Question
At the Metropolitan Transit System there is a practice of giving the Board of Directors copies of internal audit reports, in open session. These reports are not made available during the meeting when requested. These reports are not available for inspection when requested. When I requested the reports, I was told the internal audit reports are not Public Records. I require guidance on possible reason/s these reports would not be subject to either Brown or PRA.
Answer
The Brown Act provides that “writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at a public meeting of the body, are disclosable public records under the California Public Records Act …, and shall be made available upon request without delay. However, this section shall not include any writing exempt from public disclosure under Section 6253.5, 6254, 6254.7, or 6254.22.” Govt. Code Section 54957.5. Accordingly, the reports should be disclosed unless they were not distributed in connection with a matter subject to discussion or consideration at a public meeting of the body — which seems unlikely, or why would they have been distributed to the board members in the first place? — or exempt under Section 6253.5, 6254, 6254.7, or 6254.22 of the PRA. These sections cover a broad range of exemptions, and it is not clear which one(s) the Board is relying on in withholding the reports.
You might try making a written request for the records under the PRA, to which the System should respond in writing with its basis for withholding the records. See https://firstamendmentcoalition.org/cpra-primer/sample-cpra-request-letter/ for a sample PRA letter.
If the System relies on Section 6254(a), which exempts “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure,” you might want to remind the System that the exemption only applies if the agency can establish that (1) the reports would not be retained in the ordinary course of business (that is, are discarded) and (2) that the public interest in withholding the reports clearly outweighs the public interest in disclosure. You might also point out that if you are forced to sue the agency to obtain a copy of the records and the court decides that they should have been disclosed, you would be entitled to your attorneys’ fees. Govt. Code Section 6259(d).
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.