FOREWORD

California's Constitutional Sunshine Amendment: On November 2, 2004, California voters overwhelmingly approved Proposition 59, an amendment to California's Constitution that elevated the public's right of access to public records and public meetings to constitutional stature. This amendment, set forth in Article I, Section 3(b) of the California Constitution, and commonly called the Sunshine Amendment, declares: "The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." Cal. Const. Art. I, § 3(b); see appendix for full text of the Sunshine Amendment.

The Sunshine Amendment accomplishes many things. First, it firmly establishes a fundamental constitutional right for people to scrutinize what their government is doing by mandating access to government records and meetings of government bodies. By elevating the right of access to constitutional statute, all newly enacted state laws and administrative regulations must conform to the Sunshine Amendment's provisions. Practically speaking, it brings more weight to the public's right of access because it leaves no doubt as to the importance of access to the people of California and consequently renders ineffective the assertion that access in a particular case serves no public purpose — a claim often asserted by government agencies to defeat access. Similarly, it strengthens the case for access in particular cases where under existing statutory exemptions records can be withheld when the public's interest in non-disclosure clearly outweighs the public's interest in disclosure. See Cal. Gov't Code § 6255. This is so because most interests in non-disclosure are not constitutionally based and thus will be of significantly less importance when weighed against a now-constitutional right of access.

Second, unlike statutory rights of access under California's Public Records Act and The Ralph M. Brown Act, the Sunshine Amendment applies not just to the executive branch of government but to the judicial and legislative branches as well. While the Amendment expressly reserves existing protections for proceedings and records of the Legislature and rules adopted in furtherance of those protections, and maintains all other preexisting constitutional and statutory exemptions to the right of access to public records and meetings, these branches of government are now within the mantle of the public's constitutional right of access. In practice, what new rights of access this may bring remains to be determined, but arguably the right would include access to records and meetings of both the Legislature and the Judiciary not currently exempt from disclosure under existing authority.

Third, the Sunshine Amendment requires that statutes, court rules or other authority be construed broadly when they further the public's right of access and be construed narrowly when they limit the right of access — rules of construction from which many courts have strayed in recent years to the detriment of open government. Cal. Const. Art. I, § 3(b)(2).

Fourth, in adopting new laws, court rules or other authority that limit the right of access, public bodies must now make express findings demonstrating the interest purportedly protected and the need for protecting that interest. Id. Thus, the adoption of agency rules and regulations, for example, intended to impede public access will no longer be allowed on the whim of the agency's governing body but will require actual on-the-record findings demonstrating the need for secrecy and demonstrating how the exemption will achieve that need — findings similar to that required by a court before sealing a court record or closing a court proceeding.

Lastly, the Sunshine Amendment leaves intact the right of privacy guaranteed by the constitution by clarifying that it does not supersede or modify the existing constitutional right of privacy. And, disconcerting for proponents of access, the Amendment expressly does not affect existing statutory protections afforded peace officers over information concerning their official performance or professional qualifications. Id., § 3(b)(3).

Practically speaking, politicians have taken notice of the overwhelming voter support for the Amendment. Former California Governor Arnold Schwarzenegger, for example, reversed a long-standing trend of withholding the governor's daily calendars under a claim of deliberative process, by complying with a post-Amendment request for his daily calendars. See: www.cfac.org/Attachments/governor_calendars.htm

Nevertheless, the practical effect of the Sunshine Amendment to those seeking access to public records and public meetings likely will be resolved by the courts on a case-by-case basis. Throughout this chapter of the Open Government Guide, we attempt to note where the Amendment may change or enhance existing law.

California Public Records Act: California Government Code Sections 6250 through 6276.48 comprise the California Public Records Act ("CPRA"). In enacting the CPRA the Legislature expressly declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov't Code § 6250. Indeed, in California "access to government records has been deemed a fundamental interest of citizenship." International Federation of Professional and Technical Eng. v. Superior Court, 42 Cal. 4th 319, 328, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007) (“Int’l Federation”) (quoting CBS Inc. v. Block, 42 Cal. 3d 646, 652 n.5, 230 Cal. Rptr. 362, 725 P. 2d 470 (1986)). By promoting prompt public access to government records, the CPRA is "intended to safeguard the accountability of government to the public." Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 901, 205 Cal. Rptr. 92 (1984). As the California Supreme Court recognized in Int’l Federation:

Implicit in a democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.

Id. at 328-29 (quoting Block, 42 Cal. 3d at 651). The Court has emphasized that "maximum disclosure of the conduct of governmental operations [is] to be promoted by the act." Block, 42 Cal. 3d at 651-52 (emphasis added).

In accordance with this policy, public records are broadly defined to include "any writing containing information relating to the conduct of a public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristic[.]" Cal. Gov't Code § 6252(e). Citing with approval an even broader definition of public records adopted by the California Attorney General, another court has stated:

This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to 'the conduct of the public's business' could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.

San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 774, 192 Cal. Rptr. 415 (1983) (internal citations omitted); see also Versaci v. Superior Court, 127 Cal. App. 4th 805, 813, 26 Cal. Rptr. 3d 92 (2005)(quoting Coronado Police Officers Ass'n v. Carroll, 106 Cal. App. 4th 1001, 1006, 131 Cal. Rptr. 2d 553 (2003)(citing with approval same definition)).

Moreover, unless the public records of a local agency are exempt from the provisions of the CPRA, they must be made available for public inspection. Int’l Federation, 42 Cal. 4th at 329; Commission on Peace Officer Standards and Training, 42 Cal. 4th 278, 288, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007); Williams v. Superior Court, 5 Cal. 4th 337, 346, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993). Exemptions must be narrowly construed and the public agency bears the burden of proving that an exemption applies. BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755, 49 Cal. Rptr. 3d 519 (2006); Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004); Cal. State Univ. v. Superior Court, 90 Cal.App.4th 810, 831, 108 Cal. Rptr. 2d 870 (2001); see also Lorig v. Medical Bd., 78 Cal. App. 4th 462, 467, 92 Cal. Rptr. 2d 862 (2000); County of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 825, 98 Cal. Rptr. 2d 564 (2000).

Because the CPRA was modeled after the federal Freedom of Information Act ("FOIA"), 5 U.S.C. Section 552 et seq., courts may look to case law under FOIA in construing the CPRA.  See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991); American Civil Liberties Union Foundation v. Deukmejian, 32 Cal. 3d 440, 447, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); but see Williams, 5 Cal. 4th at 348-54 (holding that CPRA's exemption for law enforcement investigatory records did not incorporate FOIA criteria and thus courts cannot look to FOIA cases to interpret Section 6254(f) of the CPRA, but must look to the statutory language of the CPRA provision to construe the statute).

Most of the exemptions under the CPRA are set forth under Section 6254 and are specific to certain records or types of records, but under Section 6255 a general exemption exists where, on the facts of the particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Cal. Gov't Code § 6255 (commonly called the "catch all" exemption). In reviewing the propriety of an agency decision to withhold records, a court is charged with ascertaining whether nondisclosure was justified under either of these statutes. Cal. Gov't Code § 6259(b).

To facilitate prompt public access to public records, court orders either directing disclosure of public records or supporting an agency's decision of nondisclosure are immediately reviewable by an appellate court by way of an emergency petition seeking issuance of an extraordinary writ. Cal. Gov't Code § 6259(c). In 1991, the California Supreme Court made clear that under this writ procedure, trial court orders are reviewable on their merits. Times Mirror Co., 53 Cal. 3d at 1336; see also State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1185, 13 Cal. Rptr. 2d 342 (1992)(echoing the decision in Times Mirror and stating that the scope of review by a writ of review is equivalent with the scope of review on appeal). Thus, when a trial court order under the CPRA is reviewed by an appellate court, the independent review standard is employed for legal issues and factual findings made by the trial court will be upheld if they are based on substantial evidence. Times Mirror Co., 53 Cal. 3d at 1336 (citing Block, 42 Cal. 3d at 650-51).

Court Administrative Records: Effective January 1, 2010, the Judicial Council of California approved new Rules of Court (10.500 et. seq.) that set forth a comprehensive scheme much like that of the CPRA for access to non-adjudicative administrative records of the state trial and appellate courts, the Judicial Council, and the Administrative Office of the Courts.  "‘Judicial administrative record’ means any writing containing information relating to the conduct of the people's business that is prepared, owned, used, or retained by a judicial branch entity regardless of the writing's physical form or characteristics, except an adjudicative record. The term ‘judicial administrative record’ does not include records of a personal nature that are not used in or do not relate to the people's business, such as personal notes, memoranda, electronic mail, calendar entries, and records of Internet use.” Cal. R. Ct. 10.500 (c)(2). Like the CPRA, judicial administrative records, such as budget and management information relating to the administration of the courts, are open to the public unless specifically exempt.  Cal. R. Ct. 10.500 (e)(1)(A). The Rules contain similar exemptions as under the CPRA, such as those for personnel, medical and similar records, and adopts other exemptions unique to the specific functions of the judicial branch.  The Rules require a determination as to whether the records will be made available within 10 calendar days of the request and, if disclosable, that they thereafter be made available promptly.  Cal. R. Ct. 10.500 (e)(6) & (7). Generally, the Rules allow for the recovery of the direct cost of duplication, but if records are intended for commercial purposes, the Rules allow for recovery of search and review costs as well.  Cal. R. Ct. 10.500 (e)(4). Similar to the fee recovery provisions pertaining to electronic records under the CPRA, the Rules allow for recovery of the direct cost of producing an electronic record, including computer programming, when the record is not one produced by the judicial branch at regularly scheduled intervals or its production requires data compilation or extraction, or related programming, not otherwise required under the Rules. Cal. R. Ct. 10.500 (i)(2). The Rules are enforceable under the writ procedures available for enforcing access to records under the CPRA.  Cal. R. Ct. 10.500 (j)(2).  Alternatively, they are enforceable under the writ procedures of Rule 10.803, which allow for expedited review of the petition by a hearing judge selected from a panel of appellate court justice.  The justice selected to hear the matter in the superior court must be from a judicial district other than one in which the dispute arises.  Cal. R. Ct. 10.803.  As under the CPRA, reasonable attorneys’ fees and costs are recoverable to a prevailing plaintiff.  Cal. R. Ct. 10.500 (j)(6).

Open Meetings: The law in California pertaining to open meetings is set forth in three Acts, namely, the Ralph M. Brown Act ("Brown Act"), found at Sections 54950 through 54963 of the California Government Code, the Bagley-Keene Open Meeting Act ("Bagley-Keene Act"), found at Sections 11120 through 11132 of the California Government Code, and the open meeting provisions governing the State's legislative branch, found at Sections 9027 through 9031 of the California Government Code.

The Brown Act was enacted into law in 1953 to require open meetings of local agencies and "to curb misuse of the democratic process by secret legislation of public bodies." Epstein v. Hollywood Entertainment Dist. II Business Improvement Dist., 87 Cal. App. 4th 862, 867, 104 Cal. Rptr. 2d 857 (2001). The Act declares, in part:

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

Cal. Gov't Code § 54950. As stated by one court, "[i]t is clearly the public policy of this State that the proceedings of public agencies, and the conduct of the public's business, shall take place at open meetings, and that the deliberative process by which decisions related to the public's business shall be conducted in full view of the public." Epstein, 87 Cal. App. 4th at 867; see also Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555, 35 Cal Rptr. 2d 782 (1994). The Act applies to "local agencies," defined in Section 54951 as "a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency." Cal. Gov't Code § 54950.

Under the Act, "[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter." Cal. Gov't Code § 54953(a). A "meeting" includes "any congregation of a majority of the members of a legislative body 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." Cal. Gov't Code § 54952.2(a). The Act extends to a legislative body's "informal sessions or conferences," even if no vote is taken. Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal. App. 2d 41, 47, 69 Cal Rptr. 480 (1968). As explained, the Act includes "deliberation as well as action" because "deliberation and action [are] dual components of the collective decision-making process . . . ." Id. at 51.

The Act contains specific exemptions from the open meetings requirements, but these exemptions must be narrowly construed and if a specific statutory exemption does not exist, the matter must be conducted in public regardless of its sensitivity. Cal. Gov't Code § 54962. These specific provisions primarily concern real property acquisitions, pending litigation, personnel matters and labor negotiations. Cal. Gov't Code §§ 54956.8, 54956.9, 54957, 54957.6. Importantly, the Act sets forth the minimum access that is required by law. Local agencies are free to "allow greater access to their meetings than prescribed by the minimal standards set forth in [the Act]." Cal. Gov't Code § 54953.7.

In keeping with the Act's open meetings provisions, the Act contains, among other things, provisions governing when meetings must be noticed and when agendas must be prepared. Cal. Gov't Code §§ 54954, 54954.2. Additionally, before or during consideration of each agenda item, the public must be given an opportunity to comment on the item. Cal. Gov't Code § 54954.3(a). The Act prohibits agencies from requiring members of the public, as a condition to attendance, to register his or her name, provide other information, or "otherwise to fulfill any condition precedent to his or her attendance." Cal. Gov't Code § 54953.3. And, members of the public attending public meetings have the right to record the proceedings with audio or video tape recorders or still or motion picture cameras unless the agency finds that such recordings amount to a "persistent disruption of the proceedings." Cal. Gov't Code § 54953.5(a).

The Act contains provisions for civil remedies and criminal misdemeanor penalties for certain violations. Cal. Gov't Code §§ 54960, 54960, 54960.1. The nature of civil proceedings are two-fold: (1) actions to stop or prevent violations or threatened violations of the Act; and, (2) actions to void action taken by a legislative body in violation of certain provisions of the Act. Cal. Gov't Code §§ 54960 and 54960.1, respectively. Actions to void actions taken in violation of specified provisions of the Act require that the interested party first make a written demand to the local agency to cure or correct the action alleged to have been taken in violation the Act. Cal. Gov't Code § 54960.1(b). In civil actions, the Act allows for the recovery of costs and reasonable attorneys' fees. Cal. Gov't Code § 54960.5.

The Bagley-Keene Act was enacted in 1967 to extend the basic concept of the Brown Act to "state bodies." This Act contains many parallel provisions as are in the Brown Act. Except as otherwise exempted, state bodies means "every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order." Cal. Gov't Code § 11121(a). Specific bodies are excluded from this definition at Section 11121.1. With respect to the public higher education systems in California, the Bagley-Keene Act applies to meetings of the governing boards of community colleges, state universities and the Regents of the University of California, and meetings of these bodies must be open to the public. Meetings are defined as they are in the Brown Act, with varying notice provisions. Cal. Gov't Code § 11122.5(a). Closed sessions are authorized on, among other topics, specified personnel matters, real property negotiations with negotiator, labor negotiations and pending litigation. Cal. Gov't Code § 11126. The Bagley-Keene Act contains similar enforcement provisions as in the Brown Act except that under the Bagley-Keene Act actions may be brought to declare purely past actions in violation of the Act, not just actions to prevent ongoing or threatened violations of the Act. Cal. Gov't Code § 11130(a); compare Cal. Gov't Code § 54960. And, under the Bagley-Keene Act, there is no need to serve a demand to cure before seeking to nullify action taken by state bodies. Cal. Gov't Code § 11130.3(a); compare Cal. Gov't Code § 54960.1(b).

In 1973, the California Legislature enacted the Grunsky-Burton Open Meeting Act, Sections 9027 of the Government Code, which provides that all meetings of the Senate and Assembly and the committees, subcommittees and conference committees were to be "conducted openly" so that the public may remain informed. That section was repealed in 1984 and replaced with Section 9926 of the Legislative Reform Act of 1983. In 1989, those provisions were repealed and replaced with similar provisions which can be found again at Sections 9027 through 9031, inclusive, of the Government Code. Because of their relatively simple language, scope and application, those provisions will be given limited attention in this outline.

This forward was written by Duffy Carolan.