injunctive relief under Gov't Code § 6258 [now §§ 7923.000 and 7923.005] may be required to post a bond pursuant to Cal. Civ. Code § 529 prior to the court issuing a preliminary injunction on appellant's behalf). 170 Gov't Code §7923.115.
171 Los Angeles Times v. Alameda Corridor Transportation Authority, 88 Cal. App. 4th 1381, 1391 (2 Dist. 2001); Rogers v.
Superior Court, 19 Cal App. 4th 469, 482 (2 Dist. 1993); Nat'I Conference of Black Mayors v. Chico Cmty. Publ'g, Inc., 25 Cal.
App. 5th 570 (3 Dist. 2018) (newspaper that fought third party effort to prevent disclosure of public records sought by the newspaper was not entitled to attorneys' fees under the Public Records Act because newspaper did not bring an action against the City to compel disclosure under the Act).
172 Los Angeles Times, 88 Cal. App. 4th at 1392.
173 Id. at 1391; Crews v. Willows Unified School District, 217 Cal. App. 4th 1368, 1381-82 (3 Dist. 2013). 174 Galbiso v. Orosi Public Utility District, 167 Cal. App. 4th 1063, 1086-1089 (5 Dist. 2008).
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ELECTRONIC RECORDS
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ELECTRONIC RECORDS
Advances in computer technology have significantly altered the method of communication with and between public officials and employees, but these technological developments have outpaced public records legislation. Email, electronic documents created on word processors, and web pages (including social media pages) do not readily fit into the categories of disclosure under decades -old laws.
The courts have had to fit the round peg of electronic documents into the square hole of state law on several occasions. In Aguimatang v. California State Lottery, the Court of Appeal rejected a defendant's argument that the plaintiff's computer records "were not made at or near the time of the event" and therefore did not qualify as an admissible "writing" under the evidentiary rules for business records.15 The records were recorded on magnetic tape on the day the events of the case took place, but were not printed out until twenty-two months later. The court concluded that the magnetic tape, not just the printout, constituted a "writing" under the Evidence Code:
Chanquin cites no authority holding that the retrieval, rather than the entry, of computer data must be made at or near the time of the event. Thus, although to qualify as a business record the "writing" must be made at or near the time of the event, "writing" is not limited to the commonly understood forms of writing but is defined very broadly to include all "means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof." Evid.
Code § 250. Here, the "writing" is the magnetic tape. The data entries on the magnetic tapes are made contemporaneously with the Lotto transactions, hence qualify as business records. The computer printout does not violate the best evidence rule, because a computer printout is considered an "original." Evid. Code § 255.16 Similarly, in People v. Martinez, the California Supreme Court held that records from a state computer system of a defendant's prior criminal convictions were admissible as "official records" under the Evidence Code.177 In an attempt to catch up, in 2002 the Legislature enacted Assembly Bill 1962 ("AB 1962"), modifying the definition of "writing" under the Public Records Act and the Evidence Code to include "photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any 175 Aguimatang v. California State Lottery, 234 Cal. App. 3d 769 (3 Dist. 1991). 176 Id. at 798.
177 People v. Martinez, 22 Cal. 4th 106 (2000).
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tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof," and clarifying that the definition applied "regardless of the manner in which the record has been stored." 178
The legislative reports for AB 1962 cited to Aquimatang and Martinez to establish that the amendment was declaratory of existing law. The reports also observed that in an earlier case, a court of appeal stated that the definition of writing in the Public Records Act was "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." 19 Under the 2002 legislation, emails and other electronic documents are records subject to disclosure and present their own unique issues for local governments.
In 2009, the State Legislature enacted rules relating to the discovery of electronically stored information, similar to the rules enacted by the Federal Government in 2006. In 2006, the Federal Rules of Civil Procedure were revised to require parties in federal lawsuits to address the production and preservation of electronic records.180 Under the 2006 Rules, a public entity should have an electronic retention practice and policy that ensures that electronic documents relevant to federal litigation are appropriately preserved. Rule 37 of the Federal Rules of Civil Procedure authorizes federal courts to impose sanctions on parties and their attorneys who fail to comply with discovery obligations and court orders.
City websites, in turn, raise questions about public rights of access. Websites are an important means of providing residents with access to information. An improperly framed policy on website use, however, could result in violations of the Brown Act, infringe upon residents' First Amendment rights, and even violate disability access laws. Consequently, it is important to establish clear policies governing website design and use.
This Part Two on Electronic Records will begin by discussing the types of email that are public records, and what exemptions under the Public Records Act might justify nondisclosure. Other unique issues raised by the use of email are also explored, such as emails sent or received by public officials and employees on nongovernmental accounts, email threads and the potential risk of using email to create an unlawful serial meeting under the Brown Act. We then look at the Public Records Act requirements for disclosure of other types of electronic records, including Geographic Information Systems.
178 Stats. 2002, c. 945 (A.B. 1962—Hollingsworth) (amending Gov't Code § 6252 and Evid. Code § 250). 179 Assembly Committee on Judiciary, Report on AB 1962, May 14, 2002 (citing San Gabriel Tribune v. Superior Court (City of West Covina), 143 Cal. App. 3d 762, 774 (1 Dist. 1983)). 180 Fed. R. Civ. P. 26.
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The discussion then turns to other concerns raised by electronic records, including litigation discovery and metadata. We close with a discussion of city websites, including some of the legal issues that a public entity should consider when establishing and running a website.
I. EMAIL
Given that email can be a public record under Government Code Section 7920.545, in most circumstances a public entity is under an obligation to disclose email upon request. However, there are a number of complications, and despite AB 1962's attempt to respond to the changed method of communication, the bill provided nothing in the way of specifics.
A. Is the Email a Public Record?
Under the Public Records Act, certain exemptions might apply to justify withholding an email. But a fundamental question - one that must be considered before determining whether an exemption applies - is whether the document qualifies as a "public record" of the local agency.
(1) Personal Messages
Documents disclosable under the Public Records Act must be "prepared, owned, used, or retained by any state or local agency," and must contain information "relating to the conduct of the public's business."181 Although this covers a very broad range of documents, it does not cover every document.
For example, emails on entirely personal subjects unrelated to local agency business would not relate to the conduct of the public's business, and therefore would not constitute "public records" under Section 7920.530.182 A harder determination is whether a personal email that only mentions a city issue in passing would relate to the conduct of the public's business. In 2017, the California Supreme Court held the determination of whether a particular email qualifies as a public record, particularly for emails kept in personal accounts, will involve the consideration of a number of factors and may not always be clear.183 The court suggested examining the content and context of the email, the purpose for which it was written and to whom, and whether the email was prepared by an employee purporting to act within the scope of his or her employment.184
181 Gov't Code § 7920.530(a).
182 City of San Jose, 2 Cal. 5th 608, 618-19.
183 Id. at 618.
184 Id.
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(2) Emails Sent or Received Using Personal Devices and Personal Accounts
Staff frequently asks whether emails sent or received on a nongovernmental account (such as personal Gmail, Yahoo Mail, or Hotmail accounts), or from a home computer or smartphone, and which pertain to local agency business, qualify as a public record. The California Supreme Court decided this very issue, and held in a unanimous decision that the presumptive right of access of the PRA extends to emails and texts sent or received on nongovernmental accounts, whether on private or government -issued devices, used by local agency employees or officials that relate to the business of that local agency.185 In City of San Jose v. Superior Court, a request for 32 categories of public records was filed with the City of San Jose.186 The request included emails and text messages sent or received on private electronic devices used by the mayor, two City council members, and their staff.187 The City argued such emails were outside the reach of the PRA, both because the emails were not directly accessible to the City and thus did not qualify as writings "prepared, owned, used or retained" by the City under the Section 7920.530 definition of "public records," and because neither employees nor officials are included within the governmental entities listed in the definition of "local agency" under Section 7920.510.188 The Court found neither argument persuasive when considering the legislative intent of the PRA and the constitutional directive to a broadly construed right of public access.189
The California Supreme Court found no indication "the Legislature meant to allow public officials to shield communications about official business simply by directing them through personal accounts."190 The court did acknowledge the inherent balance that must be struck between the public's rights of access and an individual employee's or official's right of privacy, and sought to offer some limited guidance for how searches should be conducted for records sent or received on nongovernmental accounts that pertain to the public's business.191 Foremost, the California Supreme Court stated it is the local agency itself that is in the best position to adopt policies that will reduce the likelihood of public records being held in the private, nongovernmental accounts of local agency employees 185 Id. at 629.
186 Id. at 614.
187 Id. at 615.
188 Id. at 619-20.
189 Id. at 620-21.
190 Id. at 624.
191 Id. at 627-29.
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or officials that pertain to the public's business.192 Barring such a policy, the court stated that a local agency's first step upon receiving a PRA request that implicates nongovernmental accounts should be to communicate the request to the individual or individuals in question.193 A local agency may then reasonably rely on those individuals "to search their own personal files, accounts and devices for responsive material."194 Citing both federal precedent under the FOIA and a holding by the Washington Supreme Court under its state public records law, the California Supreme Court also discussed an employee or official submitting an affidavit that would give the local agency, requester, and ultimately the trial court reassurance that responsive records were appropriately searched on nongovernmental accounts.195 Such an approach also strikes "an appropriate balance" with the individual's right of privacy in their personal affairs.196 The California Supreme Court's ruling in City of San Jose v. Superior Court is likely to have far-reaching consequences for public agencies; however, a number of questions remain unanswered by the court's decision. Since the City of San Jose refused to produce any emails from a nongovernmental account in response to the original PRA request, disputes over the content of specific emails and whether or not they fall under the definition of "public record" will likely be decided in subsequent proceedings.197 Similarly, the decision does not address at what point a suggested search in response to a PRA request would become an unwarranted invasion on the privacy of a local agency employee or official.198 In responding to requests for communications sent or received on an individual's nongovernmental account, it is advisable to consult with your legal counsel.
Counsel should also be consulted if an agency requires access to potentially responsive documents or communications that are on an employee's private device and not accessible to the agency (for example, documents saved on an employee's home computer hard drive). Our office is also available to help draft policies on how to reduce the likelihood that public records will be held in an agency employee's or official's private nongovernmental account, how to conduct searches into nongovernmental accounts when necessary, and how to work with employees so the employees properly search their private, nongovernmental computers and smartphones, when necessary.199 192 Id. at 628.
193 Id.
194 Id.
195 Id.
196 Id.
197 Id. at 618.
198 Id. at 627.
199 Private, nongovernmental devices should never be seized by the agency, or accessed without the employee's consent, even if the agency believes the device contains material responsive to a PRA request.
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B. Some Email may be Protected by the Deliberative Process Privilege or Mental Process Principle
Emails differ from traditional printed documents: they may be prepared quickly and sent without proofreading, they may be conversational, or they may substitute for face-to-face or telephone communications. As described by the California Supreme Court, "the ease and immediacy of electronic communication has encouraged a commonplace tendency to share fleeting thoughts and random bits of information, with varying degrees of import, often to broad audiences."2oo As a result, they often reflect preliminary ideas and concepts, and may be subject to the deliberative process privilege, which was mentioned earlier in the discussion on the Public Records Act.201 Alternatively, the mental process principle may provide a basis for withholding emails. Before applying the deliberative process privilege to emails sent to a legislative body member, you should familiarize yourself with the Brown Act requirements regarding disclosure, discussed below in Section G.
The deliberative process privilege and the mental process principle are very similar, and sometimes courts blur the distinction. Generally speaking, the deliberative process privilege is targeted at protecting from disclosure the decision making process of governmental agencies. Without that protection, candid discussion may be discouraged within an agency, thus undermining its ability to perform its functions.202 It is sometimes referred to as the "executive privilege, "203 but has been applied to records of both the executive branch (e.g., the governor) and the legislative branch (e.g., a city council).204 The mental process principle, on the other hand, appears to apply only to the members of an agency's legislative body when those members are enacting legislation, and protects from disclosure those records that would allow an inquiry into the "subjective motives or mental processes of legislators."205 The deliberative process privilege uses a balancing test, whereas the mental process principle does not, making the mental process principle exemption less subjective.206 (1) Deliberative Process Privilege
Although the Public Records Act does not expressly contain a deliberative process exemption, the California Supreme Court held in 1991 that public records 200 1d. at 618.
201 See pages 20 and 24 of this Handbook.
202 Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991). 203 Sutter's Place v. Superior Court (City of San Jose), 161 Cal. App. 4th 1370, 1378 (6 Dist. 2008). 204 Times Mirror Co., 53 Cal. 3d at 1345-46 (governor's calendars and schedule); Rogers v. Superior Court (City of Burbank), 19 Cal. App. 4th 469, 479 (2 Dist. 1993) (city council phone records). 205 Sutter's Place, 161 Cal. App. 4th at 1377.
206 1d. at 1377. 1379.
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may be withheld on deliberative process grounds.207 The deliberative process privilege arises under the "catch-all" exemption contained in Section 7922.540 of the Government Code. Under the "catch-all" exemption, a public agency may justify nondisclosure by showing "that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." To apply the deliberative process privilege:
• First, consider whether the record falls within the scope of the privilege. Generally, records that are predecisional and deliberative (opinion) fall within the scope, but some courts have not strictly applied a predecisional requirement and have permitted purely factual material that exposes the deliberative process to fall within the privilege.208
• Second, identify the public interest served by nondisclosure of the record. Four public interests that have been identified by the courts are:
(1) Protection of the agency's decision -making process so that candid discussion within the agency is not discouraged;209 (2) Protection of certain limited communications with members of the public to ensure that the local agency receives the information it needs to make decisions and otherwise function;210
(3) Protection against confusion caused by premature exposure of the public to internal agency discussions before a policy is finalized;211
(4) Protection of the integrity of the decision -making process itself by confirming that "officials should be judged by what they decided, not for matters they considered before making up their minds."212 • Third, identify the public interest served by disclosure of the record.
Courts have emphasized that a primary benefit of disclosing a local agency's records to the public is to promote government accountability. The public and the media have a legitimate need to 207 Times Mirror Co., 53 Cal. 3d at 1347.
208 Rogers, 19 Cal. App. 4th at 479-480 (rejecting a predecisional requirement and withholding from disclosure pure facts, that is, telephone numbers called by staff and city council members). 209 Times Mirror Co., 53 Cal. 3d at 1342.
210 Id. at 1344-45 (disclosure of governor's schedule and appointment calendar would "chill the flow of information" to the governor and inhibit the free exchange of ideas in private meetings). 211 California First Amendment Coalition v. Superior Court (Pete Wilson), 67 Cal. App. 4th 159, 170 (3 Dist. 1998). 212 Id. (internal quotations and citations omitted).
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know whether government officials are performing their duties in a responsible and diligent manner.213 "Such access permits checks against the arbitrary exercise of official power and secrecy in the political process."214
• Fourth, balance the two public interests, and withhold the record from disclosure only if the identified public interest justifying nondisclosure "clearly outweighs" the public interest justifying disclosure.215 In balancing the scales, the weight of an identified public interest in disclosure is "proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate."216 Because the public interest in nondisclosure must "clearly outweigh" the public interest in disclosure, if the interests are just about equal, the scales tip in favor of disclosure.
In California First Amendment Coalition v. Superior Court (Wilson), the plaintiffs sought disclosure of records containing the names and qualifications of applicants for a temporary appointment to a local board of supervisors.217 The Governor's office looked extensively into the applicants' backgrounds to determine whether they were qualified for the position. The court upheld nondisclosure of the records under the deliberative process privilege. It reasoned that if the deliberative process privilege did not apply, the Governor would never be able to perform background checks, which is an essential part of selecting an applicant for a government position.218 In balancing the interests, the court concluded that the public's interest in disclosure of background information revealed in confidence by unsuccessful applicants was not significant and that the public interest in learning about the successful applicant's background would be satisfied after the appointment.219
The First Amendment Coalition case shows that the deliberative process privilege can apply to communications where the public interest in disclosure of deliberations prior to a decision is not significant and the outcome of those deliberations is a matter of public knowledge. For instance, the public could ultimately learn a council member's views about an item the City council is deliberating by attending the public meeting on the item. In such a case, emails 213 Times Mirror Co., 53 Cal. 3d at 1345.
214 CBS v. Block, 42 Cal. 3d 646, 651 (1986).
215 Gov't Code §7922.000.
216 Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal. App. 3d 704, 715 (3 Dist. 1985). 217 California First Amendment Coalition, 67 Cal. App. 4th at 164. 218 Id. at 171-72 (quoting Times Mirror Co., 53 Cal. 3d 1325, 1345). 219 Id. at 173-74.
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discussing preliminary ideas and concepts about the item may be subject to the deliberative process privilege.
Another example is provided by Times Mirror Co. v. Superior Court.220 In that case, the Los Angeles Times sought copies of the governor's appointment calendars and argued that "in a democratic society, the public is entitled to know how [the governor] performs his duties ...... 221 Disclosure of who the governor met with would reveal who was influencing his decisions. The governor argued disclosure of his calendar would reveal his deliberative process, and could discourage certain people from meeting with him. In balancing these interests, the California Supreme Court concluded that nondisclosure was justified, reasoning that "if the public and the governor were entitled to precisely the same information, neither would likely receive it. "222 The court added that the "massive weight" of the request (five years' worth of calendars), outweighed whatever merit there was in favor of disclosure.223 The court noted, however, that there may be circumstances under which the public interest in specific information is more compelling, and such a specific, focused request might tip the scales in favor of disclosure.224 Courts have emphasized the need for evidence in order to satisfy the local agency's burden of proof. In Citizens for Open Government v. City of Lodi, the City of Lodi withheld from the administrative record emails between City staff and the City's consultants regarding preparation of a revised EIR.225 Citizen groups sued, challenging in part the administrative record. Lodi argued the emails were exempt from disclosure pursuant to the deliberative process privilege because disclosure would hamper "candid dialogue and a testing and challenging of the approaches to be taken.11226
The Court of Appeal disagreed, finding that Lodi had failed to establish the conditions for creating the privilege, because Lodi had done nothing more than cite the policy behind the deliberative process privilege without explaining why the facts in this particular case justified invocation of the privilege.227 However, because the Court of Appeal was deciding the case under the California Environmental Quality Act ("CEQA"), and not the Public Records Act, the Court found there was no prejudice and refused to reverse the lower court's ruling.228 220 Times Mirror Co., 53 Cal. 3d at 1344.
221 Id.
222 Id. at 1345.
223 Id.
224 Id. at 1345-1346.
225 Citizens for Open Government v. City of Lodi, 205 Cal. App. 4th 296, 305 (3 Dist. 2012). 226 Id. at 306.
227 Id. at 307.
228 Id. at 311.
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In comparison, the public entity in Humane Society of the United States v. Superior Court, provided detailed declarations from an employee and expert explaining why disclosing certain research documents would harm the research process.229 The Humane Society sought disclosure of certain records and communications related to the preparation of a study by the University of California involving housing of egg -laying hens, and the University claimed various privileges including deliberative process.
The detailed declarations of the research project director submitted by the University seemed to sway the court; the court quoted them at length in the decision.230 One declaration explained how researchers at the University tried new ideas and approaches, frequently brainstorming by email, using shorthand expressions of incomplete thoughts. To be efficient, the researchers did not keep detailed records of how they communicated, and some lines of inquiry that began in email were further discussed and dismissed as part of hallway conversations. Because of that, much of what they said in emails would be easily misinterpreted. Additionally, mistakes along the way are part of the research process. The quality and quantity of work would be stifled if researchers were aware that their informal communications would be made available broadly.
While the Humane Society tried to characterize the declaration as mere speculation, the court credited the declarant as an expert in the field, giving the declaration great weight.231 In balancing the public interests, the court concluded that disclosure of the emails "would fundamentally impair the academic research process."232
Given the pervasiveness of email today, the deliberative process privilege seems well -suited to protect predecisional email communications from disclosure.
Nevertheless, California courts have approved the use of the deliberative process privilege sparingly, and require local agencies to provide particularized factual evidence in support of its use. Prior to invoking this privilege, it is advisable to consult your legal counsel.
(2) Mental Process Principle
The Public Records Act exempts from disclosure those records that are exempted or prohibited from disclosure pursuant to federal or state law.233 Under California state common law, a court is prohibited from inquiring into the motives or 229 Humane Society of the United States v. Superior Court (Regents of the University of California), 214 Cal. App. 4th 1233, 1240 (3 Dist. 2013).
230 Id. at 1241-1244.
231 Id. at 1258.
232 Id. at 1263.
233 Gov't Code § 7927.705.
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subjective mental processes of legislators in enacting a particular piece of legislation except as those motives may be disclosed on the face of the legislative acts, or inferred from their operation.234 This "mental process principle" permits a local agency to withhold public records that would reveal the mental processes or subjective motives of its legislative body members when they are acting in a legislative capacity. Unlike the deliberative process privilege, which relies on a balancing test,235 records reflecting the "mental processes" of legislators are not subject to a balancing test.236
Under applicable circumstances, the mental process principle may be used to justify nondisclosure of emails of legislative body members, such as city council members. For example, emails sent or received by a city council member could arguably be withheld under the mental process principle when they: (1) discuss the reason the member voted for or against a particular ordinance, (2) involve the gathering of information on which the member based their legislative decision, or (3) expose the motives for the member's vote on a legislative matter.
C. Exception for Notes, Drafts and Interagency/Intra-agency Memoranda
The deliberative process privilege may help a local agency keep sensitive emails from public disclosure, but a far more effective tool is to simply have a policy in place to regularly purge intra-agency or interagency emails that are not subject to the local agency's records retention schedule. Under the Public Records Act, " [p] reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business" may not be subject to disclosure.237 A written policy of deleting emails more than 120 days old (or some similar duration) would help establish that emails are not retained "in the ordinary course of business." A software modification that automatically deletes older emails would ensure that they are not retained, provided staff is notified of the pending purge and takes steps to retain those emails that, based on their content, must be retained under the local agency's records retention schedule.
There are a few caveats, however. First, note that deleting an email is not the end of the story. Popular email programs such as Microsoft Outlook have "deleted items" folders that retain messages for a time after "deletion," in order to give the user an opportunity to "undo" an accidental deletion. If a local agency received a request for an email that had been deleted, but was still on the computer in the "deleted items" folder, it technically would still be in the 234 Sutter's Place, 161 Cal. App. 4th at 1375.
235 Gov't Code § 7922.540.
236 See Times Mirror Co., 53 Cal. 3d at 1339 fn. 9-10 (noting that these records might arguably be exempt under the mental process principle through operation of Section 7927.705). 237 Gov't Code § 7927.500. For a discussion on the conditions that must be met to utilize Section 7927.500, see pages 10- 12 of this Handbook.
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possession of the agency and may be subject to disclosure. To eliminate this potential issue from arising, an agency must ensure that the deletion becomes final and irreversible. If the agency desires or is required to save a copy of certain emails, then it should print and file such emails, or store them electronically in a location that is not subject to automatic purging.
Second, note that the Section 7927.500 exemption is not absolute. The full text of the exemption provides that drafts, notes, and inter/intra-agency memoranda are nondisclosable "provided that the public interest in withholding those records clearly outweighs the public interest in disclosure." Accordingly, even emails "that are not retained by the public agency in the ordinary course of business" may be subject to disclosure, if the records were not deleted prior to receipt of the Public Records Act request, and a reviewing court concludes that the public interest in disclosure is not "clearly outweighed" by the interest in nondisclosure.
This is a significant hurdle for a public agency to overcome.
D. Additional Exemptions that may be Applicable to Email In addition to those described above, there are a number of other exemptions that may be applicable to emails exchanged between employees or officials of a public agency. For example, emails to and from legal counsel may be protected by the evidentiary privileges recognized under Section 7927.705; certain personal financial data may be exempt under Section 7925.005; and personnel and medical files may be withheld under Section 7927.700. The same care should be used in reviewing responsive emails as any other material that may be subject to disclosure, and Part One, Section IX (What Public Records are Exempt from Disclosure under the Public Records Act?) of this Handbook should be consulted for additional information.
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E. The Problem with Threads
Emails elicit a response. The response typically elicits another response. If multiple people received the message, responses from all of the recipients are common.
And, in all of those responses, the
original message is typically quoted,
either in part or in full, generating a
"thread" of messages. The question
necessarily arises, when there is a
thread of 20 messages, and one of
them is responsive to a public records
request, must the other 19 messages
also be produced? For example, a
resident makes a request for all emails
discussing the possible construction
of a new library and locates the
following thread:
Only the oldest two messages (sent at
12:00 and 12:05) refer to the study
session on the library construction.
The rest of the messages are on a
different topic, a topic that may be
politically sensitive. Nevertheless, all
of the responses to the original
message included a copy of the
original message and every message
Original Message
From: City Clerk
To: Joe Employee, lane Emplo
Manager
Date: April 2, 2022 12:05 p.m.
Subject: RE: Question
I think the study session on the new library
is next month. It will be at the same
meeting as we discuss Council compensation.
Original Message
From: Joe Employee
To: Jane Employee, City Clerk, City
Manager
Date: April 2, 2022 12:00 p.m.
Subject: Question
that followed it, and so they all
contain a reference to the library construction. As a result, it would be difficult to argue that only the 12:00 and 12:05 messages should be disclosed if this is the only copy of the email available.
On the other hand, if an earlier version of the email containing only the oldest two messages is available, a local agency could argue that the thread containing all five messages may be withheld. So long as the earlier version of the two responsive emails is disclosed, the email discussing employee compensation is only a duplicate of the oldest two messages. The subsequent messages are not responsive to the request. The Public Records Act does not require disclosure of all duplicates of a responsive record. Keep in mind, however, two important considerations. First, while one appellate court has ruled that non -responsive information may be redacted from emails exchanged between two agency employees, if challenged in court, a public agency will have to explain in detail Public Records Act Page 48
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the information that was redacted.238 Second, in litigation, a different standard may apply and all versions of the email may have to be disclosed.
One way to avoid the problem is to configure email so previous messages are not quoted in replies sent by staff. Under the example above, if the local agency did not allow quoted messages in replies, the first two messages mentioning the library construction would be disclosed as "stand-alone" emails, but the later messages regarding compensation would not because they would no longer be integrated into the prior emails. Accordingly, a city should balance its concern in avoiding unwanted disclosures against the usefulness of having an entire thread available, and may wish to consider configuring email programs to eliminate quoting emails in replies.
F. Risk of Serial Meetings
Beyond the Public Records Act concerns, the use of email presents a significant opportunity for "serial meetings" prohibited by the Brown Act. A serial meeting is a series of meetings or communications not held at a noticed, public meeting in which ideas are exchanged among a majority of a legislative body 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."239 Prior to January 1, 2009, the Brown Act specifically forbade the use of technological devices to conduct those communications. In interpreting the prior version of this Brown Act provision, the California Attorney General opined that email is one of these "technological devices."240 The 2009 amendments to the Brown Act provisions regarding serial meetings included the removal of the phrase "technological devices" and other specific types of communications, and the insertion in their place of "a series of communications of any kind, directly or through intermediaries."241 At the time of the 2009 amendments, it was considered unlikely that the legislature, in omitting the phrase "technological devices" and expanding the scope to any kind of communication, intended to exclude email from coverage under the Brown Act. Subsequently, Assembly Bill 992, passed in 2020 and effective January 1, 2021, amended certain provisions of the Brown Act until January 1, 2026 to clarify allowable uses of social media under the Act. As amended by AB 992, the Brown Act regulates social media posts to prevent serial meetings.242
238 American Civil Liberties Union of Northern California v. Superior Court (California Dept. of Corrections and Rehabilitation), 202 Cal. App. 4th 55, 82-86 (1 Dist. 2011). 239 Gov't Code § 54952.2(b) (1).
240 84 Ops. Cal. Atty Gen. 30 (2001).
241 Stat. 2008, c. 63, sec. 3 (S.B. 1732 -- Romero (amending Gov't Code § 54952.2). 242 Stat. 2020, c. 89, sec. 1 (A.B. 992 -- Mullin (amending Gov't Code § 54952.2). For further discussion of use of social media and the Brown Act, please see the 2023 Brown Act Handbook, Part One, Section VII (D) (© 2023 Richards, Watson & Gershon).
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The primary mechanism for creating serial meetings via email is through the use of "reply all." For example, if a public employee sends an email to an entire city council, and then one of those council members replies to the entire list of recipients, then a communication would have taken place between a majority of the city council. If the purpose of the council member's reply was to "discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body," the communication would constitute a serial meeting in violation of the Brown Act.243 Accordingly, public officials must endeavor to use "reply all" sparingly, if at all. A "reply all" congratulating a council member for receiving an award would be permissible; a "reply all" expressing an opinion about an issue within the subject matter jurisdiction of the City council would not.
G. Disclosure Requirements for Documents at Meetings
Although the deliberative process privilege may apply to many emails, note that the privilege is unlikely to apply if an email concerns an issue under consideration by a legislative body and a majority of the body receive the email. The Brown Act states that notwithstanding the "catch-all" exception in the Public Records Act, "or any other law," any writings distributed to a majority of a legislative body in connection with a matter subject to discussion or consideration at an open meeting of the body are disclosable.244 The statute goes on to clarify that it does not overrule the exceptions for drafts, documents related to pending litigation, personnel files, medical files, and a number of other exceptions, but it does expressly overrule the "catch-all" provision on which the deliberative process privilege is based. Note that Section 7927.705, under which the mental process principle is applied, is not overruled by the Brown Act, and still would be applicable.245
Unlike records disclosable under the Public Records Act, which gives public entities ten days to respond to a request and additional time to produce the documents, a public agency must produce documents under this section of the Brown Act "without delay."246 In addition, if the email is created by the public agency or a member of the legislative body, it must be made available for inspection at the meeting.247 Emails not drafted by the public agency or its legislative body must be made available after the meeting.
This is particularly relevant to emails sent to council members on smartphones, iPads and similar devices, given that a council member could potentially send an 243 Gov't Code § 54952.2(b) (1).
244 Gov't Code § 54957.5.
245 Gov't Code 54957.5 (a).
246 Id.
247 Gov't Code § 54957.5(c).
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email to other council members while a meeting is going on. Under this section of the Brown Act, an attentive member of the public could insist that they be provided a copy of that email, at the meeting, if the council member sent it to a majority of the other council members. Accordingly, members of a legislative body should consider carefully the consequences of sending an email via smartphone, iPad or other device at a public meeting prior to doing so.
The informality of emails makes them particularly prone to statements that would not be put into conventional written documents. The only certain means of avoiding unwanted disclosure, of course, is simply not to write the email in the first place.
II. DOCUMENTS CREATED USING WORD PROCESSORS, GIS AND OTHER
SOFTWARE
A. Disclosure Requirements
(1) Public Records Act
Electronic records are subject to disclosure under the Public Records Act pursuant to Sections 7922.570-7922.585 of the Government Code. A public agency that has information constituting a public record in an electronic format must make that information available in electronic form upon request.248 An agency is not required to reconstruct an electronic record if it is no longer available in that format.249 An agency may inform a requester that a requested record is available in electronic format, but the agency is prohibited from adopting a policy of only making information available in electronic format.250
On the other hand, not every piece of data stored on a computer readily fits the definition of "record." Unlike word processing documents, information stored in a database or a spreadsheet, for example, may only be displayed in response to the user entering a formula or query. For such data, there are special statutory provisions. With conventional (printed) documents, the public agency may only charge for the direct cost of duplication, not including staff time to research, retrieve or compile the records.251 For electronic records, however, the agency may charge the full cost of reproducing the document if the record is one that is otherwise produced only at regularly scheduled intervals, or the request would 248 Gov't Code § 7922.570.
249 Gov't Code § 7922.580.
250 Gov't Code § 7922.570(c), 7922.580(b).
251 Gov't Code § 7922.530(a); North Cnty. Parents Organization v. Dept. of Education, 23 Cal. App. 4th 144, 147-148 (3 Dist. 1994) (direct costs do not include the ancillary tasks necessarily associated with the retrieval, inspection, and handling of the file from which the copy is extracted).
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require data compilation, extraction, or programming to produce the record.252 However, in National Lawyers Guild v. City of Hayward, the California Supreme Court recently held that the phrase "data extraction" in this context does not cover the costs of redacting exempt material from digital police body camera footage.253 The court reasoned that data "extraction" is a technical process of retrieving responsive information to construct a new record, while redacting exempt material from electronic records is similar to other redactions for which costs are not recoverable.254 As such, public agencies may not recover costs for redacting exempt material from otherwise disclosable electronic records.
Many public agencies now possess Geographic Information Systems ("GIS") that allow them to collect, manage and analyze large volumes of geographically referenced information. Whether this electronic information is a public record that is subject to disclosure has been the subject of controversy, mainly because public agencies have charged licensing fees to businesses that wanted a copy.
Public agencies have argued that the monies recovered from those licensing fees are necessary to support the development and maintenance of the GIS.
In 2013, the California Supreme Court disagreed with that argument. In Sierra Club v. Superior Court, the Court held that a GIS-formatted database is a public record that, unless otherwise exempt from disclosure, must be produced upon request and the local agency may only charge the actual cost of duplication.255 The County of Orange had argued that its GIS database was not a public record.
The court disagreed that former Section 6254.9 (now Section 7922.585) excluded a GIS database from the Public Records Act's disclosure requirements, and concluded that, because the County had not claimed any exemption to justify nondisclosure, the County of Orange could only charge the direct cost of duplication for its GIS database.256
Note, however, that the California Supreme Court was careful to distinguish the database from the software - the mapping system itself was exempt from disclosure under another provision in the Public Records Act.257 The statute expressly exempts computer mapping systems, computer programs, and computer graphic systems, and states that nothing in the statute is intended to 252 Gov't Code § 7922.575.
253 9 Cal. 5th 488 (2020).
254 Id. at 500.
255 Sierra Club v. Superior Court (County of Orange), 57 Cal. 4th 157, 161 (2013). 256 Id. at 175, 176
257 Gov't Code § 7922.585(b) ("Computer software developed by a state or local agency is not itself a public record under this chapter.").
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limit any copyright protections. Accordingly, a requester may not seek to obtain the software that creates the records, only the records themselves.258 The Public Records Act not only exempts computer software as discussed above, but also a public agency's information security record, if that record has the potential to reveal vulnerabilities or otherwise increase the possibility of an attack on that public agency's information technology system.259 However, the Public Records Act also requires local agencies (except local educational agencies) to create a catalog of "enterprise systems," that must be publicly available on the local agency's website and updated annually.260 An enterprise system is defined as a "software application or computer system that collects, stores, exchanges and analyzes information" used by the local agency as a system of record, and acts either across multiple agency departments, or collects information about the public.261 While Section 7922.710 requires a city to list these enterprise systems as defined, it does not require a city to disclose the information collected, stored, exchanged and analyzed by the software application or computer system if that information is otherwise exempt under the Public Records Act. Further, a number of enterprise systems may be excluded from a local agency's listed catalog, such as systems related to 911 dispatch or emergency services, information technology security systems (including firewalls and other cybersecurity systems) and infrastructure and mechanical control systems (for example, systems that manage water or sewage functions).262
Note that the Public Records Act does not contain exceptions for public records created on social media.263 If a social media post is "prepared, owned, used, or retained by any state or local agency," and contains information "relating to the conduct of the public's business,"264 it is a public record and is thus subject to disclosure under the Public Records Act, and should also be retained accordingly.
This applies to social media posts made by a public entity, including posts by public entity employees and/or officials, and may also apply to posts made by members of the public on social media pages operated by the public entity.
Depending upon the volume of social media posts a public entity produces, it may be difficult to review all posts and comments made on the public entity's social media page to determine whether any given post meets the legal definition of a public record. Additionally, there may be practical issues with 258 Sierra Club, 57 Cal. 4th at 170-171; see also Gov't Code § 6254.9(b). 259 Gov't Code § 7929.205.
260 Gov't Code §§ 7922.710 and 7922.715.
261 Gov't Code §§ 7922.700 and 7922.705 (also defining "system of record" as "a system that serves as an original source of data within an agency").
262 See pages 138-139 of this Handbook.
263 Social media is subject to regulation under the Brown Act, pursuant to Assembly Bill 992, enacted in 2020 and effective January 1, 2021 through January 1, 2026. See Stat. 2020, c. 89, sec. 1 (A.B. 992 -- Mullin (amending Gov't Code § 54952.2). 264 Gov't Code § 7920.530.
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retaining social media records. Capturing and archiving images of social media posts may not be a sufficient retention method, because the image would not preserve metadata, subsequent comments, and other interactive features.
Archiving these features can be challenging, because social media posts typically are not hosted or archived on storage systems owned by the public entity. Creating independent storage systems for all social media posts may be cost -prohibitive for public entities.
These factors can make it difficult to determine which social media posts need to be retained, and whether a public entity's retention procedures adequately capture an entire social media record. Any concerns about retaining specific social media records should be discussed with the City attorney. (2) Federal Rule 26
In 2006, revisions to Rule 26 of the Federal Rules of Civil Procedure took effect that require parties in federal court to address the production and preservation of electronic records during the discovery phase of litigation. These rule changes did not require a local agency to alter its routine management or storage of electronic information, but does illustrate the importance of having formal written rules for retention of potentially relevant records and data when litigation occurs.
It is firmly established that a duty to preserve evidence arises from the moment litigation is "reasonably anticipated."265 Once the duty to issue a legal hold is triggered, the party "must suspend its routine document retention/destruction policy and put in place a `litigation hold' to ensure the preservation of relevant documents."266
Discovery is the process by which parties involved in litigation in either state or federal courts obtain information from other parties. Under Rule 26, parties in a federal lawsuit may obtain discovery regarding any matter that is relevant to a claim or defense, so long as it is not privileged. According to Rule 26(a) what can be discovered includes "documents," "tangible things," and "electronically stored information," which is broadly defined as "any type of information that is stored electronically."
Rule 26 regulates discovery in three major ways:
a. Parties must address electronic discovery issues at the beginning of litigation, including the form in which electronic information will be 265 Rockman Company (USA), Inc. v. Nong Shim Company, Ltd., 229 F. Supp. 3d 1109, 1 122 (N.D. Cal. 2017). 266 Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004); accord In re Napster Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1070 (N.D. Cal. 2006).
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produced to the other party, the preservation of electronic information, and claims of privilege for electronic information; 267 b. Parties must produce relevant information from electronic sources that are "reasonably accessible," but may not have to produce information from older or backup systems if production would impose an undue burden or cost. The requesting party can, however, overcome a showing of undue burden or cost if they can establish "good cause" for doing so;268 and C. Privileges are retained for documents inadvertently disclosed. Such documents may be recalled by the disclosing party. In such cases, the privilege is not waived.269
The discovery rule does not require a local agency to alter its routine handling of electronically stored information prior to when litigation can reasonably be anticipated. The drafters of the rules recognized that electronic information might be routinely altered, purged or overwritten as part of a system's operation. Under 2006 revisions to Rule 37, the routine purging of outdated electronic information, including the "alteration or overwriting of information... to meet the party's technical and business needs" was permissible, if it was done in accordance with other laws, such as the records retention laws in Government Code Sections 34090-34090.8. Those sections permit a city, for example, to destroy certain city records that are "no longer required" and are more than two years old if authorized by a city council resolution and the written consent of the city attorney. Records that may not be destroyed include: real property title records, court records, records required to be kept by statute, records less than two years old, and the minutes, ordinances, or resolutions of the legislative body, city board, or commissions.
In 2015, the "routine, good faith operation" language was deleted from Rule 37.
The revised rule provides limited sanctions for parties who inadvertently cause electronically stored information to be lost because of their failure to take reasonable steps to preserve the information. However, the Advisory Committee Notes to Rule 37(e) point out that "the routine, good -faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information."
Once litigation can be reasonably anticipated, a local agency has a duty to preserve potentially relevant information for discovery. In some cases, the local agency may have to suspend the routine operation of its information systems in 267 Fed. R. Civ. P. 26 (f) (3) (C).
268 Fed. R. Civ. P. 26 (b) (2) (B).
269 Fed. R. Civ. P. 26 (b) (5) (B).
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order to preserve information potentially relevant to the litigation. In such cases, it must take "reasonable steps" to prevent the loss of electronically stored information. In evaluating whether a city's preservation attempts were reasonable, courts should take into account the limited staff and resources that governmental parties may have to devote to preservation efforts.27o Note that electronically stored information lost despite a city's reasonable preservation efforts —such as through the failure of a cloud -based storage service, a malignant software attack, or accidental damage to physical hardware —will not give rise to sanctions under Rule 37.
These rules on document preservation highlight the importance of having a written document retention policy. A written policy will show what operations are routine. This will help protect a local agency from sanctions if litigation occurs and allow its attorneys to discuss its routine computer operations with the court and other parties. Such a policy should set specific limits for how long information is retained and specific procedures for the routine destruction of electronic data.
The policy should also address the steps that the agency will take to preserve potentially relevant information when litigation is reasonably anticipated. These policies should be in accordance with Government Code Sections 34090-34090.8 and any other applicable laws governing the preservation of city records.
The other discovery rules further illustrate how a written policy will aid a local agency in litigation. When litigation begins in federal court, Rule 26(f) requires the parties' lawyers to confer about "any issues about disclosure, discovery, or preservation of electronically stored information." No part of electronic discovery is more important for determining the scope of the preservation obligation than the pre -scheduling conference meet and confer provided under Rule 26(f). Rule 26(f) explicitly directs the parties to discuss the form in which electronic information will be produced, how it will be preserved, and how to address claims that certain information is privileged.
The pre -scheduling conference meet and confer can be the single most important factor to reduce costs and burdens of discovery. In order for a local agency's counsel to be prepared to discuss these issues, the rules note that it is "important for counsel to become familiar with those systems before the conference." In some cases, counsel may have to identify and interview individuals with special knowledge of the agency's computer systems.
Rule 26(b) requires the parties to identify whether "reasonably accessible" electronic sources can provide all of the relevant, non -privileged, information.
Parties will need to distinguish these "reasonably accessible" sources from those 270 Fed. R. Civ. P. 37(e) Advisory Committee Note.
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that are not "reasonably accessible" because of undue burden or cost.
Examples of information that might not be reasonably accessible include:
• deleted items,
• fragmented or damaged data,
• information kept on some back-up tape systems for disaster recovery purposes, and
• legacy data remaining from systems no longer in use.
Under Rule 26(a), the parties must produce all of the relevant, non -privileged information from the "reasonably accessible" sources within 14 days of the initial conference during the "initial disclosure," a requirement unique to federal court where relevant information is disclosed at the outset of the civil discovery period.
Discovery from sources that a party deems not "reasonably accessible" can still occur if the requesting party can show that there is no undue burden or cost or upon a showing of "good cause."
Once discovery begins in federal court a local agency must be prepared to explain how their electronic information systems work, which systems contain information potentially relevant to the litigation, how those systems are accessed, and the costs of accessing archival or older systems. Having a written policy in place will reduce the costs and staff time associated with complying with these discovery rules. It will also aid staff in familiarizing themselves with the operations of the agency's computer data and storage systems as well as any external storage and backup systems, and in explaining these operations to agency counsel and opposing parties. Finally, having a written policy will minimize the likelihood of destroying discoverable materials and thus dramatically reduce the chance that an agency will be hit with discovery sanctions during litigation.
Taken together, these federal discovery rules make it advisable for a local agency to put in writing its procedures for managing electronic information.
In light of these rules and obligations and as a first step to forming or maintaining an already -created written policy on electronically stored information, public agencies should review their operating systems to ensure they understand how electronic information is currently stored and retained. In addition, public agencies should examine their data recovery systems and archival data to determine the type of information contained in these systems, and to understand the costs associated with retrieving such data. Agencies should also regularly review their written policies once implemented to ensure that they remain up to date as new technologies and systems replace old ones.
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(3) The California Civil Discovery Act Contains a Process for Electronic Discovery in State Court
In 2009, the California Legislature adopted federal -style procedural rules to permit the discovery of electronically stored information in state court cases pursuant to Assembly Bill ("AB") 5, following the 2006 amendments to the Federal Rules of Civil Procedure.271 Electronically stored information is broadly defined by AB 5272 as any information that is stored in an electronic medium, and includes emails, documents, spreadsheets and any other information stored in computers and other electronic devices.273 These rules make the creation of the above - mentioned written policy on electronically stored information just as applicable to state court litigation as federal court litigation.
Similar to the Federal Rules, a safe harbor exists for spoliation caused by "routine, good faith operation of an electronic information system."274 The state discovery rules specifically provide that a court shall not impose sanctions on a party for failing to provide electronically stored information that has been lost, damaged, altered or overwritten as the result of the routine, good faith operation of an electronic information system, absent exceptional circumstances.275 Accordingly, public agencies should ensure electronically stored information is retained or deleted only in accordance with the adopted policy. Agencies should thus train employees to make sure the document retention policies are appropriately followed at all times.276
Further, as with federal court litigation, once state court litigation is reasonably anticipated, public agencies have a duty to stop automatic destruction processes and preserve potentially relevant electronically stored information in the format in which it currently exists, notwithstanding the normal document retention policy that might otherwise permit destruction.277 In the event litigation is reasonably anticipated, public agencies should ensure that "litigation holds" are applied to electronically stored information potentially relevant to the litigation, so that it is not deleted, whether intentionally or by automatic computer processes. The retention of information that may be potentially relevant to 271 AB 5, Stat. 2009, c. 5 (amending Code of Civ. Proc. §§ 2016.020, 2031.010 through 2031.060, and 2031.210 through 2031.320, and adding Code of Civ. Proc. §§ 1985.8 and 2031.285). 272 See Code of Civ. Proc. §§ 1985.8, 2016.020, and 2031 .010 et seq. 273 Code of Civ. Proc. § 2016.020(e).
274 Code of Civ. Proc. § 2031 .320(d).
275 Code of Civ. Proc. § 2031 .060(i) (1).
276 Code of Civ. Proc. § 2031 .060(i) (2).
277 Coca-Cola Bottling Co. v. Superior Court (Jones), 233 Cal. App. 3d 1273, 1293 n. 10 (4 Dist. 1991) (party litigant has a duty not to lose or destroy relevant evidence).
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anticipated litigation should also be a part of the agency's written policy on electronically stored information.
In light of a 2017 California Supreme Court decision outlining the broad scope of discovery, agencies are advised to consult legal counsel in determining the breadth of a litigation hold. Documents and information that the agency believes to be protected under a right to privacy argument should still be preserved, if even potentially relevant to the litigation. In Williams v. Superior Court, the Court stated that "the right to discovery in this state is a broad one, to be construed liberally so that parties may ascertain the strength of their case and at trial the truth may be determined."278 The Court determined that the defendant in Williams was obligated to disclose the personal information of individuals who may have had no bearing on or relation to the claims asserted by the plaintiff. It further stated that the party opposing discovery has the burden of showing that a privacy right exists that outweighs the potential relevance of the information requested. The same burden applies when the party opposing discovery argues undue hardship. In both instances, the burden is a high one.
Agencies should therefore be mindful that they may have to produce a broader scope and larger volume of documents and electronically stored information than was required in prior years, and accordingly should, in consultation with counsel, broaden the scope of their document retention policy and litigation holds.
When instituting a legal hold, or responding to discovery requests in litigation, attorneys and clients must work together to understand how and where electronic documents, records (including social media
posts), and emails are maintained and to determine locumentl Properties how best to locate, review, and retain responsive General Summary 15tatistics II Contents �� Custom documents. I Title: I Letter to D.S.
B. Metadata
Word processing documents most readily fit the
definition of "record," and they also present the
greatest potential for inadvertent disclosures. A
modern word processing document is comprised of far
more than simple words on a page. Microsoft Word
documents typically contain information about the
author or editor, the author's organization, the time the document was created, modified or accessed, the
amount of time spent editing the document, and even
what earlier versions of the document looked like. This 278 Williams v. Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 538 (2017).
Subject:
Author: Benjamin B. Bitkelbaum
Manager:
Company: I City of whoville
Category:
Keywords:
Comments:
Hyperlink
base:
Template: Normal
❑ Save preview picture
OK Cancel
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"metadata," which literally means data about data, is automatically attached to documents by modern word processors. For instance, some metadata appears in Microsoft Word under the "Home" menu, by selecting "Properties." Although metadata can be useful information, it can also result in unwanted disclosures. For instance, as the dialog box above shows, Microsoft Word automatically inserts the name and company of the author of the document, and there are numerous other fields that can be filled in. If a local agency does not want this sort of information disclosed as a general rule, the word processor should be configured to not record this information.
More significantly, many word processors have a "tracked changes" function.
When public officials and employees work with multiple drafts of a document, especially when multiple people work on the same document, they frequently make use of a feature that highlights every change made to the document. That way, when a party to a proposed contract wants to delete a provision or insert a line, it is easy for the other party to see the change. It is simple to turn this feature on and off, but it is also simple to turn the display of tracked changes on and off, while still having the word processor keep track of the changes. As a result, it is not uncommon for documents to be transmitted electronically with changes tracked, without the knowledge of the author. If the author deleted a paragraph, the person reviewing the tracked changes could restore that paragraph. The implications become particularly significant if the author had deleted the text because it was deemed inaccurate or sensitive.
Moreover, recall that drafts are only nondisclosable if it is the public agency's policy to not retain them in the course of business. If a city routinely saves documents with changes tracked, then arguably it has preserved the earlier drafts of the document. This could thwart a city's policy to avoid preserving drafts.
Consequently, it should be common practice to remove any tracking from a document upon finalization, or better yet, to not use tracking in the first place.
Similarly, most word processors have an "undo" button, which is useful for correcting typos or to recover inadvertently deleted text. Many word processors can "undo" a string of actions, and can even "undo" actions repeatedly until the document is a blank page. If a city official sends that document to someone making a public records request, the individual could click on "undo" repeatedly to see every step that the author took in drafting the document. This presents the same problems as with "tracked changes" - sensitive or inaccurate information that the author meant to delete could be included in the metadata.
Accordingly, in using word processors, public agencies should ensure that they are configured to eliminate the "undo" trail when a document is saved.
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In addition to all of the above strategies, there are several programs available that can remove metadata after a document has been completed, or at the time it is emailed. However, the use of such programs on documents that are subject to a public records request would be of questionable legality. Under the Public Records Act, a request for a public document must include the exact document, and on the face of it, stripping metadata from a document that is requested in electronic form potentially would violate this requirement.279 Depending on your document retention schedule, you may be able to strip metadata from some older documents upon archiving them, but deleting metadata from documents that the city is required to retain may violate document retention requirements.
If the requester does not expressly ask that the document be provided in electronic format, the statute does not prohibit the agency from supplying it in printed form. Accordingly, a local agency may wish to adopt a policy of providing electronic records in printed form unless a requester expressly asks for an electronic version, and providing records in .pdf format when requesters ask for electronic versions. If the requester expressly asks for the original document format, the City attorney should be consulted.
It is unclear how the new federal electronic document discovery rules would apply to metadata. Rule 26 does not specifically address metadata, but the comment to the revision mentions metadata and states that "[w]hether this information should be produced may be among the topics discussed in the Rule 26(f) conference." Consequently, there is the potential for the disclosure of metadata in litigation, which further highlights the importance of establishing standard practices for creating and handling metadata. During litigation, it is often advisable to maintain sources of electronically stored information in native formats with metadata, to preserve the ability to produce the data if necessary.
CITY WEBSITES
With the rapid integration of the internet into American culture, a significant percentage of California cities now provide at least basic information about their government on city -run websites. Posting certain commonly requested information on a web page is a way to reduce the staff time necessary to respond to public records requests. City websites also provide a method to increase public participation in local government, such as more recent requirements for posting of public meeting agendas electronically. However, city website practices may have legal ramifications, and it is advisable for a city to draft and implement a policy on the permitted uses of its website to avoid violating legal restrictions such 279 See Gov't Code § 7922.530(a) ("Upon request, an exact copy shall be provided unless impracticable to do so."); Rosenthal v. Hansen, 34 Cal. App. 3d 754 (3 Dist. 1973).
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as those related to mass mailings and use of public funds for "express advocacy," and also to avoid creating a "public forum."
A. Websites and the "Mass Mailing" Prohibitions
The Political Reform Act prohibits the sending of newsletters and other so-called "mass mailings" at public expense.28o A "mass mailing" is defined as the mailing or distribution at public expense of 200 or more items within a calendar month featuring the name, office, photograph or other reference to an elected officer of the agency.281 The underlying intent is to preclude elected officials from using newsletters as indirect campaign flyers for themselves.
In brief, Section 89002 of the Government Code provides a four -prong test to determine the legality of mass mailings. A mass mailing is prohibited if each of the following elements is present:
a. a delivery of a tangible item,
b. that "features" or includes reference to, an elected official, C. distributed at public expense regardless of the cost, or produced at public expense where the cost of production exceeds $50.00, or d. in a quantity of 200 or more per calendar month.282
On the face of it, the regulation would not apply to web pages, because they would not constitute "a delivery of a tangible item."
The FPPC, which interprets the Political Reform Act, has yet to render an official opinion on the applicability of the mass mailing rule to websites. However, numerous advice letters issued by the FPPC have concluded that the prohibitions on publicly funded mass mailings contained in Government Code Sections 89001 and 89002 do not apply to websites or web pages because they do not constitute a tangible item.
In 1998, the FPPC responded to an inquiry as to whether a committee, advocating the passage of a bond measure expected to be placed on the ballot by a school board, may obtain a link from a "school district website to a web page" advocating the passage of the bond measure. The FPPC advised that, According to [former] Regulation 18901(a)(1) [now Section 89002 of the Government Code], a publicly -funded mailing is a prohibited 280 Gov't Code § 89001.
281 Gov't Code § 89002(a).
282 Id.
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mass mailing if it is delivered as a tangible item to the recipient at his or her residence, place of employment or business, or post office box.
Consistent with [former] Regulation 18901, the ban is applicable to tangible items only. Since distribution over the Internet is not a distribution of a tangible item, Internet pages are not prohibited mass mailings under the [Political Reform] Act.283
Even though providing a link to an express advocacy website may not qualify as a "mass mailing," it could violate other laws, as will be discussed below in Section B.
A second advice letter similarly concluded that web pages are not covered under the mass mailing prohibitions of the Political Reform Act. That advice letter was issued by the FPPC in 1999 in response to a request for advice by the County of Lake. The inquiry was whether the County could include on its web page photographs and a short biography for each member serving on its board of supervisors.284 The FPPC letter reiterated that former FPPC Regulation 18901 did not apply to the actions listed above because "web pages are not considered tangible items" and not subject to mass mailing restrictions.285 Since those advice letters were issued, the FPPC has continued to reaffirm its conclusion that distribution of information over the Internet, including websites, is not distribution of tangible items. In 2013, a city attorney requested advice regarding whether the mass mailing provisions prohibit City staff from listing the mayor's bed and breakfast business on the city's website along with other places of lodging in the city. The FPPC advised that the mass mailing provision does not prohibit the listing of the mayor's business on the city's website because providing information over the Internet is not distribution of a tangible item.286 The FPPC also recommended a review of laws pertaining to use of public resources.287 In 2019, the FPPC issued an informal advice letter concluding that the mass mailing prohibition does not apply to "tag" members of the Fountain Valley City Council on the City's Facebook page because the mass mailing provision does not apply to distribution over the Internet, this includes Facebook.288 Given the foregoing, city web pages provide a unique opportunity for elected officials to communicate with their constituents. Council members could each maintain their own page on the website, drawing attention to issues of interest to 283 Foote Advice Letter, No. A-98-1 14, 1998 WL 289895 (1998) (citation omitted). 284 Peterson Advice Letter, No. A-99-013, 1999 WL 100857 (1999). 285 Id.
286 Pierik Advice Letter, No. A-13-012 (2013).
287 Id.
288 Burns Informal Assistance, No. 1-19-145, 2019 WL 6458461 (2019). The FPPC cautioned, however, that Facebook "tagging" should also be analyzed to make sure that it did not result in a contribution under the Political Reform Act.
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the community. There are, however, some limitations on what the web pages can contain, as discussed below.
B. Avoiding Express Advocacy
Although websites and web pages are not currently covered under the mass mailing restrictions of FPPC Regulation Section 18901, public agencies must still be mindful of other regulations and laws that might be violated by its decisions to permit links from official websites. For example, the Political Reform Act prohibits the use of public moneys for election campaigns.289 Consequently, a city's web page must not indicate support or approval of, or advocate for, a candidate for elective office or a ballot measure.
The leading California case setting forth the basic rule with respect to government involvement in political campaigns is Stanson v. Mott.290 In Stanson, the California Supreme Court addressed the question of whether the State Director of Beaches and Parks was authorized to expend public funds in support of certain state bond measures for the enhancement of state and local recreational facilities. The court concluded that the Director of Beaches and Parks lacked such authority and set forth the basic rule that "in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign."291 Only impartial "informational" communications would be permissible, such as a fair presentation of the facts in response to a citizen's request for information.292
The Stanson Court also recognized that the line between improper "campaign" expenditures and proper "informational" activities is not always clear. "[T]he determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case."293 The California legislature also codified the holding of Stanson in Government Code Section 54964.294
289 Gov't Code § 85300. See also Howard Jarvis Taxpayer Assn. v. Newsom, 39 Cal. App. 5th 158, 161-162 (3 Dist. 2019) (invalidating limited exception to this prohibition).
290 Stanson v. Mott, 17 Cal. 3d 206 (1976).
291 Id. at 209-10.
292 Id. at 221.
293 Id. at 222 (citations omitted).
294 Government Code Section 54964 prohibits the expenditure of public funds "to support or oppose the approval or rejection of a ballot measure, or the election or defeat of a candidate, by the voters." The statute does not prohibit expenditures to provide information to the public about the possible effects of a ballot measure on the activities, operations, or policies of the local agency, if the informational activities are not otherwise prohibited by the Constitution or state law and the information provided constitutes an accurate, fair, and impartial presentation of relevant facts to aid the voters in reaching an informed judgment regarding the ballot measure.
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The Stanson test was reaffirmed by the California Supreme Court in Vargas v. City of Salinas.295 Prior to Vargas, courts attempting to interpret and apply Stanson used varying tests to determine the permissibility of expenditures. For example, in California Common Cause v. Duffy, an appellate court held that a local sheriff's use of public facilities and personnel to distribute postcards critical of then - Supreme Court Justice Rose Bird was "political" and not "informational" as permitted by Stanson because the cards presented only one side of Justice Bird's fitness to be retained in office.296 In another appellate decision, Schroeder v. City Council of Irvine, Irvine's "Vote 2000" Program was upheld.297 The program encouraged voter registration, without specifically advocating a particular position on any measure. Although the city had taken a public position in favor of the proposed ballot measure, the materials it distributed did not advocate any particular vote on the measure and rarely mentioned the measure at all. The Schroeder court held that the funds spent on the Vote 2000 program would be political expenditures and unlawful under Stanson only if the communications expressly advocated, or taken as a whole unambiguously urged, the passage or defeat of the measure.298 Because the city presented a neutral position on "Measure F," at least in the campaign materials, the court upheld the program as valid.
However, in Vargas v. City of Salinas, the California Supreme Court decided that "express advocacy" is an insufficient standard. In Vargas, proponents of a local ballot initiative to repeal the city's utility users tax ("Measure O") sued the city alleging improper government expenditures. The court held that even if a communication does not expressly advocate for either side of an issue, a Stanson analysis must nonetheless be conducted to determine whether the activity was for informational or campaigning purposes based on its style, tenor, and timing.299 Although the court did not specifically refer to the Schroeder analysis in its opinion, the court clearly stated that the "express advocacy" standard does not meaningfully address potential constitutional problems arising from the use of public funds for campaign activities that were identified in Stanson. Thus, local governments must look to Vargas rather than Schroeder for the proper standard to evaluate whether an expenditure is permissible.
A variety of factors led to the Vargas court's conclusion that the communications were informational, including the fact that the publications avoided argumentative or inflammatory rhetoric and did not urge citizens to vote in a particular manner. The challenged expenditures were made pursuant to general appropriations in the city's regular annual budget pertaining to the maintenance 295 Vargas v. City of Salinas, 46 Cal. 4th 1 (2009).
296 California Common Cause v. Duffy, 200 Cal. App. 3d 730, 746-747 (4 Dist. 1987). 297 Schroeder v. City Council of Irvine, 97 Cal. App. 4th 174, 187-188 (4 Dist. 2002). 298 Id.
299 Vargas, 46 Cal. 4th at 8.
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of the city's website, the publication of the city's regular quarterly newsletter, and the ordinary provision of information to the public regarding the city's operations.
The Supreme Court found that the city engaged in informational rather than campaign activity when it posted on the city's website the minutes of city council meetings relating to the council's action along with reports prepared by various municipal departments and presented by officials at city council meetings.300 Similarly, the city did not engage in campaign activity by producing a one -page document listing the program reductions that the city council voted to implement should Measure O be approved, or in making copies of the document available to the public at the city clerk's office and public libraries.301 The court reasoned that viewed from the perspective of an objective observer, the document clearly constituted an informational statement that merely advised the public of specific plans that the city council voted to implement should Measure O be approved.
Finally, the court found that the city engaged in permissible informational activity by mailing to city residents the fall 2002 "City Round -Up" newsletter containing articles describing proposed reductions in city services. Although under some circumstances the mailing of material relating to a ballot measure to a large number of voters shortly before an upcoming election would constitute campaign activity, a number of factors supported the court's conclusion that the mailing of the newsletter constituted informational rather than campaign activity:
it was a regular edition of the newsletter that was mailed to all city residents as a general practice, the style and tenor of the publication was entirely consistent with an ordinary municipal newsletter and readily distinguishable from traditional campaign material, and the article provided residents with important information about the tax in an objective and nonpartisan manner.302 The Supreme Court illustrated the insufficiency of the "express advocacy" standard by suggesting that if the City of Salinas were to post billboards throughout the City prior to an election stating, "`IF MEASURE O IS APPROVED, SIX RECREATION CENTERS, THE MUNICIPAL POOL, AND TWO LIBRARIES WILL CLOSE,' it would defy common sense to suggest that the City had not engaged in campaign activity even though such advertisements would not have violated the express advocacy standard."303
Vargas and Stanson reflect that local agencies must exercise caution when communicating to voters about local measures. The same prohibitions on the use 300 Id. at 37.
301 Id. at 37-38 (stating, "not only [did] the document in question not advocate or recommend how the electorate should vote on the ballot measure, but its style and tenor [was] not at all comparable to traditional campaign material"). The fact that the City only made the document available at the City clerk's office and in public libraries to people who sought it out reinforced the document's informational nature.
302 Id. at 38.
303 Id. at 32.
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of public moneys to support or oppose a ballot measure or a candidate for political office would likely also apply to public agency websites. This is because the time and expense of maintaining a website and adding links to other websites may result in a form of "in kind" contribution from the public agency to the particular candidate or campaign committee. "Professional services, including the creation and maintenance of a website for a candidate, could conceivably result in a contribution from the county to the candidate."304 Public officials must ensure that there is no inclusion of information or links on their websites that contain words of express advocacy or that unambiguously promote or suggest a particular position in a campaign. Public officials must also avoid any actions which, based on their "style, tenor and timing", may lead to a determination that a city website contains impermissible advocacy.
Unfortunately, there is no hard and fast rule to assist public officials in distinguishing improper partisan campaign expenditures from permissible expenditures for "informational activities." Whether a communication is permissible will be based on a combination of these factors, and public officials should therefore seek the advice of the city attorney on a case -by -case basis. Assistance may also be obtained from the FPPC.
Note also that public officials could potentially face personal liability if a court concluded that they used public funds for a partisan campaign. The Stanson opinion concluded that public officials "may properly be held to a higher standard than simply the avoidance of 'fraud, corruption or actual malice' in their handling of public funds."305 Instead, public officials must exercise "`due care,' i.e., reasonable diligence, in authorizing the expenditure of public funds, and may be subject to personal liability for improper expenditures made in the absence of such due care."306 If public officials published a web page that conveyed a partisan slant, a court could conclude that the officials failed to exercise this due care.
C. Public Forum
In addition to the mass mailing and express advocacy considerations, the existence of city websites also raises the issue of whether a website constitutes a "public forum" in which any member of the public would have a right to post information or links, or engage in debate or discourse. The decisions of public agencies on what sort of content to include on web pages, whether to allow external links to be posted, and what type of links to permit, have the potential to infringe upon rights guaranteed by the First Amendment of the United States 304 Peterson Advice Letter, No. A-99-013, 1999 WL 100857 (1999). 305 Stanson, 17 Cal. 3d at 226.
306 Id. at 226-27.
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Constitution, the California Constitution's "Liberty of Speech Clause," and other legal principles.
In relevant part, the First Amendment provides that, "Congress shall make no law ... abridging the freedom of speech."307 Similarly, the "Liberty of Speech Clause" provides that, "A law may not restrain or abridge liberty of speech or press."308 The United States Supreme Court uses the "public forum" doctrine to evaluate the constitutionality of government regulation of private speech on public property.
This doctrine classifies public property according to three categories of public forum status: (i) traditional public forums - areas traditionally used for expressive activity such as streets, sidewalks and parks; (ii) designated public forums - areas dedicated by the government for expressive activity, either generally or for limited purposes; and (iii) nonpublic forums.
"Public forum" status directly impacts the degree to which a public agency may regulate private expression on public property. For example, if a public agency's website were deemed a "nonpublic forum," then the agency would have considerable discretion in determining which applications for website links to accept. By contrast, if a public agency's website was deemed a "traditional public forum" or a "designated public forum," then the agency's discretion would be substantially diminished.
Two cases addressing whether city websites constitute public forums are discussed below.
(1) Putnam Pit, Inc. v. City of Cookeville
The case of Putnam Pit, Inc. v. City of Cookeville provides an example of how the First Amendment may limit a public agency's authority to control external links on its website. Putnam Pit is a federal case discussing the validity of a website link policy under the First Amendment.309 This case involved a free speech claim by a small, free website newspaper publisher, against the City of Cookeville, Tennessee.
The case arose from Cookeville's refusal to establish a link from its website to the website of the publisher's on-line newspaper, the "Putnam Pit." The "Putnam Pit" website focused on commentary critical of the City of Cookeville and its officials and staff. At the time that the publisher initially requested and was denied the link, "several for -profit and non-profit entities were linked to the ... [Cookeville] 307 U.S. CoNST. amend I.
308 CAL. CoNST. art. 1, § 2(a).
309 Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 2000).
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Web site, including a local technical college, two Internet service providers, a law firm, a local computer club, a truck product manufacturer and distributor, and a site with information about Cookeville."310 However, prior to the publisher's request, Cookeville "had no stated policy" on who could be linked to the city's website.311 Upon learning of the publisher's request, the city manager decided to permit links only "from the Cookeville Website to other sites, which would promote the economic welfare, tourism, and industry of the city."312 Pursuant to this policy, the city manager subsequently denied the publisher's request for a link from the Cookeville website to the "Putnam Pit" website and then removed several links to other websites from the Cookeville website.313
The Sixth Circuit Court of Appeals ruled that based on the facts presented, the city's website was a nonpublic forum under the First Amendment, and that the city could impose reasonable restrictions but could not engage in viewpoint discrimination.314 The court also ruled the publisher was entitled to a trial regarding whether Cookeville discriminated against him based upon viewpoint when the city manager denied him a link on the website. Facts that could potentially constitute viewpoint discrimination included statements by the city manager that he thought the "Putnam Pit" consisted only of the publisher's "opinions," "which he didn't care for" and actions by the city manager who indicated to the publisher that he would not be permitted a link even if the "Putnam Pit" were a non-profit entity.315
(2) Vargas v. City of Salinas
In Vargas v. City of Salinas, the California Supreme Court also considered whether a city website constituted a public forum.316 In Vargas, city residents placed an initiative on the ballot to repeal the city's long-standing utility users tax. The city staff prepared a series of reports addressing the impact the loss of the tax would have on the city's budget, including the reduction and elimination of services and programs, and posted those reports on the city's web page. The initiative supporters contended that they had a right to provide their own information on the web page, which the city rejected.
310 Id. at 841.
311 Id.
312 Id.
313 Id
314 Id. at 843-845.
315 The court further concluded that, "[t]he city's actions, some of which appear to be tied to the city's interests, and others which appear less clearly relevant to the purpose of the city's Web site, lead us to REVERSE the district court's grant of summary judgment because [the publisher] has raised a material issue of fact regarding whether the city discriminated against him and his Web site based upon viewpoint." Putnam Pit, Inc., 221 F.3d at 846. 316 Vargas, 46 Cal. 4th at 37, n.18.
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The Supreme Court concluded that the city's web page was not a public forum because the city had not opened its website to permit others to post material of their choice.317
D. Public Forum Analysis
The Putnam Pit and Vargas courts applied the public forum analysis of the First Amendment to the city's action with respect to the website, treating the website as analogous to physical public property. As previously mentioned, the United States Supreme Court has established that, for such analyses, the extent of permissible government restrictions on expressive activity are governed by whether the activity occurs in (i) a traditional public forum; (ii) a designated public forum; or (iii) a nonpublic forum.318
(1) Traditional public forum
Traditional public forums are "places which by long tradition or by government fiat have been devoted to assembly and debate." Typically such places have included public streets, sidewalks and parks.319 Government regulations that restrict the "content" of expressive activity in such forums "must withstand strict scrutiny."320 This means that if the government wishes to restrict expressive activity based on content, such restrictions must serve a "compelling state interest" and must be "narrowly tailored" to serve that interest. However, if the government imposes content -neutral restrictions on the "time, place and manner" of expressive activity in public forums, then such restrictions must serve a "significant public interest," must be "narrowly tailored" to that interest and must leave open "alternative avenues of communication."321
(2) Designated public forum
The Supreme Court has held that "[i]n a designated public forum, the government `intentionally opens a nontraditional public forum for public discourse.'" 322 An example of a designated public forum is the public comment session at a city council meeting. In a designated public forum, the government may restrict the content of the expressive activity to that which is within the scope of the public 317 Id.
318 Perry Ed. Ass'n v. Perry Local Ed. Assn, 460 U.S. 37, 45-46 (1983). 319 Putnam Pit, Inc., 221 F.3d at 842 (citing Perry, 460 U.S. at 45). 320 Id. at 843.
321 Id. (citing Perry, 460 U.S. at 45).
322 Id. (citing Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788,802 (1985)).
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forum. For example, in the case of a city council meeting, the government may restrict speech to only permit discussion of city business.323 Once the government opens a nontraditional public forum to a class of persons, the restrictions applicable to those to whom the forum is opened must also withstand strict scrutiny. Thus, as in the case of public forums, regulations governing designated speakers in designated public forums must serve a "compelling state interest" and must be "narrowly tailored" to serve that interest.324 Accordingly, it is important for a city to avoid creating a designated public forum on its website so as not to establish rights where none previously existed, or at least to have a clear policy on who may post on the city's website. (3) Nonpublic forum
Nonpublic forums are those places that are not typically used for public debate or the free exchange of ideas. Accordingly, "the First Amendment does not forbid a viewpoint -neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose."325 Examples of nonpublic forums include highway rest areas and advertising on a municipal bus.326 In a nonpublic forum government may prohibit speech or expressive activity, so long as such restrictions are reasonable in light of the government's interest and do not attempt to suppress the speaker's activity based on disagreement with the speaker's views.327
(4) Public entity websites as nonpublic forums
The Sixth Circuit Court of Appeals in Putnam Pit concluded that the City of Cookeville's website was a "nonpublic" forum under the First Amendment because the website was not open to the public, and before and after the city adopted a website link policy, links had been established on an individualized basis.328 This determination is significant because a government entity, as previously discussed, has more discretion to regulate public expression in a nonpublic forum than it does in a "traditional public forum" (such as a park) or in a "designated public forum" (a place expressly opened for free speech by the public). The court also emphasized that the city had legitimate interests "in 323 See White v. City of Norwalk, 900 F. 2d 1421, 1425 (9th Cir. 1990) (concluding that city councils have authority to limit speech through the imposition of agendas and rules of order and decorum). 324 Perry, 460 U.S. at 46.
325 Putnam Pit, 221 F. 3d at 845 (quoting Cornelius, 473 U.S. at 811). 326 Jacobson v. Bonine, 123 F. 3d 1272, 1274 (9th Cir. 1997); Children of the Rosary v. City of Phoenix, 154 F. 3d 972, 978 (9th Cir. 1998) .
327 Perry, 460 U.S. at 46.
328 Putnam Pit. Inc.. 221 F.3d at 844.
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keeping links that are consistent with the purpose of the site —providing information about city services, attractions and official s."329 Despite the fact that the court in Putnam Pit determined that the city's website was a nonpublic forum, giving the city broad discretion to limit access to its website links, the court stated that the city could not deny links "solely based on the controversial views" the publisher espouses.33o The court concluded that the city's "requirement that websites eligible to be linked to the city's site promote the city's tourism, industry and economic welfare gives broad discretion to city officials, raising the possibility of discriminatory application of the policy based on viewpoint."331 Accordingly, the court remanded the case to the district court for further proceedings on the issue of whether the city improperly exercised its authority to restrict access to links on its website in a discriminatory manner in violation of the publisher's First Amendment rights.
The Vargas court also concluded that the city's website was a nonpublic forum, and the city could exclude the initiative proponents from posting information on the site.332 In contrast to Putnam Pit, in Vargas the city did not permit access to the web page by either proponents or opponents of the ballot initiative.333 Limiting use of a city website only to city -related activities may result in a court finding that the public forum analysis is not appropriate under the facts, and that the issue should be evaluated instead under the doctrine of governmental speech.334 The U.S. Supreme Court has ruled that the Free Speech clause does not apply to government speech, because the Free Speech Clause restricts government regulation of private speech and does not regulate government speech.335 Under the government speech doctrine, the government has the right to speak for itself and a government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government -controlled message.336
In Sutliffe v. Epping School District, an advocacy group challenged the Town of Epping after the town refused to include the group's hyperlink on the town's website.337 The group wanted to present opinions countering the town's budget proposals regarding town and school activities. The group contended its hyperlink should have been allowed because the town had included a hyperlink 329 Id. at 845.
330 Id
331 Id. at 845-46 (citations omitted).
332 Vargas, 46 Cal. 4th at 37 n.18.
333 See Id.
334 Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). 335 Id
336 Id. at 468.
337 Sutliffe v. Epping School District, 584 F.3d 314, 333 (1 st Cir. 2009).
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to a one -day event put on by "SUE", which was part of a state university - sponsored program and was to be held among town residents to foster community spirit, civic discourse, and the organization of community -defined projects and action groups. By unwritten practice, the town had previously allowed only hyperlinks that would promote providing information about the town, and did not permit links that were political or advocated for certain candidates. A written policy established after the group's request limited hyperlinks to those for governmental agencies or events and programs coordinated or sponsored by the town.
The federal appeals court ruled in Sufliffe that a government entity has the right to express itself on means of communication that the government owned. The town engaged in government speech because the town created the website and selected which hyperlinks to place on its website to convey information about the town to its citizens and the outside world and, by choosing only certain hyperlinks to place on that website, communicated an important message about itself.338 Hyperlinks were added only with approval by the Board of Selectmen.
The court also rejected the group's claim that the town engaged in viewpoint discrimination, because the SUE event was a town -sponsored and financially - supported event, and nonpartisan.339 The court also concluded that a public forum analysis did not apply under the facts, because the town's website is not a traditional public forum, and the website was not a designated public forum because there was no evidence that the town intentionally opened a nontraditional public forum for public discourse.340
Accordingly, in drafting and administering website link policies, a public agency should be mindful that "nonpublic forum status does not mean that the government can restrict speech in whatever way it likes."341 A public agency may not deny requests to post information and links simply because they do not agree with a requesting party's views or the views espoused on the requesting party's website, but an across-the-board policy that does not discriminate on the basis of viewpoint should withstand judicial scrutiny. Reserving the website only for the public agency's activities and purposes may also help the public agency demonstrate that it is engaging in government speech, and has not created a public forum.
E. Chat Rooms, Forums, and Social Media
Note that the conclusion would have likely been different in Vargas if the website had contained a chat room, or other technology promoting open public 338 Id. at 331.
339 Id. at 331-332.
340 Id. at 333-334.
341 Putnam Pit Inc., 221 F.3d at 846 (citations omitted).
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discussion. The term "chat room" generally refers to an area of a website that allows for a real-time interactive discussion between whoever wishes to participate, with every participant seeing what every other participant types in.
Chat rooms allow visitors to access web pages to state their views on a topic of discussion, and in unmoderated chat rooms, to say anything about any subject.
Many popular social media services, including Facebook, Twitter, and Instagram, include a system of public comment threads that similarly promote public discussion.
In Vargas, the California Supreme Court did not address chat rooms or social media services. However, in the prior appellate court decision, which was superseded on other grounds by the California Supreme Court, the appellate court had little trouble concluding that a chat room on a city web page would constitute a public forum:
As noted above, "electronic communication media may constitute public forums. Websites that are accessible free of charge to any member of the public where members of the public may read the views and information posted, and post their own opinions, meet the definition of a public forum ...."342
Ampex Corp. v. Cargle and ComputerXpress, Inc. v. Jackson, were "anti-SLAPP" motions brought by defendants in defamation and libel actions, which are motions to strike a "Strategic Lawsuit Against Public Participation." In order to have a viable anti-SLAPP motion, the statements at issue must be made in a public forum, and both opinions concluded that chat rooms on the websites were public forums.
The federal courts increasingly hold that chat rooms and other forms of social media may constitute public forums. In 2017, the U.S. Supreme Court described cyberspace, and social media, as follows: "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace —the `vast democratic forums of the Internet' in general [citation omitted], and social media in particular."343
In a 2022 decision, Gamier v. O'Connor-Ratcliff, the Ninth Circuit Court of Appeals ruled that Facebook and Twitter pages set up by two members of a local school 342 Vargas v. City of Salinas, 37 Cal. Rptr. 3d 506, 527 (2005) (citing Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1576 (1 Dist. 2005); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1006-07 (4 Dist. 2001)). 343 See Packingham v. North Carolina, 137 S. Ct. 1730, 1735-36 (2017) (Supreme Court ruled that a North Carolina statute prohibiting sex offenders from accessing social networking websites violated the First Amendment because even assuming that the statute was content neutral, the statute could not survive intermediate scrutiny because it was not narrowly tailored to serve a significant governmental interest).
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board violated two parents' First Amendment rights by deleting their comments and then eventually blocking the parents from their social media pages entirely.344 As reflected in the circuit court's recitation of the facts, the two trustees created public Facebook and Twitter pages to promote their re-election campaigns.345 The trustees were eventually elected to the school board, but continued to use their social media pages to publicize information about the school board and its board of trustees. The plaintiff parents frequently posted comments critical of the board of trustees, including 226 identical replies within a 10-minute period, which the trustees repeatedly deleted or hid. The trustees eventually blocked the parents entirely from their social media pages.
The Ninth Circuit concluded that the trustees' social media pages were designated public fora because initially they were "open and available to the public without any restriction on the form or content of comments."346 Further, the trustees would solicit feedback from their constituents and responded to posts left in their comment sections.347 The trustees violated the parents' First Amendment rights by blocking only them from the social media pages when the parents' critical posts had not actually disrupted the comment sections.348 Reasonable rules of etiquette addressing repetitive or lengthy posts could have addressed the trustees' purported concerns.349
A similar conclusion would likely result when evaluating a "forum" or "message board" on a city web page, which are similar to chat rooms but do not occur in real-time; instead, people post messages one at a time that are typically grouped by topic and preserved on the web page in chronological order, for anyone to read. As their names suggests, a "forum" or "message board" on a city web page would potentially constitute a "public forum."
F. Accessibility Requirements
One other concern in designing a local agency's website is whether it is accessible to individuals with disabilities. Under the Americans with Disabilities Act (the "ADA"), local governments must ensure that they provide qualified 344 Gamier v. O'Connor-Ratcliff, 41 FAth 1 158 (9th Cir. 2022). See also Knight First Amendment Institute v. Trump, 928 F. 3d 226, 237-238 (2nd. Cir. 2019), cert. granted, judgment vacated by Biden v. Knight First Amendment Institute At Columbia University, 141 S.Ct. 1220, (Apr. 05, 2021); dismissed as moot, 2021 WL 5548367 (2nd Cir., May 26, 2021). In the vacated opinion, the Second Circuit previously held that President Trump unconstitutionally excluded individuals from a public forum by blocking individual users who criticized him or his policies from his Twitter account, thus preventing them from "viewing, retweeting, replying to, and liking his tweets".
345 Id. at 1163.
346 Id. at 1178.
347 Id.
348 Id. at 1181.
349 Id. at 1182.
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individuals with disabilities equal access to their programs and services, including by making reasonable modifications to rules, policies, or practices; removing architectural, communication, or transportation barriers; or providing auxiliary aids or services, unless doing so would fundamentally alter the nature of their programs or services or would impose an undue burden.35o Local governments must take appropriate steps to ensure that their communications with applicants, participants, members of the public, and companions are as effective as communications with others, and furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities an equal opportunity to participate in and enjoy the benefits of a government service, program or aCtivity.351
Based on these requirements, the U.S. Department of Justice takes the position that state and local government websites must be designed to be accessible to individuals with disabilities. In March 2022, the U.S. Department of Justice issued guidance describing how state and local governments and businesses open to the public can make sure that their websites are accessible to people with disabilities as required by the ADA.352 The DOJ will pursue enforcement actions, settlements and consent decrees to ensure that governmental websites are accessible.353 In designing and maintaining an agency's web page to ensure compliance with First Amendment and Brown Act requirements, an agency should make sure it is designed for accessibility as well, in order to minimize the potential for litigation and adverse decisions.
There are currently no federal regulations addressing website accessibility requirements for state and local governments. In July 2022, the U.S. Department of Justice announced its intention to initiate the rule -making process in April 2023, with a comment period ending June 2023.354 Pending adoption of federal standards, many state and local governments have used draft regulations issued during a prior Department of Justice rule -making process that started in 2010, but 350 42 U.S.C. § 12131 et seq.
351 28 C.F.R. 35.160(a) and (b) (1).
352 See U.S. Department of Justice Guidance on Guidance on Web Accessibility and the ADA (issued March 18, 2022), DOJ 22-262 (D.O.J.), 2022 WL 820126; also available at https://www.ado.gov/resources/web-guidance/ . 353 See U.S. Dep't of Justice, Accessibility of State and Local Government Websites to People with Disabilities (available at http://www.ada.gov/websites2.htm or https://www.ada.gov/websites2 prnt.pdf; U.S. Dep't of Justice, ADA Best Practices Tool Kit for State and Local Governments, Chapter 5, "Website Accessibility Under Title II of the ADA" (available at https://www.ada.aov/r)catoolkit/chap5toolkit.htm or https://www.ada.ciov/pcatoolkit/ch3 toolkit.odf). See Barden v.
City of Sacramento, 292 F. 3d 1073, 1076-1077 (9th Cir. 2002) (holding that the ADA must be construed broadly to apply to normal functions of a municipal entity in order to effectively implement the ADA's fundamental purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities). 354 The notice is available in the Department of Justice's Unified Agenda at:
https://www.reginfo.gov/public/do/eAgendaViewRule?RIN=1 190- AA79&publ d=202204&utm_mediu m=email &utm_source=govdelivery.
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was ended in 2017.355 Those draft standards are often used by state and local governments as a guide for best practices in considering accessibility issues. In addition, even without specific technical standards applicable to local governments, there are a number of regulations and guidelines that may be used to design accessible public websites. Other federal laws may impose accessibility requirements on local government websites, depending on the circumstances.
For example, Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability by federal agencies and recipients of federal assistance, and consequently recipients of federal funds may need to meet federal accessibility requirements.356 Section 508 of the Workforce Rehabilitation Act of 1973, as amended, also requires programs and activities funded by federal agencies to be accessible to people with disabilities, including federal employees and members of the public, and covers ICT developed, procured, maintained, or used by federal agencies.357 The Telecommunications Act of 1996 requires in part that telecommunications products and services be accessible to people with disabilities.358 Potential sources of website design standards include:
• The Federal Information and Communications Technology (ICT) Final Standards and Guidelines, set forth at 36 C.F.R. parts 1 193 and 1 194;359 and
• The World Wide Web Consortium (W3C) Web Content Accessibility Guidelines.360
While these sources do not expressly apply to city websites, they provide various methods of ensuring that a web page is accessible, including providing text equivalents for graphics, ensuring that information conveyed with color is also available without color, and using high contrast color choices. Many state and 355 See 75 Fed. Reg. 43460 (July 26, 2010), 2010 WL 2888003(F.R.); 81 Fed. Reg. 28658 (May 9, 2016), 2016 WL 2609932(F.R.); and 82 Fed. Reg. 60932 (December 26, 2017), 2017 WL 6555806(F.R.). 356 29 U.S.C. § 794.
357 29 U.S.C. § 794d; see 36 C.F.R. Part 1 194; Appendix A to Part 1 194—Section 508 of the Rehabilitation Act: Application and Scoping Requirements; Appendix C to Part 1 194—Functional Performance Criteria and Technical Requirements; and Appendix D to Part 1194—Electronic and Information Technology Accessibility Standards as Originally Published on December 21, 2000.
358 47 U.S.C. §§ 153 and 255.
359 82 Fed. Reg. 5790-01 (1/18/17), 2017 WL 168818, as amended 83 Fed. Reg. 2912 (1/22/18), 2018 WL 488398. These federal regulations were enacted pursuant to Section 508 of the Workforce Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and the Telecommunications Act of 1996 (47 U.S.C. §§ 153 and 255). 360 Available at http://www.w3.ora/ . The revised Section 508 standards contained in the federal regulations are based on WCAG 2.0 developed by the World Wide Web Consortium (W3C).
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local agencies have incorporated the federal requirements into the design of their information technology systems, including their websites.361 Providing accommodations for persons with disabilities to use public websites is not particularly onerous; in fact, the Department of Justice has stated that "implementing accessibility features is not difficult and will seldom change the layout or appearance of web pages."362
IV. CONCLUSIONS
The law related to electronic documents continues to evolve as computer technology advances and public officials respond and adapt to those advances.
The advent of email, text messages, and other forms of social media has expanded the opportunities for collaboration greatly, but has simultaneously expanded the potential for inadvertent Brown Act violations, as well as unwanted disclosure of preliminary or sensitive information when emails and text messages must be disclosed in response to a Public Records Act request. When using email, public officials should refrain from using "reply all" to avoid serial meetings, and should be aware of the disclosure requirements of the Brown Act for documents related to items discussed at a public meeting. Public officials should also be sensitive to the risk that the Public Records Act may require disclosure of emails or text messages in which they discuss public business, and not treat them as casual conversation. While the deliberative process privilege may apply to protect some such emails or text messages, the doctrine has been applied sparingly by California courts. A clear policy regarding the deletion of emails and text messages will also help to reduce unwanted exposure, although an agency must be able to suspend its usual deletion procedures to preserve electronic records potentially relevant to state or federal litigation.
Although federal and state laws continue to develop, electronic documents and information other than emails (for example, posts on social media websites, such as Facebook363 or Twitter,364 that are deemed to be a public forum or otherwise relate to an agency's public business) may be subject to disclosure under the California Public Records Act, California discovery rules, and Federal Rules of Civil 361 In California, state websites must meet both the web accessibility standards in California Government Code §§ 7405 and 11135, which adopted the Section 508 standards and the Priority 1 and 2 level checkpoints of the Web Content Accessibility Guidelines 2.0 (WCAG 2.0 "AA" Conformance Level) developed by the World Wide Web Consortium (W3C). 362 U.S. Dep't of Justice, Accessibility of State and Local Government Websites to People with Disabilities, htto:// www.ada.gov/websites2.htm .
363 See discussion in Part III(G), above, regarding Davison v. Randall, 912 F. 3d 666 (county official's Facebook page deemed a public form). See also German v. Eudaly, 2018 WL 3212020 (D. Ore. 2018) [on facts presented, judge ruled that a city commissioner did not violate a public activist's right to petition the government when the commissioner blocked the activist from seeing the commissioner's nonofficial Facebook page and denied a public records request to see the Facebook page, but granted the activist leave to amend her complaint to show that the commissioner acted in her official capacity when using her nonofficial Facebook page]. 364 See discussion in Part III(E), fn. 350, above, regarding One Wisconsin Now v. Kremer, 354 F. Supp. 3d 940 (interactive portions of state legislators' Twitter accounts constituted a designated public forum under the First Amendment).
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Procedure 26(a). An agency must make electronic records available in an electronic format if requested in response to a Public Records Act request. An agency may also have to disclose electronic records in litigation and even metadata may be discoverable. Thus, it is important to avoid the automatic creation of metadata, to the extent possible. Public officials should also consult with their information technology departments to ensure that metadata is not inadvertently inserted into electronic records when they are created.
With respect to websites, caution must be taken to ensure a public agency's website does not indicate support or approval of, or promote or advocate for, a candidate for elective office. Likewise, a public agency website cannot be used to advocate for or against an initiative election. In addition to avoiding express advocacy that unambiguously suggests a particular position in a campaign, public officials must also avoid any actions which, based on their "style, tenor and timing," may lead to a determination that a public agency website contains impermissible advocacy.
The content of a website link policy, and the manner in which such a policy is implemented, are critical in a public agency's ability to regulate the information and links that will be permitted on its website. It is important that a public agency does not arbitrarily discriminate in denying requests for website links. The establishment and adherence to a specific written policy regarding website links would likely assist a public agency in avoiding the litigation challenges faced by the City of Cookeville in the Putnam Pit case, and should assist generally in avoiding violations of the First Amendment. A uniform policy, such as that upheld in the Vargas opinion, may serve as a viable defense to such challenges.
We have several recommendations for drafting website policies. First, the website link policy should contain a "statement of purpose" indicating that neither the public agency's website nor its links list are "forums" for expressive activity by the public. The following is our suggested language for that portion of the policy, for the hypothetical City of Anytown:
"This policy governs the establishment of external links on the City of Anytown's official website. For purposes of this policy, an `external link' is a hyperlink from the City of Anytown's website to a website maintained by another
party. Neither the City of Anytown's website nor the
external links listed on such website constitute a forum for expressive activity by members of the public. Rather, the purpose of the City of Anytown's website and the
external links list is to provide information about officials, services, and attractions related to City of Anytown. This policy is declaratory of the City of Anytown's existing Public Records Act Page 79
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administrative practice regarding the establishment of
external links on its website."
Second, the website link policy should specifically designate the types of organizations that are eligible to have a link established to their website. We think eligibility may be limited to nonprofit entities (as Cookeville chose to do), but it does not have to be so restricted. We also recommend that the website specifically exclude links to sites that have as their purpose the election or defeat of specific candidates or the passage or defeat of specific ballot measures, regardless of political position. In our opinion, implementation of these suggestions will strengthen a public agency's position if it ever becomes necessary to defend a decision to deny a request for a link from a public agency's website.
Finally, the agency should ensure that its web page complies with the accessibility requirements of the ADA, such as providing text equivalents for graphics, ensuring that information conveyed with color is also available without color, and using high contrast color choices.
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PART THREE.
THE CALIFORNIA PUBLIC RECORDS ACT
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The California Public Records Act
DIVISION 10. ACCESS TO PUBLIC RECORDS
PART 1. GENERAL PROVISIONS
CHAPTER 1. Preliminary Provisions
Article 1. Short Titles
7920.000. This division shall be known and may be cited as the California Public Records Act.
7920.005. This division recodifies the provisions of former Chapter 3.5 (commencing with Section 6250) of Division 7 of this title. The act that added this division, and the act that consists of conforming revisions to reflect the addition of this division, shall be known and may be cited as the "CPRA Recodification Act of 2021."
Article 2. Effect of Recodification
7920.100. Nothing in the CPRA Recodification Act of 2021 is intended to substantively change the law relating to inspection of public records. The act is intended to be entirely nonsubstantive in effect. Every provision of this division and every other provision of this act, including, without limitation, every cross- reference in every provision of the act, shall be interpreted consistent with the nonsubstantive intent of the act.
7920.105. (a) A provision of this division, or any other provision of the CPRA Recodification Act of 2021, insofar as it is substantially the same as a previously existing provision relating to the same subject matter, shall be considered as a restatement and continuation thereof and not as a new enactment. (b) A reference in a statute to a previously existing provision that is restated and continued in this division, or in any other provision of the CPRA Recodification Act of 2021, shall, unless a contrary intent appears, be deemed a reference to the restatement and continuation.
(c) A reference in a statute to a provision of this division, or any other provision of the CPRA Recodification Act of 2021, which is substantially the same as a previously existing provision, shall, unless a contrary intent appears, be deemed to include a reference to the previously existing provision. 7920.110. (a) A judicial decision interpreting a previously existing provision is relevant in interpreting any provision of this division, or any other provision of the Public Records Act Page 82
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CPRA Recodification Act of 2021, which restates and continues that previously existing provision.
(b) However, in enacting the CPRA Recodification Act of 2021, the Legislature has not evaluated the correctness of any judicial decision interpreting a provision affected by the act.
(c) The CPRA Recodification Act of 2021 is not intended to, and does not, reflect any assessment of any judicial decision interpreting any provision affected by the act.
7920.115. (a) An opinion of the Attorney General interpreting a previously existing provision is relevant in interpreting any provision of this division, or any other provision of the CPRA Recodification Act of 2021, which restates and continues that previously existing provision.
(b) However, in enacting the CPRA Recodification Act of 2021, the Legislature has not evaluated the correctness of any Attorney General opinion interpreting a provision affected by the act.
(c) The CPRA Recodification Act of 2021 is not intended to, and does not, reflect any assessment of any Attorney General opinion interpreting any provision affected by the act.
7920.120. (a) A judicial decision or Attorney General opinion on the constitutionality of a previously existing provision is relevant in determining the constitutionality of any provision of this division, or any other provision of the CPRA Recodification Act of 2021, which restates and continues that previously existing provision.
(b) However, in enacting the CPRA Recodification Act of 2021, the Legislature has not evaluated the constitutionality of any provision affected by the act, or the correctness of any judicial decision or Attorney General opinion on the constitutionality of any provision affected by the act. (c) The CPRA Recodification Act of 2021 is not intended to, and does not, reflect any determination of the constitutionality of any provision affected by the act.
Article 3. Effect of Division
7920.200. The provisions of this division shall not be deemed in any manner to affect the status of judicial records as it existed immediately before the effective date of the provision that is continued in this section, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of Public Records Act Page 83
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discovery of this state, nor to limit or impair any rights of discovery in a criminal case.
CHAPTER 2. Definitions
7920.500. For purposes of Article 3 (commencing with Section 7928.200) of Chapter 14 of Part 5, "elected or appointed official" includes, but is not limited to, all of the following:
(a) A state constitutional officer.
(b) A Member of the Legislature.
(c) A judge or court commissioner.
(d) A district attorney.
(e) A public defender.
(f) A member of a city council.
(g) A member of a board of supervisors.
(h) An appointee of the Governor.
(i) An appointee of the Legislature.
(j) A mayor.
(k) A city attorney.
(1) A police chief or sheriff.
(m) A public safety official.
(n) A state administrative law judge.
(o) A federal judge or federal defender.
(p) A member of the United States Congress or appointee of the President of the United States.
7920.505. (a) The following provisions are continuations of provisions that were included in former Section 6254 as that section read when it was repealed by the CPRA Recodification Act of 2021:
(1) Section 7921.500.
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(2) Sections 7923.600 to 7923.625, inclusive.
(3) Section 7923.700.
(4) Sections 7923.800 and 7923.805.
(5) Section 7924.505.
(6) Section 7925.000.
(7) Section 7925.005.
(8) Section 7925.010.
(9) Section 7926.000.
(10) Section 7926.100.
(1 1) Section 7926.200.
(12) Section 7926.210.
(13) Section 7926.220, except the continuation of former Section 6254.14(b). (14) Section 7926.225, except the continuation of former Section 6254.14(b). (15) Section 7926.230, except the continuation of former Section 6254.14(b). (16) Section 7926.235.
(17) Section 7927.000.
(18) Section 7927.100.
(19) Section 7927.200.
(20) Section 7927.300.
(21) Section 7927.500.
(22) Section 7927.700.
(23) Section 7927.705.
(24) Section 7928.000.
(25) Section 7928.100.
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(26) Sections 7928.405 and 7928.410.
(27) Section 7928.705.
(28) Section 7929.000.
(29) Section 7929.200.
(30) Section 7929.205.
(31) Chapter 18 (commencing with Section 7929.400) of Part 5. (32) Section 7929.605.
(b) The provisions listed in subdivision (a) may be referred to as "former Section 6254 provisions."
(c) Subdivision (a) does not include any provision that was first codified in one of the specified numerical ranges after the effective date of the CPRA Recodification Act of 2021.
7920.510. As used in this division, "local agency" includes any of the following:
(a) A county.
(b) A city, whether general law or chartered.
(c) A city and county.
(d) A school district.
(e) A municipal corporation.
(f) A district.
(g) A political subdivision.
(h) Any board, commission, or agency of the foregoing.
(i) Another local public agency.
(j) An entity that is a legislative body of a local agency pursuant to subdivision (c) or (d) of Section 54952.
7920.515. As used in this division, "member of the public" means any person other than a member, agent, officer, or employee of a federal, state, or local agency Public Records Act Page 86
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who is acting within the scope of that membership, agency, office, or employment.
7920.520. As used in this division, "person" includes any natural person, corporation, partnership, limited liability company, firm, or association. 7920.525. (a) As used in this division, "public agency" means any state or local agency.
(b) As used in Article 5 (commencing with Section 7926.400) of Chapter 5 of Part 5, "public agency" means an entity specified in subdivision (c) of Section 7926.400.
7920.530. (a) As used in this division, "public records" 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.
(b) "Public records" in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975. 7920.535. As used in this division, "public safety official" means the following parties, whether active or retired:
(a) A peace officer as defined in Sections 830 to 830.65, inclusive, of the Penal Code, or a person who is not a peace officer, but may exercise the powers of arrest during the course and within the scope of the person's employment pursuant to Section 830.7 of the Penal Code.
(b) A public officer or other person listed in Section 1808.2 or 1808.6 of the Vehicle Code.
(c) An "elected or appointed official" as defined in Section 7920.500. (d) An attorney employed by the Department of Justice, the State Public Defender, or a county office of the district attorney or public defender, the United States Attorney, or the Federal Public Defender.
(e) A city attorney and an attorney who represents cities in criminal matters. (f) An employee of the Department of Corrections and Rehabilitation who supervises inmates or is required to have care or custody of a prisoner. (g) A sworn or nonsworn employee who supervises inmates in a city police department, a county sheriff's office, the Department of the California Highway Patrol, federal, state, or a local detention facility, or a local juvenile hall, camp, Public Records Act Page 87
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ranch, or home, and a probation officer as defined in Section 830.5 of the Penal Code.
(h) A federal prosecutor, a federal criminal investigator, and a National Park Service Ranger working in California.
(i) The surviving spouse or child of a peace officer defined in Section 830 of the Penal Code, if the peace officer died in the line of duty. (j) State and federal judges and court commissioners.
(k) An employee of the Attorney General, a district attorney, or a public defender who submits verification from the Attorney General, district attorney, or public defender that the employee represents the Attorney General, district attorney, or public defender in matters that routinely place that employee in personal contact with persons under investigation for, charged with, or convicted of, committing criminal acts.
(1) A nonsworn employee of the Department of Justice or a police department or sheriff's office that, in the course of employment, is responsible for collecting, documenting, and preserving physical evidence at crime scenes, testifying in court as an expert witness, and other technical duties, and a nonsworn employee that, in the course of employment, performs a variety of standardized and advanced laboratory procedures in the examination of physical crime evidence, determines their results, and provides expert testimony in court. 7920.540. (a) As used in this division, "state agency" means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.
(b) Notwithstanding subdivision (a) or any other law, "state agency" also means the State Bar of California, as described in Section 6001 of the Business and Professions Code.
7920.545. As used in this division, "writing" means 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.
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PART 2. DISCLOSURE AND EXEMPTIONS GENERALLY
CHAPTER 1. Right of Access to Public Records
7921.000. In enacting this division, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.
7921.005. A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this division.
7921.010. (a) Notwithstanding any other provision of law, no state or local agency shall sell, exchange, furnish, or otherwise provide a public record subject to disclosure pursuant to this division to a private entity in a manner that prevents a state or local agency from providing the record directly pursuant to this division. (b) Nothing in this section requires a state or local agency to use the State Printer to print public records.
(c) Nothing in this section prevents the destruction of a public record pursuant to law.
(d) This section shall not apply to contracts entered into before January 1, 1996, between the County of Santa Clara and a private entity, for the provision of public records subject to disclosure under this division.
CHAPTER 2. General Rules Governing Disclosure
Article 1. Nondiscrimination
7921.300. This division does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.
7921.305. (a) Notwithstanding the definition of "member of the public" in Section 7920.515, an elected member or officer of any state or local agency is entitled to access to public records of that agency on the same basis as any other person.
Nothing in this section shall limit the ability of elected members or officers to access public records permitted by law in the administration of their duties. (b) This section does not constitute a change in, but is declaratory of, existing law. 7921.310. Notwithstanding Section 7921.305 or any other provision of law, when the members of a legislative body of a local agency are authorized to access a Public Records Act Page 89
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writing of the body or of the agency as permitted by law in the administration of their duties, the local agency, as defined in Section 54951, shall not discriminate between or among any of those members as to which writing or portion thereof is made available or when it is made available.
Article 2. Voluntary Disclosure
7921.500. Unless disclosure is otherwise prohibited by law, the provisions listed in Section 7920.505 do not prevent any agency from opening its records concerning the administration of the agency to public inspection.
7921.505. (a) As used in this section, "agency" includes a member, agent, officer, or employee of the agency acting within the scope of that membership, agency, office, or employment.
(b) Notwithstanding any other law, if a state or local agency discloses to a member of the public a public record that is otherwise exempt from this division, this disclosure constitutes a waiver of the exemptions specified in:
(1) The provisions listed in Section 7920.505.
(2) Sections 7924.510 and 7924.700.
(3) Other similar provisions of law.
(c) This section, however, does not apply to any of the following disclosures:
(1) A disclosure made pursuant to the Information Practices Act (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code) or a discovery proceeding.
(2) A disclosure made through other legal proceedings or as otherwise required by law.
(3) A disclosure within the scope of disclosure of a statute that limits disclosure of specified writings to certain purposes.
(4) A disclosure not required by law, and prohibited by formal action of an elected legislative body of the local agency that retains the writing. (5) A disclosure made to a governmental agency that agrees to treat the disclosed material as confidential. Only persons authorized in writing by the person in charge of the agency shall be permitted to obtain the information. Any information obtained by the agency shall only be used for purposes that are consistent with existing law.
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(6) A disclosure of records relating to a financial institution or an affiliate thereof, if the disclosure is made to the financial institution or affiliate by a state agency responsible for regulation or supervision of the financial institution or affiliate. (7) A disclosure of records relating to a person who is subject to the jurisdiction of the Department of Business Oversight, if the disclosure is made to the person who is the subject of the records for the purpose of corrective action by that person, or, if a corporation, to an officer, director, or other key personnel of the corporation for the purpose of corrective action, or to any other person to the extent necessary to obtain information from that person for the purpose of an investigation by the Department of Business Oversight.
(8) A disclosure made by the Commissioner of Business Oversight under Section 450, 452, 8009, or 18396 of the Financial Code.
(9) A disclosure of records relating to a person who is subject to the jurisdiction of the Department of Managed Health Care, if the disclosure is made to the person who is the subject of the records for the purpose of corrective action by that person, or, if a corporation, to an officer, director, or other key personnel of the corporation for the purpose of corrective action, or to any other person to the extent necessary to obtain information from that person for the purpose of an investigation by the Department of Managed Health Care.
Article 3. Disclosure to District Attorney and Related Matters 7921.700. A state or local agency shall allow an inspection or copying of any public record or class of public records not exempted by this division when requested by a district attorney.
7921.705. (a) If a district attorney makes a request to a state or local agency to inspect or receive a copy of a public record or class of public records not exempted by this division, and the state or local agency fails or refuses to allow inspection or copying within 10 working days of that request, the district attorney may petition a court of competent jurisdiction to require the state or local agency to allow the requested inspection or copying.
(b) Unless the public interest or good cause in withholding the requested records clearly outweighs the public interest in disclosure, the court may require the public agency to allow the district attorney to inspect or copy those records. 7921.710. Disclosure of records to a district attorney under the provisions of this division shall effect no change in the status of the records under any other provision of law.
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CHAPTER 3. General Rules Governing Exemptions from Disclosure Article 1. Justification for Withholding of Record
7922.000. An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.
Article 2. Social Security Numbers and Related Matters
7922.200. (a) It is the intent of the Legislature that, in order to protect against the risk of identity theft, a local agency shall redact social security numbers from a record before disclosing the record to the public pursuant to this division. (b) Nothing in this division shall be construed to require a local agency to disclose a social security number.
(c) This section does not apply to a record maintained by a county recorder. 7922.205. Nothing in this division shall be construed to require the disclosure by a county recorder of any "official record," if a "public record" version of that record is available pursuant to Article 3.5 (commencing with Section 27300) of Chapter 6 of Part 3 of Division 2 of Title 3.
7922.210. Nothing in this division shall be construed to require the disclosure by a filing office of any "official filing," if a "public filing" version of that record is available pursuant to Section 9526.5 of the Commercial Code.
PART 3. PROCEDURES AND RELATED MATTERS
CHAPTER 1. Request for a Public Record
Article 1. General Principles
7922.500. Nothing in this division shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. 7922.505. 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 division.
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Article 2. Procedural Requirements Generally
7922.525. (a) Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided.
(b) Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.
7922.530. (a) 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. (b) A requester who inspects a disclosable record on the premises of the agency has the right to use the requester's equipment on those premises, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record, unless the means of copy or reproduction would result in either of the following:
(1) Damage to the record.
(2) Unauthorized access to the agency's computer systems or secured networks by using software, equipment, or any other technology capable of accessing, altering, or compromising the agency's electronic records. (c) The agency may impose any reasonable limits on the use of the requester's equipment that are necessary to protect the safety of the records or to prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees. In addition, the agency may impose any limit that is necessary to maintain the integrity of, or ensure the long-term preservation of, historic or high -value records.
7922.535. (a) Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available.
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(b) In unusual circumstances, the time limit prescribed in this article and Article 1 (commencing with Section 7922.500) may be extended by written notice from the head of the agency or a designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days.
(c) As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request. (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request. (3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data. 7922.540. (a) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.
(b) The notification of denial shall set forth the names and titles or positions of each person responsible for the denial.
(c) An agency shall justify withholding any record by complying with Section 7922.000.
7922.545. (a) In addition to maintaining public records for public inspection during its office hours, a public agency may comply with Section 7922.525 by posting any public record on its internet website and, in response to a request for a public record posted on the internet website, directing a member of the public to the location on the internet website where the public record is posted. (b) However, if after the public agency directs a member of the public to the internet website, the member of the public requesting the public record requests a copy of the public record due to an inability to access or reproduce the public Public Records Act Page 94
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record from the internet website, the public agency shall promptly provide a copy of the public record pursuant to subdivision (a) of Section 7922.530.
Article 3. Information in Electronic Format
7922.570. (a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this division that is in an electronic format shall make that information available in an electronic format when requested by any person.
(b) When applicable, the agency shall do the following:
(1) The agency shall make the information available in any electronic format in which it holds the information.
(2) The agency shall provide a copy of an electronic record in the format requested if the requested format is one that the agency has used to create copies for its own use or for provision to other agencies. (c) If a request is for information in other than electronic format, and the information also is in electronic format, an agency may inform the requester that the information is available in electronic format.
7922.575. (a) The cost of duplication of an electronic record pursuant to paragraph (2) of subdivision (b) of Section 7922.570 shall be limited to the direct cost of producing a copy of a record in an electronic format. (b) Notwithstanding subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies:
(1) In order to comply with subdivisions (a) and (b) of Section 7922.570, the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction, or programming to produce the record.
7922.580. (a) Nothing in Section 7922.570 or 7922.575 shall be construed to require a public agency to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format. (b) Nothing in Section 7922.570 or 7922.575 shall be construed to permit an agency to make information available only in an electronic format.
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(c) Nothing in Section 7922.570 or 7922.575 shall be construed to require a public agency to release an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.
(d) Nothing in Section 7922.570 or 7922.575 shall be construed to permit public access to records held by any agency to which access is otherwise restricted by statute.
7922.585. (a) As used in this section, "computer software" includes computer mapping systems, computer programs, and computer graphics systems. (b) Computer software developed by a state or local agency is not itself a public record under this division. The agency may sell, lease, or license the software for commercial or noncommercial use.
(c) This section shall not be construed to create an implied warranty on the part of the State of California or any local agency for errors, omissions, or other defects in any computer software as provided pursuant to this section. (d) Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer. Public records stored in a computer shall be disclosed as required by this division. (e) Nothing in this section is intended to limit any copyright protections.
Article 4. Duty to Assist in Formulating Request
7922.600. (a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated. (2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
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after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records. (c) The requirements of subdivision (a) are in addition to any action required of a public agency by Article 1 (commencing with Section 7922.500) or Article 2 (commencing with Section 7922.525).
7922.605. This article shall not apply to a request for public records if any of the following applies:
(a) The public agency makes the requested records available pursuant to Article 1 (commencing with Section 7922.500) and Article 2 (commencing with Section 7922.525).
(b) The public agency makes an index of its records available. (c) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 7920.505.
CHAPTER 2. Agency Regulations, Guidelines, Systems, and Similar Matters Article 1. Agency Regulations and Guidelines
7922.630. Every agency may adopt regulations in accordance with this article stating the procedures to be followed when making its records available. 7922.635. (a) The following state and local bodies shall establish written guidelines for accessibility of records:
(1) All regional water quality control boards.
(2) Bay Area Air Pollution Control District.
(3) California Coastal Commission.
(4) Department of Business Oversight.
(5) Department of Consumer Affairs.
(6) Department of Corrections and Rehabilitation.
(7) Department of General Services.
(8) Department of Industrial Relations.
(9) Department of Insurance.
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(10) Department of Justice.
(1 1) Department of Managed Health Care.
(12) Department of Motor Vehicles.
(13) Department of Parks and Recreation.
(14) Department of Real Estate.
(15) Department of Toxic Substances Control.
(16) Department of Veterans Affairs.
(17) Department of Water Resources.
(18) Division of Juvenile Justice.
(19) Employment Development Department.
(20) Golden Gate Bridge, Highway and Transportation District. (21) Los Angeles County Air Pollution Control District. (22) Office of Environmental Health Hazard Assessment.
(23) Public Employees' Retirement System.
(24) Public Utilities Commission.
(25) San Francisco Bay Area Rapid Transit District.
(26) San Francisco Bay Conservation and Development Commission. (27) Secretary of State.
(28) State Air Resources Board.
(29) State Board of Equalization.
(30) State Department of Developmental Services.
(31) State Department of Health Care Services.
(32) State Department of Public Health.
(33) State Department of Social Services.
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(34) State Department of State Hospitals.
(35) State Water Resources Control Board.
(36) Teachers' Retirement Board.
(37) Transportation Agency.
(b) A copy of these guidelines shall be posted in a conspicuous public place at the offices of these bodies, and a copy of the guidelines shall be available upon request, free of charge, to any person requesting that body's records. 7922.640. (a) Guidelines and regulations adopted pursuant to this article shall be consistent with all other sections of this division and shall reflect the intention of the Legislature to make the records accessible to the public. (b) Guidelines and regulations adopted pursuant to this article shall not operate to limit the hours public records are open for inspection as prescribed in Article 1 (commencing with Section 7922.500) and Article 2 (commencing with Section 7922.525).
Article 2. Internet Resources
7922.680. If a local agency, except a school district, maintains an internet resource, including, but not limited to, an internet website, internet web page, or internet web portal, which the local agency describes or titles as "open data," and the local agency voluntarily posts a public record on that internet resource, the local agency shall post the public record in an open format that meets all of the following requirements:
(a) Retrievable, downloadable, indexable, and electronically searchable by commonly used internet search applications.
(b) Platform independent and machine readable.
(c) Available to the public free of charge and without any restriction that would impede the reuse or redistribution of the public record. (d) Retains the data definitions and structure present when the data was compiled, if applicable.
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Article 3. Catalog of Enterprise Systems
7922.700. For purposes of this article:
(a) "Enterprise system" means a software application or computer system that satisfies all of the following conditions:
(1) It collects, stores, exchanges, and analyzes information that the agency uses. (2) It is a multidepartmental system or a system that contains information collected about the public.
(3) It is a system of record.
(b) An "enterprise system" does not include any of the following:
(1) Information technology security systems, including firewalls and other cybersecurity systems.
(2) Physical access control systems, employee identification management systems, video monitoring, and other physical control systems. (3) Infrastructure and mechanical control systems, including those that control or manage street lights, electrical, natural gas, or water or sewer functions. (4) Systems related to 911 dispatch and operation or emergency services. (5) Systems that would be restricted from disclosure pursuant to Section 7929.210. (6) The specific records that the information technology system collects, stores, exchanges, or analyzes.
7922.705. For purposes of this article, "system of record" means a system that serves as an original source of data within an agency.
7922.710. (a) In implementing this division, each local agency, except a local educational agency, shall create a catalog of enterprise systems. (b) The local agency shall complete and post the catalog as required by this article by July 1, 2016, and thereafter shall update the catalog annually. 7922.715. (a) The catalog of enterprise systems required by Section 7922.710 shall be made publicly available upon request in the office of the person or officer designated by the agency's legislative body.
(b) If the agency has an internet website, the catalog shall be posted in a prominent location on the agency's internet website.
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7922.720. (a) The catalog of enterprise systems required by Section 7922.710 shall disclose a list of the enterprise systems utilized by the agency. (b) For each system, the catalog shall also disclose all of the following:
(1) Current system vendor.
(2) Current system product.
(3) A brief statement of the system's purpose.
(4) A general description of categories or types of data. (5) The department that serves as the system's primary custodian. (6) How frequently system data is collected.
(7) How frequently system data is updated.
(c) If, on the facts of the particular case, the public interest served by not disclosing the information described in paragraph (1) or (2) of subdivision (b) clearly outweighs the public interest served by disclosure of the record, the local agency may instead provide a system name, brief title, or identifier of the system. 7922.725. (a) This article shall not be interpreted to limit a person's right to inspect public records pursuant to this division.
(b) Nothing in this article shall be construed to permit public access to records held by an agency to which access is otherwise restricted by statute or to alter the process for requesting a public record, as set forth in this division.
PART 4. ENFORCEMENT
CHAPTER 1. General Principles
7923.000. Any person may institute a proceeding for injunctive or declarative relief, or for a writ of mandate, in any court of competent jurisdiction, to enforce that person's right under this division to inspect or receive a copy of any public record or class of public records.
7923.005. In a proceeding under Section 7923.000, the court shall set the times for hearings and responsive pleadings with the object of securing a decision as to the matters at issue at the earliest possible time.
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CHAPTER 2. Enforcement Procedure
Article 1. Petition to Superior Court
7923.100. Whenever it is made to appear, by verified petition to the superior court of the county where the records or some part thereof are situated, that certain public records are being improperly withheld from a member of the public, the court shall order the officer or other person charged with withholding the records to disclose those records or show cause why that person should not do so. 7923.105. The court shall decide the case after the court does all of the following:
(a) Examine the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code.
(b) Examine any papers filed by the parties.
(c) Consider any oral argument and additional evidence as the court may allow. 7923.110. (a) If the court finds that the public official's decision to refuse disclosure is not justified under Section 7922.000 or any provision listed in Section 7920.505, the court shall order the public official to make the record public. (b) If the court finds that the public official was justified in refusing to make the record public, the court shall return the record to the public official without disclosing its content, together with an order supporting the decision refusing disclosure.
7923.1 IS. (a) If the requester prevails in litigation filed pursuant to this chapter, the court shall award court costs and reasonable attorney's fees to the requester.
The costs and fees shall be paid by the public agency and shall not become a personal liability of the public official involved.
(b) If the court finds that a requester's case pursuant to this chapter is clearly frivolous, the court shall award court costs and reasonable attorneys' fees to the public agency.
(c) This article does not limit a requester's right to obtain fees and costs pursuant to this section or any other law.
Article 2. Writ Review and Contempt
7923.500. (a) An order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately Public Records Act Page 102
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reviewable by petition to the appellate court for the issuance of an extraordinary writ.
(b) Upon entry of any order pursuant to this chapter, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon the party of a written notice of entry of the order, or within a further time, not exceeding an additional 20 days, as the trial court may for good cause allow. (c) If the notice is served by mail, the period within which to file the petition shall be increased by five days.
(d) A stay of an order or judgment shall not be granted unless the petitioning party demonstrates that the party will otherwise sustain irreparable damage and probable success on the merits.
(e) Any person who fails to obey the order of the court shall be cited to show cause why that person is not in contempt of court.
PART 5. SPECIFIC TYPES OF PUBLIC RECORDS
CHAPTER 1. Crimes, Weapons, and Law Enforcement
Article 1. Law Enforcement Records Generally
7923.600. (a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. (b) A customer list that an alarm or security company provides to a state or local police agency at the agency's request is a record subject to this article. 7923.605. (a) Notwithstanding Section 7923.600, a state or local law enforcement agency shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, Public Records Act Page 103
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robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger either of the following:
(1) The safety of a witness or other person involved in the investigation. (2) The successful completion of the investigation or a related investigation. (b) However, this article does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.
7923.610. Notwithstanding any other provision of this article, a state or local law enforcement agency shall make public all of the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(a) The full name and occupation of every individual arrested by the agency. (b) The individual's physical description including date of birth, color of eyes and hair, sex, height, and weight.
(c) The time and date of arrest.
(d) The time and date of booking.
(e) The location of the arrest.
(f) The factual circumstances surrounding the arrest.
(g) The amount of bail set.
(h) The time and manner of release or the location where the individual is currently being held.
(i) All charges the individual is being held upon, including any outstanding warrants from other jurisdictions, parole holds, and probation holds. 7923.615. (a) (1) Notwithstanding any other provision of this article, a state or local law enforcement agency shall make public the information described in paragraph (2), except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.
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(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, paragraph (1) applies to 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, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded:
(A) The time, date, and location of occurrence.
(B) The time and date of the report.
(C) The name and age of the victim.
(D) The factual circumstances surrounding the crime or incident. (E) A general description of any injuries, property, or weapons involved. (b) (1) The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 287, 288, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of, or former Section 288a of, the Penal Code may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is 1367-92WATOTM
(2) When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this article may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this section. (c) (1) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim's immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim's request until the investigation or any subsequent prosecution is complete.
(2) For purposes of this article, "immediate family" has the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code. 7923.620. (a) Notwithstanding any other provision of this article, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Public Records Act Page 105
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Code, a state or local law enforcement agency shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) Subject to the restrictions of Section 841.5 of the Penal Code and this article, the current address of every individual arrested by the agency. (2) Subject to the restrictions of Section 841.5 of the Penal Code and this article, the current address of the victim of a crime. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 287, 288, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of, or former Section 288a of, the Penal Code shall remain confidential. (b) Address information obtained pursuant to this section shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury.
(c) This section shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this section.
7923.625. Notwithstanding any other provision of this article, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subdivision (e), may be withheld only as follows:
(a) (1) During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure pursuant to this section, the agency shall provide in writing to the requester the specific basis for the agency's determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.
(2) After 45 days from the date the agency knew or reasonably should have known about the incident, and up to one year from that date, the agency may continue to delay disclosure of a recording if the agency demonstrates that disclosure would substantially interfere with the investigation. After one year from the date the agency knew or reasonably should have known about the incident, Public Records Act Page 106
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