Planning a Closed Session to Allow Confidential Documents
Q: For a lawsuit between two city board members and the city board, which is run as a corporation, the parties have reached an agreement to allow the board members to access documents in closed session so that it will be covered under the Brown Act. Can a government entity plan a session to fall under the Brown Act to keep information confidential on hiring documents when it’s not for the purpose of actually hiring someone?
A: Under the Brown Act, “[n]otwithstanding 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 an open meeting of the body, are disclosable public records under the California Public Records Act,” (“PRA”), unless one of the PRA’s exemptions from disclosure applies. Cal Gov’t Code 54957.5.
Essentially, this provision serves as an overlay to the Public Records Act, by removing an agency’s ability to rely on the PRA’s catch-all exception in those cases where a document is distributed to members of a legislative body in connection with a matter discussed during the open session of a meeting. In that sense, it provides the public with even greater rights of access than what is already provided by the PRA. However, section 54957.5 does not operate to make otherwise public documents confidential simply because they have been provided to members as part of a legislative body as part of a closed session item. Thus, even setting aside the issue of whether it was permissible for the board members to hold a closed session in the instance you describe below, if the documents fall within the definition of a “public record” under the PRA, they cannot be withheld unless the city satisfies its burden to show that the documents are covered by one of the PRA’s enumerated exemptions.
Under the PRA, the term “‘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.” Govt. Code Section 6252.
If you have not already done so, you should submit a PRA request for the records at issue. A sample written r equest can be found at the following link: http://www.cfac.org/templates/cpraletter.html. As part of the request, you might also remind the city that it may not immunize otherwise public records from disclosure simply by the act of presenting them at an closed session of the board meeting.