A&A: Mayor up for reelection wants to stifle public comment on candidates

Q: The mayor who is running for reelection is currently advancing a policy revision to stifle the public comments during City Council meetings of anyone who is speaking to a ballot initiative or on a candidate.

Recently the mayor discussed the changes she’s proposing in an interview with a local newspaper and mentioned email communication with the city attorney aimed at creating a city policy that disallows speakers on non agenda items from topics of ballot initiative or candidates, partisan or non partisan.

I questioned her in an email after reading the article and she responded in a very offensive manner which included a veiled threat. She cc’d the city council and the reporter. I had not cc’d anyone in my correspondence to her. Interestingly enough, a response from her fellow councilman supported my position that she was looking to stifle the First Amendment. He said he had been monitoring her emails to the city attorney and I was not wrong in my assessment that her intent was just that.

Will I have access, through an FOIA request, to the emails between the mayor and city attorney? If so, what would be the next steps to ensure her policy change effort fails? It is entirely possible she can get such a resolution and policy adopted.

A: The Public Records Act is California’s open records law and is the vehicle that you would want to use to access emails sent between the mayor and others regarding city business.

Under the PRA, public records — which 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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. The term “writing” includes e-mail. Gov’t Code Section 6252(g) (defining “public records” to include emails). The emails sent by the mayor that discuss city business would presumptively be required to be released under the PRA, unless some exemption applies.

Since these emails could have been sent from the mayor’s personal email account, I should note here that there is some question about whether the PRA applies to emails sent from a personal email account, and from an individual’s home computer.

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). T

he 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. However, since the emails that you seek were sent from the mayor to the city attorney, they were presumptively sent to the city attorney’s work email account, and therefore you could avoid this issue altogether by wording your request to ask for emails that are in the city’s possession via the city attorney’s work email.

This aside, the city may also attempt to invoke any number of exemptions to justify the withholding of the requested records. For example, the deliberative process privilege is often cited as a reason for withholding records. However, as with all exemptions under the PRA, this exemption must be narrowly construed.

The court in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172 (1998), noted that “only if the interest in nondisclosure clearly outweighs the public interest in disclosure of a record does the deliberative process privilege spring into existence.”

Another exemption that may be cited is the attorney-client privilege, which is incorporated into the PRA by Government Code section 6254(k), which applies to “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

This privilege is intended to protect legal advice, even where no litigation is threatened. Again, it must be narrowly construed, and cannot provide blanket protection to all communications between the city attorney and staff or council members.

In addition to specific exemptions, the Act also contains a frequently invoked “catch-all” exemption, which, like the balancing test noted above, 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 a sample PRA request letter, as well as additional information on the PRA, on FAC’s website at the following link: https://firstamendmentcoalition.org/category/resources/access-to-records/.

As to ensuring the failure of the mayor’s effort regarding public comment, I cannot advise you on specific steps that you should take, but can make the general observation that restrictions on public comment at meetings of legislative bodies of local agencies can sometimes violate the Brown Act, as well as the First Amendment.

Under the Brown Act, “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).

The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).

The First Amendment also limits the ability of legislative bodies to restrict speech based on its content. In order to restrict speech in a public forum or limited public forum (such as a city council meeting), reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45.

Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

To the extent that the proposed regulations are intended to quell criticism and public comment on matters pertaining to the city council’s business, the regulations may be violations of the Brown Act and the First Amendment.

Since the regulation has not yet been approved, you may want to bring these concerns to the attention of the city council, city attorney and city manager before any action is taken to enact the regulation. If you determine that the regulation violates the Brown Act and is nevertheless enacted, you may want to consider bringing action against the city for violations of the Brown Act, or bring your concerns to the district attorney.

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.

If you are interested in finding a lawyer who specializes in the Brown Act and First Amendment to represent you, you may consider using the FAC’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/lawyers-assistance-request-form/.
I wish you the best of luck in your endeavors.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.