Park & Rec “advisory committee” keeping its advice secret

Answer

Your inquiry seems to implicate both the Brown Act and the Public Records Act, each of which I will address in turn.

First is the question of whether the president of the parks & rec board can form a “management committee,” which sounds like it is an advisory committee to the full parks & rec board, and whether one of the members of this committee may be a public member.

The answer to this question would probably be found in the parks and rec board’s bylaws, and not necessarily the Brown Act (which is California’s open meetings law).

The Brown Act, which governs meetings of “legislative bodies” in California, and addresses everything from agenda requirements to public comment periods, would apply to this particular committee if it meets certain criteria.

Under the Brown Act, “legislative bodies” are defined to include:
(a) the governing body of a local agency or any other local body created by state or federal statute, or any “local body” created by state or federal law;

(b) a commission, committee, board or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body; or

(c) standing committees of a legislative body that have continuing subject matter jurisdiction. Cal. Gov’t Code § 54952.
However, “advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.” Cal. Gov’t Code § 54952(b).

This provision would seem to indicate that unless the committee is a standing committee of the legislative body with a continuing subject matter jurisdiction or the governing body (the parks & rec board) has a quorum actively sitting on the advisory committee or has taken formal action to fix the advisory committee’s meeting schedule, then the advisory committee would not be a “legislative body” under the Brown Act, and therefore not subject to its meeting requirements.

To that end, you may want to review the management committee’s membership to see if a quorum of the parks and rec board sits on the committee, as well as consider whether the committee might be a standing committee having a continuing subject matter jurisdiction and review what formal action the parks and rec board may have taken with respect to the committee’s meeting schedule.

You might also find the California Attorney General’s Office’s “Brown Act” publication,
http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf, helpful in determining how § 54952(b) operates with respect to committees (see p. 5).

According to the Attorney General, if, for example, a city council creates an advisory committee comprised of two council members for the purpose of reviewing all issues related to parks and recreation in the city on an ongoing basis, such committee, even though comprised of less than a quorum of the members of the body that created it, is a standing committee that is subject to the Act because it has continuing jurisdiction over issues related to parks and recreation in the city.

On the other hand, if the city council creates an advisory committee comprised of two city council members for the purpose of producing a report in six months on downtown traffic congestion, such committee is exempt because it is comprised solely of less than a quorum of the members of the city council, and it is not a standing committee because it is charged with accomplishing a specific task in a short period of time.

It is possible under this scenario that if the ad hoc committee was created for the sole purpose of drafting the RFP, it is not a “legislative body” under the Brown Act.

If you determine that the advisory committee is a legislative body, then it must abide by the same Brown Act rules that all other legislative bodies must abide by, e.g., properly noticing meetings (Gov’t Code § 54954.2) and permitting the public to comment on matters before the legislative body (Gov’t Code § 54954.3(a)).

If you feel that the committee has violated the Brown Act, it might be possible to bring a court action against the legislative body, or bring your concerns to the district attorney.

Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code § 54960(a).

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s website at here
useful for proceeding.

Your second inquiry relates to what records you can obtain from this particular committee.

Under the Public Records Act, public records — which include “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,” Gov’t Code § 6252(e) — 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.

Thus, any records prepared or retained by this particular management committee would seem to be subject to disclosure under the Act, unless some exemption applies. Please note that the Public Records Act applies to records, and not information, so in any Public Records Act request that you make, you may want to take care to ask for records related to meetings of this group.

Of course, there are numerous exemptions that the parks and rec board might cite in response to a records request, including the Act’s “catch-all” exemption, contained in Government Code § 6255(a).

This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

Please keep in mind that under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009). It’s not clear what the interest in not disclosing this particular record would be.

One other exemption that the agency might cite is the “draft” exemption, which exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Cal Govt. Code Section 6254:
(a). Although some government personnel mistakenly believe that any “draft” document is automatically subject to this exemption, the text of the statute itself indicates that the exemption only applies if the agency establishes that (1) the plan is not retained in the ordinary course of business and (2) the public interest in withholding the plan clearly outweighs the public interest in disclosure. This is generally a fairly high threshold to meet.
You might to start by submitting a PRA request letter to the parks and rec board seeking records related to the management committee’s meetings.

Although not statutorily required (your other option would be to orally convey your records request or to simply make an in-person request to inspect the relevant records), a written request should result in a written response, and if that response is a denial of your request, then the response should set forth the basis for the denial.

The PRA also says that “upon a request for a copy of records, [the agency] shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” Gov’t Code § 6253(c).

In practice, agencies oftentimes latch onto the second provision, taking at least 10 days to respond to any request for copies.

As for whether a member of the committee may have greater access to district files than a member of the general public, as a practical matter, there may be procedures set up for committee members to have easy access to district files.

Also, it may be that the working relationship between district staff and committee members means that the members can more easily access records than a member of the general public.

That said, it would seem that any records that are available to committee members should also be available to the general public under the Public Records Act, unless, of course, some exemption applies.

You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition website at http://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen 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.