Charter schools and the CPRA

Answer

We are not aware of any California court cases specifically addressing the Public Records Act as it relates to charter schools.  Under the Public Records Act, a public record includes “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.”  Cal. Gov. Code. §6252(a).  Thus to determine whether a charter school is subject to the PRA, it must be determined whether it is either a state or local agency.

Although I am not an expert on the governance structures in charter schools, it is my understanding that there is a range of such structures.  To the extent the charter school is an arm of a local school district, the charter school’s records are likely “owned,” “used,” or “retained” by the school district, which is clearly a local agency for purposes of the Public Records Act, and thus may qualify as public records under the PRA.

Alternatively, to the extent the charter school in question is a legally independent charter school that functions as independent legal entity governed by or as a not for profit corporation, it would be necessary to consider the last part of the PRA’s definition of a “local agency” at Government Code section 6252, which includes an entity that is a “legislative body” under the section 54952(c) and (d) of the Brown Act.   That section provides:

54952. As used in this chapter, “legislative body” means:
. .
(c) (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:

(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.

(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
Thus, under the above definition, a charter school may be subject to the Public Records Act if it was (1) “created by” an elected legislative body to perform governmental functions, or (2) receives funds from a local agency and has a member appointed by the local agency.

Additionally, the charter agreement between the district and the school may be instructive in determining whether the charter school is governed by the Public Records Act.  We are aware of at least one instance in which a charter agreement specified that the school was governed by the Public Records Act.