Q: I am a newly elected school board member. Our upcoming agenda will contain a closed session item that has also been discussed in closed session prior to my appointment. Can I ask the staff and board members who participated in the prior closed session to divulge what was discussed?
A: I am not aware of any authority specifying whether a new member of the legislative body is “a person … entitled to receive” confidential information disclosed in closed session prior to the member’s joining the body.
As you may know, the Brown Act provides that “[a] person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” Govt. Code § 54963(a).
Since the purpose of a closed session is to permit the legislative body to meet behind closed doors, there would not seem to be a logical justification for keeping what transpired in a previous closed session secret from a new member of the body. In other words, the rationale for allowing closed sessions is that certain limited circumstances require frank discussion outside the public eye, but this rationale would not seem to apply to new members of the body.
One possible argument in favor of keeping such information from a new member would be that under a strict interpretation of § 54963(a), the new member who acquired the information second-hand would not be prohibited from further disclosing it (because § 54963(a) is limited to acquisition of the information be being present in a closed session).
The stronger policy argument, however, would seem to be that members of the legislative body should have knowledge of what is or has been before that body, even if some of that involves information from previously held closed sessions.
In any event, the phrase “unless the legislative body authorizes disclosure of that confidential information,” suggests that a new member’s request to the body to disclose the information to the new member would be appropriate.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.