Q: I am a parent who submitted an application to run for the Parent Representative position at my child’s Charter school.
The elections committee deemed me unqualified under their recently changed bylaws (amended after the application deadline). I requested to attend Election Committee meetings, and was told they are not subject to Brown Act. I submitted a PRA for all minutes and communications from Election Committee meetings, and was told there were not records responsive to my request. I also requested a printed copy of the governing board chair’s prepared speech she read at the board meeting, prior to the change to board member qualifications was made. Again, told there were no records responsive to my request.
The elections committee was appointed by the governing board, and consisted of two governing board members, and an administrative employee (who was a board member when appointed, but then resigned from the board, and took a paying job at the school).
Is the election committee subject to Brown Act? Would election committee communications be disclosable? Would the board chairs speech be disclosable?
A: Because the election committee was appointed by the governing board of the charter school, as an initial matter the board itself must be subject to the Brown Act and California Public Records Request Act (“CPRA”) Whether the charter school board is subject to the Brown Act and CPRA depends on how the board is organized, and whether it receives public funds.
Typically, non-governmental entities are subject to the Brown Act and CPRA if they are “created by” an elected legislative body to perform governmental functions, or receive funds from a local agency and have a member appointed by the local agency. Under the Brown Act’s definition of a “legislative body,” the Act (and CPRA) applies only to entities that either (1) were created by an official act of a legislative body or (2) share a member with an agency’s governing body and receive funds from that same agency. See Govt. Code sections 54952(c).
You might ask to review documents related to the creation of the charter school to see if it fits into either of the categories described
above. For more information about the Brown Act and charter schools, you can refer to the response to a previous Hotline inquiry by searching our Asked & Anwered database using the search term Charter School.
Notably, there is at least one example from 2001 of a trial judge in Marin County having found that the Brown Act applied to a charter school board, but that decision was not appealed and there is no binding court decision on the issue.
If the committee is subject to the CPRA, records including “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,” 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. Gov’t Code § 6252(e). This would seemingly include records of communications between committee members and any written or recorded version of speeches maintained by the committee or board.
After you make a written request under the CPRA, an agency must determine whether the requested records are disclosable within 10 days of your request (or 14 in certain circumstances), and “promptly notify” you, in writing, if it will make the records available, or specifically state the exemption it is claiming and how it applies to the requested records. Gov’t Code § 6253(c).
The agency has a duty to assist you in making a focused and effective request that reasonably describes identifiable records, and provide suggestions for overcoming any practical basis for denying access to the records or information sought. Gov’t Code § 6253.1.
If you believe the committee is subject to the CPRA, may want to write a strongly worded letter reminding the committee of its obligation to help you make a focused and effective request for records.
You may also want to inquire about the board’s and committee’s record retention policies in order to determine if they are being forthcoming about the non-existence of records.
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. No attorney-client relationship has been formed by way of this response.