A&A: Councilmembers texting during meeting a Brown Act violation?

Q: We have noticed a new trend during City Council meetings. We are seeing council and staff texting/emailing to each other while on the dais. This is occurring during the public comment item of the meeting and includes the city attorney.

We would like to CPRA these texts but believe they will either claim they are not retained or are privileged. I don’t believe the council should be having a private conversation with the city attorney during a public meeting. The audience watching the meetings at home can’t see this is going on.

If the City Attorney needs to give advice, shouldn’t he state it publicly, or that he will confer with them at a future properly noticed closed session? Do you have any advice for asking for text messages?

A: Indeed, the use of texting during city council meetings seems to be a growing problem in California, and would seem to undermine both the spirit, if not the law, of the Brown Act and Public Records Act.

Under the Brown Act, which is California’s public meeting law, a violation of that law may occur when

“a series of communications of any kind, directly or through intermediaries,” is used by a majority of the members of an agency to “discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Gov. Code section 54952.2(b)(1).

Thus, if the council is made up of five people, and three are communicating with each other outside of the confines of a publicly noticed meeting, then this would be a violation of the Brown Act. Such communications includes those dispatched by email, and thus it would seem that the same would apply to text messages between various members of a particular board or council.

For example, if one council member emailed two other council members regarding an issue that is “within the subject matter jurisdiction” of the board, then at this point, a majority of council members (three out of five) are in on a discussion being held outside of a publicly noticed meeting, and thus a “serial” meeting in violation of section 54952.2(b)(1) might have occurred.

This would be true, as well, if the council members were transmitting their messages to each other through, say, the city attorney.

That said, given that this texting is happening during what is supposed to be an open meeting, it may be that the staff and council members are not conducting an open meeting at all.

There may be an argument that any text or email communications between council members and/or staff during the meeting must be made public, since they were sent during the public meeting.

The texts and emails that council members are sending to each other could qualify as “other writings” distributed to all or a majority of the members of the council, and therefore, must be “made available upon request without delay” to anyone who asks. Gov’t Code § 54957.5(a).

Furthermore, under the Public Records Act, 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.

This would seem to include messages sent and received from electronic devices, which would fall into the PRA’s broad definition of “writings.” Gov’t Code § 6252(g).

While there is no published, citable decision that I am aware of relating to texts that are sent and received from personal digital assistants, some of which may not be owned by the city, there was a recent trial court decision from San Jose that required the city to release electronic messages from city council members that may have been sent from home email accounts and their PDAs.

A description of that decision, as well as the court’s order, is located here: https://firstamendmentcoalition.org/2013/03/judge-plugs-private-email-loophole-in-public-records-law/.

Importantly, and what may be relevant to you, is that while such electronic messages may not necessarily reside on city-owned servers, this is irrelevant for purposes of determining whether such messages fall into the PRA’s definition of “public record.”

“[A] communication relating to the conduct of the public’s business that is maintained on the private accounts of City officers reasonably falls within the definition of a record ‘retained’ by the City.”

It would seem, therefore, that any request for text messages relating to city business that were sent to and from personal electronic devices would be required to be disclosed, even if those messages are maintained on servers that are not owned and operated by the city.

Finally, it is worth mentioning that there is one published decision that touched upon this issue, although the court’s decision seems to have come out in the opposite direction of the San Jose court. 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 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.

The appellate court did not reach the issue of whether the trial court was correct in determining that the council member was not a “public agency” for purposes of the PRA, and instead dismissed the petition on other procedural grounds.

However, it did note that the newspaper’s “petition attempted to raise an important and novel issue concerning whether writings in the sole possession of a city council member are ‘prepared, owned, used, or retained by any state or local agency’ (Gov.Code, § 6252, subd. (e)) and are therefore subject to a public records request under the Public Records Act and the California Constitution. The participation of amici curiae attests to the importance of the issue.We therefore conclude that this proceeding is not clearly frivolous.” Id. at 1302.

Bryan Cave 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.