Ralph M. Brown Act:
General Rules affecting Closed Sessions
Q: Under the Brown Act, are closed
sessions the exception or the rule?
Q: Are there any situations where a body can go into
closed session regardless of the specific subject at hand?
Q: Does the Brown Act specifically state that closed
sessions are restricted to those it lists?
Q: Is a body free to invite anyone it
wishes into closed session, as observers or advisors?
Q: May a body hear presentations on a
matter in public, then retire into closed sessions to deliberate its decision?
Q: How accessible to the public are the
minutes of closed sessions?
Q: What can be done about
"leaks" out of closed session?
Q: What must be done to inform the
public about what is being discussed in closed session?
Q: After the closed session must the
body reveal what, if anything, it did?
Q: How soon must the public be told of
action taken in closed session? Is an announcement required, or do people have to ask?
Q: If a body's closed session action was
to approve a contract or similar matter embodied in a document, when is that record
available to the public?
Q: Under the Brown Act, are closed sessions the exception or the
rule?
A: The most fundamental rule in the Brown Act is that meetings of legislative bodies
are accessible to the public unless specificallly excepted; and action taken at open
meetings must be "public" in every sense.
Government Code § 54953.(a) All 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.
(Subdivision (b), authorizing video teleconferencing, is discussed elsewhere).
(c) No legislative body shall take action by secret ballot, whether preliminary or
final.
Government Code § 54952.6. As used in this chapter, "action taken" means a
collective decision made by a majority of the members of a legislative body, a collective
commitment or promise by a majority of the members of a legislative body to make a
positive or a negative decision, or an actual vote by a majority of the members of a
legislative body when sitting as a body or entity, upon a motion, proposal, resolution,
order or ordinance.
The broad definition of "action taken" is important not only in connection
with the prohibition against secret ballots (those in which the votes of body members are
not disclosed) but also because, as noted under the discussion of remedies, criminal
sanctions and even some civil enforcement measures cannot be brought unless action has
been taken.
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Q: Are there any situations where a body can go into closed
session regardless of the specific subject at hand?
A: Apart from legislatively authorized topics for closed session, there are only two
circumstances when a body may discuss public business without the public's presence. Both
are extremely rare. In the first situation public knowledge of the discussion is ensured
through the continuing presence of the press; in the second, neither the press nor the
public has access to the proceedings in the first place, for reasons having nothing to do
with the Brown Act.
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Q: Does the Brown Act specifically state that closed sessions are
restricted to those it lists?
A: Yes. If the general rule is that meetings of a legislative body be open to the
public unless specific authorization for closed session is provided, the corollary is that
closed sessions may not be called without that authority:
Government Code § 54962. Except as expressly authorized by this chapter, or by
Sections 1461, 32106 and 32155 of the Health and Safety Code or Sections 37606 37624.3 of
the Government Code as they apply to hospitals, or by any provision of the Education Code
pertaining to school districts and community college districts, no closed session may be
held by any legislative body of any local agency.
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Q: Is a body free to invite anyone it wishes into closed session,
as observers or advisors?
A: No. As the Attorney General has observed, meetings are either open or closed, not
"semi-closed" (46 Ops. Cal. Atty. Gen 34 (1965)). Those permitted to remain in
the closed session with the body must serve some function essential to the confidential
communication, not just sit in as convenient or desired observers.
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Q: May a body hear presentations on a matter in public, then
retire into closed sessions to deliberate its decision?
A: Not unless some exception allows for a closed session in the first place. While the
Bagley-Keene Act allows state boards and commissions to bifurcate formal admininstrtive
proceedings into open evidentialry hearings and closed deliberative sessions, there is no
such rule in the Brown Act, even when the body is functioning in a quasi-judicial capacity
such as holding hearings on appeals of one kind or another (57 Ops. Cal. Atty. Gen 189
(1974); 71 Ops. Cal. Atty. Gen 96 (1988)).
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Q: How accessible to the public are the minutes of closed
sessions?
A: The Brown Act does not require bodies to keep minutes; it considers them only in the
context of providing that if a minute book is kept to record discussions in closed
session, it is exempt from the Public Records Act and is accessible only to members of the
body or to a court if the question of an improper closed session prompts a legal action.
But as noted below, some of the force of this section is qualified by the requirement to
disclose most specific actions taken in closed session at some point soon after they
occur, together with the record of how individual members of the body voted on the action.
Government Code § 54957.2. (a) The legislative body of a local agency may, by
ordinance or resolution, designate a clerk or other officer or employee of the local
agency who shall then attend each closed session of the legislative body and keep and
enter in a minute book a record of topics discussed and decisions made at the meeting. The
minute book made pursuant to this section is not a public record subject to inspection
pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250)
of Division 7 of Title 1), and shall be kept confidential. The minute book shall be
available only to members of the legislative body or, if a violation of this chapter is
alleged to have occurred at a closed session, to a court of general jurisdiction wherein
the local agency lies. Such minute book may, but need not, consist of a recording of the
closed session.
(b) An elected legislative body of a local agency may require that each legislative
body all or a majority of whose members are appointed by or under the authority of the
elected legislative body keep a minute book as prescribed under subdivision (a).
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Q: What can be done about "leaks" out of closed
session?
A: While the minutes of closed sessions are confidential, the Brown Act does not
address the issue of what, if anything, can or should be done when a member of a
legislative body unilaterally reveals information from a closed session. Because of that
silence and the limited criminal penalty which the Legislature has attached to the Brown
Act -- for knowing involvement in deliberate and illegal secrecy -- the Legislative
Counsel has concluded that a city has no authority to enact an ordinance criminalizing the
disclosure of closed session information. But several points at least bear considering.
- Some of the information which might be discussed in closed session is independently
confidential. Under other statutes, that is, an unauthorized or unconsented disclosure of
the information may incur civil or even criminal liability, not because the defendant
acquired it in closed session, but irrespective of how it was acquired. A school board
member, for example, who acting unofficially takes it upon himself or herself to reveal
confidential information from a pupil personnel record without the pupil's consent may
incur civil liability, including punitive damages. But so would anyone else, with a
limited number of exceptions, no matter how they came by the information.
- Some other information acquired or discussed in closed session is clearly a matter of
public record, and disclosing it could not be treated as a breach of any confidence. A
public agency employee's educational and occupational history -- résumé-type information
-- might be the topic of discussion in a performance evaluation, for example, but that
fact would not make it confidential as a matter of law.
- Perhaps the clearest instance of a breach of duty in this area is quite covert and
almost never results in any publicity, namely a member's conveying information to the
other party from a closed session on litigation, real property or employee negotiations.
This is a scenario in which the other members of the body, if they could prove the leak,
might well be able to get an injunction against further episodes, exclude the offending
member from future closed sessions of the same kind, or even refer the matter to the grand
jury for an accusation of willful or corrupt misconduct in office, in which a conviction
leads to removal from office.
- On the other hand, since members of a legislative body are the only persons present in
all closed sessions, they have a unique responsibility to see that the Brown Act is not
violated by inappropriate discussions or action. Accordingly, a member can hardly be
penalized for a reasonable and good-faith effort to see that the law is observed, and if
persuasion of the other members is ineffective in this regard, there are times when going
public and blowing the whistle may be the only option the member has to see that
violations do not persist. But before doing so, the member would be well-advised to check
his or her concerns with an attorney conversant with the Brown Act -- first the agency's
own attorney, but in cases of persistent doubt, authorities such as the Attorney General's
Civil Law Division.
- Two considerations act to inhibit over-zealous pursuit of a member by his or her
colleagues in this area. One is that the conduct of a legislative body member may be
discussed only in open session, because such officers are not "employees"
subject to closed session evaluation. The second is that any sanctions imposed, including
a resolution of disapproval, must accord the accused due process, and must proceed upon
real evidence, not simply suspicion.
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Q: What must be done to inform the public about what is being
discussed in closed session?
A: The Brown Act permits closed sessions in certain defined circumstances not to keep
the public in the dark about the issues being dealt with by a legislative body but to
avoid the ill effects of one kind or another which might result from having to expose the
discussion itself to indiscriminate public attention. Accordingly, bodies must provide
some information about the general nature of the closed session discussion in advance, by
a statement in open session, by a listing on the posted agenda, or -- typically -- by
both. After the the closed session, if action was taken of the kind that must immediately
be disclosed, that disclosure must be made in open session. The Act makes it clear,
therefore, that a body's meeting cannot begin in closed session. The closed session in
every instance must be preceded by an announcement which informs the public, even if ony
by reference to the posted agenda, of the nature of the discusssion to take place in
closed session.
Government Code § 54957.7. (a) Prior to holding any closed session, the legislative
body of the local agency shall disclose, in an open meeting, the item or items to be
discussed in the closed session. The disclosure may take the form of a reference to the
item or items as they are listed by number or letter on the agenda. In the closed session,
the legislative body may consider only those matters covered in its statement. Nothing in
this section shall require or authorize a disclosure of information prohibited by state or
federal law.
(b) After any closed session, the legislative body shall reconvene into open session
prior to adjournment and shall make any disclosures required by Section 54957.1 of action
taken in the closed session.
(c) The announcements required to be made in open session pursuant to this section 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 for the purpose of hearing the
announcements.
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Q: After the closed session must the body reveal what, if
anything, it did?
A: In all but a few instances, the Brown Act requires that a body disclose the nature
of any action taken in closed session -- and also the vote breakdown.
Government Code § 54957.1. (a) The legislative body of any local agency shall publicly
report any action taken in closed session and the vote or abstention of every member
present thereon...
(b) Reports that are required to be made pursuant to this section may be made orally or
in writing. The legislative body shall provide to any person who has submitted a written
request to the legislative body 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, if the requester is present at
the time the closed session ends, copies of any contracts, settlement agreements, or other
documents that were finally approved or adopted in the closed session. If the action taken
results in one or more substantive amendments to the related documents requiring retyping,
the documents need not be released until the retyping is completed during normal business
hours, provided that the presiding officer of the legislative body or his or her designee
orally summarizes the substance of the amendments for the benefit of the document
requester or any other person present and requesting the information.
(c) The documentation referred to in paragraph (b) shall be available to any person on
the next business day following the meeting in which the action referred to is taken or,
in the case of substantial amendments, when any necessary retyping is complete.
(d) Nothing in this section shall be construed to require that the legislative body
approve actions not otherwise subject to legislative body approval.
(e) No action for injury to a reputational, liberty, or other personal interest may be
commenced by or on behalf of any employee or former employee with respect to whom a
disclosure is made by a legislative body in an effort to comply with this section.
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Q: How soon must the public be told of action taken in closed
session? Is an announcement required, or do people have to ask?
A: In some cases, where the body's own action disposes of the matter, the disclosure
must be immediate -- by a specific announcement. In other situations, where there is some
other party to negotiations or litigation, or some other event which will officially
signal the action (such as the filing of litigation), the disclosure can be deferred until
that point, and then need not be pointedly announced but simply revealed upon inquiry.
These kinds of deferred disclosure place the burden of alertness on the public -- to
inquire periodically as to whether a negotiation or litigation approval in closed session
is disclosable, for example, in view of the acceptance of the other side. This kind of
inquiry can be made generically -- "Are there any closed session actions by the
(body) that are now reportable because of subsequent developments, and if so, what was the
action, when did it occur and what was the vote breakdown?" -- or specifically, as
suggested in the discussion of the particular closed session exemptions.
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Q: If a body's closed session action was to approve a contract or
similar matter embodied in a document, when is that record available to the public?
A: As soon as a closed session action is disclosed, any written material approved as
part of the closed session action (contracts, leases, memoranda of understanding,
litigation settlements, etc.) is likewise disclosable on request. To ensure being provided
with a copy of such material in case an immediate announcement of action taken is made at
the same meeting, the citizen or journalist should have a letter on file requesting to
have a copy prepared and ready for release in such contingencies.
