Q: A group of cizens allege the city is wrongly leaving out copies of correspondence the city received related to items on its agenda and powerpoint presentations related to agenda items. The council offers a limited number of copies of this information at the city clerk’s desk on the night of the meeting but it is not reflected in the minutes or available anywhere after the meeting’s conclusion. What is the law regarding this?
A: The Brown Act provides that “[a]ny 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.” Gov’t Code section 54954.1.
However, there may be other materials, in addition to the agenda packets, that are distributed to members of the legislative body ahead of the meeting. The Brown Act only requires that when such materials are distributed to the members of a legislative body, they must “be made available upon request without delay” to members of the public. Gov’t Code Â§ 54957.5(a).
There does not appear to be any requirement in this section that such materials be distributed to the legislative body (and thus made available to members of the public) within a certain period of time before the meeting begins. And unfortunately, it also does not appear to require that the legislative body place materials given to the legislative body before the meeting in a public place where they may be easily accessed by members of the public. Rather, they must provide them “upon request.”
If materials prepared by the legislative body are distributed during the meeting, then the body must make those records “available for public inspection at the meeting.” Gov’t Code Â§ 54957.5(b). Of course, it would seem to be a good practice by the government to make materials easily accessible to the public as soon as they are given to members of the legislative body. It may be that there is a local ordinance that requires as much, or even something in the city council or board’s bylaws that would require more than what is required under the Brown Act.
In the situation you describe, if the council members – particularly a majority of the members of the council – are receiving the same materials ahead of a meeting, but these materials are not made available to members of the public, this may not only violate the Brown Act per the provisions above, but may also mean the members are taking part in a serial meeting, whereby “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 – even if it’s through an intermediary who is merely distributing the same materials to each of the three members – then this would be a violation of the Brown Act. The attorney general’s office put out this guide several years ago, which may be helpful in further understanding how this provision operations.
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.