Proposals and Public Records, Limiting Public Comment
Q: I attend Board meetings of a California Municipal Water District which takes the viewpoint that the Brown Act requirements are met by offering individuals from the public up to 3 minutes at the start of a meeting to comment upon any matter on the agenda. Their agendas meet the minimum requirements by stating the subject to be discussed. The problem is that they will not provide materials in advance to allow the public to become aware of the proposals made by the staff to be considered by the Board within an agenda item. Thus, the public cannot be prepared to make intelligent comments at the start of a meeting. Beyond that, they do not require the staff to announce during the meeting the total proposal to be considered by the Board. Thus, even those attending a meeting do not know the full impact of the staff\’s proposals before the Board votes upon it. Their reasoning is that, until a proposal has been adopted by the Board, it is not a public document — merely a staff proposal — thus, it need not be provided to the public. As you can see, that leaves us totally in the dark about the details of a proposal until it has already been approved (if disapproved, we may never get to know what was suggested).
Would you please refer me to case law or other references appropriate to this situation?
A: Unfortunately, with regard to the 3-minute time limit on public speaking time, such restriction is probably reasonable under the Brown Act. The Brown Act provides that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on items of interest to the public that are within the subject matter jurisdiction of the legislative body.” Ca. Govt. Code Section 54954.3(a). The Brown Act also provides that “[t]he legislative body of a local agency may adopt reasonable regulations to ensure that the intent [of providing an opportunity for every member of the public to address the body] 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.” Cal. Govt. Code Section 54954.3(b). The law does not specify what those time 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 agencies, as you have already experienced, limit that time to 3 minutes.
With regard to obtaining the proposals and other meeting-related documents that are distributed to the body prior to a meeting to educate them on the pending business, these documents are accessible to the public under the California Public Records Act (“PRA”). Section 54957.5 of the Brown Act states that “agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body. . ., are public records under the California Public Records Act . . . and shall be made available . . . without delay.” Although the PRA provides a 10-day window for the agency to respond to a records request, the Brown Act requires more immediate disclosure of agenda-related materials. Unfortunately, as you have already experienced, some agencies take the position that these provisions justify withholding of documents until distributed to the body. Because there is little or no case law interpreting these provisions, there is very little guidance to assess whether agencies are acting in violation of the Brown Act in this respect.
One thing you might want to do is to call the district a day or two before a scheduled meeting to make a PRA request to inspect and/or copy the agenda materials. Under the PRA, the public has a right to inspect and obtain copies of documents collected or maintained by state or local agencies. The district’s position that these proposals are not public documents until they have been approved seems to run contrary to the provisions of the Public Records Act which define “public records” as including “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. The right to inspect and copy the records maintained by state or local agencies is presumed, unless some exemption of the PRA applies. Gov’t Code § 6253(b). It is not immediately apparent whether any exemption would apply to exempt the proposals you reference. (The exemption for “preliminary drafts, notes, or interagency or intra-agency memoranda” applies only to such documents that are “not retained by the public agency in the ordinary course of business” and only if “the public interest in withholding those records clearly outweighs the public interest in disclosure.” Gov’t Code § 6253(a).) In your next communication with the district you may also want to ask them (in the event they deny providing the records you seek) for the authority that allows them to withhold these records, since under the PRA, the agency is obligated to back a denial of a written records request by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. Gov’t Code § 6255.