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California

Open Government Guide

Author

Duffy Carolan
Jassy Vick Carolan LLP

601 Montgomery Street, Suite 850
San Francisco, CA 94111
(415) 539-3399
dcarolan@jassyvick.com

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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. See Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch records). 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.

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). See Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (where terms are ambiguous the Sunshine Amendment requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided otherwise); see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 617, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017).

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. Cal. Const. Art. I, § 3(b)(2). 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).

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 general, the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” Sander, 58 Cal. 4th 323 (emphasis in original); City of San Jose, 2 Cal. 5th at 616 (quoting Sander).

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). This definition has four aspects: “It is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” City of San Jose, 2 Cal. 5th at 617. To qualify as a public record “a writing must relate in some substantive way to the conduct of the public’s business.” Id. at 618. “Generally, any ‘record … kept by an officer because it is necessary or convenient to the discharge of his official duty … is a public record.’” Id. at 618 (quoting Braun v. City of Taft, 154 Cal. App. 3d 332, 340, 201 Cal. Rptr. 654 (1984)).

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. See ACLU v. Superior Court, 3 Cal. 5th 1032 1038-39, 221 Cal. Rptr. 832, 400 P.3d 432 (2017) (quoting Williams v. Superior Court, 5 Cal. 4th 337, 346, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993)); see also Sierra Club, 57 Cal. 4th at 166; City of San Jose, 2 Cal. 5th at 617; Int’l Federation, 42 Cal. 4th at 329. Exemptions must be narrowly construed and the public agency bears the burden of proving that an exemption applies. Sierra Club, 57 Cal. 4th at 166 (narrow construction constitutionally mandated); City of San Jose, 2 Cal. 5th at 617 (same); 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).

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: California Rules of Court (10.500 et. seq.) set forth a comprehensive scheme much like that of the CPRA for access to 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, 54960.1. The nature of civil proceedings are three-fold: (1) actions to stop or prevent ongoing violations or threatened violations of the Act; (2) actions to determine the application of the Act to ongoing actions, threatened future actions, or past actions: and, (3) 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 actions to determine the application of the Act to past action, the Act requires that the interested party first send a cease and desist letter to the local agency. Cal. Gov’t Code § 54960.2. 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. Gov't Code § 11130(a); 11130.3(a). And, under the Bagley-Keene Act, there is no need to serve a demand to cure or correct before seeking to nullify action taken by state bodies under Section 11130.3(a). Nor is there any requirement to serve a cease and desist letter before instituting an action passed on the state bodies past action. Cal. Gov't Code § 11130(a).

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.

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Open Records

I. Statute

A. Who can request records?

1. Status of requester

"[A]ccess 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. "Every person" can inspect public records. Cal. Gov't Code § 6253(a). "Person" includes any natural person, corporation, partnership, limited liability company, firm or association. Cal. Gov't Code § 6252(c). The CPRA does not differentiate among those who seek access to public information. If a record is public, as defined by or construed under the CPRA, all persons have the same right of access. Los Angeles Unif. Sch. Dist v. Superior Court, 228 Cal. App. 4th 222, 242, 175 Cal. Rprt. 3d 90 (2014); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1324, 89 Cal. Rptr. 3d 374 (2009); State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1190, 13 Cal. Rptr. 2d 342 (1992).

For example, citizens of other states, and foreign as well as domestic corporations are included in the CPRA's definition of "person." Connell v. Superior Court, 56 Cal. App. 4th 601, 611-12, 65 Cal. Rptr. 2d 738 (1997). A municipal corporation, as well as it elected city attorney, is also a “person” entitled to request documents from another governmental agency. Los Angeles Unified Sch. Dist. v. Superior Court, 151 Cal. App. 4th 759, 771, 60 Cal. Rptr. 3d 445 (2007).  Section 6252.5 of the Government Code expressly allows an elected member or official of any state or local agency to access public records of that agency — or any other — on the same basis as any other person. Cal. Gov't Code § 6252.5. Likewise, a plaintiff who files suit against a public agency may utilize the CPRA to obtain documents for use in litigation to the same extent as any other person. County of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 826, 98 Cal. Rptr. 2d 564 (2000). Members of the media, while "persons" under the CPRA, have no greater right of access than the general public. Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1279, 88 Cal. Rptr. 3d 847 (2009); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1417 n.7, 44 Cal. Rptr. 2d 532 (1995). Conversely, a person personally affected by the public record has no greater right of access than other persons under the CPRA. Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668, 135 Cal. Rptr. 575 (1977).

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2. Purpose of request

There are no limitations on access to public records based on the purpose for which the record is being requested, if the record is otherwise subject to disclosure. Cal. Gov't Code § 6257.5. A member of the public need not state the purpose for requesting records. See Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 242, 175 Cal. Rptr. 3d 90 (2014); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1191, 13 Cal. Rptr. 2d 342 (1992). This is so because “[t]he motive of the particular requester is irrelevant; the question instead is whether disclosure serves the public interest.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1324, 89 Cal. Rptr. 3d 374 (2009) (rejecting county’s standing argument that open government group had no particularized interest in GIS basemap data other than “generalized proclamation of the ‘public’s right to know’…”). Stated another way, what is material is the public interest in disclosure, not the private interest of a requesting party. State Bd. of Equalization, 10 Cal. App. 4th at 1191.

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3. Use of records

There are no restrictions or limitations on the subsequent use of records obtained under the CPRA. In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1333, 89 Cal. Rptr. 3d 374 (2009), the court, as a matter of first impression, rejected as inconsistent with the CPRA the county’s claim that it could require requesters of its GIS basemap data to enter into licensing agreements restricting use and dissemination of the data.  The court held that copyright protections under the CPRA extend “in a proper case” only to computer software.  Id. at 1331-36 (“The CPRA contains no provision either for copyrighting the GIS basemap or for conditioning its release on an end user or licensing agreement by the requester.”). More recently, in ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017), involving an investigatory records claim over license plate reader data, the California Supreme Court instructed the trial court on remand that it could place no restrictions or limitations on the use of anonymized or redacted data if ultimately disclosed over security concerns advanced by police.

With one exception, a requester is not required to state the use or purpose for which the records are being requested. Cal. Gov't Code § 6257.5. Under the investigatory records exemption of Section 6254(f)(3), an individual requesting the address of any individual arrested or the current address of the victim of a crime, must declare under penalty of perjury that the request is made for a journalistic, scholarly, political or governmental purpose, or is sought for investigatory purposes by a licensed private investigator. Additionally, the requester must declare that the information obtained pursuant to this subsection will not be used directly or indirectly to sell a product or service. Cal. Gov't Code § 6254(f)(3); see Los Angeles Police Dept. v. United Reporting Pub. Corp, 528 U.S. 32, 120 S.Ct. 483, 488, 145 L.Ed. 2d 451 (1999)(upholding facial constitutional challenge to this provision but noting that the constitutionality of the provision as applied to respondent, a publishing company that provides the names and addresses of arrested individuals to its customers, remained open to challenge); see also United Reporting Pub. Corp. v. Cal. Hwy. Patrol, 231 F.3d 483 (9th Cir. 2000)(where Ninth Circuit Court of Appeal remanded action for further district court proceedings addressing the "as applied" constitutionality of this provision).

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B. Whose records are and are not subject to the act

1. Executive branch

The CPRA applies to every state office, officer, department, division, bureau, board and commission or other state body or agency, except the Legislature and the courts. Cal. Gov't Code § 6252(f). The CPRA also applies to local agencies, including counties, cities, schools districts, municipal corporations, districts, political subdivisions, or any board, commission or agency thereof; other local public agencies; or non-profit entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952 of the Government Code. Cal. Gov't Code § 6252(a).  For example, a county’s claim settlement committee constituted a “local agency” under the CPRA.  Register Div. of Freedom Newspapers, Inc. v. Orange County, 158 Cal. App. 3d 893, 898, 205 Cal. Rptr. 92 (1984).  But a nonprofit auxiliary corporation affiliated with a state university, and which operated multi-purpose arena being built on university campus was not a “state agency” under the CPRA. California State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 898, 108 Cal. Rptr. 2d 870 (2001).

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2. Legislative bodies

The CPRA does not apply to the State Legislature or its committees. Cal. Gov't Code § 6252(a). Records of the Legislature are subject to the Legislative Open Records Act. Cal. Gov't Code § 9070, et. seq. The Constitutional Sunshine Amendment does apply to the Legislature because it applies generally to "public bodies" and to the "writings of public officials," without excluding the Legislature. Cal. Const. Art. I, § 3(b)(1). The Amendment, however, specifically maintains exemptions and protections for confidentiality of records of the Legislature as provided for by "Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions . . . ." Cal. Const., Art. I, § 3(b)(1). Moreover, in Sutter’s Place v. Superior Court, 161 Cal. App. 4th 1370, 1382, 75 Cal. Rptr. 3d 9 (2008), the court rejected the argument that the Sunshine Amendment eliminated the mental process principle asserted to protect the motives and thought processes of local legislators (not state legislators), and characterized the principle as rooted in state and federal constitution law, as well as statutory law under the CPRA’s Section 6254(k) (incorporating other prohibitions established by law), both of which the court said were expressly preserved under the Sunshine Amendment. Nevertheless, a constitutional right of access arguably would extend to records of the Legislature not exempt or otherwise protected under existing law.

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3. Courts

With one exception, the CPRA does not apply to the judicial branch of government, which like the legislative branch is specifically excluded from the definition of "state agency" under the CPRA. Cal. Gov't Code § 6252(a). As of 2016, the definition of “state agency” under the CPRA includes the State Bar of California, a judicial branch entity. Id., § 6252(f)(2).

Unlike the CPRA, with the exception of the State Bar, the Constitutional Sunshine Amendment, does apply to the judicial branch of government, which includes the courts, the Administrative Office of the Courts and the Judicial Council. The Amendment applies to the "meetings of public bodies" and the "writings of public officials and agencies . . . ." without excluding the Judiciary. Cal. Const. Art. I, § 3(b)(1); see Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch entities, including the State Bar of California). The Amendment, however, specifically maintains "constitutional or statutory exceptions to the right of access to public records" in effect on the effective date of the Amendment. Id. § 3(b)(5).

In addition to the Sunshine Amendment, Rules of Court, effective Jan. 2010, set forth comprehensive public access provisions applicable to judicial administrative records maintained by state trial and appellate courts, the Judicial Council, and the Administrative Office of the Courts. Cal. Rules of Court 10.500 et. seq.  These rules were modeled after the CPRA.

Moreover, both the federal and state constitutions provide broad access rights to judicial proceedings and records. See, e.g., NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337, (1999) (where California Supreme Court reviewed at length constitutional right of access in both criminal and civil proceedings and held right applied to trial proceedings in civil action); see also Copley Press v. Superior Court, 63 Cal. App. 4th 367, 373, 74 Cal. Rptr. 2d 69, (1998) (recognizing constitutional right of access to school district's settlement with minor when court approval required and holding no compelling reason justified sealing settlement records); Copley Press Inc. v. Superior Court, 6 Cal. App. 4th 106, 115, 7 Cal. Rptr. 2d 841 (1992) (recognizing broad First Amendment right of access to judicial records in both civil and criminal proceedings and holding right attached to rough minute books of trial court).

A separate common law right of access also attaches to judicial branch records, including non-adjudicatory, administrative records, where there is a legitimate public interest in access that is not outweighed by other interests. See Sanders, 58 Cal. 4th at 323 (state bar admissions data); see also, Estate of Hearst, 67 Cal. App. 3d 777, 782, 136 Cal. Rptr. 821 (1977) (probate files of probate court open).

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4. Nongovernmental bodies

The CPRA applies to the local and state agencies listed in Sections 6252(a) and (f) of the Government Code and to private corporations and entities and lessees of any hospital pursuant to subdivisions (c) and (d), respectively, of Section 54952 of the Government Code (known as the Ralph M. Brown Act). Cal. Gov't Code § 6252(a). Specifically, private corporations or entities are subject to the CPRA if they are either created by an elected legislative body to exercise authority that may lawfully be delegated by the elected governing body or receive funds from a local agency and have as a board member at least one member of the legislative body of the local agency appointed to the governing body of the private entity, by the legislative body of the local agency, as a full voting member. Cal. Gov't Code § 54952(c)(1). See Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 826-30, 108 Cal. Rptr. 2d 870 (2001) (nonprofit auxiliary corporation affiliated with state university, and which operated multi-purpose arena being built on university campus, was not a state agency under CPRA); 85 Ops. Cal. Att'y. Gen. 55 (2002) (private, nonprofit corporation that received funds from school district and had on its corporate board one of district's trustees with full voting rights, and was created by the City, which lawfully delegated authority to it to operate an educational access channel, was subject to CPRA and opening meetings laws); see also Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001).

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5. Multi-state or regional bodies

Multistate or regional bodies, such as planning authorities, are not specifically mentioned in CPRA, nor have they been the subject of any known court decisions. Arguably the CPRA would apply to multi-state bodies as “other state body or agency” under Section 6252(f) of the CPRA. Regional bodies might arguably fall within the CPRA’s definition of “state agency” as a “division, bureau, board or commission or other state body or agency…” Cal. Gov’t Code § 6252(f).

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6. Advisory boards and commissions, quasi-governmental entities

Section 6252(a)of the Government Code provides that any boards, commissions or agencies that are a part of a political entity listed therein, e.g., city, county, school district, municipal corporation, political subdivision, etc., are subject to the CPRA. Cal. Gov't Code § 6252(a).  But see Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 828, 108 Cal. Rptr. 2d 870 (2001) (nonprofit auxiliary corporation affiliated with a state university and which operated multi-purpose arena being built on university campus was not a “state agency” under the CPRA).

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7. Others

Grand Juries: The CPRA does not apply to grand juries because it specifically excludes judicial agencies established by Article VI of the California Constitution. Although grand juries are not specifically mentioned in Article VI, the nature of the grand jury as a judicial entity and the important public interest requiring that its proceedings be conducted in secrecy are persuasive indications that the Legislature intended the grand jury to be excluded, as are the courts, from the CPRA's provisions. McClatchy Newspapers v. Superior Court, 44 Cal. 3d 1162, 245 Cal. Rptr. 774, 751 P.2d 1329 (1988).

The Constitutional Sunshine Amendment arguably does apply to grand juries because it applies generally to the meetings of public bodies and the writings of public officials and agencies. Cal. Const. Art. I, § 3(b)(1). However, because the Constitutional Sunshine Amendment expressly maintains pre-existing constitutional and statutory exemptions to the right of access to public records (see Cal. Const. Art. I, § 3(b)(5)) and because the Legislature has enumerated several Penal Code provisions governing the secrecy of grand jury proceedings (see, e.g., Cal. Penal Code §§ 915, 924.1, 924.2, 939), it is doubtful that the Amendment provides any new access rights to records of the grand jury.

In cases where an indictment has been returned, existing statutory law provides that the public is entitled to transcripts of grand jury proceedings 10 days after delivery of the transcript to the defendant or his or her counsel unless, upon motion, it is determined that a reasonable likelihood exists that public disclosure may prejudice defendant's fair trial rights. Cal. Penal Code § 938.1(b).

Jury Commissioner: The CPRA also does not apply to the jury commissioner since the commissioner is an executive officer appointed by the superior court and therefore part of the judicial system. Pantos v. City and County of San Francisco, 151 Cal. App. 3d 258, 262, 198 Cal. Rptr. 489 (1984). The Constitutional Sunshine Amendment does apply to the jury commissioner because it applies generally to the meetings of public bodies and the writings of public officials and agencies without exception for the judicial branch of government. Cal. Const. Art. I, § 3(b)(1); see Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch entities). However, the Constitutional Sunshine Amendment expressly maintains pre-existing constitutional and statutory exemptions to the right of access to public records. Id. § 3(b)(5). Whether statutory law that provides for sealing of trial juror identifying information upon recording of a jury's verdict is such a statutory exemption is unclear given the provision for access upon a showing of good cause. See Cal. Civ. Proc. Code § 237(a)(2). Arguably, access to juror questionnaires completed to determine juror qualification, pursuant to California Civil Procedure Code Section 205, for inclusion on the master list of qualified jurors may be accessible under the Amendment. No statute exists prohibiting their public disclosure (though one limits their use, see Cal. Civ. Proc. Code § 205(b)) and previous case law holding that disclosure violated reasonable expectations of privacy did so on the particular facts of the case and in light of assurances of confidentiality provided by the court. Pantos, 151 Cal. App. 3d at 264.

Other documents held by the jury commissioner such as the master list of qualified jurors (identifying prospective jurors by name and address) and the jury summons list, which is a list of prospective or qualified jurors who are summoned to appear or to be available for jury service, are accessible court records under existing constitutional, statutory and common law Id. at 262-63 (citing constitutional and statutory authority for access to court records and holding master list and summons list are public documents subject to public inspection).

Homeowners' Associations: These are not governmental agencies and they are neither a state or local agency or a subdivision thereof. Thus, they are not subject to the CPRA.

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C. What records are and are not subject to the act?

All records of included agencies are subject to the CPRA unless the Legislature has expressly provided to the contrary. ACLU v. Superior Court, 3 Cal. 5th 1032, 1038-39, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017) (quoting Williams v. Superior Court, 5 Cal. 4th 337, 346, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993)); see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017); Sierra Club v. Superior Court, 57 Cal. 4th 157, 166, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013); International Federation of Professional and Technical Eng. v. Superior Court, 42 Cal. 4th 319, 329, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007).  "Public records" are broadly defined under the CPRA to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Cal. Gov't Code § 6252(e). “Writings” are defined broadly under the CPRA. Cal. Gov’t Code § 6252(g).

The definition of public records has four aspects: “It is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” City of San Jose, 2 Cal. 5th at 617. To qualify as a public record “a writing must relate in some substantive way to the conduct of the public’s business.” Id. at 618. “Generally, any ‘record … kept by an officer because it is necessary or convenient to the discharge of his official duty … is a public record.’” Id. at 618 (quoting Braun v. City of Taft, 154 Cal. App. 3d 332, 340, 201 Cal. Rptr. 654 (1984)). However, records do not have to be in the agency’s custody to be a public record as the CPRA applies to records “prepared, owned, used or retained.” Cal. Gov’t Code § 6252(e) (emphasis added). For example, in City of San Jose, the California Supreme Court held that emails sent to or from public officials through nongovernmental email accounts relating to official agency business are public records under the CPRA even though the city did not maintain the emails on its own servers. Id. at 616.

In so holding, the court recognized that an agency’s actual or constructive possession of records is deemed relevant in determining whether it has an obligation to search for, collect, and disclose material requested. See City of San Jose, 2 Cal. 5th at 623 (holding city had obligation to implement search procedures for records in possession of city employees who used personal accounts to conduct official business); see also Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisan v. Superior Court, 218 Cal. App. 4th 577, 598, 160 Cal. Rptr. 3d 285 (2013) (“[A]n agency has constructive possession of records if it has the right to control the records, either directly or through another person.”) (quoting Consolidated Irrigation Dist. v. Superior Court, 205 Cal. App. 4th 697, 710, 140 Cal. Rptr. 622 (2012) (holding that subconsultants’ files were not within constructive possession of city)); Community Youth Athletic Center v. City of National City, 220 Cal. App. 4th 1385, 1428, 164 Cal. Rtpr. 3d 644 (2013) (holding that agency did have constructive possession of records in consultant’s files and thus was obligated to seek to obtain them in response to CPRA request); cf. Regents of Univ. of Cal. v. Superior Court, 222 Cal. App. 4th 383, 405-07, 166 Cal. Rptr. 3d 166 (2013) (rejecting constructive possession argument where university did not prepare, own, use, or retain individual investment fund information held by private investment companies on behalf of UC Regents).

The definition of public records has been held not to include a database compiled and maintained by county public defender's office which primarily consisted of information from client files, as well as public records, because the core function of the records was to aid the public defender's office in representing indigent clients, which was a private function, not public. Coronado Police Officers Ass'n v. Carroll, 106 Cal. App. 4th 1001, 1008, 131 Cal. Rptr. 2d 553 (2003). Moreover, records maintained by a county auditor-controller for the court pursuant to contract whereby the county manages the court's budgetary and financial matters and where the contract provided that all documents shall remain the property of the court were held to fall outside the provisions of the CPRA as the courts are not subject to the CPRA. Orange County Employees Ass'n v. Superior Court, 120 Cal. App. 4th 287, 209, 15 Cal. Rptr. 3d 201 (2004); but see Crews v. Superior Court, 31 Med. L. Rptr. 1890 (Cal. App. Ct. 2003, unpublished) (holding that records used and retained by county in managing the court's finances pursuant to contract fell within the definition of public records and were required to be disclosed under CPRA).

"'Public records' in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975." Cal. Gov't Code § 6252(e).

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1. What kinds of records are covered?

The CPRA defines "writing" as "any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(g).  The format of information is generally not determinative of its public record status. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013). For example, in Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007), the California Supreme Court stated that information stored in a computer database containing peace officer names, employing agency and employment dates qualified as a “writing” because “that term is defined broadly to include every ‘means of recording upon any tangible thing any form of communication or representation … and any record thereby created, regardless of the manner in which the record has been stored.’” (quoting Gov. Code § 6252(g)).

The CPRA applies to records an agency is legally required to maintain and also to those maintained at the agencies' own discretion and convenience unless a statute specifically provides otherwise. See, e.g., Statewide Homeowners Inc. v. Williams, 30 Cal. App. 3d 567, 570-71, 106 Cal. Rptr. 479 (1973) (by statute county assessor only required to make accessible those records legally required to be maintained). It also applies to records relating to the public’s business prepared, owned or used by an agency even if the agency does not maintain the records.  Cal. Gov't Code § 6252(e). See City of San Jose, 2 Cal. 5th at 615, 623 (holding emails sent to or from public employees private email accounts are public records under the CPRA). The record, however, must be "identifiable" before an agency is required to make it available for inspection or copying. Cal. Gov't Code § 6253(b). The test for whether a record is "identifiable" is not the volume of records requested but whether they can be located with reasonable effort. State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1186, 13 Cal. Rptr. 2d 342 (1992) (where court explained that CPRA's identification requirement may not be used by agency to withhold records).

As explained by the California Supreme Court, “reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches”; rather, “the scope of an agency’s search for public records “need only be reasonably calculated to locate responsive records.” City of San Jose, 2 Cal. 5th at 627 (citations omitted).

Computer software developed by a state or local agency is not a public record. Cal. Gov't Code § 6254.9(a). But see Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (narrowly defining computer software exception as not including mapping data in GIS file format).

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2. What physical form of records are covered

The CPRA defines "writing" as "any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(g).  The format of information is generally not determinative of its public record status. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013). The fact that public records may be stored in a computer, for example, does not affect their status as public records. Cal. Gov't Code § 6254.9(d). See, e.g., Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (recognizing that information stored in a computer database containing peace officer names, employing agency and employment dates qualified as a “writing” because “that term is defined broadly to include every ‘means of recording upon any tangible thing any form of communication or representation … and any record thereby created, regardless of the manner in which the record has been stored.’” (quoting Gov. Code § 6252(g)).

Section 6253.9 of the CPRA requires public agencies that have information which constitutes an identifiable public record not otherwise exempt from disclosure that is in an electronic format to make that information available in an electronic format when requested by any person. Cal. Gov't Code § 6253.9.  See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (discussing provision); see, e.g., County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (upholding order requiring disclosure of county GIS basemap data over claims that disclosure would violate Federal Homeland Security Act and that data was exempt under the CPRA’s “catchall” provision of Gov’t Code Section 6255). This statute, effective January 1, 2001, supersedes portions of an earlier statute (Section 6253(b)) that allowed public agencies to determine the form in which computer data would be made available. See Cal. Att'y. Gen. Ops. No. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA).

Section 6253.9 further requires agencies to make the information available in any electronic format in which it holds the information, but does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained." Cal. Gov't Code § 6253.9(f).

The California Supreme Court has recognized that where feasible an agency may be required to produce information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data was held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).

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3. Are certain records available for inspection but not copying?

The right of access to public records means both the right to inspect records (Cal. Gov't Code § 6253(a)) and the right to obtain exact copies of them unless making exact copies is impracticable (Cal. Gov't Code § 6253(b)). At least one court has denied a requester's right to copy documents where they were available for inspection at the agency's office and the documents were voluminous (80,000) and costly to print and ship. Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761,110 Cal. Rptr. 257 (1973); but see CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request); Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998) ("A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. [citations omitted] Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort.").

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4. Telephone call logs

Telephone records are generally public absent specific circumstances justifying their withholding. For example, one California appellate court has held that telephone numbers contained in otherwise disclosed cell phone, home phone and hotel bills of city council members were properly withheld upheld under the deliberative process privilege within the catchall exemption of Section 6255 of the Government Code. See Rogers v. Superior Court, 19 Cal. App. 4th 469, 479 23 Cal. Rptr. 2d 412 (1993). The court stated that disclosure of the telephone numbers of individuals with whom council members have spoken “‘was the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the City Council member.” Id. (quoting Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1343, 283 Cal. Rptr. 893, 813 P.2d 240 (1991)). The court’s decision turned in large part on the unfocused nature of the request, which sought “all City-reimbursed telephone records of all City Council members over a one-year period.” Id. at 480.

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5. Electronic records

The fact that public records may be stored in a computer does not affect their status as public records. Cal. Gov't Code § 6254.9(d). Section 6253.9 of the CPRA requires public agencies that have information which constitutes an identifiable public record not otherwise exempt from disclosure that is in an electronic format to make that information available in an electronic format when requested by any person. Cal. Gov't Code § 6253.9. This statute, effective January 1, 2001, supersedes portions of an earlier statute (Section 6253(b)) that allowed public agencies to determine the form in which computer data would be made available. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rtpr. 3d 639, 302 P.3d 1026 (2013) (discussing provision); see, e.g., Commission on Peace Officers Standards and Training v. Superior Court, 42 Cal.4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (noting that information stored in commission’s computer database qualified as “writing” within meaning of CPRA); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (allowing for disclosure of county’s GIS basemap data); Cal. Ops. Att'y. Gen. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA). Section 6253.9 further requires agencies to make the information available in any electronic format in which it holds the information, but does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 6253.9(f).

The California Supreme Court has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).

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a. Can the requester choose a format for receiving records?

Yes, if the information requested is in an electronic format the agency shall make that information available in any electronic format in which it holds the information or, if requested, in a format used by the agency to create copies for its own use or for provision to other agencies. Cal. Gov't Code § 6253.9(a). If the request is for non-electronic records and the agency also has the information available in electronic format, the agency may inform the requester that the information is also available in electronic format. Cal. Gov’t Code § 6253.9(d). If the information is available in non-electronic format, an agency cannot make the information available only in electronic format. Cal. Gov’t Code § 6253.9(e). Section 6253.9 does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 6253.9(f).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes, but the agency may require the requester to bear the cost of producing the record if it is one produced only at otherwise regularly scheduled intervals or would require data compilation, extraction or programming to produce.  Cal. Gov't Code § 6253.9(a). An agency, however, is not required to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format. Cal. Gov't Code § 6253.9(c).  Nor is it required to disclose electronic records where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 6253.9(f).

The California Supreme Court has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).

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c. Does the existence of information in electronic format affect its openness?

No. Government Code § 6254.9(d) states: "Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer. Public records stored in a computer shall be disclosed as required by [the CPRA]." The California Supreme Court has recognized that “[t]he format of information is not generally determinative of the public record status of government information.” Sierra Club v. Superior Court, 57 Cal.4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013); see also Commission on Peace Officers Standards and Training v. Superior Court, 42 Cal. 4th 278, 288, n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (noting that information stored in commission’s computer database qualified as “writing” within meaning of CPRA); Cal. Ops. Att'y. Gen. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA).

More recently, the California Supreme Court recognized that an agency even may be required to produce records in non-native formats (i.e., move electronic data to a spreadsheet) if doing so would facilitate redaction and anonymizing for privacy purposes where the native format does not accommodate such manipulations. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).

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d. Online dissemination

Section 6253(f) of the CPRA allows an agency to post on its website public records and direct a requester seeking to inspect such records to its website in lieu of allowing inspection of public records at its offices. However, if the requester is unable to access the site or download the records, the agency must promptly provide a copy of the public records to the requester upon request. Cal. Gov’t Code § 6253(f).

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6. How is email treated?

The CPRA's definition of "writing" includes e-mail: "'Writing' means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(f) (emphasis added).

The California Supreme Court has held that emails sent to or from private email accounts of public employees relating to the public’s business are “public records” within the meaning of the CPRA. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 623, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017). In so holding, the court rejected the argument that a public entity does not “retain” public records within the meaning of the CPRA where those records are maintained instead by individual public employees: “A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf.” Id. at 620-21.

However, not every email (or record) retained by a public employee is a public record. Rather, “the writing must relate in some substantive way to the conduct of the public’s business … Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.” Id.

As the court explained, whether an email (or other record) is private or public turns on many factors, “including the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.” Id. at 618.

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7. How are text messages and instant messages treated?

The CPRA’s definition of “writings” and “public records” arguably includes text messages and instant messages of public officials and public employees where those messages relate to the public’s business. Under the CPRA, "'Writing' means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(f).  “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Cal. Gov’t Code § 6252(e).

While no California published case has specifically addressed access to text messages or instant messages, the California Supreme Court has held that emails sent to or from public employees though private email accounts relating in some substantive way to the public’s business are “public records” within the meaning of the CPRA. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 623, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017). This holding would seem determinative of the public’s right of access to text messages where related to the public’s business and “prepared, owned, used or retained” by the public agency or public employee.

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8. How are social media postings treated?

There are no reported cases under the CPRA addressing the public’s right of access to social media posts of a public agency or public employee. Arguably, if the matter posted relates in some substantive way to the public’s business and was “prepared, owned, used, or retained” by a public agency or public employee it is a public record. See, e.g., City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 623, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017) (holding emails sent to and from private email accounts of city council members relating to the public’s business were public records within the meaning of the CPRA).

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9. Computer software

“Computer software developed by a state or local agency is not itself a public record under this chapter. The agency may sell, lease, or license the software for commercial or noncommercial use.”  Cal. Gov’t Code § 6254.9 (a).  “‘Computer software’ includes computer mapping systems, computer programs, and computer graphics systems.’” Id., § 6254.9(b). “Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer.  Id., § 6254.9(c).

In 2013, the California Supreme Court was called upon to decide “whether the statutory exemption for ‘[c]omputer software’ (§ 6259.9(a))—a term that ‘includes computer mapping systems’ (§ 6254.9(b))—encompasses mapping data in a GIS file format … or only GIS mapping software…” See Sierra Club v. Superior Court, 57 Cal. 4th 157, 158 Cal. Rptr. 639, 302 P.3d 1026 (2013). In rejecting the argument that computer mapping systems includes the databases underlying the mapping software since it enables a database to function as part of a computer mapping system, the court relied on the ordinary meaning of the statute’s text and the interpretative mandates of the California Sunshine Amendment. Id. at 171, 175. To the extent the term “computer mapping systems” was ambiguous, the court said “the constitutional cannon requires us to interpret it in a way that maximizes the public’s access to information…” Id. at 175. Applying these principles, the court held that a parcel database in GIS file format was not within Section 6254.9(a)’s exclusion for computer software from the definition of public records under the CPRA. Id. at 176.

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D. Fee provisions or practices

1. Levels or limitations on fees

Section 6253(b) of the CPRA provides that "each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable." Cal. Gov't Code § 6253(b).

With respect to documents, "direct costs" means “the cost of running the copy machine, and conceivably also the expense of the person operating it.” North County Parents Org. v. Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). It does not mean “the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.” Id. (rejecting department’s attempt to recover staff time). See also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 237, 182 Cal. Rptr. 3d 526 (2015); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1336, 89 Cal. Rprt. 3d 374 (2009).

With respect to computer data, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 6253.9(a)(2). Direct costs here presumably mean the cost of the disk. However, under the CPRA a requester may be required to bear the additional cost of "constructing a record and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 6253.9(b). See Fredericks, 233 Cal. App. 4th at 238 (recognizing that under these provisions where production would require generation, compilation and redaction of electronic records, agency may impose fees and costs above direct cost of duplication as a condition of disclosure); Ops. Cal. Att'y. Gen. 04-1105 (2005) (where request for parcel map data was made at time other than when data is periodically produced, charge could include cost to construct the record, cost of programming and computer services, but not expenses associated with initial gathering of information or with initial conversion or maintenance of information in electronic format).

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2. Particular fee specifications or provisions

Section 6253(b) of the CPRA provides that absent a statute authorizing a different fee, an agency may charge an amount that covers only the “direct costs of duplication.” Cal. Gov't Code § 6253(b). Thus, a statute which establishes a fee or provides authority to an agency to determine the charges for its records prevails over the CPRA.

For example, under California Vehicle Code Section 1811, the Department of Motor Vehicles has statutory authority to charge flat fees for its records. Shipper v. Dept. of Motor Vehicles, 161 Cal. App. 3d 1119, 1127, 208 Cal. Rptr. 13 (1984). Similarly, under Government Code Section 27366 a county (through its board of supervisors) is required to adopt fees “in an amount necessary to recover the direct and indirect costs of providing the product or services or the cost of enforcing any regulation for which the fee or charge is levied.” Cal. Gov’t Code § 27366. As applied to the provision of public records, this section has been interpreted as requiring counties to charge fees sufficient to recover “overhead and other operating costs not specifically associated with the actual production of copies.” California Public Records Research, Inc. v. County of Yolo, 4 Cal. App. 5th 150, 173, 209 Cal. Rprt. 26 (2016); see also 85 Ops. Cal. Att'y. Gen. 225 (2002) (a county board of supervisors has statutory authority to charge a fee for a copy of a public record that exceeds the direct cost of duplication provided amount does not exceed that reasonably necessary to recover cost of providing the copy).

Under California Government Code Section 11104.5(b), agencies also may require requesters to pay the direct cost associated with transmitting public records via email. Cal. Gov't Code § 11104.5(b).  No case has interpreted this provision, and generally agencies do not charge for e-mailing responsive documents.

Unlike the fee provision for copying public records, the CPRA contains no fee provision for inspecting records pursuant to Section 6253(a). Cal. Gov't Code § 6253(a).

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3. Provisions for fee waivers

The CPRA contains no provision for fee waivers; however, agencies may reduce or waive fees under the discretionary authority granted agencies under the CPRA to adopt requirements that provide greater access than the minimum standards set forth in the CPRA. Cal. Gov't Code § 6253(e); see also North County Parents Org. v Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994) (where court held agency had discretionary authority under the act to reduce or waive fee for duplicating public records).

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4. Requirements or prohibitions regarding advance payment

Section 6253(b) of the CPRA provides that unless otherwise statutorily exempt, an agency shall make public records promptly available to any person "upon payment of fees" covering the direct costs of duplication. Thus, once an agency determines how many pages are requested to be copied, it calculates the total amount due and payment is to be made prior to actual receipt of the copies. Cal. Gov't Code § 6253(b).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Yes. Although the CPRA prohibits fees in excess of the "direct costs of duplication," many agencies, especially at the local level, routinely overcharge. More problematic are the charges being sought in connection with electronic records. While costs for compiling or extracting and related programming necessary to produce electronic records not otherwise routinely generated by the agency are allowable under Section 6253.9 of the CPRA, such costs have often placed access beyond the reach of most requesters, with agencies often demanding many thousands of dollars for anticipated programming costs. It also has become a new way for agencies bent on nondisclosure to discourage requesters from pursuing their access rights.

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6. How are fees for electronic records determined?

If produced in an electronic format in which the agency holds the information or in a format used by the agency to create copies for its own use or for provision to other agencies, the cost of the record is limited to the direct cost of duplication. Cal. Gov’t Code § 6253.9(a)(1)&(2). If required to produce an electronic record that is produced only at otherwise regularly scheduled intervals or would require data compilation, extraction, or programming to produce, the agency can require the requester to bear the cost of producing the record, including the cost to construct it, and the cost of programming and computer services necessary to produce it.  Cal. Gov’t Code § 6253.9(b); see also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rprt. 3d 526 (2015) (discussing allowable charges for production of electronic records); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1336, 89 Cal. Rptr. 3d 374 (2009) (same).

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E. Who enforces the act?

Under Section 6258 of the CPRA, "[a]ny person may institute proceedings for injunctive or declaratory relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." Cal. Gov't Code § 6258. The plain meaning of this provision "contemplates a declaratory relief proceeding commenced only by an individual or entity seeking disclosure of public records, and not by the public agency from which disclosure is sought." Filarsky v. Superior Court, 28 Cal. 4th 419, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002) (city may not initiate ordinary declaratory relief action to determine its obligation to disclose records to a member of the public as CPRA provides exclusive means for litigating question of whether records must be disclosed).

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1. Attorney General's role

The CPRA does not appear to permit the California Attorney General to initiate enforcement proceedings against a public agency to disclose public records unless the Attorney General has been denied access to public records.

County district attorneys may petition a court to require a state or local agency to allow them to inspect or receive copies of public records not otherwise exempt from disclosure when the agency fails to allow inspection or copying within 10 working days of a request. Cal. Gov’t Code § 6264.

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2. Availability of an ombudsman

Local ordinances governing access to public meetings and public records (commonly referred to as sunshine ordinances) often designate a particular information officer or other employee to field complaints regarding CPRA and Brown Act violations. Aggrieved individuals should ascertain whether their municipality has a sunshine ordinance and, if so, whether the ordinance designates such an individual.

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3. Commission or agency enforcement

Local ordinances governing access to public meetings and public records (commonly referred to as sunshine ordinances) often provide for administrative review of agency decisions, though determinations are generally recommendatory and unenforceable. Aggrieved individuals should ascertain whether their municipality has a sunshine ordinance and, if so, what procedures are provided for review of agency denials. Some state agencies may also have similar procedures for review of agency denials.

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F. Are there sanctions for noncompliance?

The CPRA does not provide for sanctions for an agency's noncompliance with its disclosure obligations. Reasonable attorneys' fees and costs are mandatory to the prevailing plaintiff under Section 6259(d), however. If an agency fails to obey a court order requiring disclosure of public records, contempt sanctions may be imposed, following a hearing on an order to show cause. Cal. Gov't Code § 6258.

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G. Record-holder obligations

1. Processing records requests

The CPRA requires an agency to make disclosable public records “promptly available” to the requester upon payment of fees covering the direct cost of duplication, or a statutory fee if applicable. Cal. Gov’t Code § 6253(b). While an agency is required to make a determination on the request within 10 days from receipt (or an additional 14-days in unusual circumstances as statutorily defined) and notify the requester “of the determination and the reasons therefor,” there is no specific time period in the CPRA for the agency to actually produce responsive records. However, one California appellate court has noted that an agency’s one-month delay in producing responsive records—on top of the 24-day statutorily authorized delay—most likely violated the CPRA’s requirement that public records be provided “promptly” upon payment of fees. Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1268 n. 14, 136 Cal. Rptr. 3d 395 (2012) (“We have serious questions whether that delay was authorized under the CPRA (see § 6253, subd. (b)) [copies to be provided “promptly” upon payment of fees covering direct cost of duplication or statutory fee, if applicable].”).

As explained by the California Supreme Court, “[u]nless a records request is overbroad or unduly burdensome, agencies are obligated to disclose all records they can locate ‘with reasonable effort.’” City of San Jose v. Superior Court, 2 Cal. 5th 608, 627, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017) (quoting Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rtpr. 2d 847 (1998)). “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches however.” Id. at 627. Rather, “the scope of an agency’s search for public records ‘need only be reasonably calculated to locate responsive records.’” Id. (citations omitted).

In City of San Jose, the California Supreme Court also provided guidance to agencies for conducting searches for public records where the records are held in nongovernmental accounts, such as in public employees’ private email accounts, cell phones or computers. First, the agency should communicate the request to the employees. Then, it may “reasonably rely on the employees to search their own personal files, accounts, and devices for responsive materials.” Id. at 628. Training on how to conduct searches and requiring employee affidavits that provide a sufficient factual basis to determine whether withheld material is non-responsive also were approved by the court as appropriate procedures to ensure an adequate search “without treading on the constitutional rights of its employees.” Id. Lastly, the court offered that agencies can adopt polices “that will reduce the likelihood of public records being held in employees’ private accounts.” Id.

Whether complying with a request would be overly burdensome for an agency is a factor courts can consider against the public’s interest in disclosure. Id. at 629; see also ACLU v. Superior Court, 3 Cal. 5th 1032, 1046, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017)(stating that on remand a balancing analysis should include consideration of “the feasibility of, and interest implicated by, methods of anonymization petitioners have suggested”); Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015)(discussing cases and noting burdensomeness of request given statutory confidentiality concerns may be weighed in balance).

At least one court has denied a requester's right to copy documents where they were available for inspection at the agency's office and the documents were voluminous (80,000) and costly to print and ship. Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761,110 Cal. Rptr. 257 (1973); but see CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request); Cal. First Amendment Coalition, 67 Cal. App. 4th at 166 ("A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. [citations omitted] Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort.").

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2. Proactive disclosure requirements

The CPRA does not require public agencies to post public records to their websites. However, a public agency may comply with a request to inspect public records under Section 6253(a) of the Government Code by posting the record on its website and directing the requester to the location on the website where the public record is posted. Cal. Gov’t Code § 6253(a). If the requester is unable to access the record or copy it, the agency must make copies available to the requester upon request. Id.

Local agencies, other than school districts, that post “open data” documents to their websites, are required to make those records accessible in an open format that meets specific requirements intended to ease use and public accessibility of the records. See Cal. Gov’t Code § 6253.10. These requirements include that the record be retrievable, downloadable, indexable and electronically searchable, and be available to the public free of charge. Id.

Local agencies, except school districts, also are required, with certain exceptions, to create and post on their websites, if they have one, a catalog of “enterprise systems” utilized by the agency. Cal. Gov’t Code § 6270.5(a). “Enterprise systems” are defined as “a software application or computer system that collects, stores, exchanges, and analyzes information that the agency uses that is both of the following. ¶(A) A multidepartmental system or system that contains information collected about the public. ¶ (B) A system of record.” Id., § 6270.5(c)(1). A “system of record” is further defined as a system that “serves as an original source of data within an agency.” Id. § 6270.5(c)(1)(B)(2).

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3. Records retention requirements

The CPRA is silent on the obligation to retain public records. However, several other statutes govern the management, retention and destruction of state and local agency records.

At the state level, the State Records Management Act (Government Code sections 12270-12279) directs the California Secretary of State to establish and administer a records management program that includes, among other things, management methods regarding disposal of state records. Cal. Gov’t Code §§ 12270-12279. Section 12275 of the Act provides that “[a] record shall not be destroyed or otherwise disposed of by an agency of the state, unless it is determined by the Secretary of State that the record has no further administrative, legal, or fiscal value and the Secretary of State has determined that the record is appropriate for preservation in the State Archives.” Cal. Gov’t Code § 12275. Under the Act, each agency must establish and maintain a records retention schedule that details the public records the agency will keep, how the records will be managed, and how the agency will legally dispose of non-permanent records. Id., § 12274.

The California State Records and Information Management Program (“CalRIM”), a state records program with the State Archives, assists agencies with, among other things, establishing record retention schedules. See Records and Information Management Program (CalRIM).

At the local level, cites are required to retain any record that is less than two years old. Cal. Gov’t Code § 34090. Notwithstanding this requirement, records of “routine video monitoring” may be destroyed after one year and recordings of telephone and radio communications may be destroyed after 100 days, provided the destruction is approved by the legislative body and the written consent of the agency attorney is obtained. Id.,§ 34090.6. Duplicates of city records less than two years old may be destroyed if they are no longer required. Id.,§ 34090.7. Further, “video recording media, including recordings of ‘routine video monitoring’ … shall be considered duplicate records if the city keeps another record, such as written minutes or an audio recording, of the event that is recorded in the video medium. However, a video recording medium shall not be destroyed or erased pursuant to this section for a period of at least 90 days after occurrence of the event recorded thereon.” Id.

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A. Exemptions in the open records statute

1. Character of exemptions

The CPRA sets merely the “minimum standard” public agencies must meet for disclosing public records. Section 6253(e) of the CPRA states that “[e]xcept as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter.” Cal. Gov’t Code § 6253(e). See also North County Parents Org. v. Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). Thus, the exemptions for the most part are discretionary on the part of the agency.

The CPRA is modeled after the federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1038, 221 Cal. Rptr.3d 832, 400 P.3d 432 (2017); Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991); Los Angeles Unified Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 238, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 818, 26 Cal. Rptr. 3d 92 (2005); Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 823-24, 108 Cal. Rptr 2d 870 (2001). Accordingly, federal “legislative history and judicial construction of the FOIA … ‘serve to illuminate the interpretation of its California counterpart.’” Los Angeles Unified Sch. Dist., 288 Cal. App. 4th at 238 (quoting Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991)); see also Cal. State Univ., 90 Cal. App. 4th at 823-24; but see Williams v. Superior Court, 5 Cal. 4th 337, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993) (where court rejected the application of FOIA standards in interpreting the investigatory records exemption of Section 6254(f)(1) and (f)(2) of the Government Code).

The CPRA contains specific statutory exemptions, and one general or “catchall” exemption.  Under Section 6255 of the Government Code this “catchall” exemption applies where, on the facts of a particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Cal. Gov’t Code § 6255. See International Federation of Professional and Technical Eng. v. Superior Court, 42 Cal. 4th 319, 329, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007) (describing nature of exemptions under CPRA).

In general, however, unless an express statutory provisions makes the record exempt, it must be disclosed.  See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017); Sander v. State Bar of California, 58 Cal. 4th 300, 323, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013); Int’l Federation, 42 Cal. 4th at 329; Commission on Peace Officer Standing and Training v. Superior Court, 42 Cal. 4th 278, 288, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007).

Exemptions are to be narrowly construed and public agencies bear the burden of proving that an exemption applies. Long Beach Police Officers Assn. v. City of Long Beach, 59 Cal. 4th 59, 67, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014); Int’l Federation, 42 Cal. 4th at 329; Los Angeles Unified Sch. Dist., 228 Cal. App. 4th at 239; County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 89 Cal. Rptr. 3d 374 (2009); BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 756, 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., 90 Cal. App. 4th at 831.

Importantly, the Constitutional Sunshine Amendment mandates that "[a] statute, court rule or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." Cal. Const. Art. I, § 3(b)(2); see Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rprt. 639, 302 P.3d 102 (2013) (stating that to extent statutory language is ambiguous, “the constitutional cannon requires us to interpret it in a way that maximizes the public’s access to information…”). See also ACLU v. Superior Court, 3 Cal. 5th 1032, 1039, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017); City of San Jose, 2 Cal. 5th at 616-17. The Amendment also requires that any new exemption adopted after the effective date of the Sunshine Amendment must be adopted "with findings demonstrating the interest protected by the limitation and the need for protecting that interest." Cal. Const. Art. I, § 3(b)(2).

Public agencies cannot deny access merely because portions of a public record contain exempt information. Rather, Section 6253(a) of the CPRA requires that "[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." Cal. Gov't Code § 6253(a). See also Commission on Peace Officer Standing and Training, 42 Cal. 4th at 301-02; American Civil Liberties Union Foundation v. Deukmejian, 32 Cal. 3d 440, 453 n.13, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); Northern Cal. Police Practices Project v. Craig, 90 Cal. App. 3d 116, 124, 153 Cal. Rptr. 173 (1979).

Public agencies may also waive exemptions by voluntarily disclosing a record otherwise exempt from disclosure by statute. Specifically, Section 6254.5 provides, in pertinent part, "whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law." Cal. Gov't Code § 6254.5. The California Supreme Court has interpreted this statute as requiring an intentional disclosure of a public record to a member of the public to constitute a waiver; inadvertent disclosure was held not to constitute a waiver of the attorney-client privilege. See Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1189, 199 Cal. Rptr. 3d 743, 366 P.3d 996 (2016); see generally County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321-22, 89 Cal. Rptr. 3d 374 (2009) (“‘Disclosure to one member of the public would constitute a waiver of the exemption [citation], requiring disclosure to any other person who requests a copy.’” (citations omitted)); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); Vallejos v. Cal. Hwy. Patrol, 89 Cal. App. 3d 781, 152 Cal. Rptr. 846 (1979). There are, however, several statutory exceptions to waiver. See Cal. Gov't Code § 6254.5 (a)-(i); Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 240, 128 Cal. Rptr. 2d 234 (2002) (no waiver for interagency disclosures made in confidence); Michael P. v. Superior Court, 92 Cal. App. 4th 1036, 1048, 113 Cal. Rptr. 2d 11 (2001) (same).

Where a specific statute barred a county from disclosing vehicle impoundment forms, which contain owner address information, the county’s practice of disclosing addresses to towing companies to facilitate notice to owners of vehicle impoundment was held not to constitute a waiver under Section 6254.5. See County of Los Angeles v. Superior Court, 242 Cal. App. 4th 475, 195 Cal. Rptr. 3d 110 (2015).

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2. Discussion of each exemption

Specific Exemptions Under 6254.

Section 6254 lists specific exemptions from disclosure that a public agency may rely upon to withhold particular records. These exemptions are listed in Section 6254 as subsection (a) through subsection (ac). They are permissive, not mandatory. The following provides the text of each exemption under Section 6254 and commentary thereon. Note, other statutory exemptions exist and are set forth in subsequent sections of the CPRA. Some of these are discussed separately below.

(a) Preliminary drafts, notes or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

Comment: “The purpose of the exemption is to provide a measure of agency privacy for written discourse concerning matters pending administrative action.” Citizens for a Better Environment v. Dept. of Food & Agric., 171 Cal. App. 3d 704, 711-12, 217 Cal. Rptr. 504 (1985). There are three statutory conditions for exemption under this subdivision: (1) The record sought must be a preliminary draft, note or memorandum; (2) of a type not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding it must clearly outweigh the public interest in disclosure. Id. at 711-12. While the exemption serves to exempt from disclosure “pre-decisional writings containing advisory opinions, recommendations and policy deliberations,” the exemption does not apply to severable factual material contained in deliberative memoranda. Id. at 713.

In Citizens For A Better Environment, the plaintiff, a national environmental organization, sought disclosure of inspection and monitoring reports on county enforcement of pesticide-use laws. Since the documents were made in the course of a determinative process of evaluating the county's compliance with the state's criteria regarding pesticide law enforcement, the documents met the first criteria as “pre-decisional communications.” Id. at 510. While evidence regarding some of the documents sought supported a finding that they were discarded in the ordinary course of business and thus met the second criteria, an EPA memoranda retained in each county file did not. Id. In addressing the third criteria, the court said the phrase “public interest in withholding records” could not be construed to encompass any policy argument as with the catchall exemption under Section 6255, but only those objectives that advance the specific policy domain of subdivision (a) — fostering robust agency debate. Id. at 715-16.

In distinguishing factual as opposed to recommendatory content, the court said, “That a judgment (an opinion) is embedded in a statement that something is the case (the hallmark of a factual claim) obviously does not deprive it of its factual quality. It is only an opinion which is “recommendatory” that may be withheld.” Id. at 717; cf. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342, 813 P.2d 240, 283 Cal. Rptr. 893 (1991) (where under Section 6255's catchall exemption the court explained that even if the content of a document is purely factual, it would be nonetheless exempt from public scrutiny if it is actually related to the process by which policies are formulated or inextricably intertwined with the policy-making process.)

While this exemption was intended to protect the pre-decisional, deliberative processes in an agency's drafts, notes or memoranda, a broader “deliberative process” exemption has been applied by the courts under Section 6255's catchall exemption, which arguably makes the exemption under subsection (a) of Section 6254 obsolete.

(b) Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.

Comment: The purpose of this exemption is to prevent a litigant from obtaining a greater advantage against a government entity than otherwise allowed under the rules of discovery. Roberts v. City of Palmdale, 5 Cal. 4th 363, 373, 853 P.2d. 496, 20 Cal. Rptr. 2d 330 (1993). It applies only if the record was specifically prepared for use in litigation — mere relevancy to the litigation is not enough. County of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 64, 149 Cal. Rprt. 3d 324 (2012) (where court held county law firm’s billing invoices were not exempt from disclosure under the pending litigation exemption); Bd. of Trustees of the Cal. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 897, 34 Cal. Rptr. 3d 82 (2005) (quoting County of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830, 98 Cal. Rptr. 2d 564, 572 (2000) (where court remanded action for in camera determination of whether sheriff's department's over-detention reports, logs tracking erroneous releases and over-detentions, and Inmate Reception Center Task Force Report were prepared by county for use in litigation)); see also City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1418-19, 44 Cal. Rptr. 2d 532 (1995) (where court concluded that internal investigation report of officer misconduct could not be withheld under pending litigation exemption because report was not prepared specifically for litigation; rejecting argument that documents relevant to later-instituted litigation should be exempt under pending litigation exemption); Fairley v. Superior Court, 66 Cal. App. 4th 1414, 1422, 78 Cal. Rptr. 2d 648 (1998) (where court remanded action for in camera determination of whether pre-litigation arrest records of plaintiff were prepared in anticipation of litigation).

This exemption protects not only attorney work product or documents protected by the attorney-client privilege, but also the work product of public agencies generated in anticipation of litigation. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 898 (citing Fairley, 66 Cal. App. 4th at 1422 n.5); see also Roberts, 5 Cal. 4th at 373. While, generally, the exemption protects only documents prepared by or on behalf of the agency (see Farley, 66 Cal. App. 4th at 1504), it also protects correspondence between opposing counsel and parties when sought by nonparties to the action and when the parties do not intend the correspondence to be revealed outside of the litigation. Id. at 894.

Once the litigation is over, records not otherwise independently protected from disclosure (i.e., attorney-client documents) must be disclosed. See, e.g., City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 49 Cal. Rptr. 2d 35 (1996) (depositions in concluded action against city not exempt from disclosure); Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 909, 205 Cal. Rptr. 92 (1984) (documents pertaining to settlement of personal injury claim against public entity, including but not limited to settlement agreement itself, were subject to disclosure).

Deposition transcripts are not exempt from disclosure under this subdivision because they are available under another statutory provision absent a protective order. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 901(citing Cal. Civ. Proc. Code § 2025.570). A county’s outside counsel’s billing records are not exempt under this subdivision. County of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 67, 149 Cal. Rptr. 3d 324 (2012). Claims filed against a public agency under California's Tort Claims Act are not exempt from disclosure under this subdivision. Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1505, 73 Cal. Rptr. 2d. 777 (1998); see also 71 Ops. Cal. Att'y. Gen. 235, 238 (1988).

(c) Personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

Comment: In enacting the CPRA the Legislature was mindful of the right of individuals to privacy. See Cal. Gov't Code § 6250 ("In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."). Likewise, the Constitutional Sunshine Amendment provides, “Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule or other authority to the extent that it protects that right to privacy . . . .” Cal. Const. Art. I, § 3(b)(3). Thus, disclosure of public records requires the balancing of two fundamental yet competing public interests: “the public’s interest in disclosure and the individual’s interest in personal privacy.” International Federation of Professional and Technical Engineers v. Superior Court, 42 Cal.4th 319, 329-30, 64 Cal.Rptr.3d 693, 165 P.3d 488 (2007); Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 299, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007); see also Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 239, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 813, 26 Cal. Rptr. 3d 92 (2005) (quoting Gilbert v. City of San Jose, 114 Cal. App. 4th 606, 613, 7 Cal. Rptr. 3d 692 (2003)).

The exemption “typically appl[ies] to employee's personnel folders or sensitive personal information which individuals must submit to government.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 777, 192 Cal. Rptr. 415 (1983); cf. Los Angeles County Sch. Dist., v. Superior Court, 228 Cal. App. 4th at 239 (stating exemption for “similar files” need not contain intimate details or highly personal information; rather, records “may simply be government records containing ‘information which applies to a particular individual.’”)(citation omitted)). As courts have stated, “one does not lose his [or her] right to privacy upon accepting public employment . . . .” Versaci, 127 Cal. App. 4th at 818 (quoting New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 100, 60 Cal. Rptr. 2d 410 (1997)). For example, in Versaci, the court held that the personal performance goals of a former superintendent of a community college district established each year between the superintendent and the board and maintained as confidential as part of her personnel file were exempt from disclosure under this subdivision. Id. at 818-22.

In determining whether the exemption applies, courts may look to the factors necessary to establish an invasion of a constitutional right of privacy. Int’l Federation, 42 Cal.4th at 330 n.3 (while recognizing that review of the factors might be helpful in a particular case, Court explained that intrusion upon a privacy interest need not rise to the level of an invasion of a constitutional right of privacy to be recognized under 6254(c)).  That test requires a showing of: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and, (3) a serious invasion of privacy. Hill v. National Collegiate Athletic Ass'n, 7 Cal.4th 1, 39-40, 26 Cal. Rptr. 2d 834, 865 P.2d 633 (1994) (applying test in invasion of privacy case); Int’l Federation, 42 Cal.4th at 330-31(recognizing privacy interest in personal financial information but holding that expectation of privacy over salary earned in public employment was not reasonable); Braun v. City of Taft, 154 Cal. App. 3d 332, 347, 201 Cal. Rptr. 654 (1984) (applying Hill test in determining whether disclosure required under CPRA); cf. Versaci, 127 Cal. App. 4th at 818 (applying three-part determination that: (1) the document sought constitutes a personnel file, medical file or other similar file; (2) disclosure would compromise substantial privacy interests; and, (3) the potential harm to the privacy interests outweighs the public interest in disclosure).

Personnel Files: Personnel files are not per se exempt from disclosure. However, portions may be exempt if disclosure constitutes an “unwarranted invasion of privacy.” See Braun, 154 Cal. App. 3d at 347. The Braun court recognized that the “personnel” exemption was developed to “protect intimate details of personal and family life, not business judgments and relationships.” Braun, 154 Cal. App. 3d at 343-44; see also Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004) (same); but see Los Angeles Unif. Sch. Dist., 228 Cal. App. 4th at  239 (stating that “similar” files exemption need not contain intimate details or highly personal information; rather, “[t]hey may simply be government records containing ‘information which applies to a particular individual.’”) (citation omitted)).

In Braun, the court found that disclosure of two letters from a public employee's personnel file, one appointing him to a position and another rescinding the appointment, did not constitute such an invasion because the letters contained no private information. Id. at 344. The court explained that although the reclassification may be embarrassing to an individual, the letters manifested his employment contract, and in California public employment contracts are public records that may not be considered exempt. Id. Nor was disclosure of the employee's address, birth date and Social Security number prohibited by the right of privacy under Article I, Section 1 of the California Constitution. Id. at 347.

In CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 907, 110 Cal. Rptr. 2d 889 (2001), the court held that the privacy exemption did not exempt from public disclosure the identity of individuals granted criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals because this information was a matter of public record.

In Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 834, 108 Cal. Rptr. 2d 870 (2001), the court held that individuals who purchased luxury suites in an arena being built on university campus entered into “public sphere” and by doing so “voluntarily diminished their own privacy interest” such that their names and license agreements were not exempt from disclosure under the CPRA.

In Lorig v Medical Bd., 78 Cal. App. 4th 462, 468, 92 Cal. Rptr. 2d 862 (2000), the court held that it was not an unwarranted invasion of privacy to disclose the home addresses of state-employed physicians who voluntarily used their home address as their “address of record.” See also ANG Newspapers v. Union City, 33 Med. L. Rptr. 2069 (Cal. Sup. Ct. 2005) (granting access to morale and job satisfaction report by outside consultant of city fire department).

Employee Wrongdoing: While documents relating to employee wrongdoing may be contained in personnel files, they must be disclosed if they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (citing American Federation of State, County and Municipal Employees v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978) (upholding access to alleged incident of sexual harassment or intimidation by school principal even though district had found allegation not true); see also Marken v. Santa Monica-Malibu Unif. Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violate sexual harassment policy). Under such circumstances, the public employee privacy must give way to the public interest in disclosure of public employee wrongdoing. Bakersfield, 118 Cal. App. 4th at 1046. In determining whether the complaint is well founded, the trial court does not determine the veracity of the underlying complaint but reviews the documents to determine whether “they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded.” Id. at 1047.

Separately, where a “complaint has been upheld by the agency involved or discipline imposed, even if only a private reproval, it must be disclosed.” Marken, 202 Cal. App. 4th at 1275 (holding that where school district had concluded teacher violated sexual harassment policy and where written reprimand was imposed, release of investigatory report and disciplinary record was required under the  CPRA) (citing American Federation, 80 Cal. App. 3d at 919)).

Where the allegations of wrongdoing are against a public figure, public official, such as a school district superintendent, as opposed to a nonpublic figure, public official, a lesser standard of reliability is applied in reviewing the records.  See BRV, Inc. v. Superior Court, 143 Cal.App.4th 742, 759, 49 Cal.Rptr.3d 519 (2006). This is so because public officials have significantly reduced expectations of privacy in their public employment. Id. at 758 (“The potential injury here is to his reputation, but as a public official, he knew his performance could be the subject of public, ‘vehement, caustic, and sometimes unpleasantly sharp attacks….’”) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).  Thus, the court in BRV reviewed a report against a school superintendent accused of verbally abusing students and sexually harassing female students and said “it could not conclude the allegations were so unreliable the accusations could not be anything but false.” Id. at 758-59.

Applying this lesser standard, the court in Caldecott v. Superior Court, 243 Cal. App. 4th 212, 224-25, 196 Cal. Rptr. 3d 223 (2015), held that terminated school district employee was entitled under the CPRA to documents responsive to his hostile work employment complaint against superintendent, which included allegations of financial irregularities. In so holding, the court said it could not conclude that the allegations against the superintendent and school “could not be anything but false” even though the district had found that the allegations were not well founded.  Id. at 225.

Salary Information: The public has a right of access to public employee exact salary information under the CPRA.  See Int’l Federation, 42 Cal.4th at 329. Without deciding whether a public entity’s payroll expenditure information constitutes “personnel … or similar files” under Section 6254(c), the court in Int’l Federation held that disclosure of exact salary information was nonetheless compelled because disclosure would not constitute an “‘unwarranted invasion of personal privacy.’” Id. at 329 (quoting Cal. Gov’t § 6254(c)).  In so holding, the court explained that while disclosure may cause “discomfort or embarrassment… an individual’s expectation of privacy in a salary earned in public employment is significantly less than the privacy expectation regarding income earned in the private sector.” Id. at 331. The court also noted that “[c]ounterbalancing any cognizable interest that public employees may have in avoiding disclosure of their salaries is the strong public interest in knowing how the government spends its money.” Id. at 333.  Access to public records, the court said, “makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.’” Id. at 333 (quoting NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 1211 n.28, 86 Cal.Rptr.2d 778, 980 P.2d 337 (1999)).

The court also discounted an earlier case decided at the preliminary injunction stage that had supported the notion that public employees may have, under certain circumstances, a reasonable expectation of privacy in their exact salaries. Id. at 335 (concluding that Priceless, 112 Cal. App. 4th 1500, was of slight precedential value because of the limited trial court record and posture of the case).   It also expressly disagreed with Priceless to the extent its holding can be read to stand for the proposition that the practice of a particular governmental agency in refusing to disclose salary information can create a privacy interest in those records.  Id. at 336.

Cases decided before Int’l Federation also supported the notion that exact salary information of public employees is not exempt under the CPRA. See Braun, 154 Cal. App. 3d at 338-40 (holding that trial court was within its discretion to find that disclosure of salary card of transit administrator was not an unwarranted invasion of personal privacy); 60 Ops. Cal. Att'y. Gen. 110 (1977); 68 Ops. Cal. Att'y. Gen. 73 (1985); see also Cal. Gov't Code § 54957 (prohibiting local public agencies from conducting closed session meetings to discuss or act on proposed compensation “except for a reduction of compensation that results from the imposition of discipline."); San Diego Union v. City Council, 146 Cal. App. 3d 947, 955, 196 Cal. Rptr. 45 (1983) (upholding trial court order enjoining city council from holding closed sessions on salaries of nonelected city employees).

Under Section 6254.8 of the CPRA, every public employment contract between a state or a local agency and any public official or public employee is a public record. Cal. Gov't Code § 6254.8; cf. Priceless, 112 Cal. App. 4th at 1517-18 (holding this provision did not apply to compel individualized salary information of most classified civil service employees because their employment is pursuant to statute not contract).

Pension Benefits: Disclosure of individual public employee pension amounts has been held not to constitute a violation of the constitutional right to privacy of public employees. See Sacramento County Employees’ Retirement System v. Superior Court, 195 Cal. App. 4th 440, 468; 125 Cal. Rptr. 3d 655 (2011)(concluding that public pensions are not private information and that county retirement system failed to demonstrate under Section 6255(a) of the Government Code a public interest in nondisclosure that clearly outweighed the public interest in disclosure); see also Sonoma County Employees’ Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011) (privacy interests of county retires did not outweigh the public’s interest in access to names and gross benefit amount of retirees); San Diego County Employee Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 3d 479 (2011) (concluding that “public employees lack a reasonable expectation of privacy in an expense [pension amounts] the public largely bears after their retirement”).

Police Records: Disclosure of police officer personnel records are regulated by both California's Evidence Code and Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8 and Cal. Evid. Code §§ 1043-1046; see, e.g., Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 1284, 48 Cal.Rptr.3d 183, 141 P.3d 288 (2006) (records of a county civil service commission relating to a peace officer’s administrative appeal of a disciplinary matter were exempt under Penal Code Section 832.7, protecting peace officer personnel records); San Diego Police Officers Ass'n v. City of San Diego Civil Service Commission, 104 Cal. App. 4th 275, 128 Cal. Rptr. 2d 248 (2002) (provisions governing peace officer personnel records precluded disclosure of peace officer personnel records at public administrative appeal of disciplinary decision if disclosure objected to by officer); City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1431, 44 Cal. Rptr. 2d 532 (1995) (records relating to allegations of police misconduct fell within protections of peace officer personnel records); Fagan v. Superior Court, 111 Cal. App. 4th 607, 618-19, 4 Cal. Rptr. 3d 239 (2003) (officers' urinalysis test results taken in connection with an administrative investigation of officer's off-duty conduct fell within protections of peace officer personnel records).

The Constitutional Sunshine Amendment expressly maintains these privacy protections for peace officers. Cal. Const. Art. I, § 3(b)(3). However, not all police officer information is subject to these provisions or the protections of this subdivision. In Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 64 Cal.Rptr.3d 661, 165 P.3d 462 (2007), the California Supreme Court made clear that these statutes cannot be interpreted as reaching beyond their clear language and purpose, and cannot be used as a justification for withholding basic information about the state’s law enforcement officers:

The public’s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant.  ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state.  In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’

42 Cal. 4th at 297 (emphasis added) (quoting New York Times v. Superior Court, 52 Cal. App. 4th 97, 104-105, 60 Cal. Rptr. 2d 410 (1997)).  Thus, the court held that police officer names, employing agency, and employment dates in a database maintained by the commission was not confidential under Sections 832.7 or 832.8, and disclosure would not constitute an unwarranted invasion of personal privacy under Section 6254(c).  Id. at 294, 299-303.  And in Int’l Federation, 42 Cal.4th at 343-46, the court rejected the argument that individual salary information of police officers was confidential as part of their “personnel records” under Section 832.7.

Names of police officers involved in shooting incidents while engaged in the performance of their duties also have been held not to be private information under these Penal Code provisions. See Long Beach Police Officers Assn. v. City of Long Beach (“LBPOA”), 59 Cal. 4th 59, 71, 73, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014) (limiting exemption for peace officer personnel records to records “generated in connection with [an officer’s] appraisal or discipline, and holding that “public’s substantial interest in the conduct of its peace officers outweighs, in most cases, the officer’s personal privacy interest”); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr. 2d 410 (1997) ("Fear of possible opprobrium or embarrassment is insufficient to prevent disclosure [of peace officers involved in on-duty shootings]."). The California Attorney General also has concluded that these Penal Code provisions do not shield the names of peace officers involved in critical incidents, and that the information must be disclosed in response to a CPRA request unless the proponents of secrecy show that the harm of disclosure clearly outweighs the benefits of public access in a specific case – generally, in those situations where peace officers are currently working undercover.  91 Ops. Cal. Atty. Gen.11 (May 19, 2008).

While recognizing the general rule of disclosure, the California Supreme Court also noted that where an officer’s name is linked, not just to an on-duty shooting, but to a confidential disciplinary action involving the officer, the information may be exempt under these same provisions. LBPOA, 59 Cal. 4th at 73 (distinguishing Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 48 Cal. Rptr. 3d 183, 141 P.3d 288 (2006)).

Relying on LBPOA, the court in City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 763-64, 205 Cal. Rptr. 3d 134 (2016), held that video of juvenile’s arrest from dashboard camera was not a confidential police personnel record because it was not “generated in connection” with the officer’s appraisal or discipline. Instead, the court said, it was just a “visual record of the minor’s arrest” akin to “information contained in the initial incident report” of an arrest, which is not exempt as a peace officer personnel record. Id. at 764.

A report compiled by an independent consultant hired to review officer-involved shooting of an unarmed teenager not for disciplinary purposes but to advance department-wide administrative reforms was held not to be exempt as a peace officer personnel record. See Pasadena Police Officers Assoc. v. Superior Court, 240 Cal. App. 4th 268, 289, 192 Cal. Rprt. 3d 486 (2015). But portions of the report culled from personnel information or officer statements in the course of the administrative investigation contained within the report were held to be exempt. Id. at 290-91 (discussing segregation requirements where exempt information is not inextricably intertwined with non-exemption information).

Disclosure of information in violation of the statutory procedures governing disclosure of peace officer personnel records has been determined not to give rise to a private right of action. Rosales v. City of Los Angeles, 82 Cal. App. 4th 419, 428, 98 Cal. Rptr. 2d 144 (2000).

Job Applications: With respect to job applications and resumes of public employees, the court in Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794, 184 Cal. Rptr. 840 (1982), said that “information as to the education, training, experience, awards, previous positions and publications of the (employee) . . . is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Additionally, job applications and resumes of those actually chosen for the job, are not exempt from disclosure. But applications and resumes pertaining to others in the pool of applicants may be exempt from disclosure under the deliberative process privilege, discussed elsewhere in this guide.

Medical Records: Generally, medical records are the type of records that are exempt from disclosure under 6254(c). However, medical records of a tort claimant against a county are not exempt from disclosure since by making the claim, the claimant places his or her alleged physical injuries, and medical records substantiating them, in issue and tacitly waives any expectation of privacy with respect to them. Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984). Because the county used the records in arriving at its decision to settle the claim, the court in Register Div. Of Freedom Newspapers, Inc. said the county could not hide behind the claimant's privacy to justify its concealment of the records from public scrutiny. Id.

“No provider of health care, health care service plan or contractor” may disclose medical information without patient or guardian authorization. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual).

Financial Data: Financial data submitted by a waste disposal firm to a city, which the city relied on in granting a rate increase pursuant to an exclusive contract between the city and the company, was not exempt from disclosure under Section 6254(c) where the city publicly based its decision to permit the company to increase rates based upon the financial data it submitted. The data thereby lost its exempt status. San Gabriel Tribune, 143 Cal. App. 3d at 775; see also Cal. State Univ., 90 Cal. App. 4th at 834 (rejecting argument that disclosure of names of those who purchased luxury suites at arena being built on university property would violate individuals' right to privacy in their financial dealings).

(d) Contained or related to:

(1) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions and insurance companies.

(2) Examination, operating or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

(3) Preliminary drafts, notes or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

(4) Information received in confidence by any state agency referred to in paragraph (1).

Comment: There are no California reported court decisions interpreting Section 6254(d). Cases decided under the companion section of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(8), generally apply this exemption liberally in favor of nondisclosure. One federal appeal court has even held that financial reports concerning a closed bank require the same protection from disclosure as those of an operating bank. Gregory v. Federal Deposit Insurance Corp., 631 F.2d 896, 203 U.S. App. D.C. 314 (D.C. Cir. 1980).

(e) Geological and geophysical data, plant production data and similar information relating to utility systems development, or market or crop reports, which are obtained in confidence from any person.

Comment: There are no California reported court decisions interpreting Section 6254(e).

(f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951 [crime involving injury or death to victim compensated under crime victim's bill of rights law], unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflect the analysis or conclusions of the investigating officer.

Customer list provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) 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) (A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, 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 crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code [various sex crimes] may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

  (B) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of the victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.

(3) Subject to the restrictions imposed by Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.5, 288.7, 289, 422.6, 422.7, 422.75,  646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This paragraph shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.

Comment: The cumbersome “investigatory records” exemption is one of the most litigated exemptions of the CPRA, and it is with investigatory records of law enforcement agencies that the public's right to access is the most limited. Unlike other exemptions under the CPRA, which simply set forth discretionary exemptions, the investigatory records exemption contains three categories of information: that which an agency may withhold, that which must be disclosed and that which is expressly exempt from the mandatory disclosure provisions. See Williams v. Superior Court, 5 Cal. 4th 337, 349, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993). Under this exemption, unless the requester has a specific interest in the investigatory report (such as being the victim), an agency may, in the exercise of its discretion, withhold the actual records pertaining to its investigatory functions, but it must extract specific information from those records and make that information available to the public.

In 1993, the California Supreme Court decided the first in a series of cases that generally have limited the public's right of access to investigatory records and files. In Williams, a newspaper waited until after the completion of a criminal prosecution before requesting copies of criminal investigation records. Although there was no pending criminal investigation, the California Supreme Court held that unlike the Federal Freedom of Information Act ("FOIA") investigatory records exemption, which does not exempt records of closed investigations, the CPRA exemption “does not terminate with the conclusion of the investigation.” Id. at 361-62. Moreover, the court explained that “[o]nce an investigation . . . has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, material that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute.” Id.  In rejecting FOIA standards for interpreting Section 6254(f), the Williams court limited access to investigatory records by holding that the public has a statutory right of access only to that information which is set forth with particularity in Sections 6254(f)(1) and 6254(f)(2), as long as the disclosure of that information would not endanger the safety of an individual involved in the investigation or would not jeopardize the successful completion of the investigation or a related investigation. Id. at 354; see also Rivero v. Superior Court, 54 Cal. App. 4th 1048, 63 Cal. Rptr. 2d 213 (1997) (where court held district attorney's investigatory file in concluded investigation was not subject to disclosure under the CPRA, and city's sunshine laws, which allowed for disclosure of closed investigation files, had to yield to state statute prohibiting interference with district attorney's investigatory and prosecutorial functions).

While the prospect of law enforcement must be “concrete and definite” before investigatory files may be withheld under the exemption, this standard was held inapplicable to investigatory records, which have an independent claim to exempt status under the statute. In holding as exempt from disclosure citizen reports and police radio calls following a routine police stop that resulted in no arrest, the California Supreme Court in Haynie v. Superior Court, 26 Cal. 4th 1061, 1070, 112 Cal. Rptr. 2d 80, 31 P.3d 760 (2001), reasoned that limiting the exemption “only to records of investigations where the likelihood of enforcement has ripened into something concrete and definite would expose to the public the very sensitive investigative stages of determining whether a crime has been committed or who has committed it."

But Section 6254(f)’s exemption for records of investigation was given a narrow construction by the California Supreme Court in ACLU v. Superior Court, 3 Cal. 5th 1032, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). There the court was confronted with the issue of whether automatic license plate reader data collected by law enforcement over a one-week period was exempt as “records of … investigations” under Section 6254(f) of the Government Code. The court held that the exemption for records of investigations did not include the indiscriminate collection of bulk data “of hundreds or thousands of individuals simultaneously”; rather, it applies to targeted inquiries into particular violations of law. Id. at 1040, 1042. The court’s narrow construction was largely informed by the California Sunshine Amendment’s constitutional mandate that exemptions be narrowly construed. Id. at 1042. It was also informed by common sense: “It is hard to imagine that the Legislature intended for the records of investigations exemption to reach the large volume of date that plate scanners and other similar technologies now enable agencies to collect indiscriminately.” Id. at 1041. Because disclosure of unredacted data nevertheless implicated privacy concerns, the court remanded with directions to consider methods of anonymizing the data in conducting a balancing analysis. Id. at 1044, 1046.

To be exempt, the investigatory, security, intelligence or complaint records must be compiled by the agency for correctional, law enforcement or licensing purposes. See, e.g., Uribe v. Howie, 19 Cal. App. 3d 194, 112-13, 96 Cal. Rptr. 493 (1971) (where court held that county agricultural commissioner could not withhold mandatory reports filed by farmers who had sprayed pesticides in the area by labeling the files investigatory for licensing purposes when licensing was not the primary purpose for which the files were compiled and when the files were not being used for investigation purposes at the time of trial).

Other cases have defined the exemption broadly. For example, in Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009), the court held that an autopsy report produced by a coroner’s inquiry into a suspected homicide where there exists a definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of Section 6254(f).  In so holding, the court recognized that a coroner’s office that compiles investigatory files for law enforcement purposes is entitled to assert the exemption even if it is not itself the police or law enforcement agency since it is an “other … local agency” that compiled the files for “law enforcement … purposes.”  Id.

Similarly defining the exemption broadly, the court in State Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 709, 117 Cal. Rptr. 3d 388 (2010), stated that investigatory materials underlying a public report of the Office of Inspector General into the Department of Corrections and Rehabilitation’s parole supervision of a defendant charged with kidnapping, raping and holding hostage for 18 years a female minor, were exempt as “investigatory files compiled by a state agency for correctional purposes.”  Because the underlying investigation of the parole supervision carried with it the possibility of criminal prosecution, the court said the prospect of “enforcement proceedings was concrete and definite when the investigation was launched.” Id. at 709-10.

Also in Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002), the court held that a letter prepared by the district attorney after the conclusion of its investigation of alleged police misconduct and which contained the DA's conclusions fell within the investigatory records exemption because the statute contains no exception for post-investigation records and because the letter related exclusively to the investigation.

The courts have diverged on the scope of an agency’s obligations to provide information under Section 6254(f)(1) and (f)(2). In County of Los Angeles v. Los Angeles Superior Court (Kusar), 18 Cal. App. 4th 588, 599, 22 Cal. Rptr. 2d 409 (1993), the court held that disclosure of arrest information under subdivision (f)(1) was limited to current information pertaining to contemporaneous police activity and did not apply to a request for arrest information of two police officers going back ten years.

More recently, in Fredericks v. Superior Court, 233 Cal. App. 4th 209, 233-34, 182 Cal. Rptr. 3d 526 (2015), the court rejected the Kusar court’s “contemporaneous” time limitations when construing subdivision (f)(2)’s disclosure obligations pertaining to complaints and calls for assistance. There, the requester sought complaint information over a six-month period but the police department limited its response to 60-days. Id. at 216. Discussing Kusar, the court noted that statutory language the court had relied on there in determining legislative intent—language that limited disclosure of arrestee and victim address information to current addresses—had since been eliminated from the statute, and that unlike in Kusar there was no clear attempt by the requester to evade discovery procedures through use of the CPRA. Id. at 233-34. Nor were the disclosure concerns the same under the two subdivisions, as the court noted. Id. at 233. More practically, the court said that “[t]here was no basis in the plain language of the statute to read into it any 60-day limitation on access to disclosable information.” Id. at 234.

The Fredericks decision casts serious doubt on the validity of any time restriction on the information required to be disclosed under either subdivision (f)(2) or (f)(1)—the subdivision at issue in Kusar.

The United States Supreme Court has upheld the facial constitutionality of subsection (f)(3), which allows for the disclosure of the addresses of arrestees and victims of crimes for specified purposes, but precludes disclosure for commercial purposes. See Los Angeles Police Dept. v. United Reporting Pub. Corp, 528 U.S. 32, 120 S.Ct. 483, 488, 145 L.Ed. 2d 451 (1999). The United States Supreme Court, however, noted that the constitutionality of the provision as applied to respondent, a publishing company that provides the names and addresses of arrested individuals to its customers, remained open on remand. See United Reporting Pub. Corp. v. Cal. Hwy. Patrol, 231 F.3d 483 (9th Cir. 2000).

It is important to note that each piece of information requested that is enumerated in Section 6254(f) must be considered and analyzed separately by the agency. A law enforcement agency, like any other agency subject to the provisions of the CPRA, bears the burden of justifying its refusal to disclose otherwise public records with regard to each separate piece of information requested (i.e., name, the factual circumstances surrounding the arrest, the charges, etc.).

(g) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided for in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of the Education Code.

Comment: The Education Code sections referred to in this subsection address standardized tests for admission to post-secondary institutions, such as the Scholastic Aptitude Test (SAT) and similar examinations. Copies of tests, answers, scores and related documents and information that are required to be filed with the California Post-Secondary Education Commission are exempt from disclosure under this subsection.

(h) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision.

Comment: There are no reported cases discussing this exemption.

(i) Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.

Comment: There are no reported cases discussing this exemption.

(j) Library circulation records kept for the purpose of identifying the borrower of items available in libraries, and the library and museum materials made or acquired and presented solely for reference or exhibition purposes. The exemption in this subdivision shall not apply to records of fines imposed on the borrowers.

Comment: There are no reported cases discussing this exemption.

(k) Records the disclosure of which is exempted or prohibited pursuant to the provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

Comment: This subdivision is not an independent exemption but merely incorporates other prohibitions established by law. Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1283, 48 Cal. Rptr. 3d 183, 141 P.3d 288 (2006); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 906, 110 Cal. Rptr. 2d 889 (2001) (quoting CBS Inc. v. Block, 42 Cal.3d 646, 656, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Statutes regulating various agencies, commissions and public offices often designate specific records as confidential. Additionally, Sections 930 through 1061 of the Evidence Code set forth the various privileges from compelled disclosure available to litigants in civil and criminal trials. These statutes and privileges may be asserted, where applicable, by a public agency under Section 6254(k).

For example, pursuant to Evidence Code Sections 950 through 962, a public agency has an attorney-client privilege in confidential communications between itself and its attorneys. The California Supreme Court held that this exemption covers communications that are made between a public agency and its attorneys during pending litigation as well as those made at other times. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371, 20 Cal. Rptr. 2d 330, 853 P.2d 496 (1993).

In Los Angeles County Board of Supervisors v. Superior Court, 2 Cal. 5th 282, 288, 212 Cal. Rptr. 107, 386 P.3d 773 (2016), the California Supreme Court held that the attorney-client privilege does not categorically shield everything in a county attorneys’ billing invoice but that invoices for work in pending and active legal matters are covered by the privilege. The court remained for further determination of whether billing totals in completed cases were communicated for purpose of legal consultation (and thus were privilege). Id. at 300. See County of Los Angeles Board of Supervisors v. Superior Court, 12 Cal. App. 5th 1264, 1276-77, 219 Cal. Rptr. 3d 674 (2017) (on remand from Cal. Supreme Court, appellate court refused to conduct in camera review of redacted portions of billing statements citing attorney-client privilege, and remanded to trial court issue of whether fee totals in concluded cases should be disclosed under CPRA).

One court also has held that the privilege is not waived by disclosure to successful bidder of a privileged memorandum and transmittal letter prepared by county counsel where disclosure was reasonably necessary to further interests of both parties in finalizing negotiations. STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 341, 109 Cal. Rptr. 2d 865 (2001).

In a case decided under Section 6254(k), the California Supreme Court held that more specific provisions of California’s Long-Term Care, Health, Safety, and Security Act, providing that citations issued against health care facilities are public records, prevailed over confidentiality provisions contained in another statutory scheme protecting mentally ill and developmentally disabled individuals. State Dep’t of Public Health v. Superior Court, 60 Cal. 4th 940, 964, 184 Cal. Rptr. 3d 60, 342 P.3d 1217 (2015).

The qualified trade secret, official information and attorney work-product privilege, which covers the research, impressions, notes and conclusions of an attorney, may be asserted through Section 6254(k).

In an effort to identify the numerous statutes that are incorporated in this subdivision, the Legislature enacted Section 6275, which provides that after January 1, 1999, each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to subdivision (k) of Section 6254 shall be listed and described in Article 2, Section 6276.02-6276.48. Cal. Gov't Code § 6275.

(l) Correspondence of and to the Governor or employees of the Governor's office or in the custody of or maintained by the Governor's Legal Affairs Secretary. However, public records shall not be transferred to the custody of the Governor's Legal Affairs Secretary to evade the disclosure provision of this chapter.

Comment: This exemption is designed to protect from disclosure communications to the Governor and members of the Governor's staff from correspondents outside of government. Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 168, 78 Cal. Rptr. 2d 847 (1998). In Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1337, 813 P.2d 240, 283 Cal. Rptr. 893 (1991), the California Supreme Court held that the Governor's daily, weekly and monthly calendars and schedules were not exempt under this subsection, which the court said was confined to “communications by letter.” However, the court in Times Mirror found such documents to be exempt under the “deliberative process” exemption under Government Code Section 6254(a). Id. at 1344.

Expanding the exemption beyond strictly “communications by letters,” the appellate court in Cal. First Amendment Coalition, 67 Cal. App. 4th at 169, held that application forms as well as letters received by the Governor's office from applicants for appointment to a vacant supervisor position fell within the correspondence exemption.

(m) In the custody of or maintained by the Legislative Counsel, except those records in the public database maintained by the Legislative Counsel that are described in [Government Code] Section 10248.

Comment: There are no reported cases discussing this exemption. Records of the Legislature are subject to the Legislative Open Record Act. See Gov’t Code §§ 9070-9080.

(n) Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license certificate, or permit applied for.

Comment: This exemption has been interpreted narrowly as not including financial records of a waste disposal company with an exclusive contract with a city. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 779, 192 Cal. Rptr. 415 (1983). In San Gabriel, the court concluded that a contract is not a license and that the legislature intended Section 6254(n) to be limited to those submitting financial data to a licensing agency. Id.

(o) Financial data contained in applications for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, if an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration. The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application which are subject to disclosure under this chapter.

Comment: If a private party seeks financial assistance from the California Pollution Control Financing Authority in order to implement a pollution control project, the financial information concerning the private party would presumably be exempt from disclosure, while other information would not.

(p)(1) Records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories or strategy, or that provide instruction, advice or training to employees who do not have full collective bargaining and representation rights under these chapters. This paragraph shall not be construed to limit the disclosure duties of state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this paragraph.

   (2) Records of local agencies related to activities governed by Chapter 10 (commencing with Section 3500) of Division 4, that reveal a local agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategies, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representative rights under that chapter. This paragraph shall not be construed to limit the disclosure duties of a local agency with respect to any other records relating to the activities governed by the employee relations act referred to in this paragraph.

Comment: The referenced statutes are provisions of the Government Code relating to state and local agency employer-employee relations. The representatives of a state or local agency need not disclose to the public records concerning their tactics, analysis or strategy in employee relations.

(q)(1) Records of state agencies related to the activities governed by Articles 2.6 (commencing with Section 14081), 2.8 (commencing with Section 14087.5), and 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator's deliberative processes, discussions, communications or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories or strategy, or that provide instruction, advice or training to employees.

   (2) Except for the portion of a contract containing the rates of payment, contracts for inpatient services entered into pursuant to these articles, on or after April 1, 1984, shall be open to inspection one year after they are fully executed. If a contract of inpatient services that is entered into prior to April 1, 1984, is amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed. If the California Medical Assistance Commission enters into contracts with health care providers for other than inpatient hospital services, those contracts shall be open to inspection one year after they are fully executed.

   (3) Three years after a contract or amendment is open to inspection under this subdivision, the portion of the contract or amendment containing the rates of payments shall be open to inspection.

   (4) Notwithstanding any other law, the entire contract or amendment shall be open to inspection by the Joint Legislative Audit Committee and the Legislative Analyst’s Office. The committee and that office shall maintain the confidentiality of the contracts and amendments until the time a contract or amendment is fully open to inspection by the public.

Comment: The statutes cited in Section 6254(q) refer to special negotiators who represent the State in the Medi-Cal program.

(r) Records of Native American graves, cemeteries and sacred places and records of Native American places, features, and objects described in Section 5097.9 and 5097.993 of the Public Resources Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

Comment: There are no reported cases discussing this exemption.

(s) A final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Health Care Services pursuant to subdivision (b) of Section 1282 of the Health and Safety Code.

Comment: A health care facility must transmit a copy of the Joint Commission's report on an inspection of its facility to the state if the commission is simultaneously conducting a quality of care inspection of the facility.

(t) Records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or the records of a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4 of this code, that relate to any contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 or 11512 of the Insurance Code. However, the record shall be open to inspection within one year after the contract is fully executed.

Comment: There are no reported cases discussing this exemption.

(u)(1) Information contained in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department that indicates when or where the applicant is vulnerable to attack or that concerns the applicant's medical or psychological history or that of members of his or her family.

(2) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners and magistrates that are set forth in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

(3) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners and magistrates that are set forth in licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff or a county or the chief or other head of a municipal police department.

Comment: This Section requires the licensing agency to segregate exempt from non-exempt material. See Cal. Gov't Code § 6253. Except for the information specifically exempted, the remainder of the application should be made available. CBS Inc. v. Block, 42 Cal. 3d 646, 652-53, 725 P.2d 470, 230 Cal. Rptr. 362 (1986). However, even under CBS Inc., information contained in an application that would reveal intimate details of a person's medical or family circumstances may also be deleted prior to release of the record.

(v)(1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.3 (commencing with Section 12695), and Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), and Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) or Part 3.8 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following:

(A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement.

(B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instruction, advice or training to employees.

(2) (A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to Part 6.3 (commencing with Section 12695), Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after their effective dates.

(B) If a contract that is entered into prior to July 1, 1991, is amended on or after July 1, 1991, the amendment, except for any portion of the contract containing the rates of payment, shall be open to inspection one year after the effective date of the amendment.

(3) Three years after a contract or amendment is open for inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other provision of law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contract or amendments to a contract is open to inspection pursuant to paragraph (3).

Comment: There are no reported cases discussing this exemption.

(w)(1) Records of the Managed Risk Medical Insurance Board related to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories or strategy of the board or its staff, or records that provide instructions, advice or training of employees.

(2) Except for the portion of a contract that contains the rates of payment, contracts for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after they have been fully executed.

(3) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to a contracts are open to inspection pursuant to paragraph (2).

Comment: There are no reported cases discussing this exemption.

(x) Financial data contained in applications for registration, or registration renewal, as a service contractor filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor's net worth, or financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor.

Comment: There are no reported cases discussing this exemption.

(y)(1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, if the records reveal any of the following:

(A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or department provides, receives, or arranges services or reimbursement.

(B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, or records that provide instructions, advice or training to employees.

(2) (A) Except for the portion of a contract that contains the rates of payment, contracts, entered into pursuant to Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code shall be open to inspection one year after their effective date. 

(B) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, is amended, the amendment shall be open to inspection one year after the effective date of the amendment.

(3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other provision of law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to paragraph (2) or (3).

(5) The exemption from disclosure provided pursuant to this subdivision for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations,  meeting minutes, research, work product, theories or strategy of the board or its staff, or the department or its staff, shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code.

Comment: There are no reported cases discussing this exemption.

(z) Records obtained pursuant to paragraph (2) of subdivision (c) of Section 2891.1 of the Public Utilities Code.

Comment: There are no reported cases discussing this exemption.

(aa) A document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operations and that is for distribution or consideration in a closed session.

Comment: This exemption was adopted in response to concerns after the terrorist attacks on Sept. 11, 2001. There are no reported cases discussing this exemption.

(ab) Critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the Office of Emergency Services for use by that office, including the identity of the person who or entity that voluntarily submitted the information.  As used in this subdivision, “voluntarily submitted” means submitted in the absence of the office exercising any legal authority to compel access to or submission of critical infrastructure information. This subdivision shall not affect the status of information in the possession of any other state or local governmental agency.

Comment: This exemption has generated no reported decisions.  But see County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (holding that federal Critical Infrastructure Information Act did not prohibit county from disclosing GIS basemap data under the CPRA where data had been submitted by the county to federal government, not to the county).

(ac) All information provided to the Secretary of State by a person for the purpose of registration in the Advance Health Care Directive Registry, except that those records shall be released at the request of a health care provider, a public guardian, or the registrant's legal representative.

Comment: There are no reported cases discussing this exemption.

(ad) The following records of the State Compensation Insurance Fund:

(1) Records related to claims pursuant to Chapter 1 (commencing with Section 3200) of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed.

(2) Records related to the discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the fund, and any related deliberations.

(3) Records related to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategies of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code.

(4) Records obtained to provide worker’s compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, any medical claims information, policyholder information provided that nothing in this paragraph shall be interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent or broker, and information on rates, pricing, and claims handling received from brokers.

(5) (A) Records that are trade secrets pursuant to Section 6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund’s special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections.

(B) Notwithstanding subparagraph (A), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, California Stte Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

(6) (A) Internal audits containing proprietary information and the following records that are related to an internal audit:

(i) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that his or her papers and correspondence be kept private and confidential.  Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund.

(ii) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information.

(B) Notwithstanding subparagraph (A), the portions of records containing proprietary information, or any information specified in subparagraph (A) shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

(7) (A) Except as provided in subparagraph (C), contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed.

(B) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed.

(C) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(D) Notwithstanding any other provision of law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to this paragraph.

(E) This paragraph is not intended to apply to documents related to contracts with public entities that are not otherwise expressly confidential as to that public entity.

(F) For purposes of this paragraph, “fully executed” means the point in time when all of the necessary parties to the contract have signed the contract.

Comment: There are no reported cases discussing this exemption.

Concluding paragraphs of Section 6254:

This section does not prevents any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.

Nothing in this section prevents any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.S.C. SEC. 158).

Compare

B. Other statutory exclusions

Catchall/Public Interest Exemption: Under Section 6255 an agency may withhold public records if "on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Cal. Gov't Code § 6255.
“This ‘provision contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.’” ACLU v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rprt. 3d 832, 400 P.3d 432 (2017) (quoting Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071, 44 Cal. Rprt. 3d 663, 136 P.3d 194 (2006)). See also CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 908, 110 Rptr. 2d 889 (2001) ("The burden of proof is on the proponent of nondisclosure, who must demonstrate a 'clear overbalance' on the side of confidentiality.") (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999)).

While this section does not specifically identify the public interests to be served in non-disclosure, the nature of those interests may be inferred from the specific exemptions contained in Section 6254. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 813 P.2d 240, 283 Cal. Rptr. 893 (1991). As explained by the California Supreme Court, whether a clear overbalance exists in a particular case can depend on a variety of factors, including privacy and the burden and expense of segregating exempt from non-exempt information. ACLU, 3 Cal. 5th at 1043 (citing ACLU v. Deukmejian, 32 Cal. 3d 440, 452-53,185 Cal. Rprt. 235, 651 P.2d 822 (1982)). However, “[v]ague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure of officer names.” Long Beach Police Officers Association v. City of Long Beach, 59 Cal.4th 59, 74, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014).  “A mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to … records.’” Id. (quoting CBS, Inc. v. Block, 42 Cal. 3d 646, 652, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Rather, there must be a “particularized showing necessary to outweigh the public’s interest in disclosure…” Id. at 75.

In identifying the public interest in disclosure courts have looked at whether disclosure “‘would contribute significantly to public understanding of government activities’ and serve the legislative purpose of ‘shed[ding] light on an agency’s performance of its statutory duties.’” Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 241, 175 Cal. Rptr. 3d 90 (2014) (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018-19, 88 Cal. Rprt. 2d 552 (1999)). “[A]s a threshold matter, the records sought must pertain to the conduct of the people’s business.” Id. at 242. The weight to be assigned that interest “‘is proportionate to the gravity of the governmental task sought to be illuminated and the directness with which the disclosure will serve to illuminate.’” Id. at 242 (quoting Connell v. Superior Court, 56 Cal. App. 4th 601, 616, 65 Cal. Rptr. 738 (1997)). “Even where a public interest exists, if it is minimal or hypothetical, disclosure will not be compelled.” Id. at 248. Moreover, where alternative, less intrusive means of obtaining the information sought exist, the public interest may be considered “minimal.” Id.

Importantly, while the Constitutional Sunshine Amendment expressly maintains preexisting statutory exemptions such as this, the elevation of the public's right of access to constitutional stature under the Amendment must now be considered when balancing the respective interests. Cal. Const. Art. I, § 3(b)(1).

This public interest exemption, or "catchall" exemption, has been used to withhold public records not otherwise exempt under the CPRA or as an additional grounds for nondisclosure. See, e.g., ACLU, 3 Cal. 5th at 1044 (upholding trial courts determination that public’s interest in non-disclosure of unredacted/raw license plate reader data would clearly outweigh public interest in disclosure but remanding for consideration of “new balancing analysis—one that includes consideration of the feasibility of, and interests implicated by, methods of anonymization…”); Times Mirror Co., 53 Cal. 3d at 1340-47 (where court recognized that potential threat to Governor's security that would be caused by disclosure of Governor's daily and weekly schedules bolstered Court's determination that the need for confidentiality outweighed the need for disclosure); Los Angeles Unif. Sch. Dist., 228 Cal. App. 4th at 253 (concluding disclosure of names linked to teacher evaluation test scores did not outweigh the public interest in protecting the privacy interests of teachers); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1023, 88 Cal. Rptr. 2d 552 (1999) (where court held public interest in withholding names, addresses and telephone numbers of persons who complained to city about municipal airport noise outweighed public interest served by disclosure); see also Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 301, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (stating in dicta that if duties of peace officers, such as one operating under cover, demand anonymity, “the need to protect the officer’s safety and effectiveness” would justify the withholding of identifying information under Section 6255(a)).

Where, however, the government agency is unable to meet its burden under this exemption, it cannot justify withholding public records under it. See, e.g., Long Beach Police Officers Assn., 59 Cal. 4th at 74-75 (vaguely worded declarations making only generalized assertions about risks officers face after shooting incidents did not outweigh public interest in overseeing the conduct of its peace officers); Block, 42 Cal. 3d at 652-25 (nondisclosure of records of applications and licenses for concealed weapons did not outweigh public interest in accountability and ensuring fair application of law); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 1329, 89 Cal. Rptr. 3d 374 (2009) (holding that county failed to demonstrate a clear overbalance on the side of confidentiality in withholding GIS basemap data from the public); CBS Broad. Inc., 91 Cal. App. 4th at 908 (holding agency failed to meet burden of proof to withhold names of every individual granted a criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals); Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 835, 108 Cal. Rptr. 2d 870 (2001) (holding university failed to carry its burden of proof to justify withholding identity of every individual who obtained luxury suite licenses in arena being built on university property); Poway Unif. Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1506, 73 Cal. Rptr.2d 777 (1998) (where court held privacy of minors submitting claim forms to public schools, which the court said were relevant to public interest in ending school hazing practices, did not justify withholding records of claims under this exemption); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr.2d 410 (1997) (where court held that the perceived harm to deputies from disclosure of their names as officers who fired weapons in the line of duty, which resulted in the death of a civilian, did not outweigh the public interest served by disclosure of their names); Connell v. Superior Court, 56 Cal. App. 4th 601, 612, 65 Cal. Rptr. 2d 738 (1997) (where court held pure speculative security interests or burden and expense of providing requested information did not justify withholding unpaid warrants to state vendors, which pertained to the government's conduct in managing public revenues); City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 1091, 49 Cal. Rptr. 2d 35 (1996) (where court held public interest in disclosure of deposition transcripts in closed action against the city, which related to claims of excessive force in the use of police dogs, outweighed the privacy interest of the litigants and could not be overcome by purported chilling effect disclosure would have on way city prepares its cases); New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 268 Cal. Rptr. 21 (1990) (public disclosure of names of excessive users of water outweighed reputational/privacy interests of those issued citations); Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984) (where public interest in disclosure of medical records used by county in settling claim outweighed any purported privacy right in nondisclosure).

Deliberative Process Privilege Under Catchall Exemption: Disconcerting for proponents of open government, the catchall exemption has been used to engraft an expansive "deliberative process privilege" into the CPRA that would not otherwise be available under Section 6254(a)'s deliberative process exemption for preliminary drafts, notes or interagency or intra-agency memoranda, or any other specific exemption. See, e.g., Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991). Whether this privilege survives the passage of the Constitutional Sunshine Amendment remains to be determined. Because this privilege has been engrafted into Section 6255 through common law and the Amendment only maintains preexisting "constitutional and statutory exemption[s]," not those created through case law, an argument can be made that this privilege does not survive passage of the Amendment. Cal. Const. Art. I, § 3(b)(5); but see Sutter’s Place v. Superior Court, 161 Cal. App. 4th 1370, 75 Cal. Rptr. 3d 9 (2008) (in dicta, court rejected argument that the Sunshine Amendment eliminated the separate mental process privilege as applied to protect the motives and thought processes of local legislators and characterizing that privilege as rooted in constitutional, as well as statutory law) Indeed, without conceding the point, former California Governor Arnold Schwarzenegger has complied with requests for his daily calendars after passage of the Amendment. See www.cfac.org/Attachments/governor_calendars.htm.

The deliberative process privilege is designed to protect essentially three policy objectives: "First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that 'officials should be judged by what they decided, not for matters they considered before making up their minds.'" Times Mirror Co., 53 Cal. 3d at 1352 (Kennard, J., dissenting) (citing Jordan v. United States Dept. of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)); see also California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 170, 78 Cal. Rptr. 2d 847 (1998).

The key question in every case is "whether the disclosure of materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Id. at 1342. To qualify for the privilege the document sought must be both predecisional and deliberative. Id. at 1352 (Kennard, J., dissenting) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S. Ct. 1504, 44 .L.Ed.2d 29 (1975)). "To establish that a document is predecisional, an agency must identify an agency decision of policy to which the document contributed [citations omitted], or at least must show 'that the document is in fact part of some deliberative process' [citations omitted]." Id. (Kennard, J., dissenting). To show that a document is deliberative, a document generally must consist of opinions or recommendations. Id. As the majority in Times Mirror states, however, "[e]ven if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is 'actually . . . related to the process by which policies are formulated.' (citations omitted) or 'inextricably intertwined' with 'policy-making processes' (citations omitted)." Id. at 1342.

In Times Mirror, the California Supreme Court traced the origins of the deliberative process privilege to "the traditional common law privilege that attached to confidential intra-agency advisory opinions, a privilege which was later codified in exemption 5 of the [federal Freedom of Information Act.]" Id. at 1339-40 n.10. Thus, in Times Mirror, the court construed a deliberative process privilege from federal decisions applying exemption 5 and from the broad language of Section 6255, which permits nondisclosure where the public interest in confidentiality clearly outweighs the interest in disclosure. Applying the privilege, the court held that the Governor's appointment schedules, calendars and notes revealing the daily activities of the Governor over a five-year period while not exempt as correspondence to and from the Governor under Section 6254(l) were nevertheless exempt under Section 6255's catchall provision. The court concluded that because "disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes" and disclosure "would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment" the intrusion into the deliberative process was "patent." Id. at 1343. In holding that the public interest in disclosure of such information was clearly outweighed by the public interest in confidentiality, the court noted that, "[t]o disclose every private meeting or association of the Governor and expect the decision making process to function effectively, is to deny human nature and contrary to common sense and experience." Id.

The court further noted, however, that its holding did not mean the Governor's calendars, schedules or other records were beyond the reach of the public. Id. at 1345. The court recognized that given a more focused and limited request a court might properly conclude that the public interest in confidentiality does not clearly outweigh the public interest in disclosure. Id. Nevertheless, the court's holding in Times Mirror Co., paved the way for a deliberative process privilege under the CPRA that reaches well beyond the one applicable to preliminary drafts, notes, and interagency and intra-agency memoranda under Section 6254(a).

Some subsequent cases have expanded this deliberative process privilege. For example, in Humane Society of the U.S. v. Superior Court, 214 Cal. App. 4th 1233, 1238, 1267, 155 Cal. Rptr. 93 (2013), the court found that the chilling effects of disclosing prepublication research and communications relating to a university funded study on the effects of a proposed voter initiative to restrict egg-laying hen houses clearly outweighed the public interest in disclosure. While recognizing a public interest in the records, the court nevertheless discounted that interest given the existence of other means of ensuring the accuracy of the study. Id. at 1268.

In Labor and Workforce Development Agency v. Superior Court, 19 Cal. App. 5th 12, *10, 18 Cal. Daily Op. Serv. 299 (Jan. 8, 2018), the court explained that disclosure of communications between an agency drafting legislation and stakeholders (farm workers unions) regarding safe harbor provisions in proposed legislation addressing the minimum wage of certain employees would tend to dissuade stakeholders on issues subject to future legislative efforts from communicating frankly, or at all. Because these concerns were presumably implicated by the trial court’s order requiring the agency to prepare an index of responsive records that included the identities of those with whom the agency communicated, the court held that the trial court erred in ordering the agency to prepare an index. Id., *11. Relying on Times Mirror, the court stated that “disclosing the identity of persons with whom the Agency’ ‘has met and consulted is the functional equivalent of revealing the substance and direction’ of the Agency’s ‘judgment and mental processes.’” Id.,*10 (quoting Times Mirror, 53 Cal.3d at 1343).

This exemption also has been used to deny access to documents pertaining to applicants to local and county board of supervisors. See, e.g., Wilson v. Superior Court, 51 Cal. App. 4th 1136, 1143, 59 Cal. Rptr. 2d 537 (1996) (where applications for position on county board of supervisors were considered "predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees. . . ."); see also Cal. First Amendment Coalition, 67 Cal. App. 4th at 172-74 (where applications and communications about applicants to county supervisor’s position maintained by Governors’ office were withheld under the deliberative process privilege despite lack of evidence Governor even reviewed applications since disclosure would likely reduce the applicant pool and discourage candor in those applying for the job, which would ultimately hinder the decision-making process).

In probably its broadest application to date, the deliberative process privilege has been used to deny access to phone billing records of city council members to show calls placed as part of official business. Rogers v. Superior Court, 19 Cal. App. 4th 469, 23 Cal. Rptr. 2d 412 (1993); see also San Joaquin Local Agency Formation Com’n v. Superior Court, 162 Cal. App. 4th 159, 76 Cal. Rptr. 3d 93 (2008) (holding in non-CPRA case that deliberative process privilege applied to local legislative bodies).

Some courts have construed the deliberative process privilege more narrowly. Most recently, for example, in ACLU v. Superior Court, 202 Cal. App. 4th 55, 76, 134 Cal. Rptr. 3d 472 (2011), the court rejected the contention that disclosure of the names of pharmaceutical companies from whom the Department of Corrections and Rehabilitation sought to acquire drugs used for state legal injections would reveal the mental processes of government employees. The department, the court held, made no showing that the substance of the deliberations related to the formation of any government policy or undermined the agency’s ability to perform its functions. Id. A declaration saying that disclosure would reveal “the government’s decisionmaking process” was held to be “manifestly inadequate” to meet the government’s burden of proof. Id.

Similarly, in Citizens for Open Government v. City of Lodi, 205 Cal. App. 4th 296, 307,  140 Cal. Rptr. 3d 459 (2012), the city sought to justify under the deliberative process privilege its withhold from the administrative record in a CEQA action emails between city staff and the city’s consultants regarding the preparation of a revised environmental impact report. It claimed such withholding was necessary to “foster candid dialogue and a testing and challenging of the approaches taken.” Id. The court stated that this showing was “simply a policy statement about why the privilege in general is necessary.” Id. Invoking the policy, the court held, was not sufficient. Id. The court also cautioned that “‘[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.” Id. at 306 (quoting California First Amendment Coalition, 67 Cal. App. 4th at 172-73).

Government Code Sections 6276.02-6276.48: In an attempt to assist members of the public and state and local agencies in identifying exemptions to the CPRA, the Legislature has compiled known exemptions from public disclosure in Article 2, Sections 6276.02 through 6276.48. Cal. Gov't Code § 6275. These sections list records or information that by statute agencies may not be required to disclose and thus may fall within Section 6254(k)'s exemption from disclosure. The records and information listed in Article 2 are not inclusive and the listing of a statute in the Article does not itself create an exemption. Cal. Gov't Code § 6275. Currently there are more than 600 categories of documents under Article 2 ranging from "Acquired Immune Deficiency Syndrome" (Section 6276.02) to "Youth Authority" (Section 6276.48). After January 1, 1999 each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to subdivision (k) of Section 6254 must be listed and described in Article 2. Id.

Some noteworthy exemptions contained in Article 2 include records pertaining to: (1) bids received by government agencies for public works under Section 10304 of the Public Contract Code; (2) driver's arrest for traffic violations under Section 40313 of the Vehicle Code; (3) employee personnel files under Section 1198.5 of the Labor Code; (4) firearm sales or transfers under Section 12082 of the Penal Code; (5) grand jury information or indictments under Sections 924 and 938.1 of the Penal Code; (6) hazardous waste control, notice of unlawful hazardous waste disposal under Section 25180.5 of the Health and Safety Code; (7) Insurance Commissioner information from examination or investigation under Sections 1215.7, 1433 and 1759.3 of the Insurance Code (and other provisions regarding the Insurance Commissioner and insurance); (8) Department of Motor Vehicle records under Section 1808 to 1808.7 of the Vehicle Code; (9) rap sheet information under Penal Code Sections 11075, 11105 and 13330.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The deliberative process exemption is discussed elsewhere in this guide. In California Supreme Court has recognized that the burden and expense of segregating exempt from nonexempt information or producing voluminous records may be considered under Section 6255’s balancing test. ACLU v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rprt. 3d 832, 400 P.3d 432 (2017); ACLU v. Deukmejian, 32 Cal. 3d 440, 452-53, 186 Cal. Rptr. 235, 651 P.2d 822 (1982). See also Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 2d 847 (1998) ("A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome.[citations omitted] Records requests, however, inevitably impose some burden on government agencies. An agency is obligated to comply so long as the record can be located with reasonable effort.").

Similarly, in Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761, 110 Cal. Rptr. 257 (1973), the court imposed a judicially created "reasonableness" standard to restrict access to public records where the request for a seven-volume, loose-leaf workbook was found to be voluminous.; but see CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (rejecting as untenable position that costs in amount of $43,000 to compile accurate list of individuals granted criminal conviction exemption to work in licensed child day care facilities was valid reason for nondisclosure).

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D. Are segregable portions of records containing exempt material available?

Yes. Government Code Section 6253 (a) provides in part as follows: "Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." Cal. Gov't Code § 6253(a); Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 301, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007); see also Northern Cal. Police Practices Project v. Craig, 90 Cal. App. 3d 116, 124, 153 Cal. Rptr. 173 (1979). This means that a person requesting a public record should always ask that the agency furnish the non-exempt portions of a record should it also contain exempt, segregable material. The public agency has the duty to segregate unless it is "too onerous" to do so. The agency bears the burden of demonstrating that it is "too onerous" to segregate the exempt material from the non-exempt material. Simply responding that the records requested contain exempt material is not sufficient to relieve the agency of its duty to produce the non-exempt records requested. State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1186, 13 Cal. Rptr. 2d 342 (1992).

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III. Record categories - open or closed

A. Autopsy and coroners reports

Public, unless compiled by for law enforcement purposes and the prospect of law enforcement is concrete and definite, then, according to one appellate court case, the report may be withheld under the investigatory records exemption of the CPRA.  Cal. Gov’t Code § 6254(f); Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009) (holding that an autopsy report produced by a coroner’s inquiries into a suspected homicide where there exists the definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of Section 6254(f)).  Dixon, however, arguably is wrongly decided. The court’s decision turned on its determination that a coroner performing duties pursuant to an inquest into a criminally-related death is a law enforcement agency within the meaning of the investigatory records exemption of Section 6254(f).  Id. at 1277.  In so concluding, however, the court failed to cite or recognize the express provision directly governing a coroner’s inquest, including those involving investigations into the cause of death in criminally-related cases, which requires a coroner’s inquest be open to the public.  Cal. Gov’t Code § 27491.6.  Moreover, the court arguably applied an over broad interpretation of the investigatory records exemption by holding that the duties of a corner pursuant to an inquest under Government Code Section 27491 are performed “as a law enforcement agency” within the meaning of the investigatory records exemption of Section 6254(f) without any determination of whether the coroner is charged with the enforcement of criminal laws, as opposed to the enforcement of other laws, such as the issuance of subpoenas on witnesses or a summons of jury called to inquire as to the cause of death.  See, e.g., Cal. Gov’t Code §§ 27492, 27499.

Moreover, earlier courts, before the adoption of the CPRA, had held that autopsy reports are public records. See People v. Williams, 174 Cal. App. 2d 364, 390, 345 P.2d 47 (1959)("An autopsy report is a record that the coroner is required to keep (Gov. Code § 27491) and is therefore, a public record (citations omitted)."); Walker v. Superior Court, 155 Cal. App. 2d 134, 138-39, 317 P.2d 130 (1957); see generally Cal. Gov't Code § 27491 (setting forth duties of coroners); § 27491.6 (requiring inquests performed by coroner be open to the public). The Legislature was no doubt aware of these decisions when it enacted the CPRA, and could have expressly exempted coroners' reports from public disclosure, but did not do so. See also San Francisco Examiner v. Plummer, 19 Med. L. Rptr. 1319 (1991) (in a decision not certified for publication, a superior court judge held that a county sheriff's department was required to release autopsy records of victims of the Nimitz Freeway collapse during the 1989 San Francisco earthquake).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Both Section 6254(a), governing preliminary drafts and interagency or intra-agency memoranda, and Section 6255’s public interest balancing test encompassing through case law a deliberative process exemption are potential impediments to access to administrative enforcement records reflecting pre-decisional thought processes of the agency. Cal. Gov’t Code §§ 6254(a), 6255; see generally Citizens for a Better Environment v. Dept. of Food & Agric., 171 Cal. App. 3d 704, 217 Cal. Rptr. 504 (1985) (agency did not meet its burden under Section 6254(a) to show how the public’s interest in nondisclosure clearly outweighed the public’s interest in disclosure of reports on county’s enforcement of pesticide-use laws).

While Sections 6254(a) and 6255 may still be invoked over pre-decisional, deliberative documents, records reflecting final agency action, records considered in reaching a final determination, or records reflecting public employee wrongdoing arguably are public.

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C. Bank records

Generally exempt from disclosure. See Gov’t Code § 6254(d).

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D. Budgets

Public, unless preliminary and thus arguably exempt under Sections 6254(a) or 6255. Cal. Gov’t Code §§ 6254(a), 6255. If an agency subject to the Ralph M. Brown Act considered the budget in connection with any open meeting, the agency is precluded from relying on Section 6255 as a basis for its withholding. Cal. Gov’t Code § 54957.5(a).

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E. Business records, financial data, trade secrets

Business and financial records are open to public access when used as the basis for a public agency's decision-making. San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983). However, information that constitutes a trade secret is generally exempt from disclosure. Gov't Code §§ 6254(k)(engrafting into CPRA exemptions under federal and state law, including provisions of California Evidence Code relating to privileges). Trade secret protection, however, is not absolute. See, e.g., Coalition of Univ. Employees v. Regents of Univ. of Cal., 32 Med. L. Rptr. 1212 (Cal. Sup. Ct. 2003)(even assuming internal rates of return of private equity investments made by university were trade secrets, disclosure turns on balancing of interests and public interest in disclosure outweighed interest in nondisclosure).

Several provisions govern disclosure of various financial records. For example, statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish personal qualification for the license, certificate or permit applied for, are exempt from disclosure. Cal. Gov't Code § 6254(n). Financial data contained in applications for financing from the California Pollution Control Financing Authority is not subject to disclosure where an authorized officer of the Authority determines that disclosure of such financial data would be competitively injurious to the applicant and such data is required in order to obtain guarantees from the U.S. Small Business Administration. Cal. Gov't Code § 6254(o). Corporate financial data and corporate proprietary information furnished to a government agency by a private company for the purpose of permitting the agency to work with the company in retaining, locating or expanding a facility in California are exempt from disclosure. Cal. Gov't Code § 6254.15.

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F. Contracts, proposals and bids

Contracts are public.  Competitive proposals, while decided on a case-by-case basis, are arguably exempt under Section 6255’s public interest balancing test during the negotiation process but must be made public prior to final acceptance by the public agency to afford public input in the selection process. Michaelis, Montanari & Johnson v. Superior Court, 38 Cal.4th 1065, 1073, 44 Cal. Rptr. 3d 663, 136 P.3d 194 (2006).

Financial records submitted to an agency and used as a basis for its determination to increase rates on an exclusive public contract are public. See, e.g., San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983) (rejecting trade secret exemption over financial data submitted to city and considered in open meeting regarding rate increase for waste disposal services); but see STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 341, 109 Cal. Rptr. 2d 865 (2001) (holding that disclosure to successful bidder of legal memorandum and transmittal letter where disclosure was reasonably necessary to further interests of both parties in finalizing negotiations did not waive attorney-client privilege).

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G. Collective bargaining records

Tactics and strategy records are exempt. Other records are public. Cal. Gov't Code §§ 6254(p) & 6254(q).

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H. Economic development records

Presumptively public, unless the public’s interest in nondisclosure clearly outweighs the public’s interest in disclosure under Section 6255 of the Government Code, or if some other express statute applies to the specific type of records under consideration.  See, e.g., Cal. Gov’t Code § 6254(h) (real estate appraisals pertaining to the acquisition of property or prospective supply and construction contracts).

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I. Election Records

Disclosure of voter registration records is allowed for election, scholarly, journalistic, political or governmental purposes.  Cal. Gov’t Code § 6254.4  The California driver's license number, the California identification card number, the Social Security number, any other unique identifier used for purposes of voter identification shown on a voter registration card, as well as the signature of the voter, are confidential. Cal. Elec. Code § 2194(b) & (d). However, other personal information regarding a voter, including home address, telephone number, e-mail address, occupation, precinct number and prior registration information shown on the voter registration card for all registered voters may be disclosed "to any person for election, scholarly, journalistic or political purposes, or for governmental purposes, as determined by the Secretary of State." Cal. Elec. Code § 2194; Cal. Gov't Code § 6254.4 (referencing Section 2194).

Election results are public and generally available on-line through the Secretary of State’s official website.  See Statewide Election Results | California Secretary of State.

Referendum, initiative and recall petitions are exempt from disclosure except as to specified individuals, including the proponents of a petition if found to be insufficient. Gov't Code §§ 6253.5 and 6253.6.

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J. Emergency Medical Services records

Generally exempt. No provider of health care shall disclose medical information regarding a patient without first obtaining authorization as required by statute. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual). However, medical records of a tort claimant against a public agency are not exempt from disclosure because claimant by filing claim places alleged physical injuries and medical records substantiating them at issue. See Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984).

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K. Gun permits

Licenses and applications to carry firearms are public.  CBS Inc. v. Block, 42 Cal. 3d 646, 652-53, 725 P.2d 470, 230 Cal. Rptr. 362 (1986).   However, certain information contained in the application is expressly exempt.  Cal. Gov’t Code § 6254(u)(information indicating when and where applicant is vulnerable to attach, information concerning applicant’s mental health, and home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates set forth in the application and license is exempt).  The agency must segregate the exempt from non-exempt material. See Cal. Gov't Code § 6253.

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L. Homeland security and anti-terrorism measures

Under Section 6254(aa), an agency may withhold "[a] document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operations and that is for distribution or consideration in a closed session. Cal. Gov't Code § 6254(aa).  Under Section 6254(ab), critical infrastructure information that is voluntarily submitted to the Office of Emergency Services for used by that office is exempt.  No reported cases have discussed these exemptions.  But see County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1316, 89 Cal. Rptr. 3d 374 (2009) (rejecting county’s argument that GIS basemap data was exempt under federal Critical Infrastructure Information Act, since information was provided by County not to it, as required under Act).

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M. Hospital reports

Generally exempt. No provider of health care shall disclose medical information regarding a patient without first obtaining authorization as required by statute. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual). However, medical records of a tort claimant against a public agency are not exempt from disclosure because claimant by filing claim places alleged physical injuries and medical records substantiating them at issue. See Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984).

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N. Personnel records

Personnel files are not per se exempt from disclosure. Portions may be exempt if disclosure constitutes an “unwarranted invasion of privacy.” Cal. Gov’t Code § 6254(c). A detailed discussion of case law under this exemption is discussed elsewhere in this guide.

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1. Salary

Public.  See International Federation of Professional and Technical Engineers v. Superior Court, 42 Cal.4th 319, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007); see also Cal. Gov't Code § 6254.8 (public employment contracts between a state or a local agency and any public official or public employee is a public record).

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2. Disciplinary records

For non-public figure, public employees’ documents relating to employee wrongdoing must be disclosed if they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004)(citing American Federation of State, County and Municipal Employees v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978)).

Separately, where a complaint has been upheld by an agency or discipline imposed, even if only a private reproval, disciplinary records must be disclosed. See Marken v. Santa Monica-Malibu Unif. Sch. Dist., 202 Cal. App. 4th 1250, 1275, 136 Cal. Rptr. 3d 395 (2012) (discussing case law and holding disclosure of investigation report required where district issued a written reprimand against teacher accused of violating sexual harassment policy).

For public figure, public officials, who have a diminished expectation of privacy, a lesser standard of reliability is applied in reviewing the records.  BRV, Inc. v. Superior Court, 143 Cal.App.4th 742, 759, 49 Cal.Rptr.3d 519 (2006).  In conducting an in camera review, courts look to determine whether the allegations are “so unreliable that [they] could not be anything but false.” Id. at 758-59.

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3. Applications

There is no express exemption from disclosure for job applications.  Disclosure of information as to education, training, experience, awards, previous positions and publications by the employee has been held to implicate no privacy or public policy exemption. Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794, 184 Cal. Rptr. 840 (1982). Nevertheless, applications for public office have been denied under the exemption for correspondence to and from the Governor (Cal. Gov’t Code § 6254(l); California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 78 Cal. Rptr. 2d 847 (1998)), and under the deliberative process exemption/catchall exemption (Wilson v. Superior Court, 51 Cal. App. 4th 1136, 59 Cal. Rptr. 2d 537 (1996)).  Job applications and resumes of those actually chosen for the job, however, are not exempt from disclosure.

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4. Personally identifying information

There are no express exemptions from disclosure under the CPRA of personal identifying information generally.  However, personal identifying information contained in certain records is exempt. See, e.g., Cal. Gov’t Code § 6254(j) (library circulation records identifying borrows of items available in the library); § 6254(u) (exempting from disclosure home address, telephone number of judicial or peace officers on applications and licenses to carry firearms). Moreover, the non-disclosure requirements of the Information Practices Act, which does protect personal identifying information contained in agency records, expressly does not apply to disclosures pursuant to the CPRA.  See Cal. Civ. Code § 1798.25(g).  With several exemptions, that Act protects “personal information” that is maintained by an agency that identifies or describes an individual, “including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual.”  Cal. Gov’t Code § 1798.3(a).  Section 6254(c) of the Government Code, the personnel records exemption, “typically appl[ies] to employee’s personnel folders or sensitive personal information which individuals must submit to the government.”  San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 777, 192 Cal. Rptr. 415 (1983).  It was developed “to protect intimate details of personal and family life, not business judgments and relationships.” Braun v. City of Taft, 154 Cal. App. 3d 332, 343-34, 201 Cal. Rptr. 654 (1984).  However, “one does not lose his [or her] right to privacy upon accepting public employment…” Versaci v. Superior Court, 127 Cal. App. 4th 805, 818, 26 Cal. Rptr. 3d 92 (2005) (quoting New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 100, 60 Cal. Rptr. 2d 410 (1997) (holding that personal performance goals of former superintendent of community college district maintained in confidence as part of personnel file were exempt from disclosure under Section 6254(c)).  Names, addresses and telephone numbers of citizens have also been withheld under the catchall/public interest balancing test of Section 6255.  City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1023, 88 Cal. Rptr. 2d 552 (1999) (holding public interest in withholding names, addresses and telephone numbers of persons who complained to city about municipal airport noise outweighed public interest served by disclosure especially in light of agency’s disclosure of other information going to complaints).

Several other express provisions exempt from disclosure certain personal data required to be submitted to the government.  For example, statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish personal qualification for the license, certificate or permit applied for, are exempt from disclosure. Cal. Gov’t Code § 6254(n). Financial data contained in applications for financing from the California Pollution Control Financing Authority is not subject to disclosure where an authorized officer of the Authority determines that disclosure of such financial data would be competitively injurious to the applicant and such data is required in order to obtain guarantees from the U.S. Small Business Administration. Cal. Gov’t Code § 6254(o).

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5. Expense reports

Public. With no express exemption applicable to public employee expense reports, they are presumptively public and routinely disclosed.

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6. Other

Pensions:  The appellate courts have concluded that that exact pension amounts of retired pensioners, like salaries of public employees, are public.  Sacramento County Employees Retirement System v. Superior Court, 195 Cal. App. 4th 440, 472, 125 Cal. Rprt. 3d 655 (2011); Sonoma County Employees’ Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011); San Diego County Employees Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 479 (2011).

Police Personnel Related Records: Disclosure of police officer personnel records are regulated by both California's Evidence Code and Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8 and Cal. Evid. Code §§ 1043-1046; see, e.g., Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 1284, 48 Cal.Rptr.3d 183, 141 P.3d 288 (2006) (records of a county civil service commission relating to a peace officer’s administrative appeal of a disciplinary matter were exempt under Penal Code Section 832.7, protecting peace officer personnel records); San Diego Police Officers Ass'n v. City of San Diego Civil Service Commission, 104 Cal. App. 4th 275, 128 Cal. Rptr. 2d 248 (2002) (provisions governing peace officer personnel records precluded disclosure of peace officer personnel records at public administrative appeal of disciplinary decision if disclosure objected to by officer); City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1431, 44 Cal. Rptr. 2d 532 (1995) (records relating to allegations of police misconduct fell within protections of peace officer personnel records); Fagan v. Superior Court, 111 Cal. App. 4th 607, 618-19, 4 Cal. Rptr. 3d 239 (2003) (officers' urinalysis test results taken in connection with an administrative investigation of officer's off-duty conduct fell within protections of peace officer personnel records).

The Constitutional Sunshine Amendment expressly maintains these privacy protections for peace officers. Cal. Const. Art. I, § 3(b)(3). However, not all police officer information is subject to these provisions or the protections of this subdivision. In Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 64 Cal.Rptr.3d 661, 165 P.3d 462 (2007), the California Supreme Court made clear that these statutes cannot be interpreted as reaching beyond their clear language and purpose, and cannot be used as a justification for withholding basic information about the state’s law enforcement officers:

The public’s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant.  ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state.  In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’

42 Cal. 4th at 297 (emphasis added) (quoting New York Times v. Superior Court, 52 Cal. App. 4th 97, 104-105, 60 Cal. Rptr. 2d 410 (1997)).  Thus, the court held that police officer names, employing agency, and employment dates in a database maintained by the commission was not confidential under Sections 832.7 or 832.8, and disclosure would not constitute an unwarranted invasion of personal privacy under Section 6254(c).  Id. at 294, 299-303.  And in International Federation of Professional and Technical Engineers v. Superior Court, 42 Cal. 4th 319, 343-46, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007), the California Supreme Court rejected the argument that individual salary information of police officers was confidential as part of their “personnel records” under Section 832.7.

Names of police officers involved in shooting incidents while engaged in the performance of their duties also have been held not to be private information under these Penal Code provisions. See Long Beach Police Officers Assn. v. City of Long Beach (“LBPOA”), 59 Cal. 4th 59, 71, 73, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014) (limiting exemption for peace officer personnel records to records “generated in connection with [an officer’s] appraisal or discipline, and holding that “public’s substantial interest in the conduct of its peace officers outweighs, in most cases, the officer’s personal privacy interest”); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr. 2d 410 (1997) ("Fear of possible opprobrium or embarrassment is insufficient to prevent disclosure [of peace officers involved in on-duty shootings].").

Relying on LBPOA, the court in City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 763-64, 205 Cal. Rptr. 3d 134 (2016), held that video of juvenile’s arrest from a police dashboard camera was not a confidential police personnel record because it was not “generated in connection” with the officer’s appraisal or discipline. Instead, the court said, it was just a “visual record of the minor’s arrest” akin to “information contained in the initial incident report” of an arrest, which is not exempt as a peace officer personnel record. Id. at 764.

A report compiled by an independent consultant hired to review an officer-involved shooting of an unarmed teenager not for disciplinary purposes but to advance department-wide administrative reforms was held not to be exempt as a peace officer personnel record. See Pasadena Police Officers Assoc. v. Superior Court, 240 Cal. App. 4th 268, 289, 192 Cal. Rprt. 3d 486 (2015). But portions of the report culled from personnel information or officer statements in the course of the administrative investigation contained within the report were held to be exempt. Id. at 290-91 (discussing segregation requirements where exempt information is not inextricably intertwined with non-exemption information).

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O. Police records

1. Accident reports

Accident reports are exempt. Cal. Veh. Code § 20012. Abstracts of accident reports required to be sent to the Department of Motor Vehicles in Sacramento, except abstracts of accidents which in the opinion of the reporting officer were the fault of another individual, are open to the public for inspection at the DMV during office hours. Cal. Veh. Code § 1808.

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2. Police blotter

Public as to information that is expressly stated to be subject to disclosure in the statute. Cal. Gov’t Code § 6254(f)(1), (2) and (3).

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3. 911 tapes

911 tapes are not expressly exempt under the CPRA.  Arguably, when calls for assistance involve an allegation of criminal wrongdoing, they may fall under the investigatory records exemption of Section 6254(f).  Under such circumstances, the detailed information culled from the tape and required to be disclosed under the statute would have to be disclosed, but not the tape itself. Cal. Gov’t Code § 6254(f)(1), (2) and (3).  However, not all calls to a 911 call center or local police department are or should be protected from disclosure under this provision. Section 6254(f) exempts only “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of” various law enforcement agencies, as well as certain “investigatory . . . files” maintained by those agencies.  Cal. Gov’t Code § 6254(f).  In Haynie v. Superior Court, 26 Cal. 4th 1061, 1071, 112 Cal. Rptr. 2d 80, 31 P.3d 760 (2001), the California Supreme Court made clear that this exemption must not be interpreted to “shield everything law enforcement officers do from disclosure.”  The court emphasized that “officers make inquiries of citizens for purposes . . . that are unrelated to either civil or criminal investigations.”  Id.  “The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred.”  Id. (emphasis added).  When a 911 call is made for medical assistance, for example, Section 6254(f) arguably is not implicated.

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4. Investigatory records

Investigatory records themselves are exempt from disclosure under Section 6254(f) of the Government Code. Cal. Gov’t Code § 6254(f). The exemption for investigatory records under 6254(f) is discretionary. Nothing precludes an agency from disclosing more than it is required to under the law. Cal. Gov’t Code § 6253(e).

The exemption for investigatory records and files does not terminate when the investigation terminates. Williams v. Superior Court, 5 Cal. 4th 337, 362, 852 P.2d 377, 19 Cal. Rptr.2d 882 (1993). The exemption has been held to apply to letters prepared after the conclusion of an investigation but that were related exclusively to the investigation. Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002).

While investigatory records are exempt from disclosure, specified facts from investigatory or security records, must be disclosed unless disclosure would endanger the successful completion of an investigation, or related investigation, or endanger a person involved in the investigation. Cal. Gov’t Code §§ 6254(f)(1), (f)(2) and (f)(3).

For arrests, the agency must disclose such facts as the name, occupation, and detailed physical description of every individual arrested by the agency, as well as 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 must be disclosed. Cal. Gov’t Code § 6254(f)(1).

For complaints or requests for assistance, the agency must disclose such facts as the time and nature of the response, 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. Notwithstanding these mandatory disclosure requirements, an agency, at the victim’s request, may withhold the name of a victim of certain specified sexual crimes as set forth in the statute. Cal. Gov’t Code § 6254(f)(2).

Additionally, to obtain address information for individuals arrested by an agency or victims of crimes other than those expressly set forth in the statute, the requester must state under penalty of perjury that the information is sought for one of five specified purposes: scholarly, journalistic, political, governmental, or investigation purposes by a licensed private investigator. Cal. Gov’t Code § 6254(f)(3). Moreover, the requester must declare under penalty of perjury that the information obtained shall not be used, directly or indirectly, to sell a product or service. Id.

The mandatory disclosure provision of Section 6254(f)(1) relating to arrest information has been held to apply only to those records pertaining to contemporaneous police activity and not to a request for arrest information about closed investigations going back ten years. County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993). More recently, however, this holding has come into question in Fredericks v. Superior Court, 233 Cal. App. 4th 209, 234 (2015), where the court refused to read any time limitation into the disclosure provisions of Section 6254(f)(2), relating to complaints and calls for assistance. The court reasoned, in part, that the statutory language the Kusar court relied on to imply such a limitation was no longer present in the text of the statute. Id. at 233.

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5. Arrest records

Except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation, state and local law enforcement agencies shall make public the following information pertaining to arrests: “[t]he 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 place 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.” Cal. Gov’t Code § 6254(f)(1); see County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993) (holding disclosure requirements pertaining to arrest information under subdivision (f)(1) applied only to contemporaneous record, not to a request going back five years); but see Fredericks v. Superior Court, 233 Cal. App. 4th 209, 182 Cal. Rptr. 3d 526 (2015) (rejecting Kusar time-limitations for disclosure requirements under subdivision (f)(2), and calling into question Kusar’s continued validity in light of statutory changes to statutes).

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6. Compilations of criminal histories

Exempt. Local summary criminal history information (“rap sheet”) is exempt from disclosure. Cal. Penal Code § 13300. Also, records pertaining to closed investigations unrelated to any contemporaneous law enforcement activities are not required to be disclosed under Government Code Section 6254(f). Only specific information from contemporaneous investigations must be disclosed. Cal. Gov’t Code § 6254(f)(1). See County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993) (placing time-restriction on access to information required to be disclosed under subdivision (f)(1) for arrests); but see Frederick v. Superior Court, 233 Cal. App. 4th 209, 233, 182 Cal. Rptr. 3d 526 (2015) (casting doubt on continued validity of Kusar).

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7. Victims

The name and age of the victim shall be made public, unless the disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation. However, the name of any victim of certain crimes defined by various provisions of the Penal Code relating to sex offenses may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. Cal. Gov’t Code § 6254(f)(2). Furthermore, pursuant to Penal Code 293, a law enforcement agency is required to advise victims of their right to request that their names not be released. Cal. Penal Code § 293.
Address information of victims must also be disclosed where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a duly licensed investigator, except that the address of a victim of any crime defined by certain enumerated provisions of the Penal Code shall remain confidential. The requester must also declare under penalty of perjury that the address information obtained shall not be used to sell a product or service to any individual or group of individuals. Cal. Gov’t Code § 6254(f)(3).

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8. Confessions

May be withheld at agency’s discretion under Section 6254(f) of the CPRA if compiled for correctional or law enforcement purposes. However, once introduced in evidence in a criminal proceeding, public access to the information is presumed absent a constitutional showing justifying its sealing. Cal. Gov’t Code § 6254(f).

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9. Confidential informants

Exempt. The identity of confidential informants and any statements made by them are expressly exempt from disclosure under Section 6254(f) of the CPRA. Cal. Gov’t Code § 6254(f). California Evidence Code Section 1041 also protects the identity of confidential informants upon a proper showing. Cal. Evid. Code § 1041.

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10. Police techniques

Exempt. Police techniques or “security procedures” are expressly exempt from disclosure under Section 6254(f).

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11. Mugshots

Access appears to be discretionary.  See Cal. Ops. Att’y Gen. 03-205 (2003)(sheriff has discretion to furnish copies of mug shots to public or media but once released a copy must be made available to all who make request). In California, law enforcement agencies routinely make mug shots available to the press. Indeed, in  People v. McCloud, 146 Cal. App. 3d 180, 182, 194 Cal. Rptr. 75 (1983), the only published California case regarding mug shots, the court recognized that mug shots are routinely made available to the press and public and that this practice provides a variety of benefits to the public and the law enforcement system, as evident from the arrests at issue which “were brought about through the publication in a daily newspaper, of their mug shots taken after some earlier arrest.” The McCloud case does not discuss access to mug shots pursuant to the CPRA. It holds instead that mug shots are not part of the criminal summary history (“rap sheet”), which is a confidential record under Penal Code Section 13300.

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12. Sex offender records

Local summary criminal history information (“rap sheet”) is exempt from disclosure.  Cal. Penal Code § 13300.  Also, records pertaining to closed investigations unrelated to any contemporaneous law enforcement activities are not required to be disclosed under Government Code Section 6254(f). Only specific information from arrest records must be disclosed. Cal. Gov’t Code § 6254(f). See County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 589-99, 22 Cal. Rptr. 2d 409 (1993); but see Frederick v. Superior Court, 233 Cal. App. 4th 209, 233, 182 Cal. Rptr. 3d 526 (2015) (casting doubt on continued validity of Kusar).

Despite these laws and pursuant to the Sex Offender Registration Act of Section 290 of the Penal Code, certain sex offenders are required to register with local law enforcement agencies when coming into the state or moving residences within the state.  Cal. Penal Code § 290.  Notwithstanding any other law, law enforcement agencies may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, “when necessary to ensure the public safety based upon information available to the entity concerning that specific person’s current risk of sexual or violent re-offense…”  Cal. Penal Code § Section 290.45. Additionally, under Megan’s Law, the Department of Justice is required to make information about registered sex offenders publicly available via the Internet.  Cal. Penal Code § 290.46. There are four categories of sex offenders for purposes of the disclosure requirements.  The name of the registrant, address, a photograph, the year of most recent conviction, year of release and subsequent felony convictions is among the information available on the DOJ’s website for some categories of registrants. Cal. Penal Code § 290.46; see also DOJ's Megal Law Website.

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13. Emergency medical services records

The investigatory records exemption of Section 6254(f) of the CPRA does not specifically apply to emergency medical services records. Thus, they would not fall within the exemption for investigatory files unless the records specifically relate to a criminal investigation (and thus properly belong in the investigatory file) and the likelihood of enforcement has ripened into something that is concrete and definite. See Williams v. Superior Court, 5 Cal. 4th 337, 356, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993) (discussing investigatory files exemption). The constitutional right to privacy would apply to most individually identifying medical records, including emergency services records.

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14. Police video (i.e., “body camera footage”)

P. Prison, parole and probation reports

Prison records are generally exempt. Cal. Gov’t Code § 6254(f). However, transcripts of parole hearings and any statements, recommendations, or other materials considered and incorporated therein, unless the material is confidential in order to preserve institutional security and the security of others, shall be made available to the public no later than 30 days from the date of the hearing. Cal. Penal Code § 3042. Probation reports filed with the court are open for public inspection from the date judgment is pronounced or probation granted (or in the case of a report arising out of a previous arrest from the date the subsequent accusatory pleading is filed) to and including 60 days from the date judgment is pronounced or probation granted, whichever is earlier. Cal. Penal Code § 1203.05. Thereafter, access to probation reports requires either a court order upon the filing of a petition by the individual seeking access, or a court order upon the court’s own motion. Id.

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Q. Professional licensing records

Section 6254(n) of the Government Code does not require disclosure of “[s]tatements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license, certificate or permit applied for.” Otherwise, licensing records are presumptively public, and the agency must segregate exempt from nonexempt information from the records. Cal. Gov’t Code § 6253(a).

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R. Public utility records

The name, credit history, utility usage date, home address, or telephone number of utility customers of local agencies are not required to be disclosed under the CPRA except under certain specified circumstances set out in the statute, such as an authorized request for release by an agent or family member of the person to whom the information pertains, or upon a determination that the public interest in disclosure clearly outweighs the public interest in nondisclosure. Cal. Gov’t Code § 6254.16. Also, geological and geophysical data, plant production data, and similar information relating to utility systems development are not required to be disclosed under the CPRA. Cal. Gov’t Code § 6254(e).

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S. Real estate appraisals, negotiations

1. Appraisals

Appraisals for acquisition of property are exempt “until all the property has been acquired or all the contract agreement obtained.” Cal. Gov’t Code § 6254(h).

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2. Negotiations

While a local agency may hold a closed session for the purpose of meeting with its real estate negotiator to discuss price and terms of the purchase, sale, exchange or lease of real property, there is no corollary provision under the CPRA to withhold records, though assertion of the public interest balancing test of Section 6255 to thwart access during the negotiation process is conceivable.  There are no known reported cases discussing this issue. See Cal. Gov’t Code § 54956.8 (while negotiation session is closed, statute requires agency to identify real property which is subject of negotiation, the person or persons with whom negotiations may occur, and the name of the negotiator for the agency).

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3. Transactions

Public.

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4. Deeds, liens, foreclosures, title history

Public.

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5. Zoning records

Public.

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T. School and university records

1. Athletic records

There is no specific statutory exemption from disclosure but see below, for exemptions for student records generally.

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2. Trustee records

There is no specific statutory exemption from disclosure.

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3. Student records

Elementary school pupil records are generally exempt. Cal. Ed. Code § 49073-76. Community college student records (Cal. Ed. Code § 67243) and university student records (Cal. Ed. Code § 76143) are also generally exempt. See Porten v. University of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) (recognizing state constitutional right of privacy in student records); see also Rim of the World Unif. Sch. Dist. v. Superior Court, 104 Cal. App. 4th 1393, 129 Cal. Rptr. 2d 11 (2003) (holding federal Family Educational Rights and Privacy Act preempted state statute requiring disclosure of student expulsion records); but see BRV v. Superior Court, 143 Cal. App. 4th 742, 754-55, 49 Cal. Rptr. 3d 519 (2006) (holding exemption for pupil records under Section 49061 of the Education Code did not cover a report compiled to investigate complaints of malfeasance alleged against district administrators, even though the report identified students by name and detailed some student acts which resulted in discipline).

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4. Other

Campus crime reports: The governing boards of community college districts, state universities, the University of California, Hastings College of Law, and any post-secondary institution receiving public funds for student financial assistance must release campus crime records upon request by students, employees, applicants for admission, and the media, unless the information is the type exempt from disclosure under Government Code Section 6254(f). Cal. Ed. Code § 67380(a)(3). While there are no reported cases discussing the scope of the disclosure requirements of the Education Code, its language and legislative history suggest that the actual records of crime, including police reports, may be within the scope of disclosure. Also, it is unclear whether the discretionary exemptions for closed investigations judicially created under Government Code Section 6254(f) in County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 409 (1993), apply under the Education Code. The statute does not apply unless the campus has a full-time equivalent enrollment of more than 1,000 students. Cal. Ed. Code § 67380(e). Nor does it apply as to the California Community Colleges unless and until the Legislature makes funds available to them to fulfill the statute’s mandate. Additionally, the provisions of Section 67380 are made applicable to the University of California only through appropriate resolution of the Regents of the University of California. Cal. Ed. Code § 67400.

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U. State guard records

The California State Military Department includes the office of the Adjutant General, the California National Guard, the State Military Reserve, the California Cadet Corps, and the Naval Militia. Cal. Mil. & Vet. Code § 50. The National Guard includes the California Army National Guard and the California Air National Guard. See California Military Department--CalGuard.

Only a few statutes specifically address the public records status of records of the Military Department. Section 55(h)(3)(A) exempts from public disclosure “requests” to investigate any complaint or allegation regarding: (1) a violation of law, including regulations, the Uniform Code of Military Justice, and any law prohibiting sexual harassment or unlawful discrimination; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public health or safety. Cal. Mil. & Vet. Code § 55(h)(3)(A). This statute is silent on the public records status of the actual complaint. The California Military Department Inspector General may not disclose “to any person or entity the identity of a person making a written request or an allegation or complaint” pursuant to Section 55(h)(1) of the Military and Veteran’s Code. Cal. Mil. & Vet. Code § 55(h)(3)(B). Annual reports of the inspector general containing a summary of investigations “shall be made available to the public and posted on the office’s Internet Web site.” Cal. Mil. & Vet. Code § 55(j)(1)(A).

Separately, the California Military Whistleblower Protection Act (Cal. Mil. & Vet. Code § 56) authorizes (but does not require) the inspector general to withhold from otherwise disclosable reports of whistleblower investigations summaries of interviews conducted, or any document acquired, during the course of the investigation. Cal. Mil. & Vet. Code § 56(f)(3). However, the inspector general is required to submit public quarterly reports of investigations under this statute. Cal. Mil. & Vet. Code § 55(j)(2). The inspector general has discretion to withhold the identities of individuals or redact facts from these public reports that might hinder investigations under state or federal law or the Uniform Code of Military Justice, and to decline to produce any of the underlying materials. Id.

There are no published cases discussing access to Military Department records under the CPRA.

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V. Tax records

In California there is a qualified privilege against discovery of tax returns. Webb v. Standard Oil Co., 49 Cal. 2d 509, 513, 319 P.2d 621 (1957); Fortunato v. Superior Court, 114 Cal. App. 4th 475, 479, 8 Cal. Rptr. 3d 82 (2003). Further, it is unlawful for the Franchise Tax Board or any other person, “who in the course of his or her employment or duty has or had access to returns to disclose” to disclose the amount of income or “any particulars (including the business affairs of a corporation) set forth or disclosed therein.” Cal. Rev. & Taxation Code §§ 19542; 19542.1 (prohibiting inspection).

 

Notwithstanding these laws, the Franchise Tax Board is required to make public at least twice each calendar year a list of the 500 largest tax delinquencies in excess of one hundred thousand dollars. Cal. Rev. & Taxation Code § 19195.

 

Separately, the CPRA exempts from disclosure “[i]nformation required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.” Gov’t Code § 6254(i).

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W. Vital Statistics

1. Birth certificates

Public, except for those parts which contain medical and family information. Cal. Health & Safety Code § 102430.

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2. Marriage and divorce

Certificates of marriage are public. However, confidential marriage certificates are not open to public inspection except upon order of the court issued upon a showing of good cause. Cal. Family Code § 511. Health and Safety Code §10361, which provided that State Registrar and county clerk records regarding dissolution of marriage, judgment of nullity or legal separation were closed to public inspection, was repealed in 1995. These records are now public.

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3. Death certificates

Public.

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4. Infectious disease and health epidemics

Information about an ongoing outbreak of an infectious disease at a public facility is not expressly exempt and strong public policies support disclosure of such information to inform the public, dissuade undue panic and allow the public to judge the agency’s response. It can be anticipated that some concerns about whether disclosure will violate the Health Insurance Portability and Accountability Act (“HIPPA”) will be expressed, if not directly asserted to thwart disclosure. HIPPA would only apply, however, if the facility fell within the definition of a “health care provider” and the disclosure was of “individually identifiable health information,” as those terms are defined under 42 USCA Section 1320(d); 45 CFR 160.103. Even so, HIPPA expressly authorizes disclosure pursuant to other legal mandates, such as a state‘s public records act. CFR § 164.512(a).

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IV. Procedure for obtaining records

The CPRA requires prompt agency response to records requests and allows immediate relief via the courts.

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A. How to start

1. Who receives a request?

The request should be directed to the public official or employee who has custody of the records. The request need not be to the head of an agency or to a supervisor.

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2. Does the law cover oral requests?

Yes. A request must "reasonably describe an identifiable record" to be produced. Cal. Gov't Code § 6253(b). Such a request may be made orally. Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 107 Cal. Rptr. 2d 29 (2001)(CPRA does not require that requests for public records be in writing). However, if the request is in writing, then a written response is required. Cal. Gov't Code § 6255(b). Therefore, if a denial is anticipated or it is anticipated that the agency may drag its heels, the better practice is to make the request in writing, signed and dated by the person requesting the record, and to retain a copy. Otherwise, routine requests can be and should be made orally.

If an oral request is denied, then a letter should be sent or faxed immediately memorializing the request (describing the records requested) and the denial. Also, request that the agency, pursuant to Section 6255(a), justify its denial by providing the express provision(s) of the CPRA upon which the agency is relying and by providing the names and titles of each person responsible for the denial. This way, there will be a record of the actions that may be an exhibit in support of any later initiated court proceedings under the CPRA.

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3. Contents of a written request

A simple request describing the records with specificity and asking that they be made available immediately is sufficient. An agency is required to comply with the request so long as the record can be located with reasonable effort. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 627, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017); California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 2d 847 (1998); State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1186, 13 Cal Rptr. 2d 342 (1992).

If the requester is uncertain of how to describe the documents sought because he or she does not know what documents the agency maintains, for example, the requester can seek the assistance of the agency, which is required to, among other things, "[a]ssist 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." Cal. Gov't Code § 6253.1.

Extraneous matter, such as the reason for the request, is unnecessary unless the information is covered by Section 6254(f)(3) of the Government Code. Under Section 6257.5, an agency may not deny access based on the purpose for which the record is being requested. Cal. Gov't Code § 6257.5. However, disclosure of the purpose of the request may assist the agency in locating responsive documents. See Cal. Gov't Code § 6253.1.

It is good practice to include a statement that if the agency contends that some portion of the record is exempt from disclosure, the exempt material should be deleted and the remainder of the record be disclosed. Cal. Gov't Code § 6253(a).

The agency may charge a fee for the direct costs of copying the records or a "statutory fee," if applicable. Cal. Gov't Code § 6253(b). Thus, it is good practice to either tender the fee, if known, with the request or to state in the request that payment will be made at the time copies are provided. One may request a waiver of the fee as the agency has complete discretion to grant the waiver or demand payment of the fee before providing copies.

If disclosure is time sensitive, it is a good idea to remind the agency that the CPRA states that the agency is to make the records "promptly" available and, absent unusual circumstances, it must makes a determination of whether the records are disclosable public records no later than 10 days from receipt of the request. Cal. Gov't Code § 6253(b) and (c).

The request must be for existing records, not future records. See definition of "public records" and "writings" in the CPRA, Cal. Gov't Code § 6252(e) and (g).

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B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

Copies of nonexempt public records must be made "promptly" available to the requester. However, the CPRA expressly allows 10 days from receipt of the request for the agency to make a determination as to whether a specific record is a disclosable public record in the possession of the agency. Cal. Gov't Code § 6253(c). This does not mean that the agency may take 10 days on all requests for public records. It simply means that where a question exists about whether the record is exempt from disclosure or whether the record is in the agency's possession, the agency may take up to 10 days to make its determination. See Cal. Gov't Code § 6253(d) ("Nothing in this chapter shall be construed to permit an agency to obstruct the inspection or copying of public records.")

An agency also must allow for the inspection of public records at all times during the office hours of the agency. Cal. Gov't Code § 6253(a).

Extension of time for unusual circumstances. If the agency contends that the request is unusual and requires a search of separate locations, an examination of a voluminous amount of separate and distinct records, consultation with another agency with an interest in the records requested, or the compilation of data, writing of programming language or constructing a computer report to extract data, the time limit for the agency to make its determination regarding disclosure may be extended by an additional 14 days. In such "unusual circumstances," the head of the agency, or his or her designee, must provide written notice 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," which shall not be later than 14 days beyond the original 10 day period. When the determination is dispatched and if the agency determines that the records are disclosable, it must notify the requester of when the records will be made available. Cal. Gov't Code § 6253(c).

The CPRA requires prompt notification of agency determination. As soon as a determination is made whether to comply with the request, the agency must immediately notify the requester of the decision and of the reasons for any denial. Cal. Gov't Code § 6255(a). The agency is required to demonstrate that the record in question is exempt by citing the specific provision(s) of the CPRA or other law it is relying upon for its denial to disclose. Id.

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2. Informal telephone inquiry as to status

It is always a good idea to follow up a written or oral request with a telephone call to ask about the status of the agency's response to the request. This can be an opportunity to provide, on an informal basis, statutory or case law support for your request, if necessary.

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3. Is delay recognized as a denial for appeal purposes?

A delay beyond the 10 plus 14-day period allowed under Section 6254(c) is arguably a violation of the CPRA giving a requester standing to sue the agency. See, e.g., Marken v. Santa Monica-Malibu Unif. Sch. Dist., 202 Cal. App. 4th 1250, 1268 n. 14, 136 Cal. Rptr. 3d 395 (2012) (stating that district’s one-month delay in producing records—beyond the 24-day time period allotted to make the determination in unusual circumstance—to allow teacher to file preliminary injunction raised “serious questions” about whether the delay violated the CPRA).

A lawsuit is a costly method to obtain a response, however. Practically speaking, filing a writ petition or an action for declaratory or injunctive relief may be premature if the agency has not definitively denied the request. On the other hand, if the delay is unreasonable and it becomes clear that the agency is refusing to respond or has gone substantially beyond the 10 plus 14-day period, then it might be worthwhile to file a lawsuit, even if it is only to get a response from the agency.  In this circumstance, writing the agency and informing it that suit will be filed absent a written response or production of records by a stated date, would assist in establishing that the inaction is a violation of the CPRA and an intended denial by the agency.

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4. Any other recourse to encourage a response

Another recourse to encourage a response is to send a second letter, following up on the original request, setting forth statutory and case law support for disclosure and advising the agency that its delay is in violation of Section 6253(d) of the CPRA. Bringing public attention to the matter, through local media or public officials overseeing the agency also may prompt action.

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C. Administrative appeal

The CPRA does not mention administrative appeals, but provides for immediate access to any court of competent jurisdiction, without the need to exhaust administrative remedies. Cal. Gov't Code § 6258. Designated state agencies, however, may have adopted regulations for administrative appeals. Cal. Gov't Code § 6253.4. Additionally, many municipalities have adopted sunshine ordinances which may allow for internal review of the municipality's denial.
The Attorney General is not empowered to enforce the provision of the CPRA unless the AG has itself been denied access to public records under the Act.

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1. Time limit

Not applicable.

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2. To whom is an appeal directed?

Not applicable.
While the Attorney General’s Office does not handle administrative appeals from a CPRA denial, it does issue opinions in various matters that have persuasive effect. When the law is unsettled or unclear, seeking an opinion from the Attorney General on the matter may be an avenue to persuade an agency to comply with the request.

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3. Fee issues

Not applicable.

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4. Contents of appeal letter

Not applicable.

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5. Waiting for a response

Not applicable.

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6. Subsequent remedies

Not applicable.

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D. Court action

Section 6258 sets forth the methods available for instituting actions against an agency for violation of the CPRA. Cal. Gov't Code § 6258.

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1. Who may sue?

"Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." Cal. Gov't Code § 6258. The California Supreme Court has held that the plain meaning of this provision "contemplates a declaratory relief proceeding commenced only by an individual or entity seeking disclosure of public records, and not by the public agency from which disclosure is sought." Filarsky v. Superior Court, 28 Cal. 4th 419, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002) (city may not initiate ordinary declaratory relief action to determine its obligation to disclose records to a member of the public as CPRA provides exclusive means for litigating question of whether records must be disclosed).

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2. Priority

Section 6258 provides, in pertinent part, that the hearing in these proceedings "shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time." Cal. Gov't Code § 6258.

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3. Pro se

It is not advisable to proceed in pro se. If a court action must be brought, complex procedural requirements virtually necessitate the hiring of an attorney.

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4. Issues the court will address

a. Denial

The court will determine whether the agency has met its burden of justifying its withholding of the requested records by determining whether a specific exemption from disclosure applies under the CPRA, or other law, or whether under the facts of a particular case the public interest served by not making the records public clearly outweighs the public interest served by disclosure of the records. Cal. Gov't Code § 6255; Cal. Gov't Code § 6259(b). "The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow." Cal. Gov't Code § 6259(a).

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b. Fees for records

It is a violation of the CPRA for an agency to charge more than "the direct cost of duplication," unless a statutory fee provision allows for additional charges. Cal. Gov't Code § 6253(b). With respect to documents, "direct costs" means photocopying costs only. North County Parents Org. v. Cal. Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). With respect to computer data, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 6253.9(a)(2). However, under the CPRA a requester may be required to bear the additional costs of "constructing a record and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 6253.9(b). See Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015) (discussing burden of authorized fees within context of 6255 balancing test).

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c. Delays

While delay beyond that which is proscribed under Section 6253(c) of the CPRA may allow a requester to bring suit, the California Supreme Court has held that “requiring disclosure of otherwise exempt records as a penalty for delay in complying with the Act’s timing requirements is unduly harsh.”  Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 44 Cal. Rptr. 3d 663, 136 P.3d 194 (2006). But failing to assert a specific exemption while relying on others may waive the right to raise exemption for first time in subsequent litigation.  See, e.g., ANG Newspapers v. Union City, 33 Med. L. Rptr. 2069 (Cal. Sup. Ct. 2005) (ruling that City's failure to assert exemption waived right to raise exemption for first time in response to order to show cause).

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d. Patterns for future access (declaratory judgment)

Upon the filing of a complaint for declaratory relief, the court may enter a prospective order governing future rights of access to the records or a class of records; otherwise the court shall not issue any order applying to future denials of disclosure of records by the agency.

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5. Pleading format

The CPRA provides that one may seek injunctive or declaratory relief or a writ of mandate to enforce his or her right to inspect or to receive a copy of any public record. Cal. Gov't Code § 6258. In California, the pleading format for injunctive and declaratory relief is a complaint. The proper pleading form for a writ of mandate is a verified petition. Because one section of the CPRA refers to the procedure as a "verified petition," the initial pleadings, whether a complaint or petition, should be verified. See Cal. Gov't Code § 6259.

The choice of procedures to use may depend upon local court rules and practices in the county where the action is filed. The declaratory relief procedure enables the court to enter a prospective order governing future rights of access to the records. The petition procedure offers the advantage that the hearing procedure can frequently be expedited.

Where the petition procedure is used, a party will typically seek an alternative writ directing disclosure of the public records or requiring the agency to appear at a hearing to show cause why a peremptory writ directing disclosure should not issue. The court, in its discretion, will issue the alternative writ and order to show cause to the public agency, which may be made returnable within a few days, but usually not longer than the general notice period for law and motion matters. The CPRA provides that the court set the time for responsive pleadings and hearings "with the object of securing a decision as to such matters at the earliest possible time." Cal. Gov't Code § 6258.

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6. Time limit for filing suit

The CPRA does not set forth a statute of limitations for filing a lawsuit against a public agency. The limitations periods for causes of action for liabilities created by statute is three years. Cal. Civ. Proc. Code § 338. Because the relief sought under the CPRA is equitable in nature, the best course of action is to file suit without undue delay that a court could consider if the delay prejudices the agencies' case.

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7. What court

The lawsuit must be filed in the superior court of the county where the records or some part thereof are maintained. Cal. Gov't Code § 6259(a).

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8. Judicial remedies available

The only judicial remedy available under the CPRA is immediate disclosure of the public records, a declaratory judgment governing the alleged practice or future disclosure of the same type of documents in question, if applicable, and the recovery of costs and reasonable attorneys' fees. If an agency fails to obey a court order, contempt sanctions may be imposed by the court, after hearing on an order to show cause. Cal. Gov't Code § 6259(c).

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9. Litigation expenses

a. Attorney fees

Section 6259(d) provides that the court "shall award costs and reasonable attorney fees" to the plaintiff should the plaintiff prevail in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 6259(d). The award of costs and fees is mandatory. Bernardi v. County of Monterey, 167 Cal. App. 4th 1379, 1393, 84 Cal. Rptr. 3d 754 (2008).  “The costs and fees shall be paid by the public agency of which the public official is a member employee and shall not become a personal liability of the public official.”  Id.; cf. Pacific Merchant Shipping Assoc. v. Board of Pilots Comm., 242 Cal. App. 4th 1043, 1061,195 Cal. Rptr. 3d 358 (2015) (upholding fee award against port agent and holding that state officers acting in official capacity can be liable for fees under the CPRA).

A plaintiff prevails if the litigation motivated the defendant to release requested records. Board of Pilots, 242 Cal. App. 4th at 1053; Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1085, 84 Cal. Rptr. 3d 788 (2008); Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 1391, 107 Cal. Rptr. 2d 29 (2001); Motorola Communication & Electronics Inc. v. Department of General Services, 55 Cal. App. 4th 1340, 64 Cal. Rptr. 2d 477 (1997) (timing alone may be sufficient to prove that plaintiff is prevailing party but where agency's delay could be attributed to uncertain nature of request and fact that agency's attorney on vacation, plaintiff did not show disclosure was motivated by lawsuit).

A requester may satisfy this test even if the litigation resulted in disclosure of less than all of the documents sought, as long as disclosure is not “minimal or insignificant.” Board Pilot, 242 Cal. App. 4th at 1053. See, e.g., Los Angeles Times, 88 Cal. App. 4th at 1391-1392 (plaintiff was prevailing party where court ordered disclosure of one of two documents sought); Bernardi, 167 Cal. App. 4th at 1396 (awarding fees to plaintiff despite county’s argument that petition was only partially successful, obtaining one-third of the documents requested).

An order compelling the disclosure of records, however, is not necessary. Beth v. Garamendi, 232 Cal. App. 3d 896, 901-02, 283 Cal. Rptr. 829 (1991) (judicial determination on merits not necessary to an award of attorneys' fees under statute). Where there is no order of disclosure, courts apply the catalyst theory where “[a] plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior [citation], or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired results [citation]” Id.; see, e.g., Board of Pilots, 242 Cal. App. 4th at 1056 (awarding fees under catalyst theory where litigation resulted in a holding that later caused public official to disclosure records he had previously withheld before litigation though the litigation did not result in an order compelling disclosure of any records); San Diegans for Open Government v. City of San Diego, 247 Cal. App. 4th. 1306, 1321-22, 203 Cal. Rptr. 3d 34 (2016) (holding declaratory relief action motivated city to look for and produce emails stored on its system where it had previously improperly narrowed the request to exclude such records without seeking clarification from the requester as required under Section 6253.1 of the Government Code).

The lesser standard may apply than the catalyst theory where the court orders some relief sought in the lawsuit or disclosure of some of the records. At least one court has refused to apply the catalyst theory’s higher standard (lawsuit motivates defendants to provide primary relief sought) and instead held that a plaintiff is successful “if it succeeds on any significant issue in the litigation and achieves some of the benefits sought in the lawsuit.” Garcia v. Governing Bd. of Bellflower Unif. Sch. Dist., 220 Cal. App. 4th 1058, 1065-66, 163 Cal. Rptr. 3d 689 (2014) (order requiring district to provide written response stating whether there were other responsive records—even where, in large part, there were none—deemed sufficient evidence to support trial court’s determination that plaintiff “succeeded on a significant issue in the ligation and achieved some of the benefits sought”).

A law firm representing itself in a CPRA action brought to benefit a third-party client is entitled to recover its fees. Law Offices of Marc Grossman v. Victor Elementary, 238 Cal. App. 1010, 1014, 190 Cal. Rptr. 3d 86 (2015)

Courts have awarded multipliers in CPRA cases. For example, in Bernardi, the court approved a multiplier of 1.25 to enhance the lodestar amount of attorney fees “in recognition of counsel’s contingency fee risk and the significant delay in obtaining payment of attorney fees, as well as the unique issues presented.”  Bernardi, 167 Cal. App. 4th at 1399.

Orders either granting or denying attorney fees under Section 6259(d) are reviewable by appeal. Los Angeles Times, 88 Cal. App. 4th at 1388.

The CPRA also provides for recovery of fees from the plaintiff should the agency prevail and the court find that the lawsuit was “clearly frivolous.” Cal. Gov't Code § 6259(d). A frivolous action is one that is either “‘(A) totally and completely without merit or (B) [brought] for the sole purpose of harassing an opposing party.’” Crews v. Willows Unif. Sch. Dist., 217 Cal. App. 4th 1368, 1381-82, 159 Cal. Rptr. 3d 484 (2013) (quoting Cal. Code of Civ. Proc. § 128.5) (holding that while petition lacked merit, action was not clearly frivolous within meaning of Section 6259(d)); Bertoli v. City of Sebastopol, 233 Cal. App. 4th 353, 376-77, 182 Cal. Rptr. 3d 308 (2015) (overturning trial court order awarding fees to agency despite characterization of request as overbroad).

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b. Court and litigation costs

Section 6259(d) provides that the court "shall award costs and reasonable attorney fees" to the plaintiff should the plaintiff prevail in proceedings to compel disclosure of public records pursuant to CPRA. Cal. Gov't Code § 6259(d).

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10. Fines

The CPRA does not provide for the imposition of fines; however, other statutes may. See, e.g., Cal. Ed. Code § 67380(b) ($1,000 penalty may be assessed against post-secondary educational institutions receiving state funds for failing to disclose records pertaining to certain specified crimes occurring on campus property).

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11. Other penalties

The CPRA itself does not provide for the imposition of any penalties.

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12. Settlement, pros and cons

Settlement is always an option that should be explored if the circumstances are appropriate. Usually, settlement discussions will involve the extent of redaction or deletion the agency wants to make to the public records in question prior to disclosure. If time is of the essence and it is a matter of "all or nothing," i.e., the documents would not be useful if any redactions are made and the agency is not willing to provide the copies of the records without the deletions, then entering into settlement discussions is not a viable option. The risk of incurring the requester's attorney fees and costs should the requester prevail in a lawsuit also can be a strong incentive for an agency to settle.

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E. Appealing initial court decisions

1. Appeal routes

An order of the trial court under the CPRA is not appealable, but is immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Cal. Gov't Code § 6259(c); Filarsky v. Superior Court, 28 Cal. 4th 419, 426-27, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002)(purpose of requiring writ review is to minimize delay of disclosure); Powers v. City of Richmond, 10 Cal. 4th 85, 40 Cal. Rptr. 2d 839, 893 P.2d 1130 (1995). See, e.g., MiniCal Consumer Law Group v. Carlsbad Police Dept., 214 Cal. App. 4th 259, 261, 153 Cal. Rptr. 3d 577 (2013) (dismissing appeal from trial court’s order in CPRA action and affirming exclusive means to challenge order is a writ petition filed within 20 days after service of written notice of order’s entry).

Additionally, as the California Supreme Court has held, trial court orders under the CPRA shall be reviewable on their merits. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1336, 813 P.2d 240, 283 Cal. Rptr. 893 (1991).

Orders either granting or denying attorney fees under Section 6259(d) are reviewable by appeal, however. Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 1388, 107 Cal. Rptr. 2d 29 (2001).

It is nevertheless critical to win at the trial court level. The trial court should be presented with every piece of evidence and testimony, by declaration under penalty of perjury, that may persuade the court in favor of the petitioner, and which would make a complete record in the event that the trial court order becomes the subject of appellate review.

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2. Time limits for filing appeals

The petition for extraordinary writ (writ of mandate) must be filed within 20 days after service on the party of the notice of entry of order (plus an additional 5 days if service is by mail), or within such further time (not exceeding an additional 20 days) as the trial court for good cause may allow. Cal. Gov't Code § 6259(c). An order of the trial court is not automatically stayed and any party wishing a stay must affirmatively seek one. Id.

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3. Contact of interested amici

Briefs of Amici Curiae may be accepted by the appellate courts. Prior permission of the court must be sought and obtained. The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues.

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F. Addressing government suits against disclosure

The California Supreme Court has held that an agency may not initiate a declaratory relief action to determine its obligation to disclose records to a member of the public. Filarsky v. Superior Court, 28 Cal. 4th 419, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002). Third parties with significant interests in the public disclosure of records may, however, seek relief barring the agency from disclosing records. See, e.g., Marken v. Santa Monica-Malibu Unif. Sch. Dist., 202 Cal. App. 4th 1250, 1265-68, 136 Cal.Rtpr. 3d 395 (2012).

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Open Meetings

I. Statute - basic application

A. Who may attend?

All persons are permitted to attend any meeting of a state body or legislative body of a local agency, subject to the specific exceptions set forth in the Bagley-Keene Open Meeting Act, Government Code Sections 11120-11132 (governing state bodies) and the Ralph M. Brown Act, Government Code Sections 54950-54963 (governing legislative bodies of local agencies).
Attendance cannot be conditioned on registering, completing a questionnaire, signing an attendance list, or providing other information. Cal. Gov't Code §§ 11124 (Bagley-Keene Act); 54953.3 (Brown Act). If such a list or questionnaire is posted near the entrance or circulated during the meeting, it must state that completion is voluntary and that all persons may attend regardless of whether they complete the document. Cal. Gov't Code §§ 11124 (Bagley-Keene Act); 54953.3 (Brown Act).

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B. What governments are subject to the law?

The Bagley-Keene Act applies to all specified state boards, commissions, committees and advisory groups of such multimember bodies. Cal. Gov't Code § 11121. As of April 1, 2016, it also applies to the State Bar of California. Id., § 11121(e).

The Brown Act applies to the legislative body of a local agency or any other local body created by state or federal law, including all counties, cities, towns, school districts, municipal corporations, districts, political subdivisions or any board, commission or agency thereof. Cal. Gov't Code §§ 54951, 54952. The Legislature intended that all state and local agencies be included under the provisions of some open meeting act, unless expressly excluded. Torres v. Board of Commissioners, 89 Cal. App.3d 545, 549, 152 Cal. Rptr. 506 (1979).

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1. State

The Bagley-Keene Act applies to a "state body." A "state body" is:

(1) every state board, 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;

(2) a board, commission, committee or similar multimember body that exercises any authority of a state body delegated to it by that state body. Cal. Gov't Code § 11121(b);

(3) an advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action and of the state body or of any members of the state body, and if the advisory body so created consists of three or more persons. Cal. Gov't Code § 11121(c);

(4) a board, commission, committee or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation. Cal. Gov't Code § 11121(d);

(5) the California State Bar. Cal. Gov’t Code § 11121(e).

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2. County

The Brown Act applies to the legislative body of any county, city, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency, notwithstanding the conflicting provisions of any other state law. Cal. Gov't Code §§ 54951, 54958.

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3. Local or municipal

The Brown Act applies to the legislative body of any local agency or local body created by state or federal statute, including any town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, notwithstanding conflicting state laws. Cal. Gov't Code §§ 54951, 54952, 54958. Factors which determine whether an agency is "local" include: the agency's scope and character, its geographic area of operation, and the extent of its power or jurisdiction. Torres v. Board of Commissioners, 89 Cal. App. 3d 545, 550, 152 Cal. Rptr. 506 (1979).

Many cities in California have also enacted local "sunshine laws" extending the public's access to meetings.

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C. What bodies are covered by the law?

1. Executive branch agencies

a. What officials are covered?

The Bagley-Keene Act applies to members of state bodies, when actions are taken by them as a state board, commission or similar multimember group. Cal. Gov't Code § 11121. The Act also applies to members who have been appointed or elected and have not yet assumed office. Cal. Gov't Code § 11121.95. The Act does not apply to officials when acting in their individual capacity.
The Brown Act does not apply to executive agencies.

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b. Are certain executive functions covered?

Where a member of a state body, in his or her official capacity, sits as a member of a board, commission, committee or similar multimember body, the Bagley-Keene Act also applies to that body if it receives funds from the state body, regardless of whether the body is organized and operated by the state body or by a private corporation. Cal. Gov't Code § 11121(d).

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c. Are only certain agencies subject to the act?

The Bagley-Keene Act applies to all state bodies unless specifically excluded. Cal. Gov't Code § 11121.

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2. Legislative bodies

State Legislature: Neither the Bagley-Keene Act nor the Brown Act apply to bodies of the State Legislature. However, separate open meeting laws for both houses of the California State Legislature can be found at California Government Code Sections 9027-9031. The law requires that meetings of either house of the Legislature or any of their committees be open and public. Cal. Gov't Code § 9027. Whenever a meeting is required to be open, notice must be given in accordance with the Joint Rules of the Assembly and the Senate. Cal. Gov't Code § 9028. Closed sessions are permissible for the same reasons as set forth in the Bagley-Keene and Brown Acts, and also may be held for party caucuses and to consider matters affecting the safety and security of members of the Legislature and their employees. Cal. Gov't Code §§ 9029, 9029.5.

Local bodies: The Brown Act applies to the legislative body of every local agency, notwithstanding a conflicting state law. Cal. Gov't Code § 54958. A "legislative body" is:

(1) the governing body of any local agency or any other local body created by state or federal statute (Cal. Gov’t Code § 54952(a)),

(2) a commission, committee, board or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution or formal action of a legislative body (Cal. Gov’t Code § 54952(b)),

(3) a board, commission, committee or other multimember body that governs a private corporation, limited liability company, or other entity that is either created by the legislative body to exercise authority or that receives funds from a local agency and includes as a full voting member a member of the legislative body of the local agency (Cal. Gov’t Code § 54952(c)); or,

(4) the lessee of any hospital that was first leased after January 1, 1994 pursuant to Health and Safety Code Section 32121, which exercises any material authority of a legislative body of a local agency. Cal. Gov't Code § 54952 (d).

“A commission, committee, board or other body of a local agency is ‘created by’ charter, ordinance, resolution or other formal action of the legislative body if the legislative body ‘ ‘played a role’ in bringing … ‘into existence’ the commission, committee, board, or other body.” Californians Aware v. Joint Labor/Management Benefits Comm., 200 Cal. App. 4th 972, 978, 133 Cal. Rptr. 3d 766 (2011) (quoting Epstein v. Hollywood Entertainment District II Bus. Improvement Dist., 87 Cal. App. 4th 862, 864, 104 Cal. Rptr. 2d 857 (2001) (internal citations omitted). For example, in Epstein, the court held that the Hollywood Entertainment Property Owners Association violated the state's open meetings laws by not holding its meetings in public and failing to post an agenda 72 hours in advance. The court determined that the nonprofit organization was a "legislative body" subject to the terms of the Brown Act. A 1996 city ordinance authorized the association to govern taxpayer-funded programs within business districts and this caused the association to fall under the Brown Act because the association exercised governmental authority otherwise controlled by the city. See Epstein, 87 Cal. App. 4th at 870-71.

Conversely, in Californians Aware a school district’s joint labor/management benefits committee, established as part of a collective bargaining process, was held not to be a legislative body under the Brown Act because the committee was brought into existence through a collective bargaining agreement, not through actions of the district. Californians Aware, 200 Cal. App. 4th at 980-81.

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3. Courts

Neither the Bagley-Keene Act nor Brown Act applies to state courts. Cal. Gov't Code §§ 11121.1 (Bagley-Keene Act), 54951, 54952 (Brown Act). However, the State Bar of California, a judicial branch entity, is subject to the Bagley-Keene Act. Cal. Gov’t Code § 11121(e).

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4. Nongovernmental bodies receiving public funds or benefits

Any board, commission, committee or similar multimember body, whether the multimember body is organized and operated by the state body or by a private corporation, is subject to the Bagley-Keene Act if: (1) it receives funds provided by a state body, and (2) it includes a member of a state body serving in his or her official capacity of that state body. Cal. Gov't Code § 11121(d).

A body that governs a private corporation or entity is subject to the Brown Act if: (1) it is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the body, or (2) it receives funds from the local agency and it includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency. Cal. Gov't Code § 54952(c). See, e.g., Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001); 85 Ops. Cal. Att'y. Gen. 55 (2002) (private, nonprofit corporation that received funds from school district and had on its corporate board one of district's trustees with full voting rights, and was created by the City, which lawfully delegated authority to it to operate an educational access channel, was subject to CPRA and opening meetings laws).

No body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member can defeat the meeting requirements by changing the voting status of the full voting member to a nonvoting member. Cal. Gov’t Code § 54952(c)(2).

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5. Nongovernmental groups whose members include governmental officials

Any board, commission, committee or similar multimember body is subject to the Bagley-Keene Act if: (1) it receives funds provided by a state body, and (2) it includes a member of a state body serving in his or her official capacity. Cal. Gov't Code § 11121(d).

A body that governs a private corporation or entity is subject to the Brown Act if: (1) it is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the body, or (2) it receives funds from a local agency and it includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency. Cal. Gov't Code § 54952(c). See, e.g., Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001); 85 Ops. Cal. Att'y. Gen. 55 (2002) (private, nonprofit corporation that received funds from school district and had on its corporate board one of district's trustees with full voting rights, and was created by the City, which lawfully delegated authority to it to operate an educational access channel, was subject to CPRA and opening meetings laws).

No body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member can defeat the meeting requirements by changing the voting status of the full voting member to a nonvoting member. Cal. Gov’t Code § 54952(c)(2).

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6. Multi-state or regional bodies

A multistate body could presumably be subject to the Bagley-Keene Act if a member of a state body serves on it in his or her official capacity and the multistate body is supported by funds from a state body. See Cal. Gov't Code § 11121(d).

Regional bodies, if they fall within the definition of a "state body" in the Bagley-Keene Act or "legislative body" of a "local agency" in the Brown Act, would be governed by the open meeting requirements of that Act. For example, a planning commission is subject to the Brown Act. 73 Ops. Cal. Atty. Gen. 1 (1990).

An interagency police department task force is a "local agency" subject to the Brown Act where the agency was formed as a separate legal entity under the Joint Exercise Powers Act, pursuant to written agreements by the participating city councils, and where the agency had a budget of more than $9 million and had the authority to enter into contracts. McKee v. Los Angeles Interagency Metropolitan Police Apprehensive Crime Task Force, 134 Cal. App. 4th 354, 359, 36 Cal. Rptr. 3d 47 (2005).

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7. Advisory boards and commissions, quasi-governmental entities

The Bagley-Keene Act applies to any advisory board, advisory commission, advisory committee, advisory subcommittee or similar multimember advisory body of a state body, consisting of three or more persons, and that was created by formal action of a state body or any member of the state body. Cal. Gov't Code § 11121(c).

The Brown Act applies to a commission, committee, board or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution or formal action of a legislative body. Cal. Gov't Code § 54952(b). Advisory committees composed only of members of the legislative body that are less than a quorum of the legislative body are not subject to the Brown Act. Cal. Gov't Code § 54952(b). However standing committees of a legislative body, regardless of their composition, which have continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution or formal action of a legislative body are subject to the Brown Act. Cal. Gov't Code § 54952(b).

Two city councilmen who joined together to study an issue and present a report to the full five-member city council did not constitute an "other body" subject to the Brown Act where they did not form a quorum and their recommendations to the full council were advisory only. Taxpayers for Livable Communities v. City of Malibu, 126 Cal. App. 4th 1123, 1128-29, 24 Cal. Rptr. 3d 493 (2005).

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8. Other bodies to which governmental or public functions are delegated

The Bagley-Keene Act applies to all multimember bodies that exercise authority delegated to them by a state body. Cal. Gov't Code § 11121(b).

The Brown Act applies to all multimember bodies that govern a private entity and that are created by a legislative body in order to exercise authority delegated to it by the legislative body. Cal. Gov't Code § 54952(c)(1)(A). For example, the board of directors of a private corporation is a legislative body when formed to design, construct and operate an export facility on land leased from the city. International Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal, 69 Cal. App. 4th 287, 295-96, 81 Cal. Rptr. 2d 456 (1999). Similarly, a private non-profit corporation formed to administer the use of funds raised through the city's tax assessments on local businesses is a legislative body when it was formed to "take over administrative functions that normally would be handled by [the] City" and the city played a role in the corporation's creation. Epstein v. Hollywood Entertainment District II Business Improvement District, 87 Cal. App. 4th 862, 869-70, 104 Cal. Rptr. 2d 857 (2001).

The Brown Act’s obligations also were held to be enforceable by the general public against a corporation that had agreed by contract with the State Department of Education to comply with the Brown Act. Service Employees Inter. Union, Local 99 v. Options-A Child Care and Human Services Agency, 200 Cal. App. 869, 881-82, 133 Cal. Rptr. 3d 73 (2011).

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9. Appointed as well as elected bodies

Neither the Bagley-Keene Act nor the Brown Act distinguishes between appointed and elected bodies. As long as the body falls within the definition of "state body" under the Bagley-Keene Act and "legislative body" of a "local agency" under the Brown Act, it will be subject to the open meeting laws.

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D. What constitutes a meeting subject to the law

Under the Bagley-Keene Act meetings "include any congregation of a majority of the members of a state body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the state body to which it pertains." Cal. Gov't Code § 11122.5(a).

Similarly, the Brown Act defines "meetings" as "any congregation of a majority of the members of a legislative body at the same time and location, including teleconference locations as permitted by Section 54953, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body." Cal. Gov't Code § 54952.2(a).

The Brown 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, 51, 69 Cal. Rptr. 480 (1968) (superseded by statute on the issue of attorney-client privilege). The Brown Act includes "deliberation as well as action" because "deliberation and action [are] dual components of the collective decision-making process" and "the meeting concept cannot be split off and confined to one component only[.]" Id. at 47. The court held that when the Sacramento County Board of Supervisors attended an Elks Club luncheon and discussed a county workers' strike with staff members, labor leaders and staff attorneys, the Board held a "meeting" in violation of the action, even though it did not take any formal vote. Id. See also Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781, 794, 22 Cal. Rptr. 2d 641 (1993) (a "meeting" under the Brown Act includes "not only collective decision making, but also the collective acquisition and exchange of facts preliminary to the ultimate decision). A pre-meeting briefing session held by a city council with the city manager, assistant city manager, city attorney and planning director is a "meeting" subject to the open meeting requirements. 42 Ops. Cal. Att'y Gen. 61 (1963).

However, the attendance of the majority of the members of a legislative body at the following gatherings does not constitute a meeting provided that a majority of the members do not discuss, other than as part of the scheduled program or meeting, business of a specific nature within the subject matter jurisdiction of the local agency: (1) individual contacts or conversations between members of a legislative body and any other person that do not violate other provisions, (2) a conference, (3) an open and publicized meeting organized to address a topic of local community concern, (4) an open and noticed meeting of another body of the local agency or of a legislative body at another local agency, (5) a purely social or ceremonial occasion, or (5) an open and noticed meeting of a standing committee of that body, as observers. Cal. Gov't Code § 54952.2(c). Attendance at a standing committee as observers means that majority members may not ask questions, make statements, or sit at the table with the committee members. 81 Ops. Cal. Att'y Gen. 156 (1998).

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1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

Under the Brown Act, two or more people must be present to conduct a meeting. Wilson v. San Francisco Municipal Ry., 29 Cal. App. 3d 870, 878-79, 105 Cal. Rptr. 855 (1973). A majority of the members of a legislative body of a local agency constitutes a meeting under the Brown Act. Cal. Gov't Code § 54952.2(a).

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b. What effect does absence of a quorum have?

If a meeting of a legislative body of a local agency lacks a quorum, it does not constitute a meeting under the Brown Act. Cal. Gov't Code § 54952.2. The Brown Act also prohibits "seriatim" meetings whereby, through a series of meetings comprised of less than a quorum, a topic is communicated to a quorum or a quorum is briefed or deliberates on an issue. Stockton Newspapers v. Members of Redevelopment Agency of City of Stockton, 171 Cal. App. 3d 95, 105, 214 Cal. Rptr. 561 (1985); Page v. Miracosta Community College Dist., 180 Cal. App. 4th 471, 503-04, 102 Cal. Rptr. 3d 902 (2010) (taxpayer stated a claim that a board of trustees of a community college district violated the Brown Act’s prohibition against seriatim meetings when during a mediation of claims brought by the college president some members of the board repeatedly left closed meeting to talk to mediator regarding potential claims); 63 Ops. Cal. Att'y Gen. 820 (1980).

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2. Nature of business subject to the law

Both Acts apply to any congregation of the majority of the members to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the body. Cal. Gov’t Code §§ 11122.5(a), 54952.2(a).

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a. "Information gathering" and "fact-finding" sessions

Information-gathering and fact-finding sessions are not specifically exempted and are therefore subject to the requirements of the Bagley-Keene Act.

A meeting is subject to the Brown Act where members are briefed about a matter, even though no action is taken. Frazer v. Dixon Unified Sch. Dist, 18 Cal. App. 4th 781, 796, 22 Cal. Rptr. 2d 641(1993) (session of school board where information was gathered from prospective contractors about qualifications is a meeting even where no commitment is made to retain person interviewed). Collective acquisition and exchange of facts prior to the ultimate decision is part of "deliberation," and deliberation by the legislative body of a local agency is subject to the Brown Act. Cal. Gov't Code § 54952.2. See also 216 Sutter Bay Ass'n v. County of Sutter, 58 Cal. App. 4th 860, 877, 68 Cal. Rptr. 2d 492 (1997); Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal. App. 2d 41, 47-48, 69 Cal. Rptr. 480 (1968) (superseded by statute on the issue of attorney-client privilege).

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b. Deliberation toward decisions

Deliberations toward decisions are not specifically exempted from the Bagley-Keene Act and are therefore subject to the requirements of the Act.

The Brown Act specifically states that the deliberation of a legislative body during a meeting is subject to the Act. Cal. Gov't Code § 54952.2(a). See also 216 Sutter Bay Ass'n v. County of Sutter, 58 Cal.App.4th 860, 877, 68 Cal.Rptr.2d 492 (1997); Frazer v. Dixon Unified Sch. Dist, 18 Cal. App. 4th 781, 796, 22 Cal. Rptr. 2d 641 (1993); Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal. App. 2d 41, 47-48, 69 Cal. Rptr. 480 (1968) (superseded by statute on the issue of attorney-client privilege).

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3. Electronic meetings

a. Conference calls and video/Internet conferencing

Bagley-Keene Act: A state body is not prohibited from holding an open or closed meeting by teleconference. Cal. Gov't Code § 11123(b)(1). A "teleconference" is "a conference of individuals in different locations, connected by electronic means, through either audio or both audio and video." Cal. Gov't Code § 11123(b)(2).

The teleconferenced meeting must meet the following requirements:

(1) it must comply with all of the Act's requirements applicable to other meetings and be conducted in a manner that protects the rights of any parties or member of the public appearing before the state body (Cal. Gov’t Code § 11123(b)(1)(A));

(2) it must be audible to the public at the location specified in the notice of the open meeting (Cal. Gov’t Code § 11123(b)(1)(B));

(3) each teleconference location must be identified in the notice and agenda of the meeting and be accessible to the public and the agenda must provide an opportunity for members of the public to address the state body directly at each telephone conference location (Cal. Gov’t Code § 11123(b)(1)(C));

(4) all votes must be taken by roll call (Cal. Gov’t Code § 11123(b)(1)(D));

(5) any portion of the teleconferenced meeting that is closed to the public may not include consideration of any agenda item being heard pursuant to emergency situations involving matters upon which prompt action is necessary (Cal. Gov’t Code § 11123(b)(1)(E); and

(6) at least one member of the state body must be physically present at the location specified in the notice of the meeting (Cal. Gov't Code § 11123(b)(1)(F)).

Brown Act: The legislative body of a local agency may use teleconferencing in connection with any meeting or proceeding authorized by law. Cal. Gov't Code § 54953(b)(1). A "teleconference" is "a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both." Cal. Gov't Code § 54953(b)(4). A local agency may provide the public with additional teleconference locations. Id.

The teleconferenced meeting must meet the following requirements:

(1) it must comply with all of the Act's requirements applicable to other meetings (Cal. Gov’t Code § 54953(b)(1));

(2) all votes must be taken by roll call (Cal. Gov’t Code § 54953(b)(2);

(3) agendas must be posted at all teleconference locations and the meeting must be conducted in a manner that protects the statutory and constitutional rights of the parties or public appearing before the body (Cal. Gov’t Code § 54953(b)(3));

(4) each teleconference location must be identified in the notice and agenda and each location must be accessible to the public (Cal. Gov’t Code § 54953(b)(3));

(5) during the teleconferenced meeting, at least a quorum of the members of the legislative body must participate from locations within the boundaries of the body's jurisdiction (Cal. Gov’t Code § 54953(b)(3)); and

(6) the agenda must provide the public with an opportunity to address the legislative body at each teleconference location (Cal. Gov't Code § 54953(b)(3)).

While the Act allows public meets to be held by teleconference, it does not allow a majority of a legislative body, either directly or through intermediaries, to use telephones or any other form of communication “to hear, discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Cal. Gov’t Code 54952.2(b)(1).  This language, adopted in 2008, expressly overrules the holding in Wolfe v. City of Fremont, 144 Cal. App. 4th 533, 545, 50 Cal. Rptr. 3d 524 (2006), to the extent it construed the prohibition against serial meetings as requiring a series of individual meetings result in collective concurrence to take action rather than also including the process of developing a collective concurrence.

The California Supreme Court has emphasized that “the intent of the Brown Act cannot be avoided by subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next would violate the open meeting requirement.”  Roberts v. City of Palmdale, 5 Cal. 4th 363, 376, 20 Cal. Rptr. 2d 330, 853 P.2d 641 (1993).

In Stockton Newspapers Inc. v. Redevelopment Agency of the City of Stockton, 171 Cal. App. 3d 95, 99, 214 Cal. Rptr. 561 (1985), the court examined whether members of a city board held a "meeting" under the Brown Act by taking part in a secret telephone poll conducted by a staff attorney about transferring city real estate. Id. at 103. Although the board members never met in the same room, the court concluded that they participated in "a series of one-to-one nonpublic and unnoticed telephone conversations with the agency's attorney for the commonly agreed purpose of collectively deciding to approve" an item of business, which "constitute[d] a 'meeting' at which 'action' was taken in violation of the Brown Act." Id. at 105.

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b. E-mail

The Bagley-Keene Act and the Brown Act prohibit the bodies from circumventing the open meeting requirements by using e-mail, telephones, letters or surrogates to conduct serial discussions about the public's business. See Cal. Gov’t Code § 11122.5(b)(2)(Bagley-Keene Act); Cal. Gov’t Code § 54952.2(b)(1) (Brown Act).

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c. Text messages

Use of text messaging by a majority of a state or legislative body, either directly or through intermediaries, “to discuss, deliberate, or take action on any item of business that is within the subject matter” of the state or legislative body would violate both the Bagley-Keene Act and the Brown Act.  See Cal. Gov’t Code 11122.5(b)(2); Cal. Gov't Code § 54952.2(b).

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d. Instant messaging

Use of instant messaging by a majority of a state or legislative body, either directly or through intermediaries, “to discuss, deliberate, or take action on any item of business that is within the subject matter” of the state or jurisdiction of the legislative body” would violate both the Bagley-Keene Act the Brown Act.  See Cal. Gov’t Code § 11122.5(b)(2); Cal. Gov't Code § 54952.2(b).

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e. Social media and online discussion boards

Use of social media and online discussion boards by a majority of a state or legislative body, either directly or through intermediaries, “to discuss, deliberate, or take action on any item of business that is within the subject matter” of the state or legislative body would violate both the Bagley-Keene Act and the Brown Act.  See Cal. Gov’t Code § 11122.5(b)(2);Cal. Gov't Code § 54952.2(b).

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E. Categories of meetings subject to the law

Both the Bagley-Keene and Brown Acts classify meetings as regular, special or emergency.

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1. Regular meetings

a. Definition

Neither the Bagley-Keene Act nor Brown Act defines the term "regular meeting." The Brown Act requires that each legislative body of a local agency, except for advisory or standing committees, provide by ordinance, resolution, bylaws or other rule the time and place for holding "regular meetings." Cal. Gov't Code § 54954(a). A meeting of an advisory or standing committee, where an agenda is posted at least 72 hours in advance of the meeting, is considered a regular meeting of the legislative body. Cal. Gov't Code § 54954(a). Regular and special meetings must be held within the jurisdictional boundaries of the legislative body. Cal. Gov’t Code § 54954(b).

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b. Notice

Bagley-Keene Act: At least 10 days before the regular meeting, the state body shall provide notice of its meeting to anyone who requests it in writing, and shall also give notice on the Internet. Cal. Gov't Code § 11125(a). The notice shall include the name, address and phone number of any person who can provide further information prior to the meeting, but need not include a list of witnesses who will appear at the meeting. Id. The written notice shall also contain the Internet site address where notice is available. Id.

The notice of a meeting shall include a specific agenda for the meeting, which shall include a brief description of any items of business to be transacted or discussed in either open or closed session. Cal. Gov't Code § 11125(b). A description of an item to be transacted or discussed in closed session must include a citation to the specific statutory authority under which the closed session is being held. Id. The notice must include a brief, general description which need not exceed 20 words, and no item can be added to the agenda after this notice is given. Id. Notice of a state body complying with the above requirements shall also constitute notice of an advisory body meeting of that state body, if the business to be discussed is covered by the notice, and the time and place of the advisory meeting is disclosed during the state body's open meeting. Cal. Gov't Code § 11125(c). The advisory meeting must be conducted within a reasonable time of and nearby to the state body's meeting. Id.

The descriptions of the items of business must not be vague and must inform the reader of the subject matter. See 67 Ops. Cal. Att'y Gen. 84 (1984). No action may be taken on any item not listed in the agenda unless: (1) upon a determination by a majority vote of the state body that an emergency situation exists, or (2) a 2/3 vote of the state body that there is a need for immediate action and that need came to the attention of the state body after the agenda was posted. Cal. Gov't Code § 11125.3(a). If less than 2/3 of the members are present, then a unanimous vote of those members present will suffice. Cal. Gov't Code § 11125.3(a)(2). Notice of the additional item shall be provided to each member of the state body and all persons who have requested notice as soon as is practicable after the determination of immediacy is made, but must be delivered in a manner so that it is received by newspapers and radio or television stations at least 48 hours before the meeting. Cal. Gov't Code § 11125.3(b).

A person may request and be provided with notice to all meetings of a state body or to a specific meeting or meetings. Cal. Gov't Code § 11125(d). At the state body's discretion, a person may request and be provided with notice to only those meetings at which a particular subject or subjects will be discussed. Id.

Brown Act: The legislative body of a local agency must post an agenda and mail a copy of the agenda or the agenda packet to anyone who has requested it at least 72 hours before a regular meeting or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. Cal. Gov't Code §§ 54954.1, 54954.2(a)(1). The legislative body of the local agency shall post the agenda in a location that is freely accessible to members of the public. Cal. Gov't Code § 54954.2(a)(1).

The agenda must contain a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session, as well as the time and location of the regular meeting. Id. A brief general description of an item generally need not exceed 20 words. Id.

Every agenda for a regular meeting must 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. Cal. Gov't Code § 54954.3(a). However, no public input is necessary on any item that has already been considered by a committee composed exclusively of the members of the legislative body, at a public meeting wherein the public was already provided an opportunity to be heard. Id.

Notice is not required to reach the person requesting it before the meeting takes place. Cal. Gov't Code § 54954.1. The descriptions of the items of business must not be vague and must inform the reader of the subject matter. See 67 Ops. Cal. Att'y Gen. 84 (1984). No action may be taken on any item not listed in the agenda unless: (1) upon determination by a majority vote that an emergency situation exists, (2) a 2/3 vote of the legislative body that there is a need for immediate action (if less than 2/3 of the members are present, then a unanimous vote of those members present will suffice) and that need came to the attention of the local agency after posting the agenda, or (3) the item was posted for a prior meeting of the legislative body occurring not more than 5 calendar days prior to the date action is taken on the item and at the prior meeting, the item was continued to the meeting at which action is being taken. Cal. Gov't Code § 54954.2(b).

Any person may request a copy of the agenda or agenda packet of any meeting of a legislative body to be mailed to that person. Cal. Gov't Code § 54954.1. A request for a mailed copy of the agenda or agenda packet is valid during the calendar year in which it is filed, and must be renewed following January 1st of each year. Id. The legislative body may charge a fee for mailing the agenda or agenda packet, but the fee cannot exceed the actual cost of the service. Id.

Penalties: It is a misdemeanor for a member of a legislative body of a local agency or a state body to knowingly attend a meeting where action is taken in violation of any provision of the open meeting laws, where the member intends to deprive the public of information to which it is entitled. Cal. Gov't Code §§ 11130.7 (Bagley-Keene Act); Cal. Gov't Code § 54959 (Brown Act).

Actions: Mandamus, injunctive or declaratory relief is available to stop or prevent violations or threatened violations of the Bagley-Keene Act or the Brown Act, or to determine the application of the statutes to on-going actions or threatened future actions or to determine the application of the statutes to past actions. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960 (Brown Act). Additionally, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act or the Brown Act. Cal. Gov’t Code §§ 11130.3 (mandamus relief available under Bagley-Keene Act for violations of Sections 11123 (open meetings) or 11125 (notice of meetings)); 54960.1(a) (mandamus relief available under Brown Act for violations of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules)).

However, under both Acts, the code authorizes nullification of action taken in violation of the specified provisions only if the action was not in substantial compliance with the requirements. Cal. Gov’t Code §§ 11130.3(b)(3) (Bagley-Keene Act); 54960.1(d)(1) (Brown Act). See Regents of University of California v. Superior Court, 20 Cal. 4th 509, 527, 85 Cal. Rptr. 2d 257, 976 P.2d 808 (1999); see, e.g., Castaic Lake Water Agency v. Newhall County Water Dist., 238 Cal. App. 4th 1196, 1207, 190 Cal. Rtpr. 3d 151 (2015) (description of closed agenda item that cited wrong provision authorizing closed session to confer with counsel over litigation was held to be in substantial compliance with Brown Act); San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167, 1177, 157 Cal. Rptr. 3d 458 (2013) (failure to separately disclose consideration of a mitigating negative declaration concerning an environmental project noticed for approval on the agenda held to violate Brown Act); North Pacific LLC v. California Coastal Commission, 166 Cal. App. 4th 1416, 1431-32, 83 Cal. Rptr. 3d 636 (2008) (“[S]tate actions in violation of [the notice] requirements should not be nullified, so long as the state agency’s reasonably effective efforts to notify interested persons of a public meeting serve the statutory objectives of ensuring that state actions taken and deliberations made at such meetings are open to the public.”).

Additionally, even when technical violations of the Acts are shown, action will not be invalidated absent a showing of prejudice.  California Coastal Commission, 166 Cal. App. 4th at 1433 (Bagley-Keene Act); Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555-56, 35 Cal. Rptr. 2d 782 (1994) (Brown Act).

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c. Minutes

Neither Act contains any specific provisions for contents of minutes of open meetings. However, under the Brown Act, the minutes must record all "actions" taken by the legislative body, whether the vote is taken in open or closed session. "No legislative body shall take action by secret ballot, whether preliminary or final." Cal. Gov't Code § 54953(c).

Minutes of open meetings are public records under the California Public Records Act. Cal. Gov’t Code § 6250 et. seq. In Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 906-907, 205 Cal. Rptr. 92 (1984), the court held that closed session minutes must be disclosed under the Public Records Act if a legislative body calls a closed session in violation of the Brown Act and no other privileges apply to the discussions. But another court has held that the Brown Act does not contain any provision for disclosing the minutes of a closed session meeting where the legislative agency correctly convened a closed session under the Brown Act, but strayed into topics that were not on the agenda or not proper for discussion in closed session. County of Los Angeles v. Superior Court (Union of American Physicians and Dentists), 130 Cal. App. 4th 1099, 1105-1106, 30 Cal. Rptr. 3d 708 (2005). In that case, the court held that minutes of a closed session meeting remained privileged from discovery, even where the body may have violated the Brown Act. Id. at 1105. This case should be distinguished by pointing out that the plaintiff had never filed a Brown Act lawsuit, and that the issue of whether the Brown Act had been violated had not been fully litigated in the trial court, and the plaintiff was seeking discovery of closed session minutes in a non-Brown Act lawsuit.

But given the holding of Union of American Physicians and Dentists, it is advisable to combine any Brown Act demand letter and lawsuit with a demand under the California Public Records Act for the minutes of the portion of the closed session that violated the Brown Act, and assert that release of the documents is being sought under the Public Records Act and the Brown Act.

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2. Special or emergency meetings

a. Definition

Special Meetings:

Bagley-Keene Act. A special meeting may be called any time by the presiding officer or by a majority of the state body. Cal. Gov't Code § 11125.4(a). A special meeting may only be called where compliance with the 10-day notice requirement for regular meetings places a substantial hardship on the state body or where immediate action is required to protect the public interest. Id. At the beginning of a special meeting, the body must make specific factual findings in open session that the 10-day notice requirement for a regular meeting places a substantial hardship on the state body or that immediate action is required to protect the public interest. Cal. Gov't Code § 11125.4(c). The finding must be adopted by a 2/3 vote of the body, or if less than 2/3 of the members are present, then by a unanimous vote of all present, otherwise the meeting must terminate. Id. The finding must be made available on the Internet. Id.

Only the following items may be considered during a special meeting: (1) pending litigation, (2) proposed litigation, (3) issuance of a legal opinion, (4) disciplinary action involving a state officer or employee, (5) the purchase, sale, exchange or lease of real property, (6) license examinations and applications, (7) action on a loan or grant pursuant to California Health and Safety Code Section 50000 et. seq. (housing and home finance), (8) response to a confidential final draft audit report as permitted by Section 11126.2, (9) to provide for an interim executive officer upon the death, incapacity, or vacancy in the office of that officer. Cal. Gov't Code § 11125.4(a). No other business shall be considered at the special meeting. Cal. Gov't Code § 11125.4(b).

Brown Act. A special meeting may be called any time by a presiding officer or by a majority of the legislative body of a local agency by delivering written notice to each member of the legislative body, to each local newspaper of general circulation, and to radio or television stations that have requested such notice in writing. Cal. Gov't Code § 54956(a). The notice must be "received" at least 24 hours before the time of the meeting, and must specify the time, place and business to be transacted or discussed. Id. Only the items of business specified in the notice can be considered at a special meeting. Id.

Emergency Meetings:

Bagley-Keene Act: Under the Bagley-Keene Act, a body may hold an emergency meeting in case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities. Cal. Gov't Code § 11125.5.

An "emergency situation" means any of the following, as determined by a majority of the state body during a meeting prior to the emergency meeting or at the beginning of an emergency meeting: (1) work stoppage or other activity that severely impairs public health or safety, or both, or (2) a crippling disaster that severely impairs public health or safety, or both. Cal. Gov't Code § 11125.5(b).

Brown Act: Under the Brown Act, a legislative body may hold an emergency meeting if there is an "emergency situation," which is defined by both of the following:

An emergency, which shall be defined as a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body (Cal. Gov’t Code § 54956.5(a)(1)).

A dire emergency, which shall be defined as a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting under this section may endanger the public health, safety or both, as determined by a majority of the members of the legislative body (Cal. Gov't Code § 54956.5(a)(2)).

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b. Notice requirements

Special Meetings:

Bagley-Keene Act. The state body must provide notice of a special meeting to each member of the state body, to all parties who have requested notice, and on the Internet as soon as is practicable after the decision to hold a special meeting has been made. Cal. Gov't Code § 11125.4(b). However, the state body must deliver notice in a manner that allows it to be received by the members and by newspapers of general circulation and radio or television stations at least 48 hours before the special meeting. Id. Notice shall be given to newspapers of general circulation and radio or television stations by providing notice to all national press wire services. Id. Notice must also be posted on the Internet at least 48 hours before the special meeting. Id.

Notice shall specify the time and place of the special meeting, the business to be transacted, and the address of the Internet site where notice is available. Id.

Notice is required regardless of whether any action is taken at the special meeting. Id.

Brown Act. Notice of a special meeting shall be delivered and received at least 24 hours prior to the meeting to each member of the legislative body and to each local newspaper of general circulation and radio or television stations that requested notice. Cal. Gov't Code § 54956(a).

The call and notice of a special meeting must be posted at least 24 hours before the special meeting in a location that is freely accessible to all members of the public. Id.

The call and notice must specify the time and place of the special meeting and the business to be transacted or discussed. Id.

Emergency Meetings:

Bagley-Keene Act. Newspapers of general circulation and radio or television stations that have requested notice of meetings pursuant to Section 11125 shall be notified by the presiding officer of the state body, or his designee, one hour prior to the emergency meeting by telephone. Cal. Gov't Code § 11125.5(c). Notice shall also be made available on the Internet as soon as is practicable after the decision to call the emergency meeting has been made. Id. If telephone services are not functioning, the notice requirements are waived and the presiding officer or his designee shall notify those newspapers and radio or television stations of the holding of an emergency meeting, the purpose of the meeting, and any action taken, as soon after the meeting as possible. Id.

Notice is not required to be posted prior to an emergency meeting. However, the minutes of the meeting, a list of the persons notified or upon whom an attempt to notify was made, a copy of any roll call votes and any action taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible. Cal. Gov't Code §§ 11125.5(d).

Emergency meetings have no agenda requirements under the Bagley-Keene Act.

Brown Act. Each local newspaper of general circulation and radio or television station that has requested notice of special meetings pursuant to Section 54956 shall be notified by the presiding officer of the legislative body or his designee, one hour prior to the emergency meeting by telephone, or in the case of a dire emergency, at or near the time that the members of the legislative body have been notified of the emergency meeting. Cal. Gov't Code § 54956.5(b)(2). All telephone numbers for the newspaper or station provided in the most recent request for notice shall be exhausted. Id. If telephone services are not functioning, the notice requirements are waived and the legislative body or their designee shall notify the newspapers and stations of the holding of an emergency meeting, the purpose of the meeting and any action taken, as soon after the meeting as possible. Id.

Notice is not required to be posted prior to an emergency meeting. However, the minutes of the meeting, a list of the persons notified or upon whom an attempt to notify was made, a copy of any roll call votes and any action taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible. Cal. Gov't Code § 54956.5(e).

Emergency meetings have no agenda requirements under the Brown Act.

Penalties: It is a misdemeanor for a member of a legislative body of a local agency or a state body to knowingly attend a meeting where action is taken in violation of any provision of the open meeting laws, where the member intends to deprive the public of information to which it is entitled. Cal. Gov't Code §§ 11130.7 (Bagley-Keene Act); Cal. Gov't Code § 54959 (Brown Act).

Actions: Mandamus, injunctive or declaratory relief is available to stop or prevent violations or threatened violations of the Bagley-Keene Act or the Brown Act, or to determine the application of the statutes to on-going actions or threatened future actions or to determine the application of the statutes to past actions. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960 (Brown Act). Additionally, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act or the Brown Act. Cal. Gov’t Code §§ 11130.3 (mandamus relief available under Bagley-Keene Act for violations of Sections 11123 (open meetings) or 11125 (notice of meetings)); 54960.1(a) (mandamus relief available under Brown Act for violations of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules)).

However, under both Acts, the code authorizes nullification of action taken in violation of these provisions only if the action was not in substantial compliance with the requirements. Cal. Gov’t Code §§ 11130.3(b)(3) (Bagley-Keene Act); 54960.1(d)(1) (Brown Act). See Regents of University of California v. Superior Court, 20 Cal. 4th 509, 527, 85 Cal. Rptr. 2d 257, 976 P.2d 808 (1999); see, e.g., Castaic Lake Water Agency v. Newhall County Water Dist., 238 Cal. App. 4th 1196, 1207, 190 Cal. Rtpr. 3d 151 (2015) (description of closed agenda item that cited wrong provision authorizing closed session to confer with counsel over litigation was held to be in substantial compliance with Brown Act); San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167, 1177, 157 Cal. Rptr. 3d 458 (2013) (failure to separately disclose consideration of a mitigating negative declaration concerning an environmental project noticed for approval on the agenda held to violate Brown Act); North Pacific LLC v. California Coastal Commission, 166 Cal. App. 4th 1416, 1431-32, 83 Cal. Rptr. 3d 636 (2008) (“[S]tate actions in violation of [the notice] requirements should not be nullified, so long as the state agency’s reasonably effective efforts to notify interested persons of a public meeting serve the statutory objectives of ensuring that state actions taken and deliberations made at such meetings are open to the public.”).

Additionally, even when technical violations of the Acts are shown, action will not be invalidated absent a showing of prejudice.  See California Coastal Commission, 166 Cal. App. 4th at 1433 (Bagley-Keene Act); Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555-56, 35 Cal. Rptr. 2d 782 (1994) (Brown Act).

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c. Minutes

Special Meetings. Neither Act contains any specific provisions for contents of minutes of special meetings.

Emergency Meetings. Minutes of emergency meetings are required by both the Bagley-Keene Act and Brown Act and must include: the list of persons the presiding officer notified or attempted to notify, a copy of any roll call votes and any action taken at the meeting. Cal. Gov't Code §§ 11125.5(d) (Bagley-Keene Act); 54956.5(e) (Brown Act).

Minutes of special and/or emergency meetings are disclosable public records under the California Public Records Act, Government Code Section 6252.

Comment: In Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 906-907, 205 Cal. Rptr. 92 (1984), the court held that closed session minutes must be disclosed under the Public Records Act if a legislative body calls a closed session in violation of the Brown Act and no other privileges apply to the discussions. But another court has held that the Brown Act does not contain any provision for disclosing the minutes of a closed session meeting where the legislative agency correctly convened a closed session under the Brown Act, but strayed into topics that were not on the agenda or not proper for discussion in closed session. County of Los Angeles v. Superior Court (Union of American Physicians and Dentists), 130 Cal. App. 4th 1099, 1105-1106, 30 Cal. Rptr. 3d 708 (2005). In that case, the court held that minutes of a closed session meeting remained privileged from discovery, even where the body may have violated the Brown Act. Id. at 1105. This case should be distinguished by pointing out that the plaintiff had never filed a Brown Act lawsuit, and that the issue of whether the Brown Act had been violated had not been fully litigated in the trial court, and the plaintiff was seeking discovery of closed session minutes in a non-Brown Act lawsuit.

But given the holding of Union of American Physicians and Dentists, it is advisable to combine any Brown Act demand letter and lawsuit with a demand under the California Public Records Act for the minutes of the portion of the closed session that violated the Brown Act, and assert that release of the documents is being sought under the Public Records Act and the Brown Act.

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3. Closed meetings or executive sessions

a. Definition

Although both Acts permit closed sessions for specific and limited purposes, neither Act provides a specific definition of a "closed session" or an "executive session," but a closed session is not open to the public. For a list of the type of meetings that are categorized as closed sessions, or meetings to which the Acts do not apply, refer to sections II ("Exemptions and Other Limitations (Closed Sessions)") and III ("Meeting Categories — Open or Closed").

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b. Notice requirements

Bagley-Keene Act: For a regular meeting, the state body must post 10-days advance notice on the Internet and give notice to any person who requests it in writing. Cal. Gov't Code § 11125(a). The notice shall include a brief, general description of the business to be transacted or discussed in open or closed session. The description need not exceed 20 words. Cal. Gov't Code § 11125(b). A description of an item to be transacted or discussed in closed session must include a citation to the specific statutory authority under which a closed session is being held. Id.

The notice shall include the name, address, and telephone number of any person who can provide further information prior to the meeting.  The notice shall additionally include the address of the Internet site where notices required by the Act are made available.  Cal. Gov’t Code § 11125(a).

A special meeting may be called any time by the presiding officer or by a majority of the state body. Cal. Gov't Code § 11125.4(a). The state body must provide notice of a special meeting to each member of the state body, to all parties who have requested notice, and on the Internet as soon as is practicable after the decision to hold a special meeting has been made. Cal. Gov't Code § 11125.4(b). However, the state body must deliver notice in a manner that allows it to be received by the members and by newspapers of general circulation and radio or television stations at least 48 hours before the special meeting. Id. Notice must also be posted on the Internet at least 48 hours before the special meeting. Id.

In addition to posting an agenda with a brief description of items to be discussed in a closed session, a state body must also disclose in an open meeting, prior to the closed session, the nature of the items to be discussed. Cal. Gov't Code § 11126.3(a). The disclosure may take the form of a reference to the items as they are listed by number or letter on the agenda. Id.

If the closed session is to discuss complaints or disciplinary action against a public employee, the body must give 24 hours advance written notice to the employee of his or her right to have a public hearing. Cal. Gov't Code § 11126(a)(2). If the state body does not give the employee such notice, any action taken against the employee is null and void. Id.

Brown Act: For regular meetings, the legislative body of the local agency shall post the agenda, describing each item to be discussed in open and closed session, at least 72 hours in advance of the meeting. Cal. Gov’t Code § 54954.2(a)(1). The description need not exceed 20 words. Id. The notice must specify the time and location of the meeting and shall be posted in a location that is freely accessible to members of the public. Id.

In addition to posting an agenda with a brief description of items to be discussed in a closed session, a legislative body of a local agency must also disclose in an open meeting, prior to the closed session, the nature of the items to be discussed. Cal. Gov't Code § 54957.7(a). The disclosure may take the form of a reference to the items as they are listed by number or letter on the agenda. Id. The Brown Act suggests agenda descriptions for various closed sessions. Cal. Gov't Code § 54954.5.

Notice of a special meeting shall be delivered and received at least 24 hours prior to the meeting to each member of the legislative body and to each local newspaper of general circulation and radio or television stations that requested notice. Cal. Gov't Code § 54956(a).

If the closed session is to discuss complaints or disciplinary action against a public employee, the body must give 24 hours advance written notice to the employee of his or her right to have a public hearing. Cal. Gov't Code § 54957(b)(2). If the legislative body does not give the employee such notice, any action taken against the employee is null and void. Id.

Penalties: It is a misdemeanor for a member of a legislative body of a local agency or a state body to knowingly attend a meeting where action is taken in violation of any provision of the open meeting laws, where the member intends to deprive the public of information to which it is entitled. Cal. Gov't Code §§ 11130.7 (Bagley-Keene Act); 54959 (Brown Act).

Actions: Mandamus, injunctive or declaratory relief is available to stop or prevent violations or threatened violations of the Bagley-Keene Act or the Brown Act, or to determine the application of the statutes to on-going actions or threatened future actions or to determine the application of the statutes to past actions. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960 (Brown Act). Additionally, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act or the Brown Act. Cal. Gov’t Code §§ 11130.3 (mandamus relief available under Bagley-Keene Act for violations of Sections 11123 (open meetings) or 11125 (notice of meetings)); 54960.1(a) (mandamus relief available under Brown Act for violations of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules)).

However, under both Acts, the code authorizes nullification of action taken in violation of these provisions only if the action was not in substantial compliance with the requirements. Cal. Gov’t Code §§ 11130.3(b)(3) (Bagley-Keene Act); 54960.1(d)(1) (Brown Act). See Regents of University of California v. Superior Court, 20 Cal. 4th 509, 527, 85 Cal. Rptr. 2d 257, 976 P.2d 808 (1999); see, e.g., Castaic Lake Water Agency v. Newhall County Water Dist., 238 Cal. App. 4th 1196, 1207, 190 Cal. Rtpr. 3d 151 (2015) (description of closed agenda item that cited wrong provision authorizing closed session to confer with counsel over litigation was held to be in substantial compliance with Brown Act); San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167, 1177, 157 Cal. Rptr. 3d 458 (2013) (failure to separately disclose consideration of a mitigating negative declaration concerning an environmental project noticed for approval on the agenda held to violate Brown Act); North Pacific LLC v. California Coastal Commission, 166 Cal. App. 4th 1416, 1431-32, 83 Cal. Rptr. 3d 636 (2008) (“[S]tate actions in violation of [the notice] requirements should not be nullified, so long as the state agency’s reasonably effective efforts to notify interested persons of a public meeting serve the statutory objectives of ensuring that state actions taken and deliberations made at such meetings are open to the public.”).

Additionally, even when technical violations of the Acts are shown, action will not be invalidated absent a showing of prejudice.  California Coastal Commission, 166 Cal. App. 4th at 1433 (Bagley-Keene Act); Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555-56, 35 Cal. Rptr. 2d 782 (1994) (Brown Act).

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c. Minutes

Under the Bagley-Keene Act, a state body shall designate a clerk or other officer or employee of the state body who shall attend closed sessions and record in a minute book, all topics discussed and decisions made at the meeting. Cal. Gov't Code § 11126.1. The minute book may consist of a recording of the closed session. Id.

Under the Brown Act, the legislative body does not have to keep minutes of a closed session but may designate a clerk pursuant to the same guidelines as above. Cal. Gov't Code § 54957.2. Furthermore, members of a legislative body do not have to disclose their personal recollections of a closed session. Kleitman v. Superior Court (Wesley), 74 Cal. App. 4th 324, 334, 87 Cal. Rptr. 2d 813 (1999).

After any closed session, a state body or a legislative body of a local agency must reconvene in open session prior to adjournment to report on any action taken. Cal. Gov't Code §§ 11126.3(f) (Bagley-Keene Act); 54957.1(a) (Brown Act). The Bagley-Keene Act requires the state body to make any reports and disclosures, provide any documentation and make any other disclosures required by Section 11125.2 of action taken; announcements may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location. Cal. Gov't Code § 11126.3(f) and (e).

The Brown Act requires disclosure of copies of any contracts, settlement agreements or other documents that were finally approved or adopted in closed session to anyone requesting disclosure within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section 54954.1 or 54956. Cal. Gov't Code § 54957.1(b). Documentation shall be made available to any other person on the next business day following the meeting. Cal. Gov't Code § 54957.1(c).

The Brown Act provides that the body shall publicly report, orally and in writing, any action taken in closed session and every member's vote or abstention, as follows:

(1) approval of a final agreement on the purchase, sale, exchange or lease of real estate for or by the local agency. The body shall disclose the fact of approval and the substance of the agreement at the public meeting during which the closed session is held. See Cal. Gov't Code § 54957.1(a)(1);

(2) approval to legal counsel to initiate or intervene in an action, to defend, or seek or refrain from seeking appellate review, or to enter an action as an amicus curiae. The report shall identify, if known, the adverse party or parties and the substance of the litigation and shall be reported in open session at the meeting during which the closed session is held. However, if the action is to initiate or intervene in an action, the body need not identify the action, the defendants or other particulars, but shall state that a directive was given and that once the action is formally commenced, the particulars shall be disclosed to any person upon request, unless disclosure would jeopardize the body's ability to serve a party or negotiate settlement. See Cal. Gov't Code § 54957.1(a)(2);

(3) approval to legal counsel to settle pending litigation. The body shall report its acceptance and disclose the substance of the agreement once it is final, as further specified by the statute. See Cal. Gov't Code § 54957.1(a)(3);

(4) disposition of a claim for tort liability, public liability or worker's compensation. The body shall report the name of the claimant and local agency to whom the claim was directed, the substance of the claim, and the amount approved and agreed upon by the claimant as soon as the disposition is reached. See Cal. Gov't Code § 54957.1(a)(4);

(5) action taken to appoint, employ, dismiss, accept the resignation of, or any other action affecting a public employee's employment status shall be reported at the public meeting during which the closed session is held. The body shall report the title of the position. However, the report of a dismissal or decision not to renew an employment contract shall be made at the first public meeting following the employee's exhaustion of administrative remedies. See Cal. Gov't Code § 54957.1(a)(5);

(6) approval of a final labor agreement with represented employees that has been ratified and accepted by the other party. The body shall disclose items approved and the parties to the negotiation and shall be made after the agreement is final and has been accepted or ratified by the other party. See Cal. Gov't Code § 54957.1(a)(6);

(7) pension fund investment transaction decisions made pursuant to Section 54956.81 shall be disclosed at the first open meeting after the earlier of the close of the investment transaction or the transfer of pension fund assets for the investment transaction. Cal. Gov't Code § 54957.1(a)(7);

The minute book of a closed session is not a public record subject to inspection pursuant to the California Public Records Act and must be kept confidential. Cal. Gov't Code §§ 11126.1 (Bagley-Keene Act); 54957.2(a) (Brown Act).

Comment: In Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 906-907, 205 Cal. Rptr. 92 (1984), the court held that closed session minutes must be disclosed under the Public Records Act if a legislative body calls a closed session in violation of the Brown Act and no other privileges apply to the discussions. But another court has held that the Brown Act does not contain any provision for disclosing the minutes of a closed session meeting where the legislative agency correctly convened a closed session under the Brown Act, but strayed into topics that were not on the agenda or not proper for discussion in closed session. County of Los Angeles v. Superior Court (Union of American Physicians and Dentists), 130 Cal. App. 4th 1099, 1105-1106, 30 Cal. Rptr. 3d 708 (2005). In that case, the court held that minutes of a closed session meeting remained privileged from discovery, even where the body may have violated the Brown Act. Id. at 1105. This case should be distinguished by pointing out that the plaintiff had never filed a Brown Act lawsuit, and that the issue of whether the Brown Act had been violated had not been fully litigated in the trial court, and the plaintiff was seeking discovery of closed session minutes in a non-Brown Act lawsuit.

But given the holding of Union of American Physicians and Dentists, it is advisable to combine any Brown Act demand letter and lawsuit with a demand under the California Public Records Act for the minutes of the portion of the closed session that violated the Brown Act, and assert that release of the documents is being sought under the Public Records Act and the Brown Act.

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d. Requirement to meet in public before closing meeting

The Bagley-Keene Act provides that a closed session shall only be held during a regular or special meeting of the state body. Cal. Gov't Code § 11128. Both Acts require the state body or the legislative body of a local agency to disclose in an open meeting, prior to the closed session, the nature of the items to be discussed. Cal. Gov't Code §§ 11126.3(a) (Bagley-Keene Act); 54957.7(a) (Brown Act).

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e. Requirement to state statutory authority for closing meetings before closure

Bagley-Keene Act: The specific agenda of a closed session, to be included with the notice, must contain a brief general description of items of business to be transacted or discussed. Cal. Gov't Code § 11125(b). The description shall include a citation to the specific statutory authority under which a closed session is being held. Cal. Gov't Code § 11125(b).

Brown Act: The Brown Act does not require a citation to statutory authority for holding a closed meeting.

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f. Tape recording requirements

Minute books of a closed session may, but need not, consist of a recording of the closed session. Cal. Gov't Code §§ 11126.1 (Bagley-Keene Act); 54957.2 (Brown Act). A plaintiff may ask the court to order a state or legislative body to tape record its closed sessions and preserve them if the court finds that the body has violated the provisions regarding closed sessions. Cal. Gov't Code §§ 11130(b) (Bagley-Keene Act); 54960(b) (Brown Act). The tapes will then be subject to discovery procedures outlined in each Act if the entity violates the Act in a closed session. Cal. Gov't Code §§ 11130(c)(2) (Bagley-Keene Act); 54960(c)(2) (Brown Act).

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F. Recording/broadcast of meetings

1. Sound recordings allowed

Under both Acts, any person attending an open and public meeting of a state body or a legislative body of a local agency has the right to record and broadcast the proceedings with an audio or video tape recorder or motion picture camera unless the body reasonably finds that the recording disrupts the proceedings by noise, illumination or obstruction of view. Cal. Gov't Code §§ 11124.1(a) & (c) (Bagley-Keene Act); 54953.5(a), 54953.6 (Brown Act).

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2. Photographic recordings allowed

Under both Acts, any person attending an open and public meeting of a state body or a legislative body of a local agency has the right to record and broadcast the proceedings with a video recorder or motion picture camera unless the body reasonably finds that the recording disrupts the proceedings by noise, illumination or obstruction of view. Cal. Gov't Code §§ 11124.1(a) and (c) (Bagley-Keene Act); 54953.5(a), 54953.6 (Brown Act).

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G. Access to meeting materials, reports and agendas

Under both Acts, agendas of public meetings and other writings, when distributed to all or a majority of all, of the members of the body are disclosable public records under the California Public Records Act. Cal. Gov’t Code §§ 11125.1(a) (Bagley-Keene Act); 54957.5 (a). These records are to be made available upon request without delay. Id.

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H. Are there sanctions for noncompliance?

There is no provision for sanctions for a violation of the open meeting requirements of either of the Acts except those which may be imposed if a member is found to be guilty of a misdemeanor. Both Acts provide that it is a misdemeanor for a member of a state or legislative body to attend a meeting in violation of any provision of the Act, where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled. Cal. Gov’t Code §§ 11130.7 (Bagley-Keene Act); 54959 (Brown Act).

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A. Exemptions in the open meetings statute

The Bagley-Keene and Brown Acts provide that all meetings of state bodies and legislative bodies of local agencies are to be open and public. The only exemptions contained within either Act are those discussed below.
Both Acts contain a broad opening statement of public policy, which provides that the local and state bodies exist to "aid in the conduct of the people's business" and that it is the intent of the law that "their actions be taken openly and their deliberations be conducted openly." Cal. Gov't Code §§ 11120 (Bagley-Keene Act); 54950 (Brown Act). With respect to any claim of exemption that may be advanced by such bodies or agencies, each of the Acts state, "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." Cal. Gov't Code §§ 11120 (Bagley-Keene Act); 54950 (Brown Act).

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1. Character of exemptions

Both Acts specifically provide that the conduct of the people's business is to be conducted in the open. It is therefore the general rule that all meetings of anybody covered by either Act must be open to the public. If a meeting is to be conducted or any action taken by a covered agency in other than a public forum, a specific exemption from the general rule must be identified by the agency. Where there is no specific exemption, the meeting must remain open to the public. Meetings may be closed to the public only in accordance with the specific provisions of the Acts. Cal. Gov't Code §§ 11132 (Bagley-Keene Act); 54962 (Brown Act).

Moreover, the exemptions from the open meeting requirements are generally discretionary; neither Act requires closures. The Bagley-Keene Act states, "Nothing in this article shall be construed to prevent a state body from holding a closed session . . ." Cal. Gov't Code § 11126. The Brown Act sets forth the minimal standards for public access and a legislative body of a local agency may impose requirements upon themselves which allow greater access to their meetings. Cal. Gov't Code § 54953.7. However, a body cannot hold an open meeting where an individual or business under discussion has a legally protected right to confidentiality.

Many cities in California have enacted "sunshine ordinances" to expand the public's access to meetings.

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2. Description of each exemption

Bagley-Keene Act: A state body is exempt from the open meeting requirements of the Bagley-Keene Act in the following circumstances:

(1) to consider the appointment, employment, evaluation of performance, or dismissal of a public employee or complaints or charges against a public employee, unless the employee requests that the hearing be public. However, if notice is not given to the employee 24 hours in advance of his or her right to have a public hearing on complaints, charges or to consider dismissal, any disciplinary or other action taken at the closed session shall be null and void. Cal. Gov't Code § 11126(a)(1);

(2) where a state body administers business or professional licenses to persons, to prepare, approve, grade or administer examinations. Cal. Gov't Code § 11126(c)(1);

(3) a meeting of an advisory body to a state licensing body to discuss matters concerning a licensee or applicant that would constitute an unwarranted invasion of privacy, including a review of an applicant's qualifications or any inquiry related to the licensing body's enforcement program. Cal. Gov't Code § 11126(c)(2);

(4) to deliberate on a decision regarding evidence in an administrative hearing pursuant to Government Code Section 11500 (Administrative Adjudication Act) or similar provisions of law. Cal. Gov't Code § 11126(c)(3);

(5) to consider and act upon the determination of a term, parole, release or other disposition of a prison inmate. Cal. Gov't Code § 11126(c)(4)

(6) to consider the conferring of honorary degrees or gifts, donations, and bequests that the donor has requested in writing to be kept confidential. Cal. Gov't Code § 11126(c)(5);

(7) a deliberative conference by the Alcoholic Beverage Control Appeals Board. Cal. Gov't Code § 11126(c)(6);

(8) to meet with its negotiator prior to the purchase, sale, exchange or lease of real property by or for the state body, to give instructions regarding the price and terms of payment, provided that an open session is held prior to the closed session to identify the property at issue and the persons with whom its negotiator may negotiate. Cal. Gov't Code § 11126(c)(7);

(9) to consider the appointment or termination of the Director of the California Post-secondary Education Commission and the Executive Director of the Council for Private Post-secondary and Vocational Education. Cal. Gov't Code § 11126(c)(8) & (9);

(10) a discussion by the Franchise Tax Board of confidential tax returns or information that cannot be lawfully disclosed to the public, or from considering matters pertaining to the appointment or removal of the Executive Officer of the Franchise Tax Board. Cal. Gov't Code § 11126(c)(10);

(11) consideration by the Board of Corrections of reports of crime conditions under section 6027 of the Penal Code. Cal. Gov't Code § 11126(c)(12);

(12) consideration by the State Air Resources Board of proprietary specifications and performance data of manufacturers. Cal. Gov't Code § 11126(c)(13);

(13) a review by the State Board of Education, the Superintendent of Public Instruction, or any committee advising them, of assessment instruments pursuant to Education Code Sections 60600 et seq. (school testing programs) and 60850 et seq. (high school exit exams). Cal. Gov't Code § 11126(c)(14);

(14) a discussion by the California Integrated Waste Management Board or its committees of confidential tax returns, trade secrets or confidential or proprietary information in its possession. Cal. Gov't Code § 11126(c)(15);

(15) a meeting of a state body that invests retirement, pension or endowment funds to consider investment decisions. Cal. Gov't Code § 11126(c)(16);

(16) a meeting of a state body, or boards, commissions, administrative officers or other representatives with its labor negotiators for the purpose of discharging its responsibilities under Government Code Sections 3500, 3512, 3525, 3540 (regarding local public employee organizations, excluded employees Bill of Rights, and public educational employment) pertaining to salaries, salary schedules, and fringe benefits. Cal. Gov't Code § 11126(c)(17);

(17) a meeting to consider matters posing a threat or potential threat of criminal or terrorist activity against the personnel, property, buildings, facilities, or equipment owned, leased, or controlled by the state body where disclosure would compromise or impede their safety or security. Cal. Gov’t Code§ 11126(c)(18)(A);

(18) a meeting of the California Sex Offender Management Board for the purpose of discussing matters pertaining to the application of a sex offender treatment provider for certification pursuant to Sections 290.09 and 9003 of the Penal Code. Cal. Gov’t Code § 11126(c)(19);

(19) a meeting of the Public Utilities Commission on the institution of proceedings or disciplinary actions against any person or entity under the commission's jurisdiction. However, any meeting to change the rates of entities under the commission's jurisdiction shall be open and public. Cal. Gov't Code § 11126(d)(1) & (2);

(20) to confer with or receive advice from its legal counsel regarding pending litigation when discussion in open session would prejudice the state body's position in the litigation. This subdivision is the exclusive expression of lawyer-client privilege in the Bagley-Keene Act and all other expressions of attorney-client privilege are specifically abrogated. Cal. Gov't Code § 11126(e)(1);

(21) a meeting of a state body operating under a joint powers agreement for insurance pooling of a claim for the payment of tort liability or public liability losses incurred by the state body or a member agency. Cal. Gov't Code § 11126(f)(1);

(22) consideration by the examining committee of the Board of Forestry of disciplinary action against an individual professional forester prior to filing an accusation against the forester. Cal. Gov't Code § 11126(f)(2);

(23) consideration by an administrative committee of the State Board of Accountancy of disciplinary action against an individual accountant prior to filing an accusation against the accountant, or to interview an individual applicant or accountant regarding his or her qualifications. Cal. Gov't Code § 11126(f)(3);

(24) a meeting of a state body, as defined by Government Code Sections 11121.2, 11121.7, 11121.8, to consider any matter that properly could be considered in a closed session. Cal. Gov't Code § 11126(f)(4),(5)&(6);

(25) consideration by the State Board of Equalization of the appointment or removal of the executive secretary of the Board or confidential taxpayer appeals or data, which is prohibited from public disclosure. Cal. Gov't Code § 11126(f)(7);

(26) consideration by the California Earthquake Prediction Evaluation Council, or other body appointed to advise the Director of the Office of Emergency Services or the Governor of matters relating to volcanic or earthquake predictions. Cal. Gov't Code § 11126(f)(9);

(27) consideration by the Teachers' Retirement Board or the Board of Administration of the Public Employees' Retirement System of matters pertaining to the recruitment, appointment, employment or removal of the chief executive officer or the Chief Investment Officer of the State Teachers' Retirement System or the Public Employees' Retirement System. Cal. Gov't Code § 11126(g)(1);

(28) consideration by the Commission on Teacher Credentialing of matters relating to recruitment, appointment or removal of its executive director. Cal. Gov't Code § 11126(g)(2);

(29) consideration by the Board of Administration of the Public Employees’ Retirement System of matters relating to the development of rates and competitive strategy for plans offered pursuant to Section 21660 of the Government Code. Cal. Gov’t Code § 11126(h);

(30) consideration by the Managed Risk Medical Insurance Board of matters relating to the development of rates and strategy for entities contracting or seeking to contract with the board, or any other arrangement the board is considering pursuant to specified provisions of the Government Code. Cal. Gov’t Code § 11126(i);

(31) consideration by the State Compensation Insurance Fund of specified claims where individual identifiable information would be disclosed, matters relating to audits and investigations which are not complete, and internal audits containing proprietary information, rates, contracting strategy, underwriting, or competitive strategy, pursuant to specified provisions of the Government Code. Cal. Gov’t Code § 11126(j);

(32) to discuss a state body’s response to a confidential final draft audit report from the Bureau of State Audits. Cal. Gov’t Code § 11126.2; and,

(33) to discuss matters involving trade secrets, nonpublic financial data, confidential or proprietary information, and other data and information by the California Gambling Control Commission where disclosure is otherwise prohibited by law or a tribal-state gaming compact. Cal. Gov’t Code § 11126.4.

Brown Act: A legislative body of a local agency is exempt from the open meeting requirements of the Brown Act in the following circumstances:

(1) to discuss and determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain a license. Cal. Gov't Code § 54956.7;

(2) to discuss the agency's response to a confidential final draft audit report from the Bureau of State Audits. Cal. Gov't Code § 54956.75 (a). However, the body must meet in public to discuss the audit report after it is publicly released by the Bureau of State Audits. Cal. Gov't Code § 54956.75(b).

(3) to meet with its negotiator prior to the purchase, sale, exchange or lease of real property by or for the local agency, to grant authority to its negotiator regarding the price and terms of payment. However, prior to the closed session, the legislative body must hold an open session in which it identifies its negotiators, the real property that is the subject of negotiations and the persons with whom its negotiators may negotiate. Cal. Gov't Code § 54956.8;

(4) to consider the purchase or sale of particular, specific pension fund investments, for those legislative bodies that invest pension funds. Cal. Gov't Code § 54956.81;

(5) when the agency provides services pursuant to a contract with health care providers for services to Medi-Cal providers (Welfare and Institutions Code Section 14087.3), to hear a charge or complaint from a member enrolled in its health plan if the member does not want his or her name, medical status or other information that is protected by federal law publicly disclosed. However, prior to the closed session, the legislative body must inform the member in writing of his or her right to have an open session. Cal. Gov't Code § 54956.86;

(6) the records of a health plan that is licensed under the Knox-Keene Health Care Service Plan Act of 1975 (Health and Safety Code section 1340) and governed by a county board of supervisors, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments, formulas or calculations for these payments, and contract negotiations with providers of health care for alternative rates, are exempt from disclosure for three years after the contract is fully executed. Notwithstanding any other provision of law, the governing board of a health plan that is licensed under the Knox-Keene Health Care Service Plan Act of 1975 and that is governed by a county board of supervisors may order that a meeting held solely to discuss or act on health plan trade secrets, as defined in the statute, shall be held in closed session. Additionally, the governing board of a health plan may meet in closed session to consider and take action on matters pertaining to contracts and contract negotiations by the health plan with providers of health care service concerning all matters related to rates of payment. Cal. Gov't Code § 54956.87;

(7) to meet to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the local agency's position in the litigation. This subdivision is the exclusive expression of lawyer-client privilege in the Brown Act and all other expressions of attorney-client privilege are specifically abrogated. Cal. Gov't Code § 54956.9;

(8) a meeting of a joint powers agency formed for the purposes of insurance pooling, or a local agency member of the joint powers agency, to discuss a claim for the payment of tort liability losses, public liability losses, or workers' compensation liability incurred by the joint powers agency or a local agency member thereof. Cal. Gov't Code § 54956.95;

(9) a meeting of a joint powers agency formed for the purposes of insurance pooling to receive, discuss or take action concerning information obtained in closed session of the joint powers agency, provided the agency has adopted a policy or bylaw, or included in its joint powers agreement provisions that authorize the designation of confidential documents received in a closed session. Cal. Gov't Code § 54956.96;

(10) to meet with the Attorney General, district attorney, agency counsel, sheriff, chief of police or their respective deputies, security consultant or security operations manager on matters posing a threat to the security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service and electric service, or a threat to the public's right of access to public services or public facilities. Cal. Gov't Code § 54957;

(11) 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. However, the employee must be given 24 hours’ notice of his or her right to have complaints or charges heard in an open session, otherwise any action taken against the employee is null and void. Any closed session held pursuant to this provision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline. Cal. Gov't Code § 54957;

(12) to meet with its designated representative (negotiator) regarding salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation. However, prior to the closed session, the body must identify its designated representatives in an open and public session. Cal. Gov't Code § 54957.6;

(13) a meeting of a multijurisdictional drug law enforcement agency, or an advisory body of such an agency, to discuss case records of any ongoing criminal investigation of the multijurisdictional drug law enforcement agency or of any party to the joint powers agreement, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases. Cal. Gov't Code § 54957.8;

(14) to discuss a local agency employee’s application for early withdrawal of funds in a deferred compensation plan when the application is based on financial hardship due to an unforeseeable emergency due to illness, accident, casualty, or other extraordinary event as specified in the deferred compensation plan. Cal. Gov’t Code § 54957.10.

(15) for an educational body to hold a closed session for any purpose authorized under the Education Code.  Cal. Gov’t Code § 54962.  The Education Code authorizes a school board, county board of education or community college district board to consider discipline, suspension or expulsion of a student unless the student or his or her parent requests an open hearing.  See, e.g., Cal. Educ. Code §§ 35146 (suspension and discipline by school board); 48912 (suspension and discipline by county school board); 48918(c) (expulsion by county school board); 72122 (suspension and discipline by community college district).  Under the Education Code, the body’s final action is to be in open session.  Cal. Educ. Code § 48918(j); but see Rim of the World Unified School Dist. v. Superior Court, 104 Cal. App. 4th 1393, 129 Cal. Rptr. 2d 11 (2002) (holding that the federal Family Education Rights and Privacy Act preempts Section 48918 to the extent it requires disclosure of pupil expulsion records). The Education Code also authorizes a closed session of a pupil’s challenge of the accuracy or completeness of his or her student records. Cal. Educ. Code § 49070.

(16) as expressly authorized under specific provisions of the California Health and Safety Code and Government Code for a hospital board to consider whether to grant privileges to a physician or to conduct hearings on the reports or medical audits or quality assurance committees that may reflect adversely on physicians with privileges and to discuss or deliberate on hospital district trade secrets.  Cal. Gov’t Code § 54962 (citing §§ 1461, 1462, 32106 and 32155 of the Health & Safety Code and 37606, 37606.1 and 37624.3 of the Government Code).

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B. Any other statutory requirements for closed or open meetings

Both Act require that the notice of meetings and agenda packets be made available in formats accessible to the disabled under the Americans with Disabilities Act. Cal. Gov’t Code §§ 11125(f), 11125.1(b) (Bagley-Keene Act); 54954.1, 54954.2(a)(1) (Brown Act).
Both Acts provide that no meeting, conference or other function shall be held in any facility that has discriminatory admission policies, or that is inaccessible to disabled persons, or where members of the public may not be present without making a payment or purchase. Cal. Gov't Code §§ 11131 (Bagley-Keene Act); 54961(a) (Brown Act).
Both Acts provide that no notice, agenda, announcement or report required under the Act need identify any victim or alleged victim of tortious sexual conduct or child abuse unless the identity of the person has been publicly disclosed. Cal. Gov't Code §§ 11131.5 (Bagley-Keene Act); 54961(b) (Brown Act).
The Brown Act provides that closed sessions of hospitals are subject to the requirements of Health and Safety Code Sections 1461, 1462, 32106, 32155 and Government Code Sections 37606, 37624.3 (regarding meetings of boards of trustees and governing bodies of hospitals and quorum requirements, hospital trade secrets, and medical audit reports). Cal. Gov't Code § 54962. School districts and community college districts are subject to provisions of the Education Code. Cal. Gov't Code § 54962.

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C. Court mandated opening, closing

Under both the Bagley-Keene and Brown Acts, a court may grant mandamus, injunctive or declaratory relief to stop or prevent violations, or threatened violations, of the Acts, or to determine the application of the Acts to ongoing actions, threatened actions, or past actions. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960 (Brown Act). A court may also invalidate the body's decision in certain circumstances. Cal. Gov't Code §§ 11130 (Bagley-Keene Act); 54960.1 (Brown Act). In addition, the court has discretion to award court costs or attorneys' fees to a prevailing plaintiff. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act); 54960.5 (Brown Act). Pursuant to one of these avenues for relief, a court may direct a meeting to be opened or closed, depending on the nature of the relief requested.

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III. Meeting categories - open or closed

Both Acts expressly state that unless specifically provided for in the open meeting acts and other specifically designated statutes, no closed session may be held by any state body or legislative body of any local agency. Cal. Gov't Code §§ 11132 (Bagley-Keene Act); 54962 (Brown Act).

The California Constitution requires the court to "narrowly construe" the closed session exemptions to the open meeting provisions. See Cal. Const., Art. I., § 3(b)(2) ("[a] statute . . . shall be . . . narrowly construed if it limits the right of [public] access" to government records and proceedings).

Under the Brown Act, the legislative body may not stray into topics not listed on the agenda and not expressly permitted for closed session, even if those topics are "reasonably related" to the posted agenda item or topic permitted for closed session. Cal. Gov't Code § 54956 (" No other business shall be considered at these meetings by the legislative body."); Shapiro v. San Diego City Council, 96 Cal. App. 4th 904, 924, 117 Cal. Rptr. 2d 631 (2002).

In Shapiro, the San Diego City Council stated on its agenda that it would meet in closed session to discuss real estate negotiations — which are permitted for closed session — for a new baseball stadium. Id. at 908. But the City Council moved beyond the real estate negotiations topic, and discussed a wide variety of related topics, including the architectural design for the stadium, an environmental impact report, traffic issues, naming rights, and the impact the project would have on the homeless. Id. at 923-24. The City argued that the Brown Act permitted such "background deliberations" because they were "reasonably related" to the real estate negotiations listed on the agenda. Id. at 922. But the court disagreed, holding that the City Council violated the Brown Act when its deliberations "range[d] far afield" of the listed agenda item. Id. at 924.

The litigation provision is most likely to be abused by legislative bodies. As the California Attorney General has instructed, "[i]t should also be emphasized that the purpose of [pending litigation] exception is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation decisions." The Brown Act: Open Meetings for Local Legislative Bodies (Cal. Att'y Gen. 2003 ed.) at 40 (citing 71 Ops. Cal. Att'y Gen. 96, 104-105 (1988)).

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A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

Under the Bagley-Keene Act, a state body conducting an administrative adjudication or making decisions relating to those proceedings may hold a closed session. Cal. Gov't Code § 11125.7. Under both Acts, a body may also deliberate in closed session on a matter that is properly the subject of a closed session. Cal. Gov't Code §§ 11126 (Bagley-Keene Act); 54952.7 (Brown Act).

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2. Only certain adjudications closed, i.e. under certain statutes

Bagley-Keene Act: A state body that administers the licensing of persons engaged in business or professions may hold a closed session to prepare, approve, grade or administer examinations. Cal. Gov't Code § 11126(c)(1). An advisory body to a state licensing body may hold a closed session to discuss matters concerning a licensee or applicant that would constitute an unwarranted invasion of privacy, including a review of an applicant's qualifications or any inquiry related to the licensing body's enforcement program. Cal. Gov't Code § 11126(c)(2). A state body may hold a closed session to deliberate on a decision regarding evidence in an administrative hearing pursuant to Government Code Section 11500 (Administrative Adjudication Act) or similar provisions of law. Cal. Gov't Code § 11126(c)(3).

Brown Act: A legislative body of a local agency may hold a closed session to discuss and determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain a license. Cal. Gov't Code § 54956.7. When a local agency provides services pursuant to a contract with health care providers for services to Medi-Cal providers (Welfare and Institutions Code Section 14087.3), it may hold a closed session to hear a charge or complaint from a member enrolled in its health plan if the member does not want his or her name, medical status or other information that is protected by federal law publicly disclosed. Cal. Gov't Code § 54956.86. However, prior to the closed session, the legislative body must inform the member in writing of his or her right to have an open session. Cal. Gov't Code § 54956.86.

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B. Budget sessions

Open — no specific exemption from open meeting requirements.

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C. Business and industry relations

Open — no specific exemption from open meeting requirements.

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D. Federal programs

Open — no specific exemption from open meeting requirements.

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E. Financial data of public bodies

Under both Acts, state bodies and local legislative bodies that invest pension funds may hold closed sessions to consider the purchase or sale of particular, specific pension fund investments. Cal. Gov’t Code §§ 11126(c)(16) (Bagley-Keene Act); 54956.81 (Brown Act).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Business and financial records are open to public access when used as the basis for a public agency's decision-making. San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983). However, information that constitutes a trade secret is generally exempt from disclosure. Gov't Code § 6254.(k) (engrafting into CPRA exemptions under federal and state law, including provisions of California Evidence Code relating to privileges). Trade secret protection, however, is not absolute. See, e.g., Coalition of Univ. Employees v. Regents of Univ. of Cal., 32 Med. L. Rptr. 1212 (Cal. Sup. Ct. 2003) (even assuming internal rates of return of private equity investments made by university were trade secrets, disclosure turns on balancing of interests and public interest in disclosure outweighed interest in nondisclosure).

The Bagley-Keene Act specifically provides that the following organizations may hold closed sessions to discuss financial or trade secret information:

(1) The Franchise Tax Board may meet in closed session to discuss confidential tax returns or information that cannot be lawfully disclosed to the public. Cal. Gov't Code § 11126(c)(10). See, e.g., General Am. Trans. Corp. v. State Bd. Of Equalization, 193 Cal. App. 3d 1175, 238 Cal. Rptr. 865 (1987);

(2) The State Air Resources Board may meet in closed session to consider proprietary specifications and performance data of manufacturers (Cal. Gov't Code § 11126(c)(13));.

(3) The California Integrated Waste Management Board or its committees may meet in closed session to discuss confidential tax returns, trade secrets or confidential or proprietary information in its possession (Cal. Gov't Code § 11126(c)(15));

(4) The State Board of Equalization may meet in closed session to consider confidential taxpayer appeals or data, which cannot be lawfully disclosed to the public (Cal. Gov't Code § 11126(f)(8)); and.

(5) The California Gambling Control Commission may meet in closed session to discuss matters involving trade secrets, nonpublic financial data, confidential or proprietary information, and other data the disclosure of which is prohibited by law or a tribal-state gaming compact (Cal. Gov’t Code § 11126.4).

In addition, the Brown Act provides that hospitals may conduct closed sessions to discuss trade secrets pursuant to Government Code Section 1462. Cal. Gov't Code § 54962. Closed sessions are also authorized to discuss employee hardship application for early withdrawal of funds in a deferred compensation plan. Cal. Gov’t Code § 54957.10.

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G. Gifts, trusts and honorary degrees

Under the Bagley-Keene Act, a body may meet in a closed session when the donor or proposed donor has requested in writing that the matter be kept confidential. Cal. Gov't Code § 11126(c)(5).

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H. Grand jury testimony by public employees

The Brown Act is not to be construed to prohibit members of the legislative body of a local agency from giving testimony in private before a grand jury, either as individuals or as a body. Cal. Gov't Code § 54953.1. However, Penal Code Section 939 prohibits the attendance of the public at grand jury proceedings, except when the foreman of the grand jury, acting through the attorney general or district attorney, makes a joint written request for public sessions and the court finds that the subject matter of the investigation affects the general public welfare, involving the alleged corruption, misfeasance or malfeasance in office or dereliction of duty of public officials or employees, and makes an order directing the grand jury to conduct its investigation in public sessions. Cal. Penal Code § 939.1. Notwithstanding the foregoing, deliberations of the grand jury and its voting shall be in private session. Id.

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I. Licensing examinations

Under the Bagley-Keene Act, a state body that administers business or professional licenses to people may hold a closed session to prepare, approve, grade or administer exams. Cal. Gov't Code § 11126(c)(1). Under the Brown Act, a legislative body of a local agency may hold a closed session to discuss and determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain a license. Cal. Gov't Code § 54956.7.

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J. Litigation, pending litigation or other attorney-client privileges

Bagley-Keene Act: A state body may hold a closed session to confer with, or receive advice from its legal counsel about "pending litigation" when discussion in open session would prejudice the state body's position in the litigation. Cal. Gov't Code § 11126(e)(1). "Pending litigation" exists where:

(1) an adjudicatory proceeding has been formally initiated before a court, administrative body exercising its adjudicatory authority, hearing officer or arbitrator, where the state body is a party,

(2) the state body has, or is deciding whether it has, a significant exposure to litigation, based on existing facts and circumstances or

(3) the state body has initiated or is deciding whether to initiate litigation.

Cal. Gov't Code § 11126(e)(2). The state body's legal counsel must prepare and submit a memorandum stating the specific reasons and legal authority for the closed meeting, including where applicable: the title of the litigation or the "existing facts and circumstances" supporting the state body's lawsuit or liability. Cal. Gov't Code § 11126(e)(2)(C)(ii). The memorandum should be submitted to the state body before the closed session, but must be submitted no later than one week after the closed session. Cal. Gov't Code § 11126(e)(2)(C)(ii). The memorandum does not have to be disclosed under the California Public Records Act, Government Code Section 6254.25. However, if the state body discloses the memorandum, it is not deemed as a waiver of its lawyer-client privilege. Cal. Gov't Code § 11126(e)(2)(C)(iv).

This section is the sole expression of the lawyer-client privilege under the Bagley-Keene Act. Cal. Gov't Code § 11126(e)(2).

Brown Act: The Brown Act provides the same exception for a closed session for "pending litigation" as the Bagley-Keene Act. Cal. Gov't Code § 54956.9. However, the Brown Act defines "existing facts and circumstances" with regard to the agency's significant exposure to litigation as follows:

(1) Facts and circumstances that may result in litigation against the agency but which the local agency believes are not yet known to plaintiffs or potential plaintiffs;

(2) Facts and circumstances including an accident, disaster, incident or transactional occurrence that might result in litigation against the agency, that are known to plaintiffs or potential plaintiffs — these facts and circumstances must be on the agenda or announced;

(3) The receipt of a claim or written communication from a potential plaintiff under the Tort Claims Act. The claim or written communication must be made available for public inspection;

(4) A statement by a person made in an open and public meeting threatening litigation on a specific matter for which the agency is responsible;

(5) A statement of the type described in (4) above that was recorded by an official or employee of the agency prior to the meeting. The record does not have to identify the alleged victim of unlawful or tortious sexual conduct or the person threatening litigation on their behalf, or a public employee who is the alleged perpetrator, unless the identity has been publicly disclosed. The record must be made available for public inspection.

Cal. Gov't Code § 54956.9(b)(1)(3).

“[T]he purpose of [section 54956.9] is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation oriented policy decisions.” Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 184-84, 41 Cal. Rptr. 3d 200 (2006). "Pending litigation" also includes taking action upon the settlement of a lawsuit. 75 Ops. Cal. Att'y Gen. 14 (1992). Advisory committees may also meet with legal counsel in a closed session to discuss pending litigation. 67 Ops. Cal. Att'y Gen. 111 (1984).  It would not include meeting with an adversary and his or her counsel to settle potential litigation.  Page v. Miracosta Community College Dist., 180 Cal. App. 4th 471, 502, 102 Cal. Rptr. 3d 902 (2009).  Nor would legal counsel include a mediator with whom members of a legislative body conferred with during a mediation with an adversary to settle potential litigation.  Id. at 504.

During the public meeting in which the closed session is held, the legislative body shall report any action taken in closed session regarding approval given to its legal counsel to initiate, intervene or defend a lawsuit, or approval to settle pending litigation. Cal. Gov't Code § 54957.1(a)(2) & (a)(3). The body must report the adverse parties and the substance of the litigation. However, in the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendant or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, defendants and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless disclosure would jeopardize service of process on a party or affect settlement negotiations. Cal. Gov't Code § 54957.1(a)(2).

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K. Negotiations and collective bargaining of public employees

1. Any sessions regarding collective bargaining

Under the Bagley-Keene Act, a state body or boards, commissions, administrative officers, or other representatives may hold a closed session with its representatives for the purpose of discharging its responsibilities under Government Code Sections 3500, 3512, 3525, 3540 (regarding local public employee organizations, excluded employees Bill of Rights, and public educational employment) pertaining to salaries, salary schedules, or compensation paid in the form of fringe benefits. Cal. Gov't Code § 11126(c)(17).
Under the Brown Act, a legislative body of a local agency may hold a closed session to meet with its designated representative (negotiator) regarding salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and for represented employees, any other matter within the statutorily provided scope of representation. Cal. Gov't Code § 54957.6(a). However, the body cannot take final action on a proposed compensation of one or more unrepresented employees in a closed session. Cal. Gov't Code § 54957.6(a). Prior to the closed session, the body must identify its designated representatives in an open and public session. Cal. Gov't Code § 54957.6(a).
During the public meeting in which the closed session is held, the legislative body shall report any action taken in closed session regarding approval of a final labor agreement with represented employees, which has been accepted or ratified by the other party. Cal. Gov't Code § 54957.1(a)(6). The body shall identify the approved item and the parties to the negotiation. Cal. Gov't Code § 54957.1(a)(6).

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2. Only those between the public employees and the public body

Under the Brown Act, a legislative body may hold a closed session during consultations and discussions with representatives of employee organizations and unrepresented employees, but shall not take final action in a closed session on proposed compensation of unrepresented employees. Cal. Gov't Code § 54957.6(a).

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L. Parole board meetings, or meetings involving parole board decisions

Under the Bagley-Keene Act, a state body may hold a closed session to consider and act upon the determination of a term, parole, release or other disposition of a prison inmate. Cal. Gov't Code § 11126(c)(4).

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M. Patients, discussions on individual patients

Under the Brown Act, a legislative body of a local agency that provides services pursuant to a contract with health care providers for services to Medi-Cal providers (Welfare and Institutions Code Section 14087.3), may hold a closed session to hear a charge or complaint from a member enrolled in its health plan if the member does not want his or her name, medical status or other information that is protected by federal law, publicly disclosed. Cal. Gov't Code § 54956.86. Prior to the closed session, the body must inform the member in writing, of his or her right to have an open session. Id.

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N. Personnel matters

Bagley-Keene Act: The Bagley-Keene Act distinguishes between public employees and public officers. Public employees expressly do not include “any person who is elected to, or appointed to a public office by, any state body.”  Cal. Gov’t Code § 11126(b). If a state body meets to consider the appointment, employment or dismissal of a public officer, it must hold an open session. 66 Ops. Cal. Att'y Gen. 34 (1985). A public officer is one who carries out a public duty delegated to him or her as an agent, and which is a part of governmental functions of the particular department. Id. A public officer is also one who "exercises some part of the sovereignty of the state, holds an office created by the Constitution or some statute, and has a position which is continuing rather than occasional or temporary." Id.

A state body may hold a closed session to consider a public employee's appointment, employment, evaluation of performance, or dismissal, or to hear complaints and charges against that employee. Cal. Gov't Code § 11126(a)(1). An employee may request a public hearing. Cal. Gov't Code § 11126(a)(2). Officers of the California State University system who receive compensation for their services, other than per diem and ordinary and necessary expenses, shall be considered employees. Cal. Gov't Code § 11126(b).

Additionally, a state body may hold a closed session to consider the appointment or termination of the individuals in the following positions:

(1) the Director of the California Post-secondary Education Commission (Cal. Gov't Code § 11126(c)(8));

(2) the Executive Director of the Council for Private Post-secondary and Vocational Education (Cal. Gov't Code § 11126(c)(9));

(3) the Executive Officer of the Franchise Tax Board (Cal. Gov't Code § 11126(c)(10));

(4) the Executive Secretary of the State Board of Equalization (Cal. Gov't Code § 11126(f)(7));

(5) the Chief Executive Officer of the Teachers' Retirement Board or the Board of Administration of the Public Employees' Retirement System, or the Chief Investment Officer of the State Teachers' Retirement System or the Public Employees' Retirement System. Cal. Gov't Code § 11126(g)(1); and

(6) the Executive Director of the Commission on Teacher Credentialing. Cal. Gov't Code § 1126(g)(2).

Brown Act: Under the Brown Act, a legislative body may hold a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the public employee requests a public session.” Cal. Gov’t Code § 54957(b)(1).  The term “employee” shall include an officer or an independent contractor who functions as an officer or any employee but shall not include any elected official, member of a legislative body or other independent contractor. Cal. Gov’t Code § 54957(b)(4). See, e.g., Hoffman Ranch v. Yuba County Local Agency Formation Commission, 172 Cal. App. 4th 805, 810-13, 91 Cal. Rptr. 3d 458 (2009) (holding that contractor assigned to perform “executive officer services” for county local agency formation commission was an “officer and thus an “employee” within meaning of statute, despite contract specifying that contractor was an independent contractor not agent or officer of commission).

In order to hold a closed session on specific complaints or charges against an employee, the employee must be given written notice of his or her right to have the complaints or charges heard in open session.  The notice must be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. Cal. Gov’t Code § 54957(b)(2).  This notice provision has been held not to apply to a closed session to consider or deliberate on whether complaints or charges brought against an employee justify dismissal or disciplinary action, but to meetings “to hear”—as in a proceeding where witnesses are heard and evidence presented—the complaints or charges against the employee.  Bollinger v. San Diego Civil Service Com., 71 Cal. App. 4th 568, 574-75, 84 Cal. Rptr. 2d 27 (1999) (closed session to consider whether to affirm demotion recommendation did not require notice to employee and thus action could not be nullified where prior public evidentiary hearing was afforded employee); Kolter v. Commission on Professional Competence of the Los Angeles Unified School Dist., 170 Cal. App. 4th 1346, 1352, 88 Cal. Rptr. 3d 620 (2009) (closed hearing to consider whether charges against employee justified initiation of dismissal proceedings did not trigger notice provision where employee was thereafter provided public evidentiary hearing on charges).  However, another court has held that a legislative body must give an employee notice and an opportunity for an open session before a meeting to discuss the findings of an arbitrator regarding the possible firing of the employee, even if no vote is taken at that discussion meeting, and the notice given for the subsequent "ceremonial" meeting where the legislative body voted to fire the employee did not satisfy the requirement or cure the previous violation. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, 107 Cal. App. 4th 860, 876-76, 132 Cal. Rptr. 2d 453 (2003); see also Moreno v. City of King, 127 Cal. App. 4th 17, 28-29, 25 Cal. Rptr. 3d 29 (2005) (receiving accusations against employee and considering whether to dismiss employee based on those allegations in closed session triggered notice requirements).

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1. Interviews for public employment

Closed under both Acts. A body may hold a closed session to consider the appointment or employment of a public employee, including interviews. Cal. Gov't Code §§ 11126(a) (Bagley-Keene Act); 54957(b)(1) (Brown Act). This includes a closed session to discuss an employee’s employment upon return from a leave of absence.  Travis v. Board of Trustees of the California State Univ., 161 Cal. App. 4th 335, 347, 73 Cal. Rptr. 3d 854 (2008). Furthermore, under the Brown Act, a legislative body may hold a closed session to select nominees for an appointed position. Gillespie v. San Francisco Public Library Comm'n, 67 Cal. App. 4th 1165, 1169, 79 Cal. Rptr. 2d 649 (1998).

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2. Disciplinary matters, performance or ethics of public employees

Closed under both Acts. A body may hold a closed session to evaluate performance or to hear charges or complaints against a public employee. Cal. Gov't Code §§ 11126(a) (Bagley-Keene Act); 54957(b)(1) (Brown Act). “‘[T]o consider the … evaluation of performance’ clearly is meant to extend to all employer consideration of an employee’s discharge of his or her job duties after ‘appointment’ or ‘employment’ of the employee, up to (but excluding) ‘discipline’ or ‘dismissal’ of the employee.” Duval v. Board of Trustees, 93 Cal. App. 4th 902, 909, 113 Cal. Rptr. 2d 517 (2001). The public employee must be given 24 hours advance notice of his or her right to have complaints or charges heard in an open session, otherwise any action taken against the employee is null and void. Cal. Gov't Code §§ 11126(a)(2) (Bagley-Keene Act); 54957(b)(2) (Brown Act). This notice provision has been held not to apply to a closed session to consider or deliberate on whether complaints or charges brought against an employee justify dismissal or disciplinary action, but to meetings “to hear”—as in a proceeding where witnesses are heard and evidence presented—the complaints or charges against the employee.  Bollinger v. San Diego Civil Service Com., 71 Cal. App. 4th 568, 574-75, 84 Cal. Rptr. 2d 27 (1999) (closed session to consider whether to affirm demotion recommendation did not require notice to employee and thus action could not be nullified where prior public evidentiary hearing was afforded employee); Kolter v. Commission on Professional Competence of the Los Angeles Unified School Dist., 170 Cal. App. 4th 1346, 1352, 88 Cal. Rptr. 3d 620 (2009) (closed hearing to consider whether charges against employee justified initiation of dismissal proceedings did not trigger notice provision where employee was thereafter provided public evidentiary hearing on charges). However, another court has held that a legislative body must give an employee notice and an opportunity for an open session before a meeting to discuss the findings of an arbitrator regarding the possible firing of the employee, even if no vote is taken at that discussion meeting, and the notice given for the subsequent "ceremonial" meeting where the legislative body voted to fire the employee did not satisfy the requirement or cure the previous violation. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, 107 Cal. App. 4th 860, 876-76, 132 Cal. Rptr. 2d 453 (2003); see also Moreno v. City of King, 127 Cal. App. 4th 17, 28-29, 25 Cal. Rptr. 3d 29 (2005) (receiving accusations against employee and considering whether to dismiss employee based on those allegations in a closed session triggered the notice requirements). Additionally, an employee does not have the right to notice and a public session with regard to a personnel evaluation or negative comments about the employee's performance. Bell v. Vista Unified School District, 82 Cal. App. 4th 672, 683, 98 Cal. Rptr. 2d 263 (2000); Furtado v. Sierra Comm. College, 68 Cal. App. 4th 876, 882, 80 Cal. Rptr. 2d 589 (1998). A legislative body may meet in closed session to discuss the criteria for evaluating an employee. Duval, 93 Cal. App. 4th at 909.

The Brown Act provides that a closed session shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline. Cal. Gov't Code § 54957(b)(4).

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3. Dismissal, considering dismissal of public employees

Closed under both Acts. A body may hold a closed session to consider the dismissal of a public employee. Cal. Gov't Code §§ 11126(a) (Bagley-Keene Act); 54957(b)(1) (Brown Act). Under both Acts, the public employee must be given 24 hours advance notice of his or her right to have an open session, otherwise any action taken against the employee is null and void. Cal. Gov't Code § 11126(a) (Bagley-Keene Act); Cal. Gov't Code § 54956.96(b)(2).

Under the Brown Act, the legislative body must report any action taken in a closed session to affect the employment status of a public employee. Cal. Gov't Code § 54957.1(a)(5). An employee does not have the right to a 24-hour notice and public hearing option regarding dismissal if it is not based upon charges or complaint of misconduct. Moreno v. City of King, 127 Cal. App. 4th 17, 25 Cal. Rptr. 3d 29 (2005). If the legislative body terminates the public employee without giving the required notice in complaint cases, there is no cure; the termination is null and void. Id. at 28-29. The body shall report the information at the public meeting during which the closed session is held, and must disclose the title of the position. Cal. Gov't Code § 54957.1(a)(5); Moreno, 127 Cal. App. 4th at 27. However, the body shall report a dismissal or nonrenewal of an employment contract at the first meeting following the employee's exhaustion of administrative remedies. Cal. Gov't Code § 54957.1(a)(5).

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O. Real estate negotiations

Closed under both Acts. A body may hold a closed session with its negotiator prior to the purchase, sale, exchange or lease of real property by or for the body to grant authority or give instructions to its negotiator regarding the price and terms of payment. Prior to the closed session, the body must identify its negotiator, the real property, and the persons with whom its negotiators must negotiate. Cal. Gov't Code §§ 11126(c)(7) (Bagley-Keene Act); 54956.8 (Brown Act).
Under the Brown Act, the legislative body shall report any action taken in closed session regarding approval of a final agreement on the sale, purchase, exchange or lease of real property. Cal. Gov't Code § 54957.1(a)(1). The body shall make a report during the public meeting in which the closed session is held, and shall disclose the substance of the agreement. Cal. Gov't Code § 54957.1(a)(1).

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P. Security, national and/or state, of buildings, personnel or other

Under the Bagley-Keene Act, the Board of Corrections may hold a closed session when considering reports of crime conditions under Penal Code Section 6027. Cal. Gov't Code § 11126(c)(12).
Under the Brown Act, a body may hold a closed session to meet with the Attorney General, district attorney, sheriff, chief of police, or their respective deputies, agency counsel, security consultant or security operations manager on matters posing a threat to the security of public buildings or a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service and electric service, or a threat to the public's right of access to public services or public facilities. Cal. Gov't Code § 54957(a).

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Q. Students, discussions on individual students

Community Colleges, State Universities and the Regents of the University of California: The meetings of the governing boards of state universities and the Regents of the University of California are subject to the Bagley-Keene Act and must be open to the public. Cal. Educ. Code §§ 89920, 92030. Tafoya v. Hastings College of the Law, 191 Cal. App. 3d 437, 445, 236 Cal. Rptr. 395 (1987). The meetings of the governing boards of community colleges are subject to the Brown Act.  Cal. Educ. Code § 71022. However, meetings of bodies that advise the Regents or exercise authority delegated to them by the Regents are not subject to the Act. Cal. Educ. Code § 92030; see Tafoya, supra.; see also 66 Ops. Cal. Att'y Gen. 458 (1983). For instance, meetings of the faculty and the UC Academic Senate may be closed. See Tafoya, supra.

School Districts and County Boards of Education: The meetings of school districts, county boards of education, and school boards are subject to the Brown Act. Cal. Educ. Code § 71022; Baca v. Moreno Valley Unified Sch. Dist., 936 F.Supp. 719 (C.D. Cal., 1996); 66 Ops. Cal. Att'y Gen. 252 (1983). A governing board of a school district may hold a closed session to consider the suspension of, disciplinary action against, or any other action against a student, if a public hearing would lead to the disclosure of "directory information" on that student, in violation of Education Code Section 49073. Cal. Educ. Code § 35146. However, this rule does not apply if the governing board is considering expulsion of a student. Cal. Educ. Code § 35146.

("Directory information" consists of a "student's name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the student." Cal. Educ. Code § 49061.)

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IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Yes. Both Acts provide for immediate judicial review to stop or to prevent violations or threatened violations of the statutory open meeting laws or to determine the applicability of the Acts to past actions or threatened future actions by the state body or the legislative body of a local agency. Cal. Gov't Code §§ 11130(a) (Bagley-Keene Act); 54960 (Brown Act). Under the Brown Act, a person must timely submit a cease and desist letter to bring an action to determine the application of the Act to a past action. Cal. Gov’t Code § 54960.2.
Additionally, mandamus or injunctive relief is available to declare as null and void action taken in violation of the Brown Act, Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules). Gov't Code § 54960.1(a). A predicate to such action under the Brown Act, however, requires a timely demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(b).
Similarly, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act, Sections 11123 (open meetings) and 11125 (notice of meetings). No demand to cure and correct is required.

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2. When barred from attending

A state body or legislative body of a local agency cannot bar a person from attending or place conditions on attending a meeting; such action constitutes a violation of the open meeting laws and is actionable. Cal. Gov't Code §§ 11123, 11124, 11130 (Bagley-Keene Act); 54953, 54953.3, 54960 (Brown Act).

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3. To set aside decision

Under the Bagley-Keene Act, any interested person may commence an action by mandamus, injunction or declaratory relief to obtain a judicial determination that an action taken by a state body in violation of Section 11123 (providing for open meetings) or 11125 (notice requirements) is null and void. Cal. Gov't Code § 11130.3(a).

Under the Brown Act, any interested person may commence an action by mandamus, injunction or declaratory relief to obtain a judicial determination that an action taken by a legislative body of a local agency in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules) is null and void. Cal. Gov't Code § 54960.1(a). A predicate to such action under the Brown Act, however, requires a timely demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(b).

However, to set aside an action, in addition to meeting the threshold procedural requirements, a petitioner must show prejudice.  Galbiso v. Orosi Public Utility Dist., 182 Cal. App. 4th 652, 670-71, 107 Cal. Rptr. 3d 36 (2010); see also San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist., 139 Cal. App. 4th 1356, 1410, 44 Cal. Rptr. 3d 128 (2006).

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4. For ruling on future meetings

Both Acts provide for actions by mandamus, injunctive and declaratory relief to stop threatened violations of the statutory open meeting laws or to determine the applicability of the Acts to threatened future actions by the state body or the legislative body of a local agency. Cal. Gov't Code §§ 11130(a)(Bagley-Keene Act); 54960(a) (Brown Act).

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5. Other

Under both Acts, any person may commence an action by mandamus, injunction or declaratory relief to determine whether any rule or action by the state body or legislative body of a local agency to penalize or discourage the expression of its members is legal, or to compel the state body to tape record its closed sessions. Cal. Gov't Code §§ 11130(b) (Bagley-Keene Act); 54960(b) (Brown Act).

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B. How to start

1. Where to ask for ruling

a. Administrative forum

The Bagley-Keene Act does not provide for a ruling from an administrative forum.
Under the Brown Act, to nullify completed action taken by the legislative body of a local agency in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules), a written demand must be made to the body to cure or correct the action. Cal. Gov't Code §§ 54960.1(b), 54960.2. The demand must clearly describe the action and the nature of the alleged violation. Cal. Gov't Code § 54960.1(b).
Similarly, actions to determine the application of the Brown Act to past actions of the legislative body require that the person seeking to bring an action first send a cease and desist letter to the legislative body, and receive from the legislative body in response either no response or something other than an unconditional commitment to cease and desist from the action. Cal. Gov’t Code § 54960.2.

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b. State attorney general

Neither Act specifically provides any mechanism to request a ruling from California's Attorney General regarding a challenged action. However, certain government officials may request the Attorney General's opinion to interpret any statute, including a provision of the Bagley-Keene or Brown Act. California Assembly members and Senators are permitted to request for an opinion to the California Attorney General's Office on any question of law relating to their respective offices, and might entertain a request from a constituent to seek an opinion from the Attorney General.

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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

c. Court

Under both Acts, any person may commence an action in court to stop or to prevent violations or threatened violations of the open meeting laws, to determine the applicability of the Acts to past actions or threatened future actions by the state body or the legislative body of a local agency, to determine whether any rule or action by the state body or legislative body of the local agency to penalize or discourage the expression of its members is legal, or to compel the state body or legislative body of the local agency to tape record its closed sessions. Cal. Gov't Code §§ 11130, 11130.3(a) (Bagley-Keene Act); 54960(a), 54960.2 (Brown Act). Under the Brown Act, a predicate to an action to determine the application of the Act to any past action is a timely cease and desist letter. Cal. Gov’t Code § 54960.2.

(The Bagley-Keene Act was amended in 1999 to supersede the decision by the California Supreme Court in Regents of the Univ. of California v. Superior Court (Molloy), 20 Cal. 4th 509, 976 P.2d 808, 85 Cal. Rptr. 2d 257 (1999), which held that the Act applies only to present and future violations, but not past ones.)

Additionally, mandamus or injunctive relief is available to declare as null and void action taken in violation of the Brown Act, Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules). Cal. Gov't Code § 54960.1(a). A predicate to such action under the Brown Act is a timely demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(b).

Similarly, mandamus or injunctive relief is available to declare as null and void an action in violation of the Bagley-Keene Act, Sections 11123 (open meetings) and 11125 (notice of meetings).  There is no requirement to serve a cure and correct demand letter in advance of suit.

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2. Applicable time limits

Under the Bagley-Keene Act, a court action that seeks to nullify action taken in violation of the Act, must be filed within 90 days of the date the action was taken. Cal. Gov't Code § 11130.3.

(The Legislature also amended this section of the Bagley-Keene Act in 1999 to supersede Regents of the Univ. of California v. Superior Court (Molloy), 20 Cal.4th 509, 976 P.2d 808, 85 Cal. Rptr. 2d 257 (1999), where the California Supreme Court held that a suit must be brought within 30 days of the violation to nullify the action.)

Under the Brown Act, a person who seeks to declare an action null and void in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting on general tax or assessment and notice thereof), or 54956 (special meetings and notice thereof), must make a written demand to the legislative body to cure or correct an action taken in closed session within 90 days from the date the action was taken. Cal. Gov't Code § 54960.1(c)(1); Ingram v. Flippo, 74 Cal. App. 4th 1280, 84 Cal. Rptr. 2d 60 (1999). However, if the action was taken in an open session but in violation of Section 54954.2 (action or discussion on item not appearing on posted agenda), the written demand must be made within 30 days of the date the action was taken. Cal. Gov't Code § 54960.1(c)(1).

A local legislative body then has 30 days from receipt of the demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(c)(2). Within 15 days of the legislative body’s decision to cure or correct, or not cure and correct, or within 15 days of the expiration of the 30-day period to cure or correct (if no response is provided), whichever is earlier, the party making the demand must commence the action. Cal. Gov’t Code § 54960.1(c)(4). The action will be barred if not timely filed. Id.

Under the Brown Act, a person seeking to file an action to determine the application of the Act to past actions pursuant to Section 54960(a) must first submit a cease and desist letter within nine months of the alleged violation. Cal. Gov’t Code § 54960.2(b)(4). The legislative body has 30 days from receipt of the demand to respond. Cal. Gov’t Code § 54960.2(b). Within 60 days from receipt of the legislative body’s response to the cease and desist letter (other than an unconditional commitment to comply), or within 60 days of the expiration of the time during which the legislative body may respond to the letter, whichever is earlier, the party submitting the letter must commence an action, or thereafter be barred from doing so. Cal. Gov’t Code § 54960.2(b).

The Bagley-Keene Act is silent on the time to file an action under Section 11130 (actions to stop or prevent violations or threatened violations, or to determine the application of the Act to past actions or threatened future actions). Because the relief is equitable in nature, it is advisable to file suit as soon as practicable after the violation, or after subsequent communications with state body have ceased to be productive.

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3. Contents of request for ruling

When making a written demand to a legislative body to cure or correct the alleged violation under the Brown Act, the demand must clearly describe the challenged action and the nature of the alleged violation. Cal. Gov't Code § 54960.1(b).

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4. How long should you wait for a response

Under the Brown Act, the legislative body has 30 days from the date of receipt of the demand to cure or correct the challenged action and inform the demanding person in writing of its decision. Cal. Gov't Code § 54960.1(c)(2). The challenger must commence an action within 15 days of receipt of the legislative body's written decision, or if there is no written decision, within 15 days of the expiration of the 30-day period. Cal. Gov't Code § 54960.1(c)(4). Where no action is taken by the legislative body, the 15-day period shall commence to run the day after the 30-day period to cure or correct expires. Cal. Gov’t Code § 54960.1(c)(3).
Under the Brown Act, the legislative body has 30 days from receipt of the cease and desist letter to respond. Cal. Gov’t Code § 54960.2(b). The challenger must commence an action within 60 days of the legislative body’s written decision, of if there is no written decision, within 60 days of the expiration of the 30-day period for the agency to respond to the cease and desist letter. Cal. Gov’t Code § 54960.2(a)(4).

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5. Are subsequent or concurrent measures (formal or informal) available?

Although the Bagley-Keene Act does not require making a written demand on the state body before filing an action in court, one way to resolve an alleged violation may be to initiate correspondence with the state body, urging them to correct the alleged violation. Section 11130.3 states, "Nothing in this section shall be construed to prevent a state body from curing or correcting an action challenged pursuant to this section." Cal. Gov't Code § 11130.3.

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C. Court review of administrative decision

1. Who may sue?

Technically, there is no administrative decision for the court to review. Violations or threatened violations of the Bagley-Keene and Brown Acts may be challenged by filing an action against the entity in the Superior Court. Cal. Gov't Code §§ 11130, 11130.3 (Bagley-Keene Act); 54960, 54960.1 (Brown Act). Under the Brown Act, before a person may file an action in court challenging an action (vote) taken by the legislative body as "null and void," he or she must demand that the legislative body cure or correct an action taken in violation of certain provisions. Cal. Gov't Code § 54960.1(b). Similarly, before a person may file an action in court seeking a determination on whether a past action of the legislative body violates the Brown Act, he or she must send a cease and desist letter. Cal. Gov’t Code § 54960.2.

Any California citizen has standing to sue a legislative body for violating the Brown Act, even if the citizen does not live in the county or city where the alleged violation occurred. McKee v. Orange Unified School District, 110 Cal. App. 4th 1310, 1316, 2 Cal. Rptr. 3d 774 (2003). Standing is not limited to persons; a newspaper labor union has standing to bring a Brown Act lawsuit. Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41, 46, 69 Cal. Rptr. 480 (1968).  However, a member of the governing body does not have standing to sue for violations of the Brown Act as a member of the general public unless he or she has a personal stake in the outcome of the relief sought. Galbiso v. Orosi Public Utility Dist., 182 Cal. App. 4th 652, 668-69, 107 Cal. Rptr. 3d 36 (2010); see also Holbrook v. City of Santa Monica, 144 Cal. App. 4th 1242, 1257, 51 Cal. Rptr. 3d 181 (2006).

Additionally, under both a district attorney is authorized to commence an action by mandamus, injunction or declaratory relief for purposes of stopping or preventing violations or threatened violations of the Act or to determine the applicability of the Act to past actions or threatened future actions by members of the state body or by the legislative body, or to determine whether any action by the state or legislative body to penalize the expression of any of its members is valid. Cal. Gov't Code §§ 11130(a) (Bagley-Keene Act); 54960(a) (Brown Act). Under the Bagley-Keene Act, the California Attorney General also is authorized to bring these actions. Cal. Gov't Code § 11130(a).

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2. Will the court give priority to the pleading?

Both the Bagley-Keene and Brown Acts provide for writs of mandate or injunctions, which are typically handled in an accelerated manner or are afforded some priority over other civil actions in the court system. Cal. Gov't Code §§ 11130.3 (Bagley-Keene Act); 54960.1 (Brown Act). It is not unusual to receive a decision from the court regarding a challenge to an action taken in violation of either of the Acts within a few weeks.

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3. Pro se possibility, advisability

Although the Acts provide that any person may commence an action in court and it is permissible for an individual to represent himself in an individual capacity (pro se), it is not advisable to attempt to draft the required pleadings and participate in the subsequent proceedings without the assistance of an attorney. Drafting pleadings and supporting papers that contain the requisite claims and contentions in a format that meets the legal requirements is technically challenging for a pro se litigant. It is likely that any local agency or body whose action is challenged will be represented by City or County Counsel, who will seek to challenge the sufficiency of the pleadings to obtain a dismissal of the action without a decision on the merits.

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4. What issues will the court address?

a. Open the meeting

The court has the discretion to order a meeting to be open if it does not fit within one of the exemptions specifically authorized by the relevant Act. The court may also require the body to tape record its future closed sessions and preserve the recordings if past violations of closed session requirements are found. Cal. Gov't Code §§ 11130(b) (Bagley-Keene Act); 54960(b) (Brown Act). The tapes will then be subject to discovery procedures, although only under those procedures outlined by the Acts. Cal. Gov't Code §§ 11130(c)(2) (Bagley-Keene Act); 54960 (Brown Act)(c)(2).

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b. Invalidate the decision

Under the Bagley-Keene Act, the court will only invalidate action taken in violation of Section 11123 (providing for open meetings) or Section 11125 (notice requirements). Cal. Gov't Code § 11130.3(a). Under the Brown Act, the court will invalidate action taken in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules). Gov't Code § 54960.1(a).
However, under both Acts, the court will not invalidate any action: (1) taken in connection with the sale or issuance of bonds, (2) giving rise to a contract that a party has relied on in good faith, (3) taken in substantial compliance with the sections, or (4) taken in connection with the collection of any tax. Cal. Gov't Code §§ 11130.3(b) (Bagley-Keene Act); 54960.1(d) (Brown Act).

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c. Order future meetings open

The court has the authority to order a future meeting to be open if it does not fit within one of the exemptions specifically authorized by the relevant Act.

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5. Pleading format

A petition for mandamus must meet all statutory requirements for a pleading under the Code of Civil Procedure, the local rules of the court, and any applicable case law. Lawsuits for declaratory or injunctive relief must contain the required allegations and must comply with state law.

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6. Time limit for filing suit

Under the Bagley-Keene Act, a court action that seeks to nullify action taken in violation of the Act, must be filed within 90 days of the date the action was taken. Cal. Gov't Code § 11130.3.

(The Legislature also amended this section of the Bagley-Keene Act in 1999 to supersede Regents of the Univ. of California v. Superior Court (Molloy), 20 Cal.4th 509, 976 P.2d 808, 85 Cal. Rptr. 2d 257 (1999), where the California Supreme Court held that a suit must be brought within 30 days of the violation to nullify the action.)

Under the Brown Act, a person who seeks to declare an action null and void in violation of Sections 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting on general tax or assessment and notice thereof), or 54956 (special meetings and notice thereof), must make a written demand to the legislative body to cure or correct an action taken in closed session within 90 days from the date the action was taken. Cal. Gov't Code § 54960.1(c)(1); Ingram v. Flippo, 74 Cal. App. 4th 1280, 84 Cal. Rptr. 2d 60 (1999). However, if the action was taken in an open session but in violation of Section 54954.2 (action or discussion on item not appearing on posted agenda), the written demand must be made within 30 days of the date the action was taken. Cal. Gov't Code § 54960.1(c)(1).

A local legislative body then has 30 days from receipt of the demand to cure or correct the violation. Cal. Gov’t Code § 54960.1(c)(2). Within 15 days of written notice of the legislative body’s decision to cure or correct, or not cure and correct, or within 15 days of the expiration of the 30-day period to cure or correct (if no response is provided), whichever is earlier, the party making the demand must commence the action. Cal. Gov’t Code § 54960.1(c)(4). If the legislative body takes no action within the 30-day period, the 15-day period to commence an action shall commence to run the day after the 30-day period to cure or correct expires. Cal. Gov’t Code § 549601(c)(3).The action will be barred if not timely filed. Cal. Gov’t Code § 54960.1(c)(4).

Under the Brown Act, a person seeking to file an action to determine the application of the Act to past actions pursuant to Section 54960(a) must first submit a cease and desist letter within nine months of the alleged violation. Cal. Gov’t Code § 54960.2(b)(4). The legislative body has 30 days from receipt of the demand to respond. Cal. Gov’t Code § 54960.2(b). Within 60 days from receipt of the legislative body’s response to the cease and desist letter (other than an unconditional commitment to comply), or within 60 days of the expiration of the time during which the legislative body may respond to the letter (30 days), whichever is earlier, the party submitting the letter must commence an action, or thereafter be barred from doing so. Cal. Gov’t Code § 54960.2(b).

The Bagley-Keene Act is silent on the time to file an action under Section 11130 (actions to stop or prevent violations or threatened violations, or to determine the application of the Act to past actions or threatened future actions). Because the relief is equitable in nature, it is advisable to file suit as soon as practicable after the violation, or after subsequent communications with state body have ceased to be productive.

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7. What court

The action should be filed in the Superior Court of the county in which the violation of the Act occurred.

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8. Judicial remedies available

Under the Bagley-Keene Act, the court may invalidate actions taken by the state body in violation of Section 11123 (open meetings) or 11125 (notice requirements). Cal. Gov't Code § 11130.3(a). Under the Brown Act, the court may invalidate actions taken by the legislative body of a local agency in violation of Section 54953 (open and public meetings), 54954.2 (posting of agenda), 54954.5 (description requirements for closed sessions), 54954.6 (public meeting in general tax or assessment of notice thereof), 54956 (special meetings and notice thereof), or 54956.5 (emergency meeting rules). Cal. Gov't Code § 54960.1(a).

However, under both Acts, the court will not invalidate any action: (1) taken in connection with the sale or issuance of bonds, (2) giving rise to a contract that a party has relied on in good faith, (3) taken in substantial compliance with the sections, or (4) taken in connection with the collection of any tax. Cal. Gov't Code §§ 11130.3(b) (Bagley-Keene Act); 54960.1(d) (Brown Act). See also Regents of University of California v. Superior Court, 20 Cal. 4th 509, 527, 85 Cal. Rptr. 2d 257, 976 P.2d 808 (1999) (Regents held in substantial compliance with notice provisions); Castaic Lake Water Agency v. Newhall County Water Dist., 238 Cal. App. 4th 1196, 1207, 190 Cal. Rtpr. 3d 151 (2015) (description of closed agenda item that cited wrong provision authorizing closed session to confer with counsel over litigation was held to be in substantial compliance with Brown Act); San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167, 1177, 157 Cal. Rptr. 3d 458 (2013) (failure to separately disclose consideration of a mitigating negative declaration concerning an environmental project noticed for approval on the agenda held to violate Brown Act); North Pacific LLC v. California Coastal Commission, 166 Cal. App. 4th 1416, 1431-32, 83 Cal. Rptr. 3d 636 (2008) (holding commission in substantial compliance with notice provisions and stating “state actions in violation of [the notice] requirements should not be nullified, so long as the state agency’s reasonably effective efforts to notify interested persons of a public meeting serve the statutory objectives of ensuring that state actions taken and deliberations made at such meetings are open to the public.”).

Additionally, even when technical violations of the Acts are shown, action will not be invalidated absent a showing of prejudice.  California Coastal Commission, 166 Cal. App. 4th at 1433 (Bagley-Keene Act); Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555-56, 35 Cal. Rptr. 2d 782 (1994) (Brown Act).

Both Acts authorize the issuance of a writ of mandamus, injunction, or a declaratory relief for the purpose of stopping or preventing violations or threatened violations of the Acts, or to determining the application of the Acts to ongoing actions or threatened future actions, or to determine the application of the Acts to past actions of the state or legislative body. Cal. Gov’t Code §§ 11130(a) (Bagley-Keene Act); 54960(a).

With respect to other lawsuits under either Act, the court may order the body to refrain from violating the Act, may determine the legality of a rule or action by the body that penalizes or discourages the expression of its members, or may compel the body to tape record its closed sessions. Cal. Gov't Code §§ 11130(a) (Bagley-Keene Act); 54960(a); 54960(b) (Brown Act).

A judge may order closed-session minutes released to the public. In Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 906-907, 205 Cal. Rptr. 92 (1984), the court held that closed session minutes must be disclosed under the Public Records Act if a legislative body calls a closed session in violation of the Brown Act and no other privileges apply to the discussions. But another court has held that the Brown Act does not contain any provision for disclosing the minutes of a closed session meeting where the legislative agency correctly convened a closed session under the Brown Act, but strayed into topics that were not on the agenda or not proper for discussion in closed session. County of Los Angeles v. Superior Court (Union of American Physicians and Dentists), 130 Cal. App. 4th 1099, 1105-1106, 30 Cal. Rptr. 3d 708 (2005). In that case, the court held that minutes of a closed session meeting remained privileged from discovery, even where the body may have violated the Brown Act. Id. at 1105. This case should be distinguished by pointing out that the plaintiff had never filed a Brown Act lawsuit, and that the issue of whether the Brown Act had been violated had not been fully litigated in the trial court, and the plaintiff was seeking discovery of closed session minutes in a non-Brown Act lawsuit.

But given the holding of Union of American Physicians and Dentists, it is advisable to combine any Brown Act demand letter and lawsuit with a demand under the California Public Records Act for the minutes of the portion of the closed session that violated the Brown Act, and assert that release of the documents is being sought under the Public Records Act and the Brown Act.

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9. Availability of court costs and attorney's fees

The court, in its discretion, may award court costs and attorneys' fees to the plaintiff under either Act where it is determined that a body or agency has violated the Act. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act); 54960.5 (Brown Act). The fees are to be paid by the body and are not the personal liability of any individual officer or employee. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act); 54960.5 (Brown Act). The court is also authorized to award attorney fees to a defendant in any action under the Act where the defendant prevails and the court finds that the action was clearly frivolous and totally lacking in merit. Cal. Gov't Code §§ 11130.5 (Bagley-Keene Act); 54960.5 (Brown Act).

Under the Brown Act, an award of attorneys' fees is "presumptively appropriate" and a prevailing plaintiff should "ordinarily recover an attorney's fees unless special circumstances would render such an award unjust." Los Angeles Times Communications LLC v. Superior Court, 112 Cal. App.4th 1313, 1327, 5 Cal. Rptr. 3d 776, 787 (2004); see also Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1083, 84 Cal. Rptr. 3d 788 (2008).  In Los Angeles Times, the court held that fees were required because the litigation conferred a "public benefit" in part because the legislative body and its counsel continued to assert that it had done nothing wrong, leaving "open the possibility that the same violation would recur." Id. at 1322. Where the Brown Act plaintiff has prevailed on both Brown Act and non-Brown Act claims, the trial court must apportion the fees and award fees only for the Brown Act causes of action. Bell v. Vista Unified School District, 82 Cal. App. 4th 672, 98 Cal. Rptr. 2d 263 (2000).

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10. Fines

There is no provision for fines for violation of the open meeting requirements of either of the Acts except those which may be imposed if a member is found to be guilty of a misdemeanor.

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11. Other penalties

Both Acts provide that it is a misdemeanor for a member of a state or legislative body to attend a meeting in violation of any provision of the Act, where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled. Cal. Gov't Code §§ 11130.7 (Bagley-Keene Act); 54959 (Brown Act).

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D. Appealing initial court decisions

1. Appeal routes

Unlike the California Public Records Act, there is no special procedure for appealing final judgments or orders under the Bagley-Keene or Brown Act. An appeal after final judgment or a writ or extraordinary review brought under the Bagley-Keene Act or the Brown Act is subject to California's rules of civil procedure and appellate process. The rules vary depending upon the nature of the original action filed, i.e., whether declarative or injunctive relief was sought, or whether a petition for a writ of mandate was filed.

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2. Time limits for filing appeals

Upon a final judgment, any party wishing to appeal must file a jurisdictional notice of appeal in the trial court on or before the earlier of: (1) 60 days after the date of mailing by the clerk of the court of the "notice of entry" of judgment; (2) 60 days after the date of service of "notice of entry" of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days after the date of entry of the judgment. Cal. R. Ct. 8.104. Thereafter, the appellant must forward the trial transcript, papers and other records in the court's file that he or she wishes the appellate court to have, and then file the opening appellate brief.

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3. Contact of interested amici

Amicus curiae ("friend of the court") briefs may be filed, with the permission of the court, by any person not a party to the appeal who wants to argue the merits of the case. California Rules of Court, Rule 14. It is advisable to give serious consideration to filing amicus briefs in appellate proceedings.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

Yes, during a regular or special meeting, but not during a closed meeting. Under both Acts, a body must provide an opportunity for members of the public to directly address each agenda item under consideration by the body either before or during the body’s discussion. Cal. Gov't Code §§ 11125.7(a) (Bagley-Keene Act); 54954.3(a) (Brown Act). Additionally, under the Brown Act, during a regular session but not during a special session, the public has a right to comment “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 ….”  Cal. Gov’t Code § 54954.3(a). This right has been construed to mean that there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.  Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1080, 84 Cal. Rptr. 3d 788 (2008); see also Chaffee v. San Francisco Library Commission, 115 Cal. App. 4th 461, 468-69, 9 Cal. Rptr. 3d 336 (2004).  Under the Brown Act, the right to comment includes the right to comment on matters to be considered by the body in closed session.  Galbiso, 167 Cal. App. 4th at 1080; see also Leventhal v. Vista Unified School Dist., 149 Cal. App. 4th 11424, 1437-39, 57 Cal. Rptr. 3d 885 (2007).

Under both Acts, the right to comment on agenda items does not apply if the agenda item has already been considered by a committee composed exclusively of members of the body at a public meeting where the public had the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the body. Cal. Gov't Code §§ 11125.7(a) (Bagley-Keene Act); 54954.3(a) (Brown Act).

The Bagley-Keene Act further provides that public testimony may be taken at a regular or special meeting if the state body takes no action at the same meeting on matters not on the notice and agenda that are brought before the body by the public. Cal. Gov't Code § 11125.7(a).

Under both Acts, the state body or the legislative body of a local agency may not prohibit public criticism of the policies, procedures, programs or services of the body, or the acts or omissions of the body. Cal. Gov't Code §§ 11125.7(c) (Bagley-Keene Act); 54954.3(c) (Brown Act).

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B. Must a commenter give notice of intentions to comment?

Neither Act requires a commenter to give notice of an intention to comment. However, a body may impose reasonable regulations to ensure an orderly meeting. Cal. Gov't Code §§ 11125.7(b) (Bagley-Keene Act); 54954.3(b) (Brown Act).

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C. Can a public body limit comment?

Under the Bagley-Keene Act, a body does not have to listen to comments on matters that are not on the agenda or that were already considered in a public meeting where there was an opportunity to comment. Cal. Gov't Code §§ 11125.7(a).

Under the Brown Act, the public is entitled to comment on any matter within the subject matter jurisdiction of the legislative body, as well as any agenda item.  Cal. Gov’t Code § 54954.3(a).  See Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1080, 84 Cal. Rptr. 3d 788 (2008). Thus, under the Brown Act, the legislative body does not have to listen to comments on items that are not within its subject matter jurisdiction. 78 Ops. Cal. Att'y Gen. 224 (1995). And, as under the Bagley-Keene Act, a legislative body under the Brown Act does not have to listen to comments on items that were already considered in a public meeting where there was an opportunity to comment. Cal. Gov’t Code § 54954.3(a).

In addition, under both Acts, the body may adopt reasonable regulations to ensure that the above provisions are carried out, including, but not limited to, regulations limiting the total amount of time allocated to each individual speaker for public testimony or comment on particular issues. Cal. Gov't Code §§ 11125.7(b) (Bagley-Keene Act); 54954.3(b) (Brown Act). A legislative body of a local agency may regulate the time, place and manner for speech to ensure orderly discussion. Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719 (C.D. Cal. 1996) (Brown Act).

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D. How can a participant assert rights to comment?

Under both Acts, the body must give members of the public an opportunity to comment before or during the body's discussion or consideration of the agenda item. Cal. Gov't Code §§ 11125.7(a) (Bagley-Keene Act); 54954.3(a) (Brown Act). Under the Brown Act, the public must be given an opportunity to comment on any matter within the subject matter jurisdiction of the body, in addition to agenda items. Cal. Gov’t Code § 54954.3(a). Presumably, the body will invite public comment at the appropriate time, but if not, the participant could probably interrupt the meeting and request an opportunity to speak on the particular item, or on any matter within the subject matter of the legislative body.

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E. Are there sanctions for unapproved comment?

Comments by members of the public do not need to be approved under either Act. Under the Brown Act, if a meeting is willfully interrupted by a group of persons, the body may order the room cleared and continue in session if order cannot be restored by removing the individuals. Cal. Gov't Code § 54957.9. In such a situation, the body can only consider items on the agenda, and representatives of the press or other news media, except those participating in the disturbance, must be allowed to attend. Id. The body may readmit individuals who did not willfully disturb the orderly conduct of the meeting. Id.

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Appendix

Cal. Const. Art. I, Section 3(b) (California Sunshine Amendment)

Cal. Gov't Code Sections 6250-6276.48 (California Public Records Act)

Cal. Gov't Code Sections 54950-54963 (Ralph M. Brown Act)

Cal. Gov't Code Sections 11120-11132 (Bagley-Keene Open Meeting Act)

The Brown Act: Open Meetings for Local Legislative Bodies (Cal. Attorney Gen. 2003 ed.)

A Handy Guide to the Bagley-Keene Open Meeting Act (Cal. Attorney Gen. 2004 ed.).

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