Question
The California Public Records Act (“PRA”) provides that public records are presumptively open to the public, unless exempt from disclosure under the PRA. Government Code section 6254(k) exempts from disclosure “[r]records the disclosure of which is exempted or prohibited pursuant to federal or state law.” Section 49076 of the California Education Code specifically prohibits access to pupil records: “[a] school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order” except in certain situations.
The Education Code defines “pupil record” as “any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district or required to be maintained by an employee in the performance of his or her duties whether recorded by handwriting, print, tapes, film, microfilm or other means.” Educ. Code § 49061(b). The Education Code defines “directory information” as the “pupil’s name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the pupil.” Educ. Code § 94061(c).
The school district may be taking the position that in addition to information that would be considered directory information under the Education Code, yearbooks also contain other information (e.g., photographs of students) that relate to identifiable pupils and are maintained by the school district or are required to be maintained by an employee and that they are thus pupil records that may not be disclosed absent parental permission.
You could try contacting the school again and submitting a written PRA request. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. Gov’t. Code § 6253. You might also want to remind the district that if the written request is denied, it is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek, Gov’t code § 6255, and that if you are forced to litigate this matter, you are entitled to attorneys’ fees if you prevail. Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”).
A sample PRA request is available on CFAC’s website at the following link: https://firstamendmentcoalition.org/cpra-primer/sample-cpra-request-letter/.
Answer
Your request seeks information about how to compel the board of directors at the Apartments to comply with California’s Brown Act. The provisions of the Brown Act only apply to the legislative bodies of “local agencies,” which include “a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission, or agency thereof, or other local public agency.” Cal. Gov. Code sec. 54951. Your inquiry states that the Apartments are subsidized by the federal Department of Housing and Urban Development (HUD). The Apartments would not appear to be among the “local agencies” governed by the Brown Act by virtue of the fact that it is a HUD-subsidized complex. It is possible that a local agency, such as a housing authority, also has involvement with the apartment complex, but we cannot tell from your email if this is the case.
We are not aware of any law similar to the Brown Act that would require the board to allow access to its meetings regarding the Apartments. Many federal agencies themselves are, however, subject to the requirements of the Sunshine Act (5 U.S.C. 522b), which requires agencies to hold open meetings unless the agency decides a meeting should be closed under one of the exemptions defined by the act.
However, the Sunshine Act applies only to executive department agencies or to their subdivisions, and only when a quorum of the agency body is present and when that body has the power to and is conducting or deciding official agency business. It does not appear that this act would apply to board meetings of the apartment complex, although it may apply to HUD itself under certain circumstances. Further, HUD is subject to the requirements of the Freedom of Information Act, and it is possible that some records of the board pertaining to the Apartments could be obtained by making a FOIA request. The HUD website provides some information about this process:
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.