State Agency I worked for is denying my records’ request, but documents do exist!

Answer

Many charter schools are required by their charter to comply with the Public Records Act and other laws. But in the absence of such a provision, whether the governing board of a charter school is subject to the Public Records Act depends on how the charter school was created and is operated. Because of this uncertainty, legislation has been proposed that would require that the governing bodies of charter schools comply with the Public Records Act and other laws. But the bill remains at this point only a proposal.
(See http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB913).

A body that governs a private (often non-profit) entity may be subject to the Public Records Act if it is “created by” an elected legislative body to perform governmental functions, or receive funds from a local agency and has a member appointed by the local agency. The applicable provision of the law is Government Code section 54952(c), which is actually part of the Brown Act, but which is incorporated into the Public Records Act by Govt. Code section 6252(b). Section 54952(c) defines “legislative body” to mean, among other things:

(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.

You should be able to determine whether the public charter school is receiving funding from a local agency (for instance, by the school district) by reviewing its financial statements. You should be able to determine if a local agency has the right to appoint a member of the board of directors by reviewing the charter school’s bylaws and/or articles of incorporation. (The articles of incorporation, if they exist, are also available from the California Secretary of State.) If both of those conditions exist, the public charter school is subject to the Brown Act and subject to its open meetings requirements.

As to whether the public charter school was “created by” an elected legislative body, this can be more difficult to determine. California case law indicates that, for example, if a city creates a special local assessment district, collects assessments from local property owners, and provides by ordinance that the programs paid for with those funds will be governed by a non-profit association, the non-profit corporation set up to govern those programs will be subject to the Brown Act. (This example comes from a case called Epstein v. Hollywood Entertainment District II Business Improvement Dist., 87 Cal. App. 4th 862 (2001).)

You should look for some kind of direct involvement by the city or another local government agency, such as the school district, in the creation of the charter school, such as an ordinance that calls for its creation. In addition, the articles of incorporation and/or bylaws of the charter school may provide evidence that the city, or other government entity, was responsible for its creation.

Note that in another context, a court ruled that a charter school was not a “public entity.” See Knapp v. Palisades Charter High School (http://caselaw.findlaw.com/ca-court-of-appeal/1435567.html).

If the law does apply, the records you seek, if they exist, should be a public record. Although you are seeking an attorney to write a letter for you, our experience is that persistent letter writing by the requester her or himself can be just as effective.

Bryan Cave 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. We also do not through this service offer attorney referrals.