Ralph M. Brown Act:
Records; Public Comment;
Recordings
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Q: What rights do citizens have to view
and get copies of documents related to public meetings?
Q: Is the public entitled only to copies of agenda
backup material prepared by the body's staff?
Q: May records be withheld on the basis that they have
not been distributed to the body yet?
Q: Aside from being present at meetings,
what rights do people have under the Brown Act?
Q: Does every meeting of every kind have
to allow for comment?
Q: Can comment be restricted to matters
that the body has the authority to act upon?
Q: If citizens can be kept from
commenting on something dealt with in an earlier hearing, doesn't that restrict their
ability to participate?
Q: How long must a speaker be allowed to address the
body? Do citizens have any minimum rights, such as three minutes?
Q: How far can a body go in controlling
what speakers say in their comments?
Q: Can speakers be prevented from using their time to
criticize named public officials and employees?
Q: Can speakers address issues that are scheduled for
discussion or action in closed session?
Q: Are citizens ever allowed to place
matters on the agenda of a body's meetings?
Q: What rights do citizens have to use
photo, recording or broadcast equipment at meetings?
Q: What rights do citizens have to view and get copies of
documents related to public meetings?
A: Because the agenda listing concerning a given item need only be a "brief
general description" it is often vital that the public be able to learn details of
what is being proposed for action or what is covered in a certain report. For that
journalists and other citizens rely on the agenda packet -- the total compilation of
backup memoranda and other materials that are delivered to the body prior to a meeting to
educate them on the pending business. There is no question that these documents are
accessible (by and large) under the California Public Records Act; but the Brown Act
reinforces that point and stresses the immediacy with which access must be provided upon
distribution to the body:
Government Code Section 54957.5.
(a) Notwithstanding Section 6255 or any other provisions of law, agendas of public
meetings and any other writings, when distributed to all, or a majority of all, of the
members of a legislative body of a local agency by any person in connection with a matter
subject to discussion or consideration at a public meeting of the body, are public records
under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1), and shall be made available pursuant to Sections 6253 and 6256
without delay. However, this section shall not include any writing exempt from public
disclosure under Sections 6253.5, 6254, or 6254.7.
(b) Writings which are public records under subdivision (a) and which are distributed
during a public meeting shall be made available for public inspection at the meeting if
prepared by the local agency or a member of its legislative body, or after the meeting if
prepared by some other person.
(c) Nothing in this chapter shall be construed to prevent the legislative body of a
local agency from charging a fee or deposit for a copy of a public record pursuant to
Section 6257.
(d) This section shall not be construed to limit or delay the public's right to inspect
any record required to be disclosed under the requirements of the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1). Nothing
in this chapter shall be construed to require a legislative body of a local agency to
place any paid advertisement or any other paid notice in any publication.
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Q: Is the public entitled only to copies of agenda backup
material prepared by the body's staff?
A: The access rights "without delay" in this section attach to documents
distributed to the body by "any person" -- not just the staff -- and attach not
only if the documents are distributed in connection with a particular scheduled meeting,
but even "in connection with a matter subject to discussion or consideration at a
public meeting" -- that is, in connection with any matter that is not so confidential
that it may be discussed in a closed session. The access right "without delay"
is thus triggered whenever anyone distributes documents that are not legally confidential
to a majority of a body. It is not confined to agenda packets prepared as such by the
staff and handed out shortly before the meeting.
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Q: May records be withheld on the basis that they have not been
distributed to the body yet?
A: Some agencies take the position that these provisions justify thewithholding of
documents until distributed to the body, but the language in subdivision (d) indicates
strongly to the contrary. Even before the Brown Act contained an express right of access
to agenda packets, the Attorney General's office advised a member of the state Assembly
that:
- Assuming a "routine" agenda packet contains no legally privileged or
confidential information, it is available under the general provisions of the California
Public Records Act, in the district's office, as soon as assembled and even prior to
distribution the the body.
- A "confidential" packet may be withheld "if, in fact, the documents
therein are exempt from disclosure under the California Public Records Act" -- for
example, a copy of a memorandum reprimanding an employee for unsatisfactory performance,
which would be the topic of a closed session and would probably be exempt from Public
Records Act disclosure as a matter of personal privacy. (Index Letter 77-67) Accordingly,
the practice employed by some agency staff -- school superintendents and others -- of
using separate and secret "eyes only" packets to inform their boards of matters
that are not confidential as a matter of law is clearly at odds with both the Brown Act
and the Public Records Act.
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Q: Aside from being present at meetings, what rights do people
have under the Brown Act?
A: Citizens are authorized by the Act to do more than passively observe meetings. They
may address members of the legislative body on matters on or even off the agenda, preserve
the proceedings by photography or electronic recording, and even broadcast them to the
community. Of all these rights, it is citizen speech itself which raises the most
questions and conflicts. Government Code Section 54954.3 provides:
(a) Every agenda for regular meetings shall provide an opportunity for members of the
public to directly address the legislative body on any item of interest to the public,
before or during the legislative body's consideration of the item, that is within the
subject matter jurisdiction of the legislative body, provided that no action shall be
taken on any item not appearing on the agenda unless the action is otherwise authorized by
subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity
for members of the public to address the legislative body on any item that has already
been considered by a committee, composed exclusively of members of the legislative body,
at a public meeting wherein all interested members of the public were afforded 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 legislative body. Every notice for a
special meeting at which action is proposed to be taken on an item shall provide an
opportunity for members of the public to directly address the legislative body concerning
that item prior to action on the item.
(b) The legislative body of a local agency may adopt reasonable regulations to ensure
that the intent of subdivision (a) is carried out, including, but not limited to,
regulations limiting the total amount of time allocated for public testimony on particular
issues and for each individual speaker.
(c) The legislative body of a local agency shall not prohibit public criticism of the
policies, procedures, programs, or services of the agency, or of the acts or omissions of
the legislative body. Nothing in this subdivision shall confer any privilege or protection
for expression beyond that otherwise provided by law.
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Q: Does every meeting of every kind have to allow for comment?
A: Comment must be accepted at both regulat and special meetings, but with one
difference. At a regular meeting the public must be allowed to comment not only on agenda
items but on any item of interest subject to the body's jurisdiction, whereas at special
meetings comment may be confined to the specific topic or topics contained in the meeting
notice.
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Q: Can comment be restricted to matters that the body has the
authority to act upon?
A: Agencies sometimes read the phrase "subject matter jurisdiction" with
narrow hypertechnicality, for example to prohibit comment, at a city council meeting, on a
pending cardroom authorization measure on the ballot for a city election, on the ground
that until the matter is acted on by voters, cardrooms are not subject to city authority.
This view is entirely at odds with the overall generosity of the section, which probably
uses this phrase simply as a standard for limiting comment to those issues relevant to the
agency and over which the agency does or might have some influence.
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Q: If citizens can be kept from commenting on something dealt
with in an earlier hearing, doesn't that restrict their ability to participate?
A: To some extent, but the authority to preclude comment on a matter considered at an
earlier hearing arises only when the hearing was conducted by a sub-quorum committee of
the body (and not, for example, by an advisory committee) and when"all
interested members of the public" were given the opportunity to comment (emphasis
added). Thus if the committee cut off public comment while there were were still speakers
waiting to be heard, they cannot be denied a chance to address the full body when the item
is taken up there.
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Q: How long must a speaker be allowed to address the body? Do
citizens have any minimum rights, such as three minutes?
A: The body's chief control over the scope of public comment is the use of time limits.
The law does not state what those limits are, simply that they are to be
"reasonable...to ensure that the intent" of accommodating public comment
"is carried out." The Attorney General has concluded that five minutes per
speaker may be "reasonable" under the circumstances (75 Ops. Cal. Atty. Gen. 89
(1992)), but many if not most agencies appear to keep the per speaker limit to three
minutes -- per agenda item. More important than the exact time permitted is that the time
limits be administered neutrally and evenhandedly. Clearly giving more time to citizens on
one side of a controversial topic than those on the other, for example, is not
"reasonable." On the other hand, although the staff or other main proponents of
an agenda item will commonly take considerable time in presenting the proposal, there is
no requirement that citizen opponents be given "equal time" for rebuttal.
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Q: How far can a body go in controlling what speakers say in
their comments?
A: In creating an opportunity for citizens to address a legislative body, the
Legislature has created what is described in First Amendment jurisprudence as a limited
public forum. It is limited in the sense that speakers may be held to subject matter
relevant to the meeting (or at least the agency's role) and may also be restricted by
reasonable rules of time limitation and good order. But, concluded the U.S. Ninth Circuit
Court of Appeals, the First Amendment would not permit offiicials presiding in a public
forum of even this limited scope to outlaw comment simply on the basis of its being
offensive - "personal, impertinent, slanderous or profane". What they may do is
react to actual disruption, which in the context of a government meeting can mean simply
wasting time to the detriment of all others present.
...the nature of a Council meeting means that a speaker can become
"disruptive" in ways that would not meet the test of actual breach of the
peace...A speaker may disrupt a Council meeting by speaking too long, by being unduly
repetitious, or by extended discussion of irrelevancies. The meeting is disrupted because
the Council is prevented from accomplishing its business in a reasonably efficient manner.
Indeed, such comment may interfere with the rights of other speakers.
White v. City of Norwalk, 900 F.2d 1421 (1990).
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Q: Can speakers be prevented from using their time to criticize
named public officials and employees?
A: "Personal attacks on individuals are not authorized by the (Brown) Act, nor
does the Act confer any privilege or protection for expression beyond that otherwide
provided by law." Such is the comment in the Attorney General's 1994 guidebook, The
Brown Act: Open Meetings for Local Legislative Bodies. Notwithstanding the accuracy of
that observation as far as it goes, it should be noted that existing law does create a
privilege for statements made in the course of an official proceeding such as the meeting
of a local legislative body (Civil Code Section 47a), or even of a lawful public meeting
that is not an official proceeding. For various reasons, including the possibility of
exceeding the scope of these privileges, no speaker should exploit a public comment period
wantonly or irresponsibly to "attack" the reputation of any person, or bring a
personalized vendetta into the meeting room.
On the other hand, the all too common other extreme -- shutting down criticism of how
public affairs are handled simply because the criticism may reflect on the performance of
individuals -- is likewise not only unjustified but contrary to express provisions of the
Act. Moreover, the First Amendment itself, operating in the limited public forum of a
citizen comment period, protects unflattering comments about the performance of
responsible public officials -- even higher-level staff members -- in the context of a
criticism of how the agency's affairs are being handled.
The U.S. Ninth Circuit Court of Appeals recently upheld a federal district court
judgment finding that a city library employee (and union reresentative) had suffered
unlawful retaliation for the exercise of her free speech rights when she was reprimanded
for having criticized, in the comment period of a Santa Ana City Council meeting, the
management style of the city library director. The letter of reprimand cited her speech as
insubordination and failure to follow established grievance procedures.
The court held that the comments were constitutionally protected because they dealt
with a matter of legitimate public concern -- library services -- as evidenced by the fact
that there already existed a controversy about such complaints. The issues were not simply
personal grievances between a subordinate and her supervisor, the court concluded. It
cited the fact that the comments were made at a council meeting not as an indicator of
less constitutional protection but as evidence that the public nature of the controversy
was genuine.
The court upheld a jury award of damages against the city, the library director and the
city manager (who wrote the reprimand letter) in the amount of $10,000, and a $20,000
punitive damages award against the library director. It held that the managers' personal
liability was justified because reasonable public officials would have recognized that the
speech was protected, given the pre-existing controversy and the employee's role as a
union spokesperson (Lambert v. Richard, ___ F.2d ___ (1995)).
If officials may not even reprimand their employees for criticism of management under
such circumstances, it would seem even less justified in censoring criticism from citizens
simply because particular officials' performance may be implicated - at least when the
comments are not wantonly scurrilous, but rather a reflection of a genuine controversy
affecting general community interest. The Brown Act may not explicitly
"authorize" such stinging criticism, but neither does it forbid it -- nor could
it, under the First Amendment.
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Q: Can speakers address issues that are scheduled for discussion
or action in closed session?
A: Yes. Local legislative bodies sometimes cut off comment on matters that will be or
have been discussed in closed session, on the theory that such matters are not eligible
for citizens' remarks. Not only is there nothing in the Brown Act to suggest any such
reservation or distinction, to employ such a rule would obviously cripple citizens'
ability to be heard on some matters of the keenest interest. The public could not advocate
the hiring or retention of an employee it supported, nor the transfer or dismissal of an
employee it had lost confidence in; it could not support or protest the purchase or sale
of real property; it could not be heard on topics made subject of collective bargaining,
including but not limited to employee salaries; and it could not voice its opinion on the
filing or appeal of lawsuits, or the failure to do so.
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Q: Are citizens ever allowed to place matters on the agenda of a
body's meetings?
A: In one instance, yes. Parallel to the Brown Act public comment provision is a
section of the Education Code (35145.5) which gives the public an even more active role in
the agendas of school board meetings, namely "to place matters directly related to
school district business on the agenda of school district governing board meetings."
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Q: What rights do citizens have to use photo, recording or
broadcast equipment at meetings?
A: A final set of rules effective to increase public participation in open meetings
allows the preservation of an independent record by citizens using their own equipment, or
a transmission of the proceeding to a much wider audience through broadcast. In either
case, such mechanisms can be curtailed only by a specific and "reasonable"
finding that the tools or procedures employed are persistently and physically conflicting
with the conduct of the meeting, If the body makes its own recording, citizens may be
charged a fee equivalent to duplication costs if they desire a copy, but may not be
charged simply to listen to or view the tape. The tape may be erased or destroyed a month
after the meeting if no request under the Public Records Act is pending.
Government Code § 54953.5 (a) Any person attending an open and public meeting of a
legislative body of a local agency shall have the right to record the proceedings with an
audio or video tape recorder or a still or motion picture camera in the absence of a
reasonable finding by the legislative body of the local agency that the recording cannot
continue without noise, illumination, or obstruction of view that constitutes, or would
constitute, a persistent disruption of the proceedings.
(b) Any tape or film record of an open and public meeting made for whatever purpose by
or at the direction of the local agency shall be subject to inspection pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1), but, notwithstanding Section 34090, may be erased or destroyed 30 days after the
taping or recording. Any inspection of a video or tape recording shall be provided without
charge on a tape recorder made available by the local agency.
Government Code § 54953.6. No legislative body shall prohibit or otherwise restrict
the broadcast of its proceedings in the absence of a reasonable finding that the broadcast
cannot be accomplished without noise, illumination, or obstruction of view that would
constitute a persistent disruption of the proceedings.
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