Q: I am attempting to report on city government and have learned that the city only offers citizens the chance to view agendas during normal business hours. If one wishes to obtain copies, the city charges $.15 per black and white page. Past agendas and minutes can be obtained by sending a self-addressed stamped envelope. Agendas and minutes are also not available online.
It appears very un-American to set limited time parameters and charge citizens to view information that should be viewable at all times. We are wondering if there is any Constitutional violations at any level in this case.
A: Your instincts on this one seem to be on the money.
The Brown Act (California’s open meetings law) provides that–
“[a]t least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. … The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site, if the local agency has one.” Gov’t Code § 54954.2.
A 2005 Attorney General opinion concluded that “[t]he posting of an agenda for a regular meeting of the legislative body of a local agency for 72 hours in a public building that is locked during the evening hours would not satisfy the statutory requirements for posting the agenda.” 78 Ops. Cal. Atty. Gen. 327 (2005). The AG explained that:
“[T]he Act’s central purpose is to promote openness in government. The Legislature has made it clear that it considers ‘complete, faithful and uninterrupted compliance’ with the Act to be a matter of overriding public importance. (§§ 54950, 54954.4, subd. (c).) Given this strong expression of legislative intent and the fact that adequate notice to the public is critical in attaining the full benefits of the Act’s provisions, we find that the ‘freely accessible’ requirement is to be strictly interpreted. Not only must the agenda be posted for at least the full 72 hours immediately preceding the meeting, it must be posted in a location that is freely accessible throughout that period. n5 In short, the notice must be posted in a location where it can be read by the public at any time during the 72 hours immediately preceding the meeting. Members of the public cannot be expected to have full opportunity to learn of agenda items of interest if the place where the agenda is posted is inaccessible to them during any portion of the required 72-hour period.” Id. The AG noted by way of example that “if the building in question is closed during the evening hours, the agenda may be posted on the outside of the building in a lighted display case if necessary” Id.
In addition, if the city has a web site, then Section 54954.2 requires the agenda to be posted on the web site, as well (which may be why the city is evidently taking steps to post agendas on-line in the future).
As for copies, the Brown Act provides that:
“Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person. … Upon receipt of the written request, the legislative body or its designee shall cause the requested materials to be mailed at the time the agenda is posted pursuant to Section 54954.2 and 54956 or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. … The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service.” Cal Gov Code § 54954.1.
The AG considered what constitutes a “reasonable charge” under Section 54954.1 in 1979, concluding that “it is our opinion that the answer thereto is essentially a factual question and is essentially found in the language of the statute itself — that is, the charge is to be based upon ‘the estimated cost of providing such a service.’
It would appear that any ‘estimate’ which has a reasonable cost accounting basis would satisfy the provisions of the section.” 62 Ops. Cal. Atty. Gen. 658 (1979). While there may be room to argue that the “cost of providing the service” of mailing the agenda should not include any cost to copy the agenda, that argument might not win, and a 15-cent-per-page copying charge might hold up.
In this situation, it sounds like the copying charge is unreasonable as a practical matter because the failure to post the agenda in a freely accessible location for 72 hours causes people to have to request a mailed agenda when they would otherwise simply take a look in the public location. Posting agendas on the agency’s web site would also seem to solve this problem.
The bottom line is that while the Constitution might not have much to say about this situation, the Brown Act does, and what it says seems to back up your initial reaction.
Bryan Cave 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.