A&A: Closed Sessions and Permissible Topics

Closed Sessions and Permissible Topics

Q: My local city council has apparently held closed session meetings on whether or not they will repair a landslide on a city street. The agenda notification listed only pending litigation, but did not list the specific subject. These meetings resulted in public policy decisions. I have made a CPRA request for public records relating to the landslide. I assume that they need to at least disclose whether there were public records generated for, or as a result of, the closed sessions. This would give me the opportunity to ask them to justify any exemption and allow me to request a waiver of the exemption. The city now claims that even if there were closed sessions, the documents from such are not public records. This allows them to not even acknowledge the existence of records. They seem to be intent on closing off all visibility to the policy making process. Is this legal? What should I do?

A: Section 54956.9 of the California Government Code provides that the legislative body of a local agency, “based on advice of its legal counsel,” may hold “a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.”  Closed session pursuant to this section is for communication between attorney and client; the body may not discuss litigation privately under this heading unless the attorney is present, at least by conference call.

With respect to your concern about the proper description for the item on the agenda, the Brown Act states that for items to be discussed pursuant to section 54956.9, it suffices for agencies to identify the name of the case (by reference to claimant’s name, names of parties, case or claim number) unless to do so would “jeopardize the agency’s ability to effectuate service of process” or “jeopardize its ability to conclude the existing settlement negotiations to its advantage.”  Gov’t Code § 54954.5.  If it is the latter situation, the item description may state as much — i.e., that disclosure of the case name would jeopardize service of process or existing settlement negotiations.

With respect to the disclosures of closed session actions and written materials when the sessions were held pursuant to the pending litigation exception, Government Code § 54957.1 provides that “[a]pproval given to the body’s legal counsel of a settlement of pending litigation . . . shall be reported after the settlement is final….”  That section goes on to state:

(A)  “If the body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held.”

(B)  “If final approval rests with some other party to the litigation or with the court then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement.”

As to disclosure of written material, the Brown Act provides that as soon as a closed session action is disclosed, any written material finally approved or adopted in the closed session (contracts, leases, memoranda of understanding, settlement agreements, etc.) is disclosable upon request.  Gov’t code § 54957.1.

You may want to contact the city council again and remind them of their obligation under the Brown Act to disclose finally approved written documents.  I suggest you frame your request as one under the California Public Records Act (“PRA”).  Under the PRA, the public has a right to inspect and obtain copies of documents collected or maintained by state or local agencies.  The right to inspect and copy the records maintained is presumed, unless some exemption of the PRA applies.  Gov’t Code § 6253(b).  Since it sounds like the council is stating that such records, if they exist, are not public, you might also ask them (in the event they deny access to those records once again) for the authority that allows them to withhold them.  The PRA requires that agencies cite an exemption in the PRA or other state or federal law allowing them to withhold the records you seek.  Gov’t Code § 6255.  Only then, just as you state, will you be in a better position to determine whether the council is legally entitled to withhold such records.