THE BROWN ACT & PUBLIC RECORDS ACT

1. THE BROWN ACT&PUBLIC RECORDS ACT Roseanne Chamberlain Executive Officer Amador LAFCO

2. DISCLAIMER • I am not an attorney • Nothing in this presentation is intended as legal advice • Information contained herein is designed to increase your understanding and implementation of laws applicable to LAFCOs • I hope there will be something useful for each participant in this session

3. Historical Notes • 1952 SF Chronicle Publishes Series: “Your Secret Government” • League of Cities Initiated Bill • Carried by Modesto Assemblyman • Signed into Law in 1953 Ralph M. Brown

4. THE BROWN ACT - PURPOSE To ensure that almost all aspects of the decision-making process of legislative bodies of local agencies are conducted in public and open to public scrutiny, including discussion, debate, and acquisition of information

5. APPLICATION OF THE ACT • Local Agencies • Legislative Bodies • Meetings/Decisions/Action Taken • Persons elected to legislative bodies, even prior to assuming office

6. RIGHTS OF THE PUBLIC • To know in advance the location and time of the meeting • To Attend Meetings: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend..” • To Address the Governing Body • To Record The Meeting

7. LEGISLATIVE BODIES DEFINED • Governing Body • Board, Commission, Committee created by formal action of the Governing Body • Private Board, LLC, or other entity that: • Is created by the Governing Body or • Receives funds and a designated member from the legislative body

8. APPLICATION OF THE ACT The Brown Act Does NOT Apply to: • Individuals, or less than a quorum • Advisory Committee of less than a quorum of the Governing Body (w/o continuing subject matter jurisdiction, such as an “ad hoc committee”) • Attendance at a standing committee meeting (observation only) • Attendance at open & noticed meetings of other local agencies

9. MEETINGS Defined • Serial Meetings • Spoke or Chain • Conversations and Email • No Collective Briefings • Retreats and Workshops • Teleconferencing (notice requirements) • Special Meetings

10. MEETINGS (Continued) The Brown Act Does NOT Apply to: • Attendance at conferences open to the public on issues of general interest to the public or public agencies • Town meetings or similar gatherings which are open, noticed, and originated by a person or organization other than the local agency • Purely social or ceremonial occasions

11. NOTICE OF MEETINGS Notice (Agenda)must give time, place, and brief general description of every item of business to be discussed or transacted, including closed session items • Notice available in alternative ADA formats • Instructions on how to get ADA assistance

12. POSTING & NOTICE • 72 hours before regular meeting • 24 hours before special meeting with media notice • Emergencies

13. NO ACTION ALLOWED No action OR DISCUSSION allowed for any item not listed on agenda except: • Items added by 2/3 vote for emergency situation • Items added by 2/3 vote because of need for immediate action

14. NO ACTION ALLOWED (Continued) No action OR DISCUSSION allowed for any item not listed on agenda except: • Brief response to statement or question from the public • Questions to staff for clarification of a matter based upon public comment • Brief announcement or report on member’s or staff’s own activities

15. NO ACTION ALLOWED (Continued) No action OR DISCUSSION allowed for any item not listed on agenda except: • Provide reference or information to staff • Ask staff to report back at a future meeting on any matter

16. OPPORTUNITY TO SPEAK Every agenda must provide an opportunity for the public to speak: • On items of interest to the public • Before/during consideration of each agenda item • On items not on the agenda (but within the jurisdiction of the agency)

17. OPPORTUNITY TO SPEAK The legislative body may: • Adopt regulations limiting total amount of time for public testimony for certain issues and for each speaker • Order the room to be cleared of persons interrupting the orderly conduct of the meeting All who wish to do so, may speak on each agenda item, not necessarily each motion.

18. CLOSED SESSIONS PERMITTED Examples of exceptions to the public session requirement include: • Real property transactions • Pending litigation • Personnel issues Staff/advisors may be invited into closed session If some member of the public is allowed, all members of the public must be allowed

19. CLOSED SESSION REPORTING Legislative body must publicly report on actions taken in closed session and the vote of every member CLOSED SESSION LEAKS • Confidential information cannot be disclosed without consent • Confidential information includes communications in closed session specifically related to the lawful basis for the closed session

20. THE PEOPLE DO NOT YIELD THEIR SOVEREIGNTY… …to the agencies which serve them. The people in delegating authority, do not give their public servants their right to decide what is good for the people to know and what is not good for the people to know. The people insist on remaining informed so that they retain control over the instruments they have created.”

21. THE PUBLIC RECORDS ACT • Basic Purpose – To Make Government Documents Public Absent a Specific Justification To Withhold • Analogue of Brown Act For Documents • Right to Inspect and Copy

22. PUBLIC RECORDS • “Any Writing” • “Writing” Includes Paper, Electronic, Etc. • Disclosure of Information • Forms 700 • New Financial Disclosure AB 745

23. EXCEPTIONS • Three Categories of Records • Enumerated Exceptions • 6255 Balancing of Public Interests • Otherwise Privileged • Other Exceptions Segregate Non-Public Records

24. REQUESTING RECORDS • Oral or in Writing • Walk In • Refining Your Request

25. Sunshine Week • National Initiative to Publicize Open Meeting and Records Laws • Third Week of March • Media and Citizen Groups, • League of Women Voters • League Members and Students • Sacramento Bee

26. THE AGENCY’S RESPONSE • Must Respond Within 10 Days • Must Help Identify Responsive Documents • Must Provide In Requested Format

27. THE AGENCY’S RESPONSE (CON’T) • May Charge for Direct Costs • For Electronic Documents, May Charge for Compiling • Must Explain In Writing Any Withholding of Documents • Must Redact Rather Than Withhold

28. LIMITATIONS • No Open-Ended Requests • No Duty to Create Documents

29. RESOURCESFor More Information: Open and Public IV; League of Cities (order on line) Attorney General Web Site(http://www.ag.ca.gov/ publications/2003_Intro_BrownAct.pdf Pocket Guide to Public Records Act www.thefirstamemdment.org/ publicrecordsact.pdf CA Open Government Guide: www.rcfp.org/ogg/index.php?op= browse&state=CA