Can the governing board of a public agency delete recordings of public meetings?

Answer

According to the Brown Act, if a local agency makes its own recording of a meeting, the recording must be made available on request, although such recordings may be deleted within 30 days of the recording. Govt. Code § 54953.5(b) (“Any audio or video recording of an open and public meeting made for whatever purpose by or at the direction of the local agency shall be subject to inspection pursuant to the California Public Records Act … but … may be erased or destroyed 30 days after the recording. Any inspection of an audio or video recording shall be provided without charge on equipment made available by the local agency.”). Local agencies may or may not have their own rules or regulations that require them to retain copies of such recordings for longer than the Brown Act requires.

The California Public Records Act (“CPRA”) applies to state and local agencies, which must generally disclose any public record on request to any member of the public unless the record falls within a specific statutory exemption from disclosure. Govt. Code §§ 7922.525, 7922.530.

As one court held, “[t]o establish an agency has a duty to disclose” a record, the requester “must show that: (1) the record qualifies as a ‘public record’ … and (2) the record is in the possession of the agency.” Anderson-Barker v. Superior Court, 31 Cal. App. 5th 528, 538 (2019) (cleaned up). Possession means actual or constructive possession, with constructive possession defined as “the right to control the records, either directly or through another person.” Anderson-Barker, 31 Cal. App at 538.” The term ‘control’ is generally defined as ‘the power or authority to manage, direct, or oversee.'” Anderson-Barker, 31 Cal. App at 540. Generally, if any agency retains possession or control of a public record, that record is subject to disclosure if it is not covered by an exemption.