A&A:Board Conducting Public’s Business Via Private Emails

Q: It became apparent yesterday morning that the Board of Directors of our Community Services District is conducting a significant portion of its business via email.  The emails would have originated from at least six personal private computers. Such email has not been made part of the public record. Under CPRA I have requested copies of all emails between Board members for the past two years. I do not expect to receive them, for a multitude of excuses. But, going forward, what is the process by which a Board can communicate electronically and still comply with the Brown Act?  What are the rules? What process could one use to require the Board to make those emails a part of the public record? This must not be the first time this issue has arisen.

A: The answer to your question is rooted in what constitutes a “serial meeting,” which is prohibited under the Brown Act. The Brown Act “serves to facilitate public participation in all phases of local government decision-making and to curb misuse of the democratic process by secret legislation of public bodies.” Epstein v. Hollywood Entertainment Dist. II Business Improvement Dist., 87 Cal.App.4th 862, 868 (2001).

The main purpose of the Brown Act is therefore to require the local governing bodies to conduct their deliberations and make their decisions in public, as well as give the public notice of any such meetings. Cal. Gov’t Code §54950, 54954.2(a).
The Act covers “legislative bodies,” which include commissions, committees, boards or other bodies of a local agency, “whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.” Gov’t Code § 54952(b). The golf course authority would likely be covered by the Act if its “parent” legislative body — i.e., the city council — created it.

The fact that its members consist of staffers probably does not exempt the authority from the requirements of the Brown Act. If, indeed, the authority is a “legislative body” under the Brown Act, then it must comply with the Act’s requirements pertaining to open meetings.

Under the Brown Act, a “meeting” includes any 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. Gov’t Code § 54952.2(a).

Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. A “meeting” may also take place through the use of direct communication, personal intermediaries, or technological devices by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the legislative body (otherwise known as a “serial meeting”). Gov’t Code § 54952.2(b).

Such communications includes those dispatched by email. See The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p. 15, available at http://www.ag.ca.gov/publications/2003_Intro_BrownAct.pdf, citing 84 Ops. Cal. Atty. Gen. 30 (2001). If a majority of board members are sending emails to each other regarding a particular piece of CSD business, or even if they are using an intermediary, such as a CSD staffer, to whom they send messages, and who then relays those messages to other board members, the Brown Act very well may have been violated by the Board of Directors.

It sounds like you have already made a Public Records Act request for the emails in question. Please note that if your Public Records Act request is denied, the CSD must give you a reason and cite one of the Act’s exemptions, which are narrowly construed.

Although there would seem to be a strong argument that e-mails sent by a government official relating to the conduct of the public’s business should be public, regardless of whether they are sent from a personal e-mail account or private computer (otherwise, important government business could be conducted in secret), it is not certain how a court would decide the question. In January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman sent from her personal e-mail account and the lab.

After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.'” Id. at 1300. Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue.

Also, the Act contains a frequently invoked “catch-all” exemption, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can 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.” Gov’t Code § 6255(a). This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.

You can find additional information regarding the Public Records Act on the FAC’s website here: https://firstamendmentcoalition.org/category/resources/access-to-records/

As for enforcing the Brown Act, the Act does not specify a particular way that a violation may be cured and corrected, but presumably the legislative body could satisfy the Brown Act by reopening the process to permit public awareness of all the facts and views, as well as give the public the opportunity to express its views on the issue.

If the board continues to violate the Brown Act, you may want to make the district attorney aware of those violations. Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at https://firstamendmentcoalition.org/category/resources/access-to-meetings/ useful for proceeding.