Community College Senate, Listservs, and Public Record
Q: This question refers to the Academic/Faculty Senate of a small California Community College. Should the listserv, described below, be made public, and all archived messages placed in a publicly accessible location? Or should the listserv be immediately discontinued? Or should anyone be allowed to subscribe and post? Or do the faculty have the right to privacy in these issues? There is a “listserv” among the faculty that was started a few years ago to be a forum for open communication between professional colleagues relating to academic and pedagogical issues surrounding the faculty. Currently, around 80 faculty out of the 400 employed are subscribed to the listserv and are able to send and receive messages electronically to/from the whole group. Among the subscribers is a quorum of the college’s Academic Senate. Before subscribing, even just to receive messages, one must go through the former president, and current senator, of the Academic Senate. If the attempted subscriber is not a member of the faculty, then s/he is dropped immediately without notice. The listserv is financed by the tax-payers of the district. Also, several messages I have been shown from the listserv discuss matters pending before the Senate. However, less than a quorum usually posts (but more than a quorum receives) and many members of the faculty post about issues not relating to the senate. Finally, the listserv was started by the Academic Senate and is controlled by its members.
A: You submission raises a number of questions under the Brown Act and the California Public Records Act.
With regard to the Brown Act, there is a question on whether the communication among senate members via the listserve you reference constitutes a serial meeting in violation of the Brown Act. As you appear to be aware of, the meetings of the academic senate of a California community college are subject to the open meeting provisions of the Brown Act. 66 Ops. Cal. Atty. Gen. 252 (No. 83-304) (July 28, 1983). The Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” (Govt. Code § 549523.2(a)). Section 54952.2(b) provides that “except as authorized pursuant to section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action taken on any item by the members of the legislative body is prohibited.”
The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc). To the extent email communication on the listserve concerns matters within the academic senate’s subject matter jurisdiction and the communication is among a majority of its members, such communication is probably a violation of the Brown Act if it results in a collective concurrence as to an action that will be taken on an agenda item.
As the Attorney General has explained:
“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions. … Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”
The Brown Act: Open Meetings for Local Legislative Bodies, p. 12 (Cal. Atty General’s Office 2003). Thus, although, as explained above, the listserve can be used as a vehicle by which the academic senate can act in violation of the Brown Act, the listserve itself is not a violation of the Act and need not be shut down.
With regard to your question on whether the senate can be forced to allow anyone to subscribe to the listserve, unfortunately, neither the Brown Act nor the Public Records Act addresses this particular issue and I am not aware of any other authority that addresses it. However, even if not allowed to subscribe or post message to the listserve, members of the public may be able to access e-mail correspondence that is generated to the listserve via the Public Records Act.
The California Public Records Act (“PRA”) guarantees the public’s right to inspect and obtain copies of documents collected or maintained by state or local agencies. The right to inspect and copy the records is presumed, unless some exemption of the PRA applies. Gov’t Code § 6253(b). The PRA defines “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. Although purely personal emails may be exempt under the PRA, e-mail correspondence relating to the business of the community college would likely be subject to disclosure under the PRA. Thus, while the PRA does not require that Senate to place the archived messages in a “publicly accessible location,” if you submit a PRA written request for the emails you seek, the PRA requires the community college to provide you with the documents requested within 10 days. Gov’t Code § 6253. If the written request is denied, the college is obligated to back its denial 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.