Accessing Polling Done with Public Funds
Q: A school district uses public funds to conduct a poll regarding public support for a tax measure. The authorities I’ve reviewed find that an “objective” poll is an authorized expenditure of public funds. It seems clear to me that the entire poll (questions, cross tabs, etc.) are therefore a public record subject to full disclosure under the PRA. But I’ve not seen any cases or advice letters directly addressing the question. Do you agree the poll is clearly a public record? If so, can a district avoid releasing the entire poll–and instead release only the pollster’s summary–by claiming that the complete poll and cross tabs are in the pollster’s physical possession and the district only requested a summary? Seems absurd to me, but that is the position taken by a district here in the Bay Area. Assuming that the District does not have physical possession of the complete poll in any form (which I doubt to be true), can the PRA be used to compel disclosure from the pollster? Can the District be forced to get a complete copy of the poll?
A: First, unless the pollster, as a private entity, meets the definition found in section 54952 of the California Government Code, it is not subject to the Public Records Act (PRA) and so you would not be able to obtain its records pursuant to a PRA request.
The PRA applies to local agencies, defined as including “a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency. (Cal. Gov’t. Code Section 6252). It also applies to certain publicly funded private entities that meet the definition of “legislative bodies” found in subsection (c) of section 54952 of the California Government Code.
Subsection (c) of section 54952 provides:
54952. As used in this chapter, “legislative body” means:
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(c) (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.
(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.
(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
Thus, the pollster would be subject to the Brown Act and the PRA if either (1) it was created by another body subject to the Brown Act to exercise authority that may lawfully be delegated by that body to a private entity, or (2) it receives funds from a local agency subject to the Brown Act AND at least one voting member of the entity’s governing body is a member of the legislative body of the local agency subject to the Brown Act who was appointed to that position by the legislative body of the local agency. Assuming the pollster you reference meets the definition of a “legislative body,” such entity must comply with the provisions of, both, the PRA and the Brown Act. If not, the poll records of that pollster — even if the poll was conducted at the direction of a public agency — cannot be reached via a PRA request.
Whether the public agency can be forced to obtain a complete copy of the poll from the pollster is not entirely clear. While nothing in the PRA expressly requires that public agencies gather records in the possession of private entities, certain PRA provisions seem to indicate that this is contemplated by the PRA. Under the PRA agencies have 10 days to provide you with the documents requested or to notify you that your request has been denied. Gov’t Code § 6253. “In unusual circumstances,” the 10-day limit may be extended by 14 days. (Gov’t code § 6253). “Unusual circumstances” includes “the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.” While there is no judicial guidance on this specific issue, you may have an argument that private entities, such as pollsters, qualify as “other establishments” when they are in possession of records that would qualify as public records in the hands of the public agency and that were created at the instructions of the agency. You may want to contact the agency once again and submit a PRA request for the records you seek. A sample PRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html.