Community Watchdog Guide PDF

The CalAware Guide

COMMUNITY

WATCHDOG An Investigative Checklist

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 elected and appointed leaders 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 certain 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 rules 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 free of downright criminal leadership, using this checklist will 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 alert citizens generally.

For help with this checklist, report any resistance you encounter to [email protected]

mailto:[email protected]


CONTENTS

In digital version, click the page number to go there

Meetings of Local Government Bodies and the Brown Act! 7

.........................................................................The Basics: Frequently Asked Questions! 7

.......................................................................................What is the Ralph M. Brown Act?! 7

...............Which local government “legislative bodies” does the Brown Act apply to?! 7

...............................................................When is there a “meeting” covered by the Act?! 7

.......................................................................Does the Act allow out-of-town meetings?! 8

....................................................Can the meeting place be relocated for emergencies?! 9

..................................................How must Brown Act bodies publicize their meetings?! 9

...........What notice of meetings is required for meetings held on a regular schedule?! 9

...................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?! 10

When can the one-hour notice to the press of an emergency meeting be ......................................................................................................................disregarded?! 10

.................................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 any matter?! 11

................................May the body forbid comment on certain matters by the public?! 11

.................................................What topics may the body address in closed session?! 11

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What “personnel” matters does the Act permit the body to discuss in closed .............................................................................................................................session?! 11

When must an agency employee be alerted concerning a closed session about him or .....................................................................................................................................her?! 12

Besides personnel discussions, what are the other most frequent bases for closed ............................................................................................................................sessions?! 13

...........................................Are there limits on the pending litigation closed session?! 13

.........................................Are there limits on a property negotiation closed session?! 13

......................................Are there limits on an employee bargaining closed session?! 13

.....Must any disclosures be made about closed sessions beforehand or afterward?! 14

.........When the Brown Act is violated, what kind of court enforcement is available?! 14

Can the plaintiff who wins a Brown Act case recover the attorney’s fees expended?!15

.................................Is a knowing and deliberate violation of the Brown Act a crime?! 15

.............................................................Beyond the Basics: What to Watch and Ask for! 15

...................................................................................................1. “Ad Hoc” Committees! 15

..............................................................................2. Meetings off the Regular Schedule! 16

............................................................................................................a. Special Meetings! 16

.....................................................................................................b. Emergency Meetings! 16

............................................................3. Background Records Distributed to the Body! 16

..............................................................................................................4. Serial Briefings! 17

............................................................................................................5. Closed Sessions! 17

.........................................................................................................................a. Litigation! 18

...............................................................................................Disclosure of Action Taken! 20

....................................................................................................................b. “Personnel”! 20

................................................................................c. Employee Bargaining and Raises! 22

.................................................................................................................d. Real Property! 24

...............Access to Government Files and the Public Records Act! 26

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.......................................................................The Basics: Frequently Asked Questions! 26

....................................................................What is the California Public Records Act?! 26

.........Does the CPRA apply to all important records in state and local government?! 26

.Must I have a “need to know” in order to have access to records under the CPRA?!26

.........................................................Must I make my CPRA access request in writing?! 27

....................................................Must I identify myself in making an access request?! 27

..............................................Must I reveal my purpose in making an access request?! 27

.............................................................How well must I describe what I’m looking for?! 27

.........................................Can I require the agency to compile a list or write a report?! 28

...................................................Must the agency help me make an effective request?! 28

................................................What can I be charged a fee for: Inspection? Copying?! 28

.................................................................How soon must my request get a response?! 29

Does an exemption from disclosure mean that the agency can’t provide me with ...............................................................................................................................access?! 29

........May the agency provide public access to certain favored persons but not me?! 30

.................................................If part of a record is exempt, may all of it be withheld?! 30

................................................Are draft documents exempt from disclosure as such?! 31

......................................................Are litigation-related records exempt permanently?! 31

.....................What kind of information can be withheld to protect personal privacy?! 31

..................Are the exact earnings of named government workers public or private?! 31

....................Are complaints about and discipline of public employees confidential?! 32

.....................What about access to police and sheriff’s officers’ personnel records?! 32

................................Which law enforcement information is exempt from disclosure?! 32

Must I sign something or provide credentials to get access to law enforcement .......................................................................................................................information?! 33

...........Are the CPRA exemptions the only legal bases for withholding information?! 34

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..Can a record be withheld if it is not made expressly confidential by some statute?! 34

....................................................................What is the deliberative process privilege?! 34

.............................................................Beyond the Basics: What to Watch and Ask for! 35

.................................................................................................................1. Money Issues! 35

..................................................................................................a. Employment Contracts! 36

..............................................................................................................................b. Loans! 36

..............................................................c. Credit Cards and Expense Reimbursements! 36

.............................................................d. Merchandise and Service Contracts; Leases! 37

..........................................................................................e. Check or Warrant Registers! 37

...................................................................................................................Integrity Issues! 37

........................................................................................................a. Economic Interests! 37

....................................................................................................b. Political Contributors! 38

...............................................................................................................c. Ethics Training! 38

...........................................................................................................Performance Issues! 38

...............................................................................a. Litigation Claims and Settlements! 38

...................................................................................b. Audits and Grand Jury Reports! 38

..................................................................................................................c. State Auditor! 39

..............................................................................................................d. State Controller! 39

...................................................................................................................e. Grand Juries! 39

............................................................................Records Preservation and Destruction! 40

.......................................................................................................................City Records! 40

..............County Records Minimum Retention Two Years: Gov’t Code §26202 et seq.! 40

..............................................................................Community College District Records! 40

....................................................................................................School District Records! 40

....................................................................................................Special District Records! 40

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.....................Meetings and Records of Local Court Administration! 41

........................................................................................................................Introduction! 41

.............................................................................................................................Meetings! 41

...............................................................................................................................Records! 41

...........................What kinds of administrative records are available under the Rule?! 41

..................What are the applicable exemptions from disclosure under Rule 10.500?! 42

.........................................How do I make a request for court administrative records?! 42

...................................................................................Will I be charged a fee for copies?! 42

........................................................................Costs of duplication, search, and review! 42

...............................................................................Finances, Performance and Integrity! 42

.............................Sample Brown Act Demand to Cease and Desist! 44

..................Sample Brown Act Demand to Cure/Correct a Violation! 45

.................................................Sample Public Records Act Request! 47

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Meetings of Local Government Bodies and the Brown Act

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.

Which local government “legislative bodies” does the Brown Act apply to?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). Gov’t 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 members are selected or 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 Gov’t 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 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.” Gov’t 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).

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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;

• 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. Gov’t Code §54954, subdivision (b), paragraphs (1)-(5).

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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. Gov’t Code §54954 (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 72 hours in advance. The Attorney General has concluded that Gov’t 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 previously, 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.

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. Gov’t 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. 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 . . . 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 . . . The written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. Gov’t Code §54956.

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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 and provided phone numbers to be used 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 Gov’t 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. Gov’t Code §54956.5.

When can the one-hour notice to the press of an emergency meeting be disregarded?If the topic is a “dire” emergency, defined as being caused by criminal or terrorist activity, the meeting may convene as soon 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. Gov’t Code §54957.5.

Must the body allow public comment at regular meetings?Yes. Gov’t 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

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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. Section 54954.3, subdivision (a).

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.” Section §54954.3, subdivision (a).

May the body limit the time allowed for public comment?Yes. 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 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 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).

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 does the Act permit the body to 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. Gov’t Code §54957 states, in pertinent part:

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(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.

When must an agency employee be alerted concerning 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 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.”

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Besides personnel discussions, what are the other most frequent bases for 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 employee 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 power to hold a closed session on pending litigation is confined 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. Gov’t Code §54956.9. And it may not take action in the 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 a 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. Gov’t Code §54956.8. 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). Although it does not represent binding precedent, the Los Angeles County Superior Court concluded in a 2013 decision that, as previously concluded the Attorney General in a published opinion, “terms of payment” refers to the form and timing in which payment is to be made, and not the terms of the transaction generally, or related matters that may influence the price.

Are there limits on an 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. Gov’t Code §54957.6.

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Must any disclosures be made about closed sessions beforehand or afterward?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 Gov’t 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 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. Gov’t Code §54957.1.

When the Brown Act is violated, what kind of court enforcement is available?The remedies vary depending on the kind of violation or its consequences. 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 is 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. 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. 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. Gov’t 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. In any event no one has standing to sue who actually knew about the item at least 72 hours before the meeting at

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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). Gov’t Code §54960.1.

Can the plaintiff who wins a Brown Act case recover the attorney’s fees expended?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. Gov’t Code §54960.5.

Is a knowing and deliberate violation of the Brown Act a crime?Yes. Gov’t 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.”

Beyond the Basics: What to Watch and Ask for

1. “Ad Hoc” CommitteesThe 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.

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And if the body is truly ad hoc in terms of a short-term specific assignment, remind the agency 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 ScheduleSome 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 MeetingsSpecial 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 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 MeetingsThese 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 to hear reports from law enforcement officials on threats to public access to public facilities, e.g. bomb threats, and plans to deal with them.

3. Background Records Distributed to the BodyIn general the CPRA gives public agencies up to 10 days to make a determination and inform the

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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 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. Or such information may be batched in once-a week staff reports. 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 BriefingsLocal 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 “those 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.

5. Closed SessionsThe most frequently occurring closed sessions signal information 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 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

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

CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATIONSubdivision (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.

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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:

a. An accident, incident or contract mishap has occurred that may well lead to a lawsuit, when 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.

b. An accident, incident or contract dispute—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.

c. 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 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.

d. Someone from the audience 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).

e. 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 are already public.

Suggestion: Two overall points: The first: Ask, ask, ask. Don’t wait to be offered the documentation you’re entitled to under 2 and 4 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.

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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.

Disclosure of Action TakenAfter 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.

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.

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.

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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. 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.

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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 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 RaisesThe 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.

CONFERENCE WITH LABOR NEGOTIATORSAgency 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

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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.

CONFERENCE WITH LABOR NEGOTIATORSAgency 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

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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 PropertyAs 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

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. No court has ruled on this broad interpretation, although 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.

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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).

More recently the Los Angeles Superior Court agreed with the opinion in concluding that the Los Angeles Memorial Coliseum Commission had violated the Brown Act by discussing all manner of issues apart from terms of payment in a series of closed sessions.

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 .

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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Access to Government Files and the Public Records Act

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, which lists the FOIA web pages of many federal departments and agencies

• a Department of Justice listing of reference materials produced by itself and others • a FOIA guide developed by the Reporter’s 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, Gov’t 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 a public agency that funds them. Gov’t Code §6252, subdivision (b). Must I have a “need to know” in order to have access to records under the CPRA?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 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.

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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 page 50.

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 (Gov’t Code §6254.2) or seeking the addresses of persons arrested or crime victims (Gov’t 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 initiative. 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 Gov’t Code §6257.5: “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.

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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 Gov’t 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. Gov’t 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.

(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.

If the agency has an index to its records and makes it available, no further help in refining the request is required.

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 OpsCal.Atty.Gen. 225 (2002).

The general rule in Gov’t 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

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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. Gov’t 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 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 mean that the agency can’t provide me with access?Not usually. The main exemption section in the Act, for example—Gov’t 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

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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, any limitation on access must be read as allowing the agency discretion to provide it.

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. Gov’t 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:

• of records about a person to that person, as required under the Information Practices Act (a privacy law found in Civil Code Section 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”;

• 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 all of it be withheld?Not usually. Under Gov’t 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).

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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. Gov’t 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 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. Gov’t 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.” Gov’t 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. For example, when a public 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 Gov’t 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

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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 allowed to resign 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 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 Gov’t 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).

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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 information disclosure mandate is just that—it does not require providing inspection or copies of original law enforcement records themselves, but rather some form of access to specified information from those records. In terms of time, it applies at least with respect to “contemporaneous police activity,” although months oryears 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). The facts that must be disclosed pursuant to Gov’t 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 . . .

Must I sign something or provide credentials to get access to law enforcement 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 Gov’t 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).

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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 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. Gov’t 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 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 made expressly confidential by some statute?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.” Gov’t 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 to discuss policy options freely and frankly in the course of developinga 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:

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• 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. CFAC 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 appointment, 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 create a high hurdle for restrictions on your right to information, requiring a clear demonstration of the need for any new limitation. It will permit the courts to limit or eliminate laws that don't clear that hurdle. It will allow the public to see and understand the deliberative process through which decisions are made. (Emphasis added)

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 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.

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a. Employment ContractsOnly the top employees in local government are hired 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 at http:// www.sco.ca.gov/compensation_search.html.

b. LoansAlthough 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 ReimbursementsWhether 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.

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

public 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.

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http://www.sco.ca.gov/compensation_search.html

http://www.sco.ca.gov/compensation_search.html



d. Merchandise and Service Contracts; LeasesThese 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 RegistersThese 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

a. Economic InterestsAre 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. For detailed explanations of the officials’ disclosure obligations, see this pamphlet.

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http://www.fppc.ca.gov/forms/700-13-14/RefPamphlet13-14.pdf

http://www.fppc.ca.gov/forms/700-13-14/RefPamphlet13-14.pdf



b. Political ContributorsWhose 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 here.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 here.

c. Ethics TrainingUnder 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.

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

b. Audits and Grand Jury ReportsPursuant to the following statutes, most local public agencies must have their books audited annually, with the audit reports available as public records.

Cities: Government Code Section 36525 (b) Counties and Special Districts: Government Code Sections 26908.5, 26909 Joint Powers Agencies: Government Code Section 6505L.A. Unified School District Inspector General’s Reports: Education Code Section 35400 (f)

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http://www.fppc.ca.gov/manuals/manual2local.pdf

http://www.fppc.ca.gov/manuals/manual2local.pdf

http://www.fppc.ca.gov/%5C/index.php?id=9

http://www.fppc.ca.gov/%5C/index.php?id=9



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.

c. State AuditorThe 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 here.

d. State ControllerThe State Controller’s Office conducts three types of local government audits:

• of local agencies’ reimbursement claims for state mandated costs;

• • of local agencies generally, “Special Reviews/Audits” into selected local problems.

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”.

e. Grand JuriesIn 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://www.cgja.org/county-grand-jury-websites.

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http://www.bsa.ca.gov/reports/

http://www.bsa.ca.gov/reports/

http://www.sco.ca.gov/serp.html?q=audit+finding%20+follow+up&cx=001779225245372747843:jzcl_x9eh9w&cof=FORID:10&ie=UTF-8

http://www.sco.ca.gov/serp.html?q=audit+finding%20+follow+up&cx=001779225245372747843:jzcl_x9eh9w&cof=FORID:10&ie=UTF-8

http://www.sco.ca.gov/Files-AUD/entitieswithreasoncodes.pdf




http://www.cgja.org/county-grand-jury-websites






Records Preservation and DestructionThe 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 Gov’t Code §§6200-6201.

City RecordsMinimum Retention Two Years: Gov’t Code §34090 et seq.

County RecordsMinimum Retention Two Years: Gov’t Code §26202 et seq.

Community College District RecordsMinimum Retention Three Years Plus: Title 5 California Code of Regulations, Division 6, Chapter 10, Subchapter 2.5, §59023 et seq.

School District RecordsMinimum Retention Three Years Plus: Title 5, California Code of Regulations, Division 1, Chapter 16, Subchapter 2, §16023 et seq.

Special District RecordsNo Minimum Retention Period: Gov’t Code §60201

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Meetings and Records of Local Court AdministrationIntroductionEach 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.

MeetingsThe 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.

RecordsAccess 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 administrative records are available under the Rule?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;

Final audit reports; and

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.

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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 2014 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.

Finances, Performance and IntegrityAs 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

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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. The 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 !(Not intended to overturn an action taken but to force abandonment of a practic)

DATE

NAME AND TITLE OF CLERK OR SECRETARY TO THE LEGISLATIVE BODY NAME OF AGENCYSTREET ADDRESS/PO BOXCITY, 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 AddressE-mail AddressPhone 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 xmeeting agenda 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 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."

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.

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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 AGENCYSTREET 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;

* 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 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; or

* 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.”

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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

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