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Using the Brown Act and other open government laws

to keep local agencies and officials honest and ethical

Sunshine laws like the Brown Act and the California Public Records Act
(CPRA) are in themselves no guarantee of preventing the kind of bureaucratic
organized crime that former officials of the City of Bell were prosecuted for.

Those crimes involved such practices as misappropriation of public funds by


city council members paying themselves for momentary meetings of do-
nothing boards created just to justify that pay and, on the part of the city
manager and his assistant, falsifying contract documents and hiding others to
conceal extraordinarily high rates of pay for themselves and the police chief.

If officials are prepared to resort to outright lies, conspiracy and fraud to


advance schemes they know the public would never accept, the open
government laws may not stop them. But these and other transparency laws
will make corruption much harder to commit and sustain, if reporters and
citizen watchdogs understand and use them confidently and consistently. This
is what was not happening in Bell—until the Los Angeles Times stumbled on
to some rumors and odd gaps in information and began using the CPRA
aggressively to uncover layer upon layer of astonishing self-dealing.

Even if your community is reassuringly free of downright criminal leadership,


which is almost certainly the case, using this guide will unfailingly supply
sometimes neglected or overlooked information that can be real news for
journalists, fodder for public discussion by bloggers and other watchdogs,
and an agenda for action by any concerned citizen.

For help with this guide, report any obstacles you encounter to info@calaware.org

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MEETINGS OF LOCAL GOVERNMENT BODIES AND THE BROWN ACT 6


The Basics: Frequently Asked Questions 6
What is the Ralph M. Brown Act? 6
What is a “legislative body? 6
Does the Act allow out-of-town meetings? 7
Can the meeting place be relocated for emergencies? 8
How must Brown Act bodies publicize their meetings? 8
What notice of meetings is required for meetings held on a regular schedule? 8
What if action is taken or discussion is undertaken on off-agenda items? 9
What are the rules for public notice of special meetings? 9
What are the rules for public notice of emergency meetings? 9
When can the one-hour emergency notice to the press be disregarded? 9
When must copies of meeting-related documents be available? 10
Must the body allow public comment at regular meetings? 10
When may public comment be denied? 10
Must the body allow public comment at special meetings? 11
May the body limit the time allowed for public comment? 11
Must the body permit public comment on just any matter? 11
May the body forbid comment on certain matters by the public? 11
What topics may the body address in closed session? 12
What “personnel” matters may the body discuss in closed session? 12
When must an employee get notice of a closed session about him or her? 12
What are the other most frequent uses of closed sessions? 13
Are there limits on the pending litigation closed session? 13
Are there limits on the property negotiation closed session? 14
Are there limits on the employee bargaining closed session? 14
Must any disclosures about closed sessions be made before or after? 14
When the Brown Act is violated, what kind of court enforcement is available? 15
Can the plaintiff who wins the case recover the attorney’s fees spent? 16
Is a knowing and deliberate violation of the Brown Act a crime? 16
Beyond the Basics: What to Watch and Ask for 17
1. “Ad Hoc” Committees 17
2. Meetings off the Regular Schedule 17
3. Background Records Distributed to the Body 18
4. Serial Briefings 19
5. Closed Sessions 20
GOVERNMENT INFORMATION AND THE PUBLIC RECORDS ACT 30
The Basics: Frequently Asked Questions 30
What is the California Public Records Act? 30
Does the CPRA apply to federal records? 30
Does the CPRA apply to all important records in state and local government? 30
Must I have a “need to know” in order to have access to records? 30
Must I make my CPRA access request in writing? 31
Must I identify myself in making an access request? 31
Must I reveal my purpose in making an access request? 31
How well must I describe what I’m looking for? 32
Can I require the agency to compile a list or write a report? 32
Must the agency help me make an effective request? 32
What can I be charged a fee for: Inspection? Copying? 33
How soon must my request get a response? 33
Does an exemption from disclosure meant he agency can’t provide access? 34
May the agency provide public access to certain favored persons but not me? 34
If part of a record is exempt, may it all be withheld? 35
Are draft documents exempt from disclosure as such? 35
Are litigation-related records exempt permanently? 36
What kind of information can be withheld to protect personal privacy? 36
Are the exact earnings of named government workers public or private? 37
Are complaints about and discipline of public employees confidential? 37
What about access to police and sheriff’s officers’ personnel records? 37
Which law enforcement information is exempt from disclosure? 38
Must I sign something or show credentials to get this information? 39
Are the CPRA exemptions the only legal bases for withholding information? 39
Can a record be withheld if it is not expressly made confidential? 40
What is the deliberative process privilege? 40
Beyond the Basics: What to Watch and Ask for 42
1. Money Issues 42
2. Integrity Issues 43
Economic Interests 43
Political Contributors 45
Ethics Training 45
3. Performance Issues 45
Litigation Claims and Settlements 45
Audits and Grand Jury Reports 46
State Auditor 46
State Controller 46
Grand Juries 47
4. Records Preservation and Destruction 47
MEETINGS AND RECORDS OF LOCAL COURT ADMINISTRATION 48
Introduction 48
Meetings 48
Records 48
What kinds of court administrative records are available? 48
What are the applicable exemptions from disclosure under Rule 10.500? 49
How do I make a request for court administrative records? 49
Will I be charged a fee for copies? 49
Finances, Performance and Integrity 50
Sample Brown Act Demand to Cease and Desist a Violation 51
Sample Brown Act Demand to Cure/Correct a Violation 52
Sample Public Records Act Request 54
CalAware Watchdog Guide Open Meeting Laws The Basics

MEETINGS OF LOCAL GOVERNMENT BODIES AND THE BROWN ACT

Check the full, up-to-date text of the law here

The Basics: Frequently Asked Questions

What is the Ralph M. Brown Act?


The Brown Act is the California statute that requires multi-member “legislative bodies” of local
government agencies to hold their meetings open to the public and upon adequate prior notice,
and to allow citizens access to related public records and to address the bodies at the meetings.

What is a “legislative body?


That term encompasses the agency’s governing body (for example the board of supervisors of a
county), any body created by state law (for example its planning commission), any city body
created by charter, and any standing committee of any of these bodies. It also applies to any
multi-member body created by ordinance, resolution or other formal action of an existing
legislative body to serve as a special advisory or study group, if the group contains one or more
members who are not on the creating body (for example a “blue ribbon” or outreach task force
comprising at least some staff members and other citizens). Government Code §54952,
subdivisions (a) and (b). In the latter case, if the advisory body has been created as the result of a
legislative body’s policy, it makes no difference that the appointed by staff—the body is subject
to the Act. Frazer v. Dixon Unified School District, 18 Cal.App.4th 781 (1993).
In some cases, the Act may also apply to a board of a private corporation, namely if
either:
• the legislative body played a significant role in creating the corporation to perform a
function spun off from the local agency Section 54952, subdivision (c) (1) (A)); or
• the legislative body provides funding to the corporation and appoints one of its own
members to the corporate board as a voting member (Section 54952, subdivision (c) (1) (B)).
Also, a court has concluded that a joint powers agency created by agreement among most
cities in Los Angeles County to investigate and curtail illegal drug activities and other crime was
an instance of an “other local public agency” subject to the Brown Act under Government Code
§54951. McKee v. Los Angeles I.M.P.A.C.T., 134 Cal.App.4th 354 (2005).

When is there a “meeting” covered by the Act?


The term usually refers to a literal “congregation of a majority of the members . . . at the same
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time and place to hear, discuss, or deliberate upon any item that is within the subject matter
jurisdiction of the legislative body or the local agency to which it pertains.” Government Code
§54952.2, subdivision (a). But the Act also prohibits equivalent “meetings of minds” arranged
indirectly, namely “any use of direct communication, personal intermediaries, or technological
devices that is employed by a majority of the members of the legislative body to develop a
collective concurrence as to action to be taken . . .” Section 54952.2, subdivision (b).
But such “serial meeting” violations do not arise casually, since the Act exempts isolated
“individual contacts or conversations between a member of a legislative body and any other
person.” Section 54952.2, subdivision (c), paragraph (1). And because the “meeting” definition
is so broad, several occasions are specified when a majority may be present together and at least
listen to matters relevant to their agency without triggering the Act’s requirements, namely:
• professional conferences, local community forums, meetings of other local agency
bodies, providing that the event is open to the public and the attending members do not take the
occasion to discuss among themselves specific matters that they have authority to act on.
Section 54952.2, subdivision (c), paragraphs (2)-(4);
• “a purely social or ceremonial occasion” with the same caveat against specific public
business discussions, Section 54952.2, subdivision (c), paragraph (5); and
• “an open and noticed meeting of a standing committee of (their) body, provided that the
(visiting) members . . . who are not members of the standing committee attend only as
observers,” Section 54952.2, subdivision (c), paragraph (6).

Does the Act allow out-of-town meetings?


Yes, but only for a limited list of purposes. “Retreats” out of the area are not on the list, which
permits a majority or more to get together outside the agency’s boundaries only to:
• comply with a court-ordered or otherwise legally mandated meeting or watch a court or
administrative proceeding where the agency is a party;
• inspect property the body is discussing at a special meeting;
• attend meetings of “multi-agency significance” hosted by and within the boundaries of
one of the participating local agencies;
• meet in some public gathering facility if there is none within the home agency’s
boundaries;
• meet with federal or California state officials on matters of common interest and
jurisdiction, if a local visit by the officials would be impractical;

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• discuss, on-site or nearby, a remote facility owned by the local agency;


• confer in a closed litigation session with outside legal counsel, at his or her office, if
doing so would save the agency money; or
• in the case of a school board only, attend a conference on “nonadversarial collective
bargaining techniques”; interview a potential employee from another district; or interview
residents of another district about the prospects of hiring its superintendent. Government Code
§54954, subdivision (b), paragraphs (1)-(5).

Can the meeting place be relocated for emergencies?


Yes. Within the local agency’s boundaries, if an emergency leaves the body’s normal meeting
place unsafe to occupy, the site can be moved for the duration of the emergency for special
meetings, with appropriate notice to the local media. Government Code §54954, subd. (c).

How must Brown Act bodies publicize their meetings?


The requirements vary depending on how routine or unusual the meeting is.

What notice of meetings is required for meetings held on a regular schedule?


For regular meetings, notice specifying the time, place and agenda of the meeting must be posted
in a place “freely accessible” to the public, as well as on the agency’s website, if it has one, 72
hours in advance. The Attorney General has concluded that Government Code §54952 (a)
permits a city to fulfill this requirement by means of an electronic kiosk located in front of the
city hall and accessible without charge to the public 24 hours a day, seven days a week. Opinion
No. 03-1107 (2/24/04). The agenda must include “a brief general description of each item to be
transacted or discussed . . .” which “generally need not exceed 20 words” per item. Nothing not
on the agenda may be acted on unless:
• an emergency meeting would be justified in any event, or
• the matter is continued from the agenda of a meeting less than six days before, or
• the body makes a preliminary vote finding that “there is a need to take immediate action
and that the need for action came to the attention of the local agency” after the agenda notice was
posted. That finding must be voted by two thirds of the members present, or in the case of larger
bodies where fewer than two thirds of the members are present, by all present.

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What if action is taken or discussion is undertaken on off-agenda items?


Action taken on off-agenda items where none of the above conditions apply is voidable by a
court, assuming someone sues to have it set aside. As for discussion or comments on off-agenda
items, they are limited to brief informational responses by members to statements or questions
from the public, questions for clarification, a brief announcement or report of a member’s
personal activities, or direction to staff to follow up on a citizen’s issue or place it on the agenda
of a future meeting. Meeting notices must be provided in formats accessible to the disabled if so
requested. Government Code §54954.2.

What are the rules for public notice of special meetings?


Special meetings (those not on the regular schedule)
may be called at any time by the presiding officer . . . or by a majority of the members . . . by
delivering written notice to each member . . . 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 . . . received at least 24 hours before the time of the meeting . . . 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 . . . a written waiver of notice . . .
Government Code §54956 (emphasis added).

What are the rules for public notice of emergency meetings?


“Emergency” meetings require no general public notice. They can be called by telephone notice
to the members and convene an hour after local newspapers and broadcasters that have requested
such notice have been alerted. But they may address only “matters upon which prompt action is
necessary due to the disruption or threatened disruption of public facilities” caused by a “a work
stoppage, crippling activity, or other activity that severely impairs public health, safety, or both.”
The only closed session permitted is one addressing personnel or public access to facilities, as
provided in Government Code §54957, and then only if agreed to by two thirds of those
present, or if less than two thirds of the body is present, unanimously. Minutes must be posted for
10 days in a public place as soon as possible. Government Code §54956.5.

When can the one-hour emergency notice to the press be disregarded?


In a “dire” emergency (caused by criminal or terrorist activity), the meeting may convene as soon

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as any requesting local media have been alerted; it need not await their arrival.

When must copies of meeting-related documents be available?


Documents in an agenda packet become accessible to the public at the point they are distributed
to at least a majority of the local agency’s legislative body. This rule is not confined to the agenda
packet, however. It applies to any documents distributed to a majority or more of the body, if the
information is connected with “a matter subject to discussion or consideration at a public
meeting.” All such documents become, at the point of such distribution, “available upon request
without delay” unless expressly exempt from disclosure under the law. If distributed to the body
only at the meeting, they must be made immediately available, if prepared by agency staff or a
member of the body; if by someone else, then after the meeting. Meeting-related documents must
be in formats accessible to the disabled if so requested. None of these rules may be used to
postpone access to a record that would otherwise be available sooner under the California Public
Records Act (CPRA), for example on the grounds that the record “has not yet gone to the board.”
Fees permitted by the CPRA may be charged for copies of records, but not surcharges for special
formats that would be prohibited by the federal Americans with Disabilities Act. Government
Code §54957.5.

Must the body allow public comment at regular meetings?


Yes. Government Code §54954.3 requires regular meeting agendas to
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 …

When may public comment be denied?


A body may deny public comment on any agenda item previously considered at a public meeting
of a committee of the body, if all interested members of the public were then given the
opportunity to address the committee on that item. If the body decides that the item has been
“substantially changed” since the committee hearing, the public can regain the right to comment.
Government Code Section 54954.3, subdivision (a).

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Must the body allow public comment at special meetings?


Yes, but only “concerning an item described in the notice for the meeting, before or during
consideration of that item.” Government Code Section §54954.3, subdivision (a).

May the body limit the time allowed for public comment?
Yes. Government Code Section §54954.3, subdivision (b) allows the body to adopt
“reasonable” regulations governing citizens addressing the body, including, but not limited to,
“regulations limiting the total amount of time allocated for public testimony on particular issues
and for each individual speaker.”

Must the body permit public comment on just any matter?


No. “Subject matter jurisdiction” is simply the scope of issues that the body has authority to deal
with; for example, a city council need not take comments on matters exclusively within the
powers of a county or other public agency, or that strictly concern the private lives of members
of the council or employees and have no bearing on their official duties or responsibilities. But
this should not preclude the right of citizens, for example, to urge the city council to
communicate with the county and request its action on a matter of general interest.

May the body forbid comment on certain matters by the public?


Not based on the topic, so long as it pertains to the body’s subject matter jurisdiction (see above).
The Act states, in Government Code Section §54954.3, subdivision (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.” In addition, because
the speech provision in subdivision (a) amounts to the Legislature’s creation of a limited public
forum—a time and place designated for public speech—under the First Amendment the body
may not prevent a citizen from making a statement that may be unfair, untrue and/or even
defamatory, so long as it concerns the agency’s business. Baca v. Moreno Valley Unified
School District, 36 F. Supp. 719 (1996). But the body may curtail speech that is unduly
repetitive or wanders off the appropriate topic. White v. City of Norwalk, 900 F.2d 1421 (1989).
Above all, application of time limits and other ground rules must be strictly neutral, not favoring
speech the body welcomes and/or burdening speech it dislikes. Rubin v. City of Santa Monica,
823 F. Supp. 709, 713 (1993).

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What topics may the body address in closed session?


The body may meet in closed session only for a handful of expressly described purposes. The
most common are to discuss “personnel” issues and to consult with its bargaining agent on
property or employee compensation negotiations, or with its attorney on pending litigation.

What “personnel” matters may the body discuss in closed session?


The body may use a closed session for essentially any discussion of the qualifications, strengths,
weaknesses, merits or demerits, conduct or misconduct of one or more public employees subject
to hiring or firing by the body. Government Code §54957 states, in pertinent part:
(b) (1) Subject to paragraph (2), nothing contained in (the Brown Act) shall be construed to
prevent the legislative body of a local agency from holding closed sessions . . . 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.

*****

(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 . . . 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.

(emphasis added) The body may discuss compensation matters only in a differently structured
and listed closed session dealing with labor negotiations (see page 13).

When must an employee get notice of a closed session about him or her?
The right to a notice in paragraph (2) above does not apply to a routine evaluation of
performance nor, for example, to a school or community college district board’s discussion of the
performance of a probationary employee, as part of the decision whether or not to retain him or
her on the permanent staff. Furtado v. Sierra Community College, 68 Cal.App.4th 876 (1998).
This holds true especially where any “specific complaints or charges” had been dealt with on
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lower administrative appeal and were not part of the board’s deliberation. Fischer v. Los
Angeles Unified School District, 70 Cal.App.4th 87 (1999). Similarly, the court in Bollinger
v. San Diego Civil Service Commission, 71 Cal.App.4th 568 (1999) concluded that since the
Act refers to the employee's right to have complaints or charges "heard" in open session, if the
body is not conducting an evidentiary hearing, but simply deliberating whether to ratify the
recommendations of a prior administrative hearing, the right to notice does not apply.
As for when there is enough of a “specific complaint or charge” to be discussed in closed
session to warrant a notice to the employee, the court in Bell v. Vista Unified School District,
82 Cal.App.4th 672 (2000) held that a high school football coach had been denied his rights
when his school board employer held a closed session, without giving him the 24-hour written
notice, to consider disciplining him. The California Interscholastic Federation (CIF) had imposed
a one-year suspension on Bell’s school’s athletic program as the result of Bell’s involvement in
the transfer of a foreign student in violation of federation rules. CIF’s notice to the district, the
court held, qualified as a “specific complaint or charge.”

What are the other most frequent uses of closed sessions?


Closed sessions are legal for conferrals to guide litigation or bargaining. That is, when the body
needs to consult with its attorney on pending litigation, or with its negotiator concerning a
proposed deal to acquire or dispose of a real property interest, or concerning union bargaining,
these consultations may take place in closed session. The purpose is to avoid disclosing the
agency’s litigation or negotiation strategy to the adversary.

Are there limits on the pending litigation closed session?


A court has held that the authority to hold a closed session on pending litigation is available to a
legislative body only if the body or the agency it governs is an actual party to the litigation to be
discussed. Shapiro v. Board of Directors of the Centre City Development Corporation, 134
Cal.App.4th 170 (2005). The pending litigation session may involve an actual case in court or
before an administrative law tribunal, or a case the agency may want to bring in such a forum, or
the threat of litigation made by some other person or entity. In the latter instance, the closed
session must be justified in light of “existing facts and circumstances” threatening litigation,
which generally must be disclosed on request prior to the session or afterwards: who is making
the threat and what they say.
Within a litigation session the body may actually vote to sue, defend a suit, settle or
appeal. But it may not meet directly with the adversary to discuss settlement. Government Code

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§54956.9. And it may not take action in closed session to settle a lawsuit by approving a permit
or other application that other law requires to be reviewed in an open and public session.
Trancas Property Owners Association v. City of Malibu, 138 Cal.App.4th 172 (2006).

Are there limits on the property negotiation closed session?


Yes. The real property negotiation session must concern a disclosed, specifically identified piece
of property under negotiation with a specifically identified party. The scope of discussion is
confined to the “price” and/or “terms of payment” for the transaction, Government Code
§54956.8 and the Los Angeles Superior Court and the Attorney General have interpreted “terms
of payment” narrowly, to refer to the manner and timing of payment only. If there are no such
specific negotiations under discussion, the closed session may not be lawful. At a minimum, all
other topics for discussion must be disclosed on the agenda. Shapiro v. San Diego City
Council, 96 Cal.App.4th 904 (2002).

Are there limits on the employee bargaining closed session?


Yes. The employee bargaining closed session concerning pay, benefits and other negotiable items
may include discussion of budgetary priorities as part of the variables. The session is to allow the
body to confer with its own bargaining agent, who separately meets with representatives of
employee unions, or with top-level executives as “unrepresented employees” negotiating for
better pay or benefits. In the latter category, any final action on increased compensation must be
confined to open session. Government Code §54957.6.

Must any disclosures about closed sessions be made before or after?


Both. Every item to be addressed at a meeting must be given a “brief general description” on the
posted agenda. This includes closed sessions. The agency has a choice of using its own approach
and language to disclose closed session topics—an option that may leave it open to being sued
for having given inadequate notice—or adopting the standard agenda listing templates provided
in Government Code §54954.5, which will insulate it from being sued on such grounds. That
section provides elements of such a “safe harbor” agenda listing for most but not quite all closed
sessions authorized by the Act. If there is doubt about the conformity with the safe harbor rules,
which are lengthy, they should be consulted in the statute.
The Act also requires that most, if not all, actions taken by the body in closed session be
disclosed afterwards, either immediately at the same meeting in most cases, or upon request later

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if there remains some formality to complete the action, such as acceptance by the other party in
employee union or litigation settlement negotiations. In either case the body must reveal the
action taken, the votes or abstentions of the members present, and if the action amounted to
approving a document such as a contract, lease or settlement agreement. That document is
available on request after the closed session, or when the body’s action is accepted by the adverse
party. Government Code §54957.1.

When the Brown Act is violated, what kind of court enforcement is available?
The remedies vary depending on the kind of remedy sought.
If the object is stopping or preventing ongoing or future violations, a court order for
injunctive relief may be sought. Government Code §54960.
If the object is to force the body to comply with the law in the future when it has failed
to do so (but insists that its conduct was lawful), the Act allows any person or the district
attorney to file a lawsuit in the superior court seeking a declaratory judgment that the law has
been or is being violated. This cause of action is usually coupled with an injunction ordering
compliance in the future. Even if the challenged activity has happened only once, the challenger
can lay the groundwork for a court determination by sending a “cease and desist” letter to the
body, demanding that it formally commit not to repeat the conduct in question. Unless the body
does so within 30 days, the challenger may take the matter to court for a declaratory judgment
(that the Brown Act applies to and was violated by the challenged behavior) and an injunction
barring further violations. Government Code §54960.2. (See sample cease and desist demand
letter on page 46.) If the court finds that the body used a closed session for an unlawful
discussion or action, it may order it to tape record its closed sessions (and preserve the
recordings) for a certain period thereafter, to encourage compliance and provide evidence of
repeated violations. The tapes are not public records but may be reviewed by a court in any
similar subsequent lawsuit. Government Code §54960.
If the goal instead is to overturn a particular action taken in violation of the Brown Act,
any person or the district attorney may file a suit asking the superior court to find that the body
violated the Act in taking an action that should be therefore declared null and void. This remedy
is confined to actions taken with unlawful secrecy (outside a public meeting) or unlawful
surprise (at a public meeting, but not given adequate notice on the agenda). Lawsuits seeking
invalidation of secret actions must be preceded by a written notice to the body, delivered no later
than 90 days from the date of the alleged action, demanding a suitable “cure and correction.” To
invalidate surprise actions, the notice period for demanding cure and correction is only 30 days.

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In any event no one has standing to sue who actually knew about the item at least 72 hours
before the meeting at which action was taken. Once the body makes an unsatisfactory response
to the demand, or when 30 days passes without response, the plaintiff has just 15 days to file the
nullification action in court. The court may decline to nullify an action if:

• the body has satisfactorily cured the violation;


• the action dealt with the sale or issuance of notes, bond or other instruments of debt, or
with the collection of a tax;
• the action resulted in a contract with a third party who had no knowledge of a Brown
Act violation and would be harmed by having the contract nullified (this does not apply to a
salary or fee for professional services, which contract may be nullified). Government Code
§54960.1. (See sample cure and correct demand letter on page 47.)

Can the plaintiff who wins the case recover the attorney’s fees spent?
Yes. If the plaintiff wins in any of these civil actions, he, she or it may be entitled to an award of
attorney’s fees and costs from the defendant agency. This is especially likely if the lawsuit clearly
benefited the public rather than just the plaintiff’s private interests, and was necessary to force
compliance with the law. If the plaintiff loses and the court finds that the lawsuit was “clearly
frivolous and totally lacking in merit,” the defendant agency may ask the court to order the
plaintiff to pay its costs and fees. Government Code §54960.5.

Is a knowing and deliberate violation of the Brown Act a crime?


Yes. Government Code §54959 provides: “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.”


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Beyond the Basics: What to Watch and Ask for

1. “Ad Hoc” Committees


The Brown Act does not contain the term ad hoc, although it is not uncommon for local bodies to
create what they designate as “ad hoc committees.” Correctly used, the term refers to short-term,
limited-purpose factfinding or problem-solving bodies, often with a fixed term or a set date for
reporting back to the creating body before being dissolved. The Brown Act’s public notice, open
meeting and other rules apply to ad hoc committees (or “task forces,” “blue ribbon panels,” etc.)
that include at least one person not on the creating body—a staff or community member, for
example. But an ad hoc committee comprising only members of the creating body—two out of
five city council members, for example—is not subject to the Brown Act. To exploit this
exclusion and avoid open meetings, some government bodies will mislabel as “ad hoc” what are
really standing committees—permanent sub-units of a governing body that provide a forum for
the initial consideration and sifting of proposals in particular policy areas—for example a school
board’s committees on curriculum, pupil transportation, or buildings and grounds.
Suggestion
If a local body appoints what it calls an “ad hoc” committee comprising only its own members
but gives it no particular task or windup date but instead a broad area of policy initiative or
oversight, suggest that the body is really a standing committee and must comply with the Brown
Act. And if the body is truly ad hoc in terms of a specific short-term assignment, point out that it
must still comply with the Brown Act if it has any members that are not from the creating body.

2. Meetings off the Regular Schedule


Some of the most interesting discussions and actions are handled in meetings held at a time,
place or both different from the body’s regular meetings.

a. Special Meetings
Special meetings can be held for any reason—there’s no urgency requirement—but often involve
matters that are too complex, controversial or both to be handled at a regular business meeting.
It’s tempting for officials to consign controversial matters to special meetings even if they’re not
particularly complex, because then the regular meeting’s 72-hour advance agenda notice posting
is collapsed to 24 hours. Local newspapers and broadcasters are required to be sent that notice in
writing, however, and any action taken without that media notice can be reversed by a court, but

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only if the news organization has submitted a specific written request for notice of special
meetings to that agency.
Suggestion
This need not be done more than once, but to prove it was sent, use request receipt postal mail.
Be sure to designate the business address (for a messenger service), e-mail address, and/or fax
number to be used in sending the special meeting notice. If the agency has more than one
legislative body governed by the Brown Act, you can name each in the request and add “and any
other body required to comply with the Ralph M. Brown Act.” Watchdogs with other news
organizations (online only, magazines, etc.) or public interest groups can ask to be provided a
courtesy copy of the notice sent to newspapers and broadcasters; the request can be made to the
agency administration, to a friendly member of the body or bodies of main interest (who get their
own alerts at least 24 hours in advance), or even to a newspaper or broadcaster that’s filed to get
such notices sent to them.

b. Emergency Meetings
These are reserved to address imminent or existing threats to public health or safety only, and
that makes them newsworthy by anyone’s definition. An emergency meeting addressing either
natural disasters or crises caused by accidents or key public employee walkouts—non-criminal
events—can be called by telephone alert to the body’s members and requesting local newspapers
and broadcasters, and can start one hour after the news groups have been alerted. If the crisis
stems from a criminal or terrorist act or threat, the meeting can commence without the one-hour
delay for journalist arrival, but in either case the only news groups eligible for notice are those
that have requested it in writing and supplied one or more phone numbers to be dialed for the
alert, e.g. one for business hours, another for nights and weekends.
Suggestion
This request can be made in the same letter requesting notice of special meetings. Those not
with local newspapers or broadcasters are free to cultivate sources for a courtesy alert. The only
closed session permitted at emergency meetings is one used for reports from law enforcement
officials on threats to public facilities, e.g. bomb threats and plans to deal with them.

3. Background Records Distributed to the Body


In general the CPRA gives public agencies up to 10 days to make a determination and inform the
requester as to whether the documents sought are considered public and will be provided, in
whole or in part, for inspection or copying. Many if not most public agencies exploit this period
to delay response even in the case of records that are public beyond dispute. But the Brown Act

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requires a local agency to provide access without delay to any document that has been distributed
to most or all members of a public agency body “in connection with a matter subject to
discussion or consideration at a public meeting of the body,” whether or not that matter is
included on the agenda of the next meeting. Anyone, journalist or otherwise, is entitled to
immediate access to such documents—but the problem is how to know they’ve been distributed.
Suggestion
One approach would be to make an e-mail request every few days for copies of such records—
provided by e-mail, as they would probably have been provided to members of the body. Or it
may turn out that such information is batched in once-a week reports from agency staff. School
superintendents, for example, often send district trustees “Friday letters” with information they
do not intend to report at meetings but which is not legally confidential or exempt from
disclosure, such as the details about legal claims for damages against the district. Draft copies of
environmental impact reports or other consultants’ work may also be distributed to the body far
in advance.

4. Serial Briefings
Local agency staff can use private serial briefings to educate and even lobby members of a body
on public meeting issues so thoroughly that a good deal of the explanatory dialogue one might
expect to hear at the public meeting may have already taken place behind closed doors and will
not be aired in front of the community. The Brown Act was amended a few years back to allow
agency staff—a CEO or even a department head—systematically to brief members of the
governing or other body about issues likely to come up on a future agenda, so long as the staff
member does not act as a go-between to educate the members on one another’s positions or
questions on the issue.
Suggestion
These are not meetings open to the public, but any related records would be public unless they
had been prepared for discussion in a pending closed session, or unless exempt from disclosure
under the CPRA. For example calendar or schedule information showing when such meetings—
call them “meetings authorized under Government Code Section 54952.2 (b) (2)”—would be
held, and who would be present; memos or other informative documents prepared for discussion
at such meetings; and minutes or other summaries prepared by staff concerning issues discussed
at the meetings.

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5. Closed Sessions
The most frequently occurring closed sessions signal matters of high public interest:
• unplanned turns of events that have resulted in likely or actual lawsuits, by or against
the agency;
• the hiring, promotion, compensation, discipline or dismissal of staff reporting to the
governing body;
• prospects for buying, selling or leasing land or buildings; and
• dealings with employee unions—or individual managers or executives—that could
result in higher pay or benefits, including pension support.
These closed session discussions can be kept confidential, but often what’s going on can
be ferreted out by asking the right questions and seeking the right records at the right time.
Closed session topics are required to be listed on the meeting agenda with a certain degree of
specificity, but are frequently stated in opaque code and are otherwise somewhat vague, even to
veteran observers. Most final actions taken in closed session are likewise required to be
disclosed afterward—although not necessarily immediately.
Suggestion
If you want the earliest possible look at what has been agreed to in closed session, prepare a form
letter requesting “to be given a copy of any agreement—a litigation settlement, a contract, a
memorandum of understanding, or a real property lease, purchase or other transaction—
approved by the body in closed at the meeting pursuant to my rights under Government Code
Section 54957.1 (b) if the agreement has been given final acceptance by the body and does not
require further action by the other party to the agreement.” Sign, date and submit a copy of the
letter to the clerk of the body before every meeting, as soon as the agenda has been posted and
shows that there will be a closed session on pending litigation, employee unit bargaining or real
property negotiations. If there is such an agreement approved in a closed session at that meeting,
the body will then be on notice to have an extra copy to give you when the approval is
announced afterwards, which it must be if the body’s agreement has brought closure to the
negotiations. If the agreement will be final only upon acceptance by the other party, the body
need not announce its approval or provide a copy of the text until that time.

a. Litigation
There are three varieties of litigation-related closed session, each differently signaled in the
boilerplate most bodies use for its agenda listings.

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CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION


Subdivision (a) of Section 54956.9)
This heading refers to a case already filed in court, in which the actual title caption must
be noted, e.g. City v. Smith or Jones v. District, with a case number. So identified, the complaint,
petition or other initial papers can be found in the court file or are open to public inspection or
copying at the office of the agency. In rare instances the agenda may instead say “Case name
unspecified.” That means either of only two things. One is that the agency has filed an action
against some defendant but has not yet served the papers, and for some reason believes the
adversary will duck service if alerted by the agenda notice (in which case the mystery shouldn’t
last long). The other is that the agency’s lawyer is talking settlement with the opposing counsel
but does not want to telegraph that he or she has to go back to the agency’s governing body and
get authority to agree to a certain term; in other words, the lawyer wants to leave the impression
he or she has a free hand to demand, accept or reject a given deal point. If this is the reason for
not stating the case name, of course, it means the case under settlement negotiation has already
been named on a previous agenda.
Suggestion
A little checking should make it easy to see which case has appeared one or more times before in
recent meetings, but does not show up on the current agenda.

CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION;


Significant exposure to litigation pursuant to subdivision (b) of Section 54956.9.
This consultation with the body’s attorney is to discuss one or more threats of litigation
not yet filed against the agency. In most instances the only added information required on the
agenda is the number of “anticipated” cases to be discussed. But exactly what constitutes the
“significant exposure to litigation” is limited to only a handful of situations:
1. An accident, incident or contract mishap has occurred that may well lead to a lawsuit,
and that prospect is already known to the likely plaintiff. In this case the agency must identify the
mishap either on the agenda or in an oral announcement prior to the closed session.
2. An accident, incident or contract mishap—or some other kind of unusual event—has
occurred that may well prompt litigation, but the body’s attorney believes it is not yet known to
the likely plaintiff. In this case no further disclosure needs to be made until and unless that party
does become aware and reacts under scenarios 3-5 below.
3. The likely plaintiff has actually sent the agency a pre-litigation claim (stating the
amount of money sought in damages and the reason why) or some other written threat of legal
action. In this case the claim or written threat is a public record immediately available to

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whoever asks for it—but you need to ask. So when you see the “anticipated litigation” tag on the
agenda and it doesn’t mention why, ask for any claim or other written threat that has triggered the
closed session. Let the agency know you know that you’re entitled to see it before the closed
session takes place, pursuant to Government Code Section 54956.9 (b) (3) (C); you should
only have to be this emphatic once, if at all.
4. Some speaker at a regular public meeting, in addressing the body, makes what the
agency interprets as a threat of suing the agency about a specific matter. If this statement is
going to be used to justify an immediate closed session, then since the threat was not a topic on
the posted agenda, the body will have to make a specific finding that there is a need for
immediate action to address that threat, and approve that finding by a supermajority vote (at least
four out of five members, or five out of seven, etc.). But since immediate action is probably
seldom necessary on a mere oral threat, it’s more likely such a threat would result in a closed
session only at a later meeting, and by that time, if it’s serious, it will probably have been
followed by a written threat (in which case see c above).
5. At some point before the meeting, the likely plaintiff has uttered an oral threat of
litigation, express or implied, in a conversation with a member of the body or the staff that is
considered by legal counsel to be serious enough to warrant a closed session, even if no written
threat has yet been received. In this case whoever heard the statement must, in order to justify
the closed session, write a memo identifying the threatening person and reporting what he or she
said. This memo is a public record available on request prior to the closed session, just like a
written threat (see c above). The memo need not name either the alleged victim of a sexual
impropriety or the agency employee accused of any wrongful conduct, unless these names have
already been somehow disclosed.
Suggestion
Two overall points: The first: Ask, ask, ask. Don’t wait to be volunteered the documentation
you’re entitled to under scenarios 3 and 5 above, because you won’t be. The second: If for some
reason you didn’t ask for these records before the meeting, you’re still entitled to them
afterwards.

CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION;


Initiation of litigation pursuant to subdivision (c) of Section 54956.9.
This refers to the discussion of the need or opportunity to sue some other party. The only
added information required is the number of potential cases to be considered.

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Disclosures of Action Taken


After these closed sessions the body is required to disclose two types of approval given:
to commence or respond to an action in court, and/or to settle a case before or during trial. The
first kind of approval—“ to defend, or seek or refrain from seeking appellate review or relief, or
to enter as an amicus curiae in any form of litigation”— must be reported immediately, within the
same meeting. The report must name the adverse party (Smith v. City, for example) and say what
the case is about. If what has been given is approval to sue another party or intervene in a
pending lawsuit, the identity of the adverse party, the nature of the action can be withheld until
the approved action shows up in court, but the public must at least be told that an approval to
sue, appeal or intervene has been given.

Disclosures of Settlements
As for approved settlements, there are two possibilities. One is that the body’s approval
of the settlement ends negotiations and there is no need to go back to the other side. This
outcome would be most likely if there had been no case filed in court and the settlement has
simply headed off that prospect. If that is the case, the approval disclosure must be immediate—
within the same meeting. If the settlement occurs after the case has been filed, court approval
may be required, and disclosure may be delayed until then. And in any event, if closure of
settlement negotiations will occur only upon the adverse party’s acceptance, disclosure can be
held off until that point.
Suggestion
These contingencies, and the burden of alertness they place upon the public, mean that if you
have been following announcements of closed sessions concerning a particular case over a
succession of meetings and now do not see the case listed, you should ask the agency’s attorney
if a settlement approval has been given by the body, and when a disclosure is likely. You may
have to seek this information repeatedly but you are entitled to it as soon as a court, the adverse
party or both have given their approval as well. The information you are entitled to includes the
date on which the body gave its approval, the vote or abstention of every member present, and
the substance of the settlement. You are also entitled to the text of the settlement agreement—
but again, you will probably have to ask for it. Another thing to ask for that almost no one does
is copies of communications between the parties leading up to the settlement and documents
shared by one with the other. These can provide insights into how the settlement was achieved,
and what issues played into the bargaining.

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b. “Personnel”
A Brown Act body is permitted a closed session to discuss hiring, appointing, evaluating the
performance of, hearing complaints or charges about, or firing the agency’s employees who
report to it—so long as the discussion is about particular people and not personnel issues in
general, and so long as compensation is not discussed. The agenda listings for these various
topics vary, as do the requirements for disclosures of any action taken.

PUBLIC EMPLOYEE APPOINTMENT


(for hiring senior positions, or for promotions or reassignments to a different job) or
PUBLIC EMPLOYMENT
(for rank and file hires).
The agenda must also identity the title of the position to be filled. If the body acts to
appoint or employ someone in the closed session it must announce that fact afterward, noting the
position filled, during the same meeting.
Suggestion
If the announcement does not name the person (the Brown Act does not require it), ask anyway.
The agency may not want to begin the new employee’s tenure by refusing to identify him or her.

PUBLIC EMPLOYEE PERFORMANCE EVALUATION


(plus the position title of the employee being reviewed.)
The courts have concluded that such closed sessions may be used to discuss and set new
or revised goals and expectations for an existing employee and that, at least if the employee so
requests, those goals and expectations may be kept confidential. But these points apply to
personal performance targets, not to the basic job description, which is a matter of public record
and can be created or altered only in open session. An employee’s performance reviews should
normally occur only once a year; a more frequent series may be a signal that for whatever reason
the employee is not meeting the body’s expectations and may be on virtual probation. No post-
session announcement is required concerning evaluation, although sometimes the agenda listing
discussed immediately below will follow, either at the same or the next meeting, and may
involve the same person if his or her performance is found wanting.
Suggestion
If the body has set goals or objectives for performance of a new hire, those should be public,
since they will shed no light on that employee’s past performance.

PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE


(No further specifics are required for this agenda listing.)

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If action is taken to discipline the employee short of dismissal, demotion or transfer, it


need not be reported publicly (but see the public records disclosure note below). Any dismissal
action in closed session must be reported out at the same meeting, specifying the position title,
unless the employee has the right to appeal the dismissal to the body—a right that would not
apply to an agency executive employed by contract.
If this kind of closed session follows closely on the evaluation session listed above, the
chances are it pertains to the same person. The chances are also good that since the body has
authority to discipline or dismiss only an employee reporting directly to it (most employees
report to the chief executive officer except in very small agencies), a dismissal approved in this
closed session will be of that chief executive.
Chief executives in all but the smallest public agencies will be contract employees, and
this can make firing them midstream expensive unless they are dismissed “for cause”—
conviction of a crime or other improper behavior, including willful insubordination. In that case,
their employment contract will normally state that they can be summarily dismissed with no
severance pay, although such a move risks a lawsuit by the fired executive, challenging the
authenticity of the “cause” prompting the termination. On the other hand, an executive’s contract
will often provide that a termination “without cause,” which eliminates the lawsuit threat, will
require payment of six, 12 or even 18 months’ salary, and often benefits as well. Since this kind
of contract payout is a matter of compensation, however, it should not be discussed in a closed
session on dismissal or release, but rather under the heading below.
Suggestion
If an employee appears to have been disciplined or discharged as the result of a complaint of
serious wrongdoing and an investigation confirming the complaint, submit a California Public
Records Act request for a copy of the complaint, any related investigative findings and any
communication to the employee of disciplinary action to be taken. The courts have repeatedly
concluded that such documentation of an agency’s handling of serious misconduct complaints is
a matter of public record. Accordingly, the often-heard agency statement, “We can’t discuss that
—it’s personnel” is not only irrelevant as a response to a request for records, but misleading in
implying that such information is somehow inherently confidential.

c. Employee Bargaining and Raises


The Brown Act permits closed sessions to allow an employing body to hear from and instruct its
labor negotiators in two distinct tracks with similar but not identical agenda listings: employees
represented in a union-like bargaining unit, and “unrepresented” employees—most significantly
agency managers.

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CONFERENCE WITH LABOR NEGOTIATORS


Agency designated representatives:
Employee organization:
The listing must name both the body’s bargaining agent(s) to be consulted with in the
closed session and the bargaining unit that he or she is or will be negotiating with. Both the
agency and the employee organization have strong political motivations to keep the public
unaware of what is being negotiated until an agreement is locked in. The agency often does not
want pressure from the public to resist employee demands, and the employee group never does.
The Brown Act permits this type of closed session not only for consultations between the body
and its agents—hearing progress reports on bargaining and issuing further instructions—but for
the actual final approval of an agreement.
School and community college district boards, subject to a different employee relations
law, are required to be more open. As the California Supreme Court has noted,
Initial contract proposals made by both sides must be presented at a public meeting and
thereafter become matters of public record. The public must be allowed a reasonable time to
become informed of the proposals and to express its views at a public meeting prior to
commencement of employer-employee negotiation. Any new subject introduced into the collective
bargaining process must be made public within 24 hours and the public must be informed of any
votes cast upon the subject by the employer. Thus, although the public is excluded from actual
negotiating sessions its opportunity to be fully informed and to express its views is preserved.
San Mateo City School District v. Public Employment Relations Board, 33 Cal.3d 850
(1983).
Suggestion
Once employee group bargaining has begun, cite the CPRA to request copies of all documents
that the body’s bargaining agents have shared with or received from the employee unit since the
commencement of the current round of negotiations. The agency cannot argue that disclosure
would expose its confidential negotiating strategy, because this information either comes from
the employee unit or has already been provided to it. These records will, however, serve the
same public’s interest in an “opportunity to be fully informed and to express its views” referred to
by the Supreme Court with respect to school employee bargaining.
When approval of a memorandum of understanding or other agreement with a labor unit
is reached in closed session the disclosure point will depend on whether the other party must
accept as well. If the body’s approval seals the agreement because it accepts all of the demands
sought by the labor unit, the body must report publicly, within the same meeting, the substance
of the agreement and the votes of the members, and must provide a copy of the text of the
agreement to any advance requesters.

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CONFERENCE WITH LABOR NEGOTIATORS


Agency designated representatives:
Unrepresented employee:
The listing applies to non-union employees. It must name both the body’s bargaining
agent(s) to be consulted with in the closed session and the title of the position of each
unrepresented employee whose salary and/or benefits are being negotiated. While the category of
“unrepresented employees” can include “confidential” employees such as secretaries and
administrative assistants, it will definitely include middle managers such as department heads
and the chief executive. The body’s bargaining agent could be either a member of the body or an
(unrepresented) employee such as a human resources director. In the latter case the body’s agent
should neither be an employee reporting to, or with compensation tied to that of, an employee in
the group being bargained with. Unlike the negotiations with represented employees, any final
action on the compensation of unrepresented employees must be taken in open session.
This has two key consequences. The first is that the approval of a raise or other
compensation improvement for unrepresented employees, which must be done in open session,
will be reflected in some kind of prepared written recommendation, which should be part of the
agenda packet and available—at least upon request—as soon as it is available to members of the
body. The second consequence is that if the compensation approval is part of a severance
agreement such as is typical in a “without cause” termination (see 4 (b) (3) above), it should
likewise be done in open session, flagged on the agenda and with the agreement text either in the
agenda packet or available on request prior to the meeting.
Suggestion
Once the listing above appears on a meeting agenda, be alert for an open session item, appearing
on the same agenda or that of the following meeting, for approval of a contract for one or more
unrepresented employees. Then request, as a public record, a copy of any record made available
to the body containing the terms of the compensation for which approval is scheduled in open
session. That information will provide your only informed chance to react to proposed raises for
individual employees and express your views prior to the vote on their adoption.

d. Real Property
As with employee bargaining under (c), the Brown Act permits the body to confer behind closed
doors with its designated representative in negotiations to acquire or dispose of an interest in real
property—a parcel of land, a building, an easement, etc. The transfer bargained for may be an
outright purchase/sale, a lease, or some other transaction. For this type of closed session the
standard agenda listing is

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CONFERENCE WITH REAL PROPERTY NEGOTIATORS


Property:
(Here the notice must list the street address of the property, or if not on a street, its parcel
number—some unique locator.)

Agency negotiator:
(The names of those to confer with the body in closed session.)

Negotiating parties:
(The name of the person or entity the body is dealing with; the principal, not the agent.)

Under negotiation:
(Here the notice must “specify whether the instruction to the negotiator will concern
price, terms of payment, or both.”)

As that last phrasing echoes, this type of closed session permits the discussion to concern only
“price and terms of payment.” So far, most local bodies interpret “terms of payment” to include
any factor that might affect the price in any way, or any term besides price being sought in the
transaction. The Los Angeles Superior Court has ruled against this broad interpretation, and the
Attorney General has concluded in a published opinion that the “price” and “terms of payment”
language must be read narrowly, to embrace only
the amount of consideration that the local agency is willing to pay or accept in exchange for the
real property rights to be acquired or transferred in the particular transaction; (2) the form,
manner, and timing of how that consideration will be paid; and (3) items that are essential to
arriving at the authorized price and payment terms, such that their public disclosure would be
tantamount to revealing the information that the exception permits to be kept confidential.
As an example of category three, the opinion would allow discussion of
the range of possibilities for payment that the agency might be willing to accept, including how
low or how high to start the negotiations with the other party, the sequencing and strategy of
offers or counteroffers, as well as various payment alternatives. Information designed to assist
the agency in determining the value of the property in question, such as the sales or rental figures
for comparable properties, should also be permitted, because that information is often essential
to the process of arriving at a negotiating price.
Opinion No. 10-206 (2011).
The body may not only discuss negotiations with its agent in closed session, it may
actually approve the deal there. If its approval seals the agreement because it accepts all of the
terms offered by the other party, the body must report publicly, within the same meeting, the
substance of the agreement and the votes of the members, and must provide a copy of the text of
the agreement to any advance requesters .

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Suggestion
As with employee group bargaining, once real property negotiations appear on the agenda in a
closed session notice, begin citing the CPRA to request copies of all documents that the body’s
bargaining agents have shared with or received from the other party since the commencement of
negotiations. Repeat the request as negotiations continue.


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GOVERNMENT INFORMATION AND THE PUBLIC RECORDS ACT


Check the full, up-to-date text of the law here

The Basics: Frequently Asked Questions

What is the California Public Records Act?


The CPRA is the state statute that requires state and local government agencies to allow
journalists and anyone else to inspect (look at, listen to) or obtain a copy of the agency’s
documents, unless some specific law exempts the document from public disclosure.

Does the CPRA apply to federal records?


No. The law that does is the Freedom of Information Act (FOIA), enacted by Congress in 1966.
Extensive information on FOIA and how to use it can be found at:
• the U.S. Department of Justice
• a FOIA wiki developed by the Reporters Committee for Freedom of the Press
• a FOIA guide developed by Ralph Nader’s Public Citizen

Does the CPRA apply to all important records in state and local government?
No. It does not apply to, and should not be cited to request disclosure of information by:
• the courts, whose records of proceedings are however presumed to be public under
common law, and whose administrative records are presumed public under the California Rules
of Court; or
• the Legislature, which is however subject to the Legislative Open Records Act,
Government Code §9070-9080; or
• non-governmental entities such as business or nonprofit corporations, unless they are
also subject to the Ralph M. Brown Act because they either
•• were created by a local government agency to perform a public function
outsourced by that agency, or
•• have on their board a voting director who is also a member of the governing
body of an agency that funds them. Government Code §6252, subdivision (b).

Must I have a “need to know” in order to have access to records?


No. The most fundamental CPRA rule is the presumption of public access. Requesters do not
have to prove or even state a need to know to justify access. On the contrary, the government

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agency must justify not providing the information by citing the law: a statute or a case
interpreting a statute. “In other words, all public records are subject to disclosure unless the
Legislature has expressly provided to the contrary.” Williams v. Superior Court, 5 Cal. 4th 337,
346 (1993). “It’s not our policy” or “We never give that out” is not an adequate response to a
public records request, nor is anything else short of citing the law that allows denial of access.

Must I make my CPRA access request in writing?


No. To be sure, a written request often has advantages for the requester as well as the agency.
Practically, it may be necessary where an oral request has been turned down for what appear to
be inadequate or misinformed reasons, or where the kind or number of documents being sought
needs detailed description. Legally, a written request sent by e-mail, fax or registered postal mail
provably records the date when certain response deadlines are set, and also entitles the requester
to a written response from the agency giving the reasons and legal authority for withholding all
or part of the requested records. But, as noted by one court, “It is clear from the requirements for
writings in the same and other provisions of the Act that when the Legislature intended to require
a writing, it did so explicitly. . .  The California Public Records Act plainly does not require a
written request.” Los Angeles Times v. Alameda Corridor Transportation Authority, 88 Cal.App.
4th 1381, 1392 (2001). For a sample CPRA request letter, see the Table Contents.

Must I identify myself in making an access request?


Not usually. Generally the law permits an anonymous request. It requires identification (by a
signed affirmation or declaration, respectively) only when the requester is seeking information
about pesticides (Government Code §6254.2) or seeking the addresses of persons arrested or
crime victims (Government Code §6254, subdivision (f), paragraph (3)). Practically, it may be
mutually convenient for a requester to provide contact information if the request cannot be
fulfilled immediately or if copying will take some time, but the requester’s option is to keep
checking back on his or her own. Legally, apart from the two situations noted above, an agency
may not insist that the requester be identified.

Must I reveal my purpose in making an access request?


No. Demanding to know the purpose of the request or the intended use of the information is,
again, not something the agency may do, except for the pesticide and address provisions noted in
the previous answer. The CPRA states, in Government Code §6257.5:

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“This chapter 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.”

How well must I describe what I’m looking for?


“Unquestionably,” stated the California Court of Appeal in California First Amendment
Coalition v. Superior Court, 67 Cal.App.4th 159, 165 (1998),
public records must be described clearly enough to permit the agency to determine whether
writings of the type described in the request are under its control. (The CPRA) compels an agency
to provide a copy of nonexempt records upon a request “which reasonably describes an
identifiable record, or information produced therefrom . . . “ However, the requirement of clarity
must be tempered by the reality that a requester, having no access to agency files, may be unable
to precisely identify the documents sought. Thus, writings may be described by their content. The
agency must then determine whether it has such writings under its control and the applicability of
any exemption. An agency is thus obliged to search for records based on criteria set forth in the
search request.

Can I require the agency to compile a list or write a report?


No. The rights provided in the law are to “inspect” public records and/or to “obtain a copy” of
those records, which may consist of printed documents or audio, video or digital files containing
words, data, symbols or images, including e-mail. The inspection and copying rights, however,
do not to compel the agency to create lists or reports in response to questions. In only one
instance is the agency required to generate a record that may not already exist, and that is if the
information sought is stored in a computer database or otherwise and must be assembled in a
single record. As provided in Government Code §6253.9, if the agency cannot “produce” or
“construct” the record sought without special programming, the requester must pay for that work.

Must the agency help me make an effective request?


Yes, to the extent possible. Government Code §6253.1 states:
(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.

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(3) Provide suggestions for overcoming any practical basis for denying access to the records or
information sought.

(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if
the public agency is unable to identify the requested information after making a reasonable effort
to elicit additional clarifying information from the requester that will help identify the record or
records.

What can I be charged a fee for: Inspection? Copying?


The Attorney General has published an opinion concluding that counties (in particular) may
charge a fee “reasonably necessary” to recover wider costs for copying public records—costs
beyond the strict “direct cost of duplication.” The opinion observes that inspection itself is free:
“In any event, a ‘reasonably necessary’ fee for a copy of a public record would have no effect
upon the public's right of access to and inspection of public records free of charge.” 85 Ops
Cal.Atty.Gen. 225 (2002).
But the general rule otherwise in Government Code §6253, subdivision (b) is that the
agency may charge only a “statutory fee”—one expressly set by the Legislature, or by an agency
that the Legislature has expressly authorized to set its own copying fees—or otherwise only the
“direct cost of duplication,” which may not include overhead. “The direct cost of duplication is
the cost of running the copy machine, and conceivably also the expense of the person operating
it. ‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval,
inspection and handling of the file from which the copy is extracted.” North County Parents
Organization v. Department of Education, 23 Cal.App.4th 146, 148 (1994).

How soon must my request get a response?


Delay is allowed only to resolve good faith doubts as to whether all or part of a record is
accessible by the public. So, for example, if the requester asks to see the minutes of public
meetings, there is no need to make the “determination” as to whether or not they are public, since
minutes of public meetings are, without question, public records. That being the case, access is
to be provided “promptly,” not put off for 10 days. Government Code §6253, subdivision (b).
To underscore this point, subdivision (d) states that “Nothing in (the CPRA) shall be construed to
permit an agency to delay or obstruct the inspection or copying of public records.”
Moreover, while the 10-day period is not a legal deadline for producing the records, the
date of production should not lag the 10-day “determination” point by much, because in most if
not all cases, the person making the determination will have already had to assemble and review
the records in order to do so. Once the determination has been made, in other words, actual

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release of the records in question should not take much more time. The 10-day period can be
extended somewhat but only under limited circumstances as specified in subdivision (c):
In unusual circumstances, the time limit prescribed in this section may be extended by written
notice by the head of the agency or his or her 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. When the agency dispatches the determination, and if the agency determines that the
request seeks disclosable public records, the agency shall state the estimated date and time
when the records will be made available. 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.

Does an exemption from disclosure meant he agency can’t provide access?


Not usually. The main exemption section in the Act, for example—Government Code §6254—
does not prohibit disclosure of the records it lists, but simply provides that “nothing in this
chapter shall be construed to require disclosure” of them. Accordingly officials misstate the law
in many cases when they say, “We can’t give that out.” It depends on the particular rule
governing a particular type of information; if the language is not expressly worded as a
prohibition of general public access, then any limitation on access must be read as allowing the
agency discretion to provide access.

May the agency provide public access to certain favored persons but not me?
No. Generally, once a particular record has been provided to a “member of the public,” access
may not be denied to others, even though an exemption might have otherwise applied.
Government Code §6254.5. A member of the public is anyone other than a governmental
officer, employee or agent receiving the record in his or her official capacity. So, for example, an
inspection, audit or investigation report, which would normally be exempt from disclosure as the
record of a law enforcement investigation, once shared with the subject investigated would, in all
but a handful of cases, be a public record. Section 6254.5 provides, however, that the waiver is
not created by a disclosure:

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• of records about a person to that person, as required under the Information Practices Act
(a privacy law found in Civil Code §1798);
• “made through other legal proceedings or as otherwise required by law,” for example in
pre-litigation discovery;
• “within the scope of disclosure of a statute which limits disclosure of specified writings
to certain purposes,” for example certain criminal history information made available to

prospective employers of those who work closely with children;


• “not required by law, and prohibited by formal action of an elected legislative body of
the local agency which retains the writings”;
• “made to any governmental agency which agrees to treat the disclosed material as
confidential”; and
• “made to regulated business organizations, for the purpose of encouraging corrective
action, by state agencies regulating financial institutions, by the Department of Corporations, by
the Commissioner of Financial Institutions, and by the Department of Managed Health Care.”

If part of a record is exempt, may it all be withheld?


Not usually. Under Government Code §6253, subdivision (a), any non-exempt (public) part of
a record must be made available after any exempt information has been redacted (removed or
obliterated). This rule applies unless redaction is impossible because the public and confidential
material are so tightly interwoven as to be “inextricably intertwined” Northern California
Police Practices Project v. Craig, 90 Cal.App.3d 116, 124 (1979), or unless multiple
redactions applied to a large number of requested records would leave them so bereft of
substantive information relevant to the requester’s purpose that the benefit to him or her would
be “marginal and speculative.” ACLU Foundation of Northern California Inc. v.
Deukmejian, 32 Cal. 3d 440, 453 (1982).

Are draft documents exempt from disclosure as such?


No. The word “draft,” even if accurately descriptive of a document, does not exempt it from
disclosure. Government Code §6254, subdivision (a) applies only to “preliminary” drafts, notes
or memos “that are not retained by the public agency in the ordinary course of business, provided
that the public interest in withholding those records clearly outweighs the public interest in
disclosure.” Moreover, the exemption applies only if the record was created to inform or advise

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a particular administrative or executive decision. Also, the document must be of the kind
customarily disposed of: “If preliminary materials are not customarily discarded or have not in
fact been discarded as is customary they must be disclosed.” Finally, the exemption applies only
to the “recommendatory opinion” of its author, making a judgment or offering advice as a
conclusion based on a set of facts. Those facts, however, remain accessible to the public, and
only the author’s conclusion is protected. Citizens for A Better Environment v. Department of
Food and Agriculture, 171 Cal. App. 3d 704 (1985).

Are litigation-related records exempt permanently?


No. Government Code §6254, subdivision (b) exempts “Records pertaining to pending
litigation to which the public agency is a party, or to claims . . . until the pending litigation or
claim has been finally adjudicated or otherwise settled.” This exemption includes
communications between the agency and its attorney, which are privileged in any event as long
as the agency wishes to assert the privilege. Otherwise, “a document is protected from disclosure
only if it was specifically prepared for use in litigation,” for example if ordered by a public
agency lawyer in response to an incident likely to provoke a lawsuit. City of Hemet v. Superior
Court, 37 Cal.App.4th 1411, 1420 (1995) The claim itself (submitted by a potential plaintiff) is
not exempt. Poway Unified School District v. Superior Court, 62 Cal.App.4th 1496, 1505
(1998). And when a case has been fully adjudicated (no further appeal possible) or settled,
records covered by this exemption that are not communications between the agency and its
attorney are no longer subject to this exemption.

What kind of information can be withheld to protect personal privacy?


The CPRA allows withholding the contents of “Personnel, medical, or similar files, the disclosure
of which would constitute an unwarranted invasion of personal privacy.” Government Code
§6254, subdivision (c). The rule covers more than “personnel” files and reaches any information
in government records linked to an identified or readily identifiable individual. But it allows
withholding only where the person in question has an objectively reasonable expectation of
privacy, which would not apply, for example, to résumé-type “information as to the education,
training, experience, awards, previous positions and publications” of a public employee. Eskaton
Monterey Hospital v. Myers, 134 Cal.App.3d 788, 794 (1982). Even when a privacy
expectation would be normally reasonable, disclosure may be justified—“warranted”—and
required if the public interest in having it known outweighs the public interest to the contrary.

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For example, when a local official denied taking an unlawful personnel action, “access to records
proving it then became in the public interest.” Braun v. City of Taft, 154 Cal.App.3d 332, 343
(1984).

Are the exact earnings of named government workers public or private?


If the employee is so senior as to have his or her own employment contract, that document is
public without exception under Government Code §6254.8. As for the more typical employee
who was not hired by contract, the California Supreme Court has held that pay and other
compensation of named state and local government employees, including peace officers (absent
some extraordinary risk to their safety), is also a matter of public record. International
Federation of Technical and Professional Engineers, Local 21, AFL-CIO v. Superior
Court, 42 Cal.4th 319 (2007).

Are complaints about and discipline of public employees confidential?


Complaints about the performance of public employees other than peace officers are public if
they lead to disciplinary action, (American Federation of State, County and Municipal
Employees v. Regents of the University of California, 80 Cal.App.3d 913 (1978)) or even if,
discipline or not, documents available to the court “reveal sufficient indicia of reliability to
support a reasonable conclusion that the complaint was well-founded.” Bakersfield City
School District v. Superior Court, 118 Cal.App.4th 1041 (2004). Public agency executives,
with diminished privacy expectations, may have complaints and charges against them exposed to
the public even if they prove largely unsubstantiated, to allay public concerns that they are being
let go under a “sweetheart deal” allowing them to evade accountability. BRV, Inc. v. Superior
Court, 143 Cal.App.4th 742 (2006).

What about access to police and sheriff’s officers’ personnel records?


The contents of those and other peace officers’ personnel files are made confidential by Penal
Code §832.7, which leaves them exempt from disclosure under the CPRA and accessible only
in judge-filtered discovery by a criminal defendant or by a civil plaintiff suing for the officer’s
alleged misconduct or excessive force. City of Hemet v. Superior Court, 37 Cal.App.4th 1411
(4th Dist. 1995). This confidentiality has also been held to apply to information maintained by
public agencies other than the officer’s employer, if it had been provided to them by that
employer. Commission on Peace Officer Standards & Training v. Superior Court, 42 Cal.
4th 278 (2007). But that case also held that an officer’s name, employing agency and dates of

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hire and separation, if any, are public information. The state Supreme Court has also held that the
protection for officer personnel files was meant by the Legislature to apply to administrative
proceedings for appeal of discipline, whether conducted within or outside the employing
department, and that civil service commission hearings involving officer discipline appeals were,
accordingly, required to be held privately. Copley Press, Inc. v. Superior Court, 39 Cal.4th
1272 (2006).

Which law enforcement information is exempt from disclosure?


The CPRA’s law enforcement records exemption in Government Code §6254, subdivision (f)
is comprehensive and although discretionary, seldom waived. With respect to police and other
criminal justice law enforcement agencies, it applies to records that “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). But the exemption also applies to “any investigatory or security files compiled by any
other state or local agency for correctional, law enforcement, or licensing purposes,” including
investigations by state or local regulatory agencies. If an investigation does not have one of
these purposes, the exemption does not apply to its records. Register Division of Freedom
Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893 (1984). The exemption may be
asserted no matter how old and dead the investigation may be. Williams v. Superior Court, 5
Cal. 4th 337 (1993).
But unless disclosure would threaten the successful completion of an investigation or the
safety of a person involved, an agency must disclose the basic “who/what/where/when” facts in
crime, incident and arrest reports and requests for assistance such as 911 calls. This basic
disclosure mandate does not require providing inspection or copies of original law enforcement
records themselves, but rather some access to specified information from those records. In terms
of the time range, the Second District of the Court of Appeal has ruled that this minimal access
mandate applies only to “contemporaneous police activity;” prior months or years of arrest
reports need not be provided to obtain information about an officer’s long-term performance that
would otherwise be confidential. County of Los Angeles v. Superior Court, 18 Cal.App.4th
588 (1993). But the Fourth District of the Court of Appeal has rejected the notion of any
restrictive time window on access to such information. Fredericks v. Superior Court of San
Diego County, No. D066229 (Cal. Ct. App. Jan. 16, 2015). The California Supreme Court will
probably be asked to resolve the disagreement. The facts that must be disclosed pursuant to

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Government Code §6254, subdivision (f), paragraphs (1) and (2), unless to do so would
“endanger the safety of a person involved in an investigation or . . . endanger the successful
completion of the investigation or a related investigation” are:
(1) The full name and occupation of every individual arrested by the agency, the individual's
physical description including date of birth, color of eyes and hair, sex, height and weight, the time
and date of arrest, the time and date of booking, the location of the arrest, the factual
circumstances surrounding the arrest, the amount of bail set, the time and manner of release or
the location where the individual is currently being held, and all charges the individual is being
held upon, including any outstanding warrants from other jurisdictions and parole or probation
holds.

(2) . . . 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,
the time, date, and location of occurrence, the time and date of the report, the name and age of
the victim, the factual circumstances surrounding the crime or incident, and a general description
of any injuries, property, or weapons involved. The name of a victim of any (sexual assault, child,
elder or spousal abuse or hate crime) may be withheld at the victim's request, or at the request of
the victim's parent or guardian if the victim is a minor.

Must I sign something or show credentials to get this information?


No. The sole requirements for a signed statement in this context apply only to obtain the current
address of a person arrested or a victim of a crime (other than a sexual assault, child or elder
abuse offense or hate crime). Under Government Code §6254, subdivision (f), paragraph (3),
these addresses are available only to a requester who declares under penalty of perjury that the
request is made for a “scholarly, journalistic, political, or governmental purpose,” or that the
request is made by a licensed private investigator for investigation purposes. But the Attorney
General has ruled that if a person declares that the request is made for a journalistic purpose, “the
agency may not require that the requester present subscriber lists, distribution lists, copies of past
publications, or proof of membership in a press trade association; display a press identification
permit issued by a California law enforcement agency; or qualify as a journalist in a judicial
action.” Moreover, a related requirement that address information not be used directly or
indirectly, or provided to someone else, to sell a product or service “does not require the
requester to monitor subscribers or readers and prohibit them from using the information for
commercial purposes.” 89 Ops.Cal.Atty.Gen. 97 (2006).

Are the CPRA exemptions the only legal bases for withholding information?
No. Numerous other laws outside the CPRA either prohibit disclosure of certain information,
limit its disclosure to certain persons, purposes or both, or give the agency discretion over

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release. Moreover, the Evidence Code contains a number of privileges that allow information to
be withheld even from a court proceeding. The CPRA incorporates these laws and privileges as
exemptions from disclosure. Government Code §6254, subdivision (k).
The attorney-client privilege, for example, allows communications between a public agency
and its lawyers to be kept confidential. But a federal court has observed that “the identity of the
client, the amount of the fee, the identification of payment by case file name, and the general
purpose of the work performed are usually not protected” by the privilege. Clarke v. American
Commerce National Bank, 974 F.2d 127 (1992).
The official information privilege in Evidence Code §1040 allows a public official to
withhold information submitted to him or her in confidence, until and unless it has been
expressly relied upon in the making of a decision, if the public interest in such secrecy outweighs
the public interest in disclosure. San Gabriel Tribune v. Superior Court, 143 Cal.App.3d 762
(1983).
Government agencies may conceivably acquire business or industry information
protected by the trade secret privilege, but apart from customer lists, why a business would
supply such highly sensitive information to a public agency is hard to imagine. For the privilege
to apply, the formula, pattern, compilation, process, device, method, etc. must derive independent
value from not being known to the public or a competitor, and must be subject to reasonable
efforts to maintain its secrecy otherwise. Civil Code §3426.1, subdivision (d).

Can a record be withheld if it is not expressly made confidential?


Yes. Even if no specific exemption in the CPRA applies, information may be withheld “by
demonstrating . . . 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.”
Government Code §6255. As the wording suggests, this “balancing test” exemption is
applicable only on a case-by-case basis. In particular a targeted request for a particular record
will be circumstantially easier to justify in the public interest than a wholesale request for a large
volume of records. ACLU Foundation of Northern California Inc. v. Deukmejian, 32 Cal.3d
440 (1986), Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 (1991).

What is the deliberative process privilege?


This common law privilege has been recognized as supporting, in certain circumstances, a
withholding of access under the “balancing test” (see question above). Its rationale is the same as
that underlying the draft exemption, namely the need of government officials and their advisors

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to discuss policy options freely and frankly in the course of developing a decision, without fear
of political recrimination upon disclosure. But unlike the draft exemption with its limited
application, the privilege invoked under the balancing test applies to documents that are not
preliminary drafts or memos but that otherwise would impede or chill candid pre-decisional
deliberation. Cases applying the privilege in a balancing test to deny disclosure have concluded
that:
• The chill on the candor and effectiveness of the governor’s consultations with visitors
resulting from wholesale disclosure of his appointment calendars, and the risk to his security
posed by wholesale disclosure of his travel itineraries, outweigh the arguable public interest in
understanding patterns of access to and influences affecting state’s chief executive. Times
Mirror Co. v. Superior Court, 53 Cal.3d 1325 (1991).
• With respect to a request filed while an appointment decision is pending, avoiding
interference with the governor’s prerogative to make appointments to fill vacancies on boards of
supervisors that would result from disclosing information submitted by applicants for
appointment outweighs the voters’ interest in knowing who is applying for the normally elective
position and what qualifications they are citing in their favor. California First Amendment
Coalition v. Superior Court, 67 Cal.App.4th 159 (1998).
• With respect to a request for such records filed five months after the governor made the
appointive decision, the same factors outweigh the voters’ interest in an appointment to the board
of a county emerging from bankruptcy. Wilson v. Superior Court, 51 Cal.App.4th 1136 (1997).
• Disclosing the telephone numbers of persons with whom a city council member has
spoken over a year’s time equates to revealing the substance or direction of the member’s
judgment and mental process, and the inhibiting intrusion posed by such disclosures outweighs
the public interest in learning which private citizens are influencing the member’s decisions. This
holds especially where no misuse of public funds or other improprieties are alleged. Rogers v.
Superior Court, 19 Cal.App.4th 469 (1993).
The deliberative process privilege as a basis for withholding records may have been
substantially weakened by Proposition 59 of 2004, whose ballot argument included the
following:
What will Proposition 59 do? It will create a new civil right: a constitutional right to know what
the government is doing, why it is doing it, and how. It will ensure that public agencies, officials,
and courts broadly apply laws that promote public knowledge. It will compel them to narrowly
apply laws that limit openness in government—including discretionary privileges and exemptions
that are routinely invoked even when there is no need for secrecy. . . . It will allow the public to
see and understand the deliberative process through which decisions are made.
(Emphasis added)


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Beyond the Basics: What to Watch and Ask for

1. Money Issues
“Follow the money” was the advice the shadowy source Deep Throat supposedly gave
Woodward and Bernstein to guide their legendary reportorial investigation of the Watergate
scandal. While doing so will seldom uncover crime in government, it can disclose surprising
and sometimes questionable uses of public funds. All the following documentation is disclosable
under the California Public Records Act.

a. Employment Contracts
Only the top employees in local government work under a written contract, but it can entitle the
employee not only to a salary but also to benefits including performance bonuses, health and/or
other insurance, a car, moving expenses, memberships in professional associations, clubs and
community organizations and the like. As for local government compensation generally, see the
State Controller’s website. Although that list shows no names, it can be compared with the
agency’s personnel roster, a public record, which lists names and titles.

b. Loans
Although not necessarily mentioned in the employment contract, key executives in an agency are
sometimes provided with loans at more favorable terms than they would get on the market.
Pursuant to the Brown Act, any such loan would have to approved in an open session of the
agency’s governing body.

c. Credit Cards and Expense Reimbursements


Whether the expenses incurred by employees for official business are handled by agency credit
cards or by specific advances or reimbursements acquired by application, the date, location and
merchandise or service purchased should be documented in public records, as well as the
purpose of the expenditure. As interpreted by the Attorney General, state laws allowing local
government officials to obtain reimbursement from their agencies for "actual and necessary
expenses" incurred in doing their jobs do not allow them to treat non-government guests to meals
on the public tab. For example, Education Code Section 44032 states: "The governing board
of any school district shall provide for the payment of the actual and necessary expenses,
including traveling expenses, of any employee of the district incurred in the course of performing
services for the district, whether within or outside the district, under the direction of the
governing board."

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In a 1978 published opinion, the Attorney General concluded that the statutory phrase “actual and
necessary expenses” did not include meals purchased for community leaders even though the
purchase was "deemed to be for the benefit of and in the best interest of a school district.” The
restriction is not limited to school employees. The Attorney General has more recently
concluded—and this would extend to any outlays of public funds, whether through
reimbursements or credit card charges—that
(p)ublic funds of a general law city may not be expended to reimburse city council members for
their expenses in purchasing meals for third parties, such as constituents, legislators and private
business owners, at meetings held to discuss legislation or other matters of benefit to the city. If
the charter so authorizes, public funds of a charter city may be expended for such purposes.
The law the A.G. was interpreting is Government Code Sections 53232 through 53232.4,
which also govern county supervisors, school board trustees and special district directors.
Reimbursement may be provided only pursuant to a specific policy approved by the governing
body in a public meeting.

d. Merchandise and Service Contracts; Leases


These agreements to pay public funds for value received may document the most significant
expenditures other than agency personnel costs. They sometimes raise collateral issues such as
whether the contract or lease was required to go to bid or was at the discretion of an agency body
or official. If the former, all bids or RFPs should be open to public review prior to an award. If
the latter, the Form 700 Statement of Economic Interests of the official(s) with award discretion
can be cross-checked, as well as the sources of political contributions to the campaigns of any
such elected officials (see Integrity Issues > Economic Interests below).

e. Check or Warrant Registers


These lists sometimes disclose expenditures not included in the categories above that merit
further inquiry. They must be approved by the agency’s governing body at an open meeting, but
may be tucked into a consent agenda.

2. Integrity Issues

Economic Interests
Are people in government lining their own or their spouses’ pockets in making decisions about
spending public funds? How would anyone know without knowing what those officials’ income
sources are?

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Economic Interests
Are people in government lining their own or their spouses’ pockets in making decisions about
spending public funds? How would anyone know without knowing what those officials’ income
sources are? As summarized by the Fair Political Practices Commission (FPPC),
The Political Reform Act (Gov. Code Sections 81000-91014) requires most state and local
government officials and employees to publicly disclose their personal assets and income. They
also must disqualify themselves from participating in decisions that may affect their personal
economic interests. The FPPC is the state agency responsible for issuing the Statement of
Economic Interests, Form 700, and for interpreting the law’s provisions.
Statements of Economic Interests are public documents. The filing officer must permit any
member of the public to inspect and receive a copy of any statement.
• Statements must be available as soon as possible during the agency's regular business hours,
but in any event not later than the second business day after the statement is received.
• No conditions may be placed on persons seeking access to the forms.
• No information or identification may be required from persons seeking access.
• Reproduction fees of no more than 10 cents per page may be charged.
Each local agency must appoint a filing officer responsible to provide access to the Form 700s
and to see that these statements are filed and updated on schedule. The agency must also adopt a
conflict of interest code that designates which employees are subject to it. Essentially these are
persons responsible for making, or contributing to the decision to make, significant public
expenditures. Some consultants with substantial ongoing decisional authority must also file Form
700s. You can search all such statements on the FPPC website since 2010.

Political Contributors
Whose campaign contributions have been made to whom, and how much was given? This
information is required to be filed periodically by local candidates and committees. The various
reports required to be filed as public records (under the same access mandates as apply to the
Form 700s above) are described at http://www.fppc.ca.gov/learn/campaign-rules/campaign-
disclosure-manuals.html#title2. These reports are to be filed with the city clerk in the case of
city elections, and with the county clerk in the case of county, school district or special district
elections. If a district sprawls over county lines, its reports must be filed with the larger county’s
clerk. A number of cities and counties have enacted their own local campaign ordinances to
supplement state law. They are found at http://www.fppc.ca.gov/the-law/local-
ordinances.html.

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Political Contributors
Whose campaign contributions have been made to whom, and how much was given? This
information is required to be filed periodically by local candidates and committees. The various
reports required to be filed as public records (under the same access mandates as apply to the
Form 700s above) are described at http://www.fppc.ca.gov/transparency/form-700-filed-by-
public-officials.html. These reports are to be filed with the city clerk in the case of city elections,
and with the county clerk in the case of county, school district or special district elections. If a
district sprawls over county lines, its reports must be filed with the larger county’s clerk. A
number of cities and counties have enacted their own local campaign ordinances to supplement
state law.

Ethics Training
Under a law familiarly known as AB 1234, most elected local officials (but not school or
community college district trustees or members of a county board of education) who get paid for
their service are required to undergo periodic training in the ethics and open government laws
that pertain to them, and to publicly report when they have done so. They can take the training
through self-study—including online—but if the majority of members of a local body subject to
the Brown Act do so in a meeting, that meeting must be properly noticed and conducted in
public. Newly elected officials must complete their training no later than one year after their first
day of service in public office, and thereafter must complete a training course once in each
subsequent two-year period. The officials must maintain records that indicate both the dates of
training and the entity that provided the training. These records are disclosable public records
and must be available for five years after the training. 3

3. Performance Issues

Litigation Claims and Settlements


Accidents happen; miscommunications occur; unforeseen challenges arise. Government agencies
and officials are no more immune from plain bad luck than organizations and individuals in the
private sector. Some of these mishaps prompt legal claims and either litigation or settlement, and
while most of these situations may not result from faulty performance of duty, some of them
may. In any case the questions arise as to whether and how the accident, loss or other failure
could have been prevented, and even more importantly, what if anything is being done to prevent
a recurrence. In short, the contents of pre-litigation claims and litigation-avoiding settlements
can be telling indicators of how well a public agency has been performing, to what extent there
have been clusters of the same problems, and whether important lessons have been learned.

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Access to claim and settlement documents—both of which are public records—is discussed
above.

Audits and Grand Jury Reports


Pursuant to the following statutes, most local public agencies must have heir books audited
annually, with the audit reports available as public records:
Government Code §36525 (b) City Audits
Government Code §§26908.5, 26909 County and Special District Audits
Government Code §6505 Joint Powers Agency Audits
Education Code §35400 (f) L.A. School District Inspector General’s Reports
In addition, local agencies may be audited by the State Auditor and/or the State
Controller, and their operations reviewed and reported on by the county grand jury.

State Auditor
The State Auditor may open audits, based on whistleblower information or otherwise, into
improper governmental activity of the fraud, waste and abuse kind. Also, according to the State
Auditor’s website,
Recent legislation—AB 187, which went into effect in January 2012—permits the California State
Auditor to develop a high-risk local government agency audit program for the purpose of
identifying, auditing, and issuing reports on any local government agency, including a city,
county, special district, or other publicly created entity, that the State Auditor identifies as being
at high risk for waste, fraud, abuse, and mismanagement or as having major challenges
associated with its economy, efficiency, or effectiveness. However, any audit that the State Auditor
wishes to perform under this authority must be authorized by the Legislature's Joint Legislative
Audit Committee before it may move forward.
Because this legislation just recently took effect, the program still is being developed. Please
check back periodically for updates regarding the implementation of this program. As we
establish protocols for the program, we will post the information on our Web site.
Ordinary State Auditor investigative findings are posted at http://www.bsa.ca.gov/reports

State Controller
The State Controller’s Office conducts three types of local government audits:
• of local agencies’ reimbursement claims for state mandated costs, e.g. the Brown Act, at
http://tinyurl.com/qxfpldz;
• of local agencies generally, at http://tinyurl.com/pbknsxb; and
• “Special Reviews/Audits” into selected local problems, at http://tinyurl.com/l8bgkgq

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The Controller also conducts ongoing oversight of the adequacy of local school districts’
independent audits, to satisfy federal standards for acceptable accounting practices. The
resulting list of discrepancies by county and school district, called the “Entities with Reasons
Codes Report” is found at http://tinyurl.com/qh6wpue

Grand Juries
In addition to their relatively rarely exercised criminal investigative proceedings, California
grand juries inquire into the operations of local government agencies and issue findings and
recommendations in their annual reports. This watchdog function may be triggered by
suggestions from prior year grand juries or individual grand jurors, or from complaints or
concerns submitted by citizens. To find the most recent years’ final reports for your county,
Google: “_______ County Civil Grand Jury Final Report” or check your county grand jury’s
website at http://tinyurl.com/qaxjenq

4. Records Preservation and Destruction


The state laws and regulations below govern records retention schedules of California local
agencies. Records intentionally destroyed (or altered or removed) contrary to these laws may be
cause for criminal prosecution under Government Code §§6200-6201.
City Records Minimum Retention 2 Years: Government Code §34090 et seq.
County Records Minimum Retention 2 Years: Government Code §26202 et seq.
Community College
District Records Minimum Retention 3 Years Plus: Title 5 California Code of
Regulations, Division 6, Chapter 10, Subchapter 2.5, §59023 et seq.
School District Records Minimum Retention 3 Years Plus: Title 5, California Code of
Regulations, Division 1, Chapter 16, Subchapter 2, §16023 et seq.
Special District Records No Minimum Retention Period: Government Code §60201.


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MEETINGS AND RECORDS OF LOCAL COURT ADMINISTRATION


Check the full, up-to-date text of the law here

Introduction

Each of California’s 58 counties has a superior court for the trial of civil and criminal cases.
They range in size from the smallest, a two-judge court in Alpine County, to the largest single
unified trial court system in the nation, in Los Angeles County. Regardless of size, each superior
court has its own administrative routines, rules and procedures under the judicial branch
governance structure of the California Judicial Council and its executive arm, the Administrative
Office of the Courts.

Meetings
The larger superior courts have executive committees of judges that handle the housekeeping
decisions that keep the courtrooms staffed, supplied and running. Unlike their counterparts in
the non-judicial realm, however—the county boards of supervisors—these committees are not
subject to the Brown Act or any other open meeting statutes or court rules. But the recent
experience of Californians Aware in a survey is that the agendas and minutes of executive
committee meetings are accessible to the public under Rule of Court 10.500, discussed below.

Records
Access to the records of civil lawsuits and criminal prosecutions is presumed as a matter of
common law. But access to court administrative records is provided by California Rule of
Court 10.500.

What kinds of court administrative records are available?


The examples given in 10.500 (d) (2) are:
(A) Budget information submitted to the Administrative Office of the Courts after enactment of the
annual Budget Act;

(B) Any other budget and expenditure document pertaining to the administrative operation of the
courts, including quarterly financial statements and statements of revenue, expenditure, and
reserves;

(C) Actual and budgeted employee salary and benefit information;

(D) Copies of executed contracts with outside vendors and payment information and policies
concerning goods and services provided by outside vendors without an executed contract;

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(E) Final audit reports; and

(F) Employment contracts between judicial branch entities and their employees.

This list is not exhaustive. In addition to these items, for example, any documents or
information referred to in a superior court executive committee’s agenda or minutes (see above)
would be presumed accessible unless some exemption from disclosure applied.

What are the applicable exemptions from disclosure under Rule 10.500?
They are modeled on, and as a whole quite comparable to, those found in the California Public
Records Act, often stated in provisions that are verbatim duplicates of that law. While some
exemptions are stated in broader terms, there has been no litigation as of early 2013 interpreting
what the differences amount to in practice.

How do I make a request for court administrative records?


Each superior court is supposed to post the desired procedures on its website, but sometimes they
are a challenge to find. If nothing else, a letter that simply cites Rule 10.500 and spells out the
type of information being sought should suffice if addressed to the court executive officer.

Will I be charged a fee for copies?


You may, although for a sole or infrequent request, modest in scope, for records ready to hand,
the fee may be waived. Rule 10.500 (d) states:
Costs of duplication, search, and review

(A) A judicial branch entity, on request, must provide a copy of a judicial administrative record not
exempt from disclosure if the record is of a nature permitting copying, subject to payment of the
fee specified in this rule or other applicable statutory fee. A judicial branch entity may require
advance payment of any fee.

(B) A judicial branch entity may impose on all requests a fee reasonably calculated to cover the
judicial branch entity's direct costs of duplication of a record or of production of a record in an
electronic format under subdivision (i). The fee includes:

(i) A charge per page, per copy, or otherwise, as established and published by the Judicial
Council, or as established by the judicial branch entity following a notice and comment procedure
specified by the Judicial Council, representing the direct costs of equipment, supplies, and staff
time required to duplicate or produce the requested record; and

(ii) Any other direct costs of duplication or production, including, but not limited to, the costs
incurred by a judicial branch entity in retrieving the record from a remote storage facility or archive
and the costs of mailing responsive records.

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Finances, Performance and Integrity


As indicated above, the examples of records given in Rule 10.500 (d) (2) as subject to disclosure
include many if not most standard financial and organization performance accountability
measures. As for personal performance, Rule 10.500 (f) (7) exempts “records related to
evaluations of, complaints regarding, or investigations of justices, judges (including temporary
and assigned judges), subordinate judicial officers, and applicants or candidates for judicial
office . . .”
While there is no comparable exemption in the California Public Records Act, complaints against
judges are processed and adjudicated by the Commission on Judicial Performance, which is not
subject to these rules and which is required to keep raw complaints confidential until formal
proceedings, if any, commence. California Constitution Article 6, §18, subdivision (j).
Thereafter, this provision says, “the notice of charges, the answer, and all subsequent papers and
proceedings shall be open to the public for all formal proceedings.”
In addition, judges, court executive officers and other employees dealing with financial
matters are subject to the same requirements to file periodic statements of financial interests
(Form 700s) as non-judicial public officials. They can be requested either from the court itself or
the county clerk, and should be immediately available.


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Sample Brown Act Demand to Cease and Desist a Violation


(Intended not to overturn an action taken but to see that a practice is not repeated)

DATE

NAME AND TITLE OF CLERK OR SECRETARY TO THE LEGISLATIVE BODY


NAME OF AGENCY
STREET ADDRESS/PO BOX
CITY, CA, ZIP

RE: Demand to Cease and Desist: Ralph M. Brown Act (Government Code Section 54950 et
seq.)

Dear _______________,

This letter challenges a practice occurring in connection with the (date) meeting of the (name of
legislative body) of the (name of local agency) as a violation of the Brown Act, specifically
Government Code Section ____________. The practice in question was (describe act or
omission being alleged as a violation of the cited section).

In order to avoid the filing of an action against the (name of legislative body) for declaratory and
injunctive relief to confirm that the practice in question violated the Brown Act and to order it
not to be repeated, and for the recovery of any attorney fees and costs incurred in such litigation,
I demand that the (name of the presiding officer of legislative body), within 30 days of the
receipt of this letter and in conformity with Government Code Section 54960.2, subdivision (c),
inform me of the (name of legislative body’s) unconditional commitment to cease, desist from,
and not repeat the practice herein challenged as a violation of the Act.

Very Truly Yours,

__________________
Postal Address
E-mail Address
Phone Number

cc: Legal counsel for local agency

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Sample Brown Act Demand to Cure/Correct a Violation


(Intended to overturn an action taken)

DATE

NAME OF AGENCY
STREET ADDRESS/PO BOX
CITY, CA, ZIP

RE: Demand for Cure and Correction: Ralph M. Brown Act (Government Code Section 54950 et
seq.)

Dear _______________,

A substantial violation of a central provision of the Ralph M. Brown Act may, unless cured and
corrected, jeopardize the finality of the action taken by the (name of legislative body) of the
(name of local agency).

On (date) the (name of legislative body) took action by (description of action taken).

That action was not in compliance with the Brown Act because (Violation Option 1: it occurred
as the culmination of a discussion unlawfully held in closed session); (Violation Option 2: it was
the result of one or more non-public serial meetings or discussions of a majority of the members
of the (name of legislative body); and/or (Violation Option 3: while occurring in an open and
public meeting, there was no adequate notice to the public on the posted agenda for the meeting
that the matter acted upon would be discussed, and there was no finding of fact made by the
body that urgent action was needed on a matter unforeseen when the agenda was posted).

Government Code Section 54952.6 defines "action taken" for the purposes of the Act
expansively, i.e. as "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 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."

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Pursuant to Government Code Section 54960.1, I demand that the (name of legislative body)
cure and correct the unlawfully taken action by (Correction Option 1: rescinding the action
taken, with notice to all immediately affected persons, and providing me, and any other person
on request, copies of all documents prepared for or distributed in the unlawful closed session/
serial meeting) and/or (Correction Option 2: rescinding the action taken, with notice to all
immediately affected persons, and if the matter is rescheduled for a future meeting, providing
adequate description of the matter on that meeting’s agenda).

Government Code Section 54960.1 allows you 30 days from the receipt of this demand to either
cure or correct the challenged action or inform me of your decision not to do so. If you fail to
cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial
invalidation of the challenged action pursuant to Section 54960.1, in which case I would seek the
award of court costs and reasonable attorney fees pursuant to Section 54960.5.

Very Truly Yours,

__________________

Postal Address
E-mail Address
Phone Number

cc: Legal counsel for local agency


Name of individual or organization awarded any contract as the result of the challenged
action, if applicable


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Sample Public Records Act Request

DATE

NAME AND TITLE


AGENCY
STREET ADDRESS/PO BOX
CITY, CA, ZIP

RE: Request pursuant to California Public Records Act (Government Code Section 6250 et seq.)

Dear ____________________,

This letter is to request (to inspect/obtain a copy of) _______

As you probably know, the following legal rules apply to this request.

Prompt Disclosure: Government Code Section 6253 (b), (d)


Records not exempt from disclosure are to be made “promptly available.” No provision of the
CPRA, including the response periods noted below, “shall be construed to permit an agency to
delay or obstruct the inspection or copying of public records.”

Deadlines: Government Code Section 6253 (c)


You are required “promptly” and in no case more than 10 calendar days from the date of this
request, to determine, and inform me in writing, whether you are going to decline all or part of
the request, and the law(s) that you are relying on, unless within that period you notify me in
writing that you intend to take up to an additional 14 days to make the determination because of
your need:
* to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request;er agency having
substantial interest in the determination of the request or among two or mo
* to search for, collect, and appropriately examine a voluminous amount of separate and
distinct records that are demanded in a single request;
* for consultation, which shall be conducted with all practicable speed, with another
components of the agency having substantial subject matter interest therein; or

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* to compile data, to write programming language or a computer program, or to construct


a computer report to extract data.
Your notice must set forth “the reasons for the extension and the date on which a
determination is expected to be dispatched.” If you determine that any of the records I have
requested are disclosable, your written notice must “state the estimated date and time when the
records will be made available.”

Constitutional Rule of Interpretation: Article I, Section 3 (b)


The California Constitution requires that the Public Records Act “shall be broadly construed if it
furthers the people's right of access, and narrowly construed if it limits the right of access.” This
rule must be heeded in interpreting any exemptions from disclosure you believe to be applicable.

Fees: Government Code Section 6253 (b)


For copying you may charge only a fee “covering direct costs of duplication, or a statutory fee if
applicable.” “The direct cost of duplication is the cost of running the copy machine, and
conceivably also the expense of the person operating it. ‘Direct cost’ does not include the
ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from
which the copy is extracted. North County Parents Organization v. Department of Education, 23
Cal.App.4th 144, 148 (1994).

Thank you for your prompt attention to this request. Please contact me using the information
below if you need further clarification.

Very Truly Yours,

__________________

Postal Address
E-mail Address
Phone Number

cc: Legal counsel for local agency

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