Accessing document constituting an agenda and agency audits
Q: I’m a reporter at a suburban L.A. newspaper. I have two questions that relate to two different government bodies:
1) A charter high school, which is covered by the Brown Act, posts its Board’s agenda 72 hours online before meetings. However, it never posts the documents constituting the agenda (e.g. text of resolutions to be voted on or discussed). At the meetings, it rarely provides copies of those documents. I read section 54954.1. of Brown Act and am confused. Question: Does Brown Act require that bodies provide such documents, etc???
2) This relates to California Records Act. I recently submitted a request for the school district’s inspector general’s audits of the Los Angeles School Police Department. That request was denied by LAUSD’s General Counsel on basis of California Government Code Section 6255 (a) and (b) and 6254(k). Is this denial legitimate? Is it really not possible to get an audit of one public agency by another public agency? FYI: the Los Angeles School Police Department is a department within LAUSD.
A: 1) The Brown Act is a bit confusing on this point. As you have read, Section 54954.1 provides that “[a]ny person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person” (emphasis added). The Act does not define the term “agenda packet.” Section 54954.2 requires that “[a]t least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” Because the agenda-posting section refers only to an “agenda” and not to any “agenda packet,” it does not appear to require the posting of any additional documents that might constitute the agenda packet. Nevertheless, posting any documents that make up the entire agenda packet would certainly seem to be more in keeping with the spirit of the Brown Act.
With respect to how much information needs to be included in the agenda (e.g., whether it must include text of resolutions to be voted on, etc.), the agenda must contain “a brief general description of each item of business to be transacted or discussed at the meeting” and explains that “[a] brief general description of an item generally need not exceed 20 words.” Govt. Code Section 54954.2. If the entire text of a resolution to be voted on is not necessary to alert the public as to whether they may want to attend the meeting (i.e., to give sufficient notice), then the Brown Act does not seem to require its inclusion in the agenda.
As to obtaining meeting-related documents, “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 disclosable public records under the California Public Records Act . . ., and shall be made available upon request without delay.” Govt. Code Section 54957.5.
2) There is no general rule with respect to access to public agency audits. The default rule is therefore the one that applies to all public records — they must be open to inspection to the public unless a provision of the PRA exempts them from disclosure. If your request was denied under Section 6254(k), the agency should explain what federal or state law exempts the record from disclosure (note that a number of statutory provisions outside of the PRA do erect certain barriers to obtaining records related to peace officers). To the extent your request was denied under Section 6255, the agency must “demonstrate . . . that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record” (emphasis added). It is not unusual for agencies to cite PRA exemptions without making the necessary showing as to why the exemptions are applicable, and sometimes it can be useful to push back for such information.
Note that the Court of Appeal held that an agency that had conducted an audit report of particular employees accused of financial wrongdoing could withhold most of the report on the grounds that the privacy interests of the employees at issue (who were cleared of wrongdoing in the audit report) outweighed the public interest in disclosing the report under Section 6255. AFSCME v. Regents of Univ. of Cal., 80 Cal. App. 3d 913 (1978). But the court emphasized that “where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes . . .. In such cases a memer of the public is entitled to information about the complaint, the discipline, adn the ‘information upon which it was based.'” Id. More recently, a trial court refused to order the Alameda Corridor Transportation Authority to disclose an audit report prepared by the Long Beach city auditor concerning financial transactions by the Authority’s former CFO, but did require the disclosure of certain “narrative documents” prepared by private auditors in connection with the report. Los Angeles Times v. Alameda Corridor Transportation Authority, 88 Cal. App. 4th 1381 (2001).