Emails and the Public Record and Brown Act
Q: A member of a public board has been carrying on an email conversation with me about matters before the board, copying all the other members of the board on his messages to me. Is this email thread (1) a public record, and (2) a violation of the Brown Act?
A: Public Records Act
A public record is defined by Section 6252(e) of the California Government Code to include “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.” This is a broad definition, so if the substance of your email exchange relates to the “conduct of the public’s business,” the email exchange would fall within this definition. The next question is whether any of the exceptions to Public Records Act apply. Without knowing the substance of the email exchange, we cannot provide any guidance on this subject.
Brown Act
Assuming that the “public board” to which you refer is a “legislative body” within the meaning of the Brown Act, the section of the Brown Act barring serial meetings, Government Code section 54952.2(b), provides as follows:
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.
You stated that all the members of the board were copied on the email exchange, so the issue is whether the email exchange is being used “to develop a collective concurrence as to action taken on any item.” Once again, this goes to the substance of the email exchange, so we cannot provide additional guidance on this subject. However, the following information from the California Attorney General may be useful to you.
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. 11 (Cal. Atty General’s Office 2003).
Finally, there is an exception to the bar on serial meetings in Government Code section 54952.2(c)(1) for “individual contacts or conversations between a member of a legislative body and any other person.” The following information from the Attorney General is helpful.
The prohibition against serial meetings must be reconciled with the exemption for individual contacts and communications contained in section 54952.2(c)(1). Individual contacts or communications between a member of a legislative body and any other person are specifically exempt from the definition of a meeting. (§ 54952.2(c)(1).) The purpose of this exception appears to be to protect the constitutional rights of individuals to contact their government representatives regarding issues which concern them. To harmonize this exemption with the serial meeting prohibition, the term “any other person” is construed to mean any person other than a board member or agency employee. Thus, while this provision exempts from the Act’s coverage conversations between board members and members of the public, it does not exempt conversations among board members, or between board members and their staff.
By using the words “individual contacts or conversations” it appears that the Legislature was attempting to ensure that individual contacts would not be defined as a meeting, while still preventing the members of a body from orchestrating contacts between a private party and a quorum of the body. Accordingly, if a member of the public requests a conversation with an individual member of the board, who then acts independently of the board and its other members in deciding whether to talk with the member of the public, no meeting will have occurred even if the member of the public ultimately meets with a quorum of the body.
The Brown Act: Open Meetings for Local Legislative Bodies, p. 13 (Cal. Atty General’s Office 2003).