Q: A group of citizens is opposing the City Council’s 3/2 vote to allow two digital billboards on city property.
Citizens submitted a PRA request for any legal analysis of the proposal. The City Attorney replied the legal analysis is attorney client privileged communication and is therefore a CPRA exemption.
However, City Attorney also stated the document has not been the subject of an open or closed session of City Council. Can City Attorney distribute such a memo to City Council members without it constituting an impermissible unnoticed serial meeting?
Any other ideas for how citizens can get analysis made public? Analysis is crucial to City Council decision to go forward with contract with private outdoor advertisers, yet the legal reasoning Council is relying on is being kept secret and therefore cannot be rebutted in public hearings.
A: Let me try to address these issues in turn, each of which was addressed by the California Supreme Court in Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993).
1. Attorney-client privileged documents are exempt from disclosure under the Public Records Act, Govt Code section 6254(k) (incorporating the privileges from the Evidence Code).
2. Although the Brown Act generally provides that all documents distributed to a majority of the members of a public body in connection with a matter subject to discussion or consideration at a public meeting of the body “shall be made available upon request without delay,” this requirement does not apply to records exempt from disclosure pursuant to Govt. Code section 6254. See Govt. Code section 54957.5. Note that there is no requirement that the documents pertain to a pending meeting, as long as they are in connection with matter that is subject to discussion during a public meeting.
3. With respect to the distribution of the legal analysis by the city attorney to each member of the city council, the California Supreme Court ruled that there would be no serial meeting unless the members of the governing board were using a common person (the city attorney) for the purposes of collective decision-making; the mere passive receipt by each council member of a memo from the city attorney would not constitute a meeting.
Given this, you may find that your best option is to continue to exert public pressure on the city council to make the analysis public. (The City always waive the attorney-client privilege.) It does not seem that the law guarantees you access to the record.
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.
One Comment
The Brown act was amended Senate Bill 1732 January 1, 2009 concerning serial meetings:
Prior there had to be a collective concurrence now I understand only that the Legislature added subdivision (b)(2) to Government Code section 54952.2, which provides that the law shall not prohibit public agency employees or officials from engaging in separate conversations or communications with members of a legislative body outside of a meeting to answer questions or provide information regarding a matter, as long as that employee or official does not communicate a member’s comments or position on a matter to any other member.
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