GENERAL TOPICS

MEETINGS

RECORDS AND INFORMATION

ENFORCEMENT OF THE ORDINANCE

Passing Your Own “Sunshine” Law
The best way to ensure open government is by passing a local government “sunshine” ordinance that requires local agencies to make extra efforts to do public business in the open. The following points will guide you through the reasons and process for passing a local open government ordinance.
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Why State Sunshine Laws Are Only the Beginning
Anyone with experience as a local government watchdog knows that the laws supporting access to public meetings and government records don’t accommodate the needs of citizens attempting to be informed participants in their government.

The Brown Act and the California Public Records Act simply don’t always guarantee the quality, ease or completeness of informed participation in local government that citizens might desire. And changing these state laws can be a daunting task. In recent years attempts to reform open government laws have met with aggressive, well-marshaled opposition from lobbyists maintained in Sacramento by statewide local government associations. These lobbyists far outnumber the few full-time advocates for freedom of information and expression, and their resources are impressive — drawing as they do on dues paid by tax-supported agencies. Do citizens have to wait for state law to change in order to get better access policy from their city councils, county supervisors, school boards and special district directors? Fortunately, no.

An often overlooked aspect of both the Brown Act and the Public Records Act is that they do not pre-empt or discourage local agencies from adopting their own more accommodating rules. On the contrary, these statutes expressly authorize public agencies to do so.

The Brown Act provides, in Government Code Section 54953.7:
“Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimum standards set forth in this chapter…” (emphasis added)

The Public Records Act provides, in Government Code Section 6253.1:
“Except as otherwise prohibited by law, a state or local agency may adopt requirements for itself which allow greater access to records than prescribed by the minimum standards set forth in this chapter…” (emphasis added)

Thus the Brown Act and Public Records Act, by their own terms, are not a ceiling on the access rights that citizens may expect of their government, but a floor below which their rights may not descend: “minimum standards” for public participation and information. Several local jurisdictions in the state have so far adopted their own improved access rules. The City and County of San Francisco adopted its Sunshine Ordinance in the summer of 1993, and shortly thereafter the City of Richmond adopted a version applying to records only. In early 1995 the Contra Costa County Board of Supervisors enacted an even further-reaching law than San Francisco’s — its Better Government Ordinance. The City of Oakland followed suit not long thereafter.
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What’s the Effect of a Local Sunshine Law?
The beauty of this approach is its flexibility. The law you propose to your local body can be the one most responsive to the recurrent procedural and policy problems you encounter. Some agencies (school and other special districts) do not adopt “ordinances”, but nothing precludes them from adopting open government bylaws or other policies they will commit to abide by.
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Here are some goals for government “sunshine” (see specific approaches below under “Some Issues to Consider Addressing in a Sunshine Ordinance,” page 4):
• Extend open meeting requirements to more situations
• Require earlier or better access to agenda-related information
• Reduce the frequency of closed sessions
• Require more disclosure about closed session actions
• Identify high-interest categories of records or information to be disclosed readily
• Set an expedited schedule for producing records
• Provide for free or low-cost access to records
• Make computer-stored information more accessible
• Make explanations more specific when access is denied
• Provide a ready response to simple queries and requests
• Champion the free expression rights of public employees and elected officials
• Create a permanent oversight commission of citizens to assure that the sunshine law works
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What Does It Take to Get a Sunshine Law Passed?
The indispensable elements so far have been:

  1. A Body Open to Change — No matter how hard you try, it will be difficult-to-impossible to pass a sunshine ordinance through a council or board that has a majority leery of or hostile to greater and more informed public participation. In such circumstances the cause isn’t lost forever, but will have to wait for one or more new elected members with the will to take it seriously. This transition has happily occurred at a handful of local governments.
  2. An Effective Author — That is, an elected public official on the local body who will lead the effort to get his or her peers to adopt the measure. This torchbearer must be politically adept with the combination of intelligence, insight and credibility needed to secure support for what some might otherwise view as threatening.
  3. Prominent Media Backing — It’s not essential that a newspaper be the leading proponent of the measure, but at least one influential newspaper has to let the agency in question know that it considers the measure very important, and underscore that point by having its top executives — the editor and publisher — on the scene to boost the process along.
  4. A Knowledgeable Attorney Guide — Ending up with rules that actually improve on existing state law requires the extended attention and advice of a lawyer who knows what those requirements are and what specific language will or won’t make a difference in the final product.  While the body’s own attorney may be knowledgeable, it’s vital to have a counselor of your own to be active in the negotiation and review process. Californians Aware can supply or suggest an effective attorney for this role.
  5. A Corps of Committed Citizen Participants — Both independent civic activists and organizational representatives from groups like the League of Women Voters, the ParentTeachers Association, a business or taxpayer group, or a homeowners or senior citizens association are needed to help garner support sunshine law efforts. These people should help advise and lobby for the proposal from the outset.
  6. Up to Six Months of Patient Negotiation — It takes time to negotiate fair terms for a local sunshine ordinance. Numerous meetings need to be held between supporters and agency staffs and attorneys. These negotiations are required to fine-tune whatever proposals the process starts with into something that resolves the predictable host of reservations, alarms and objections that will be expressed by those whose work routines or responsibilities will be affected by the new rules. Six months may seem like a long time, but working through the details and building support take many hours of work.

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Getting Started: Contact Californians Aware
If you’d like your county, city or other local agency to adopt a Sunshine policy, you can start brainstorming by using the ideas here, and if you have questions by contacting us.
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Not Reinventing the Wheel: Some Issues to Consider Addressing in a Sunshine Ordinance
To see what others have done, look at the earliest major ordinances, in San Francisco and Contra Costa County.

But note:

  1. both these ordinances began their development at a time before the Brown Act was revised effective in 1994, so many if not most of the open meeting are now in the Brown Act, and to that extent would not need to be duplicated in a new ordinance. Compare the ordinances with the current text of the Brown Act, in other words, to determine how much of the former has been duplicated by the latter and is already in effect statewide;
  2. before lifting language wholesale, be aware of how the nomenclature you use may need to vary depending on whether you are dealing with a city, a school board or some other local agency, the titles of bodies, officials and department heads, etc.

As you look through these ordinances, here are some of the issues addressed by special provisions, tracking the San Francisco version (SFSO) in most cases.
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MEETINGS
What is a “meeting” governed by the ordinance?
See especially SFSO 67.3 (b) (2) and (3)
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What meetings other than those governed by the Brown Act should be included, at least for passive (observational only) attendance by the public?
See SFSO 67.3 (c), 67.4; under (b) of that section, consider modifying the rule to include the board of any nonprofit corporation receiving a grant or contract of city funds in an amount exceeding (name your threshold), at least for those portions of meetings where the publicly funded activity is discussed. In short, a contract or grant to perform services in an amount of $X will contain a clause requiring the recipient’s board to open to the public discussions of how the grant or contract is being performed: “You want the deal? You accept the sunshine, at least under “passive” access rules.” Note also: passive access notice provisions at 67.6 (e).
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Should the press at least have longer lead time for notice of special meetings?
Should the lead time be even longer if the body is meeting at some unusual place?
See SFSO 67.6 (f).
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How understandable should meeting agendas be? What about Internet posting as a backup? How should related reports other docs be made available? Should the standards allowing action on “surprise” (off-agenda) items be tightened? What agenda format accommodations for the disabled? How about a standard agenda advisory about learning more from or submitting complaints/concerns to the oversight commission, in San Francisco called the “task force?”
See SFSO 67.7.
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What about targeted notices to residents of neighborhoods especially affected by a certain proposal?
See SFSO 67.7-1.
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Closed session topic notices: What more specifics should be provided than the Brown Act requires?
See detailed guidances in 67.8. At this point we would suggest requiring, in all notices of “pending litigation” closed sessions include exact identification of any actually filed case to be discussed — no exceptions. See 68.8-1(b).
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Should closed sessions be tape recorded to either deter or document violations? Should the tapes ever become public? Should the agency’s attorney tell a requester when and if an “anticipated” case is actually filed?
See SFSO 67.9.
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Agenda backup material: Internet posting? Public access even before distribution to the body? Per page fee cap?
See SFSO 67.9.
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Permitted closed sessions: To consider hiring outside lawyers?
See SFSO 67.10.
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Post-closed session disclosures: What if anything can be revealed, and should the body be required to vote up or down on sharing certain information after every closed session? Should proposed litigation settlements, especially those involving more than just smaller sums of money, be sunshined to the public before final approval? What specifics should be announced about personnel actions — positive or otherwise? What about those separation agreements used to buy an employee’s resignation with no fuss? Should this information be posted, as well as announced?
See SFSO 67.12.
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Attendance barriers: What happens if the crowd overflows the meeting room? Accommodations for deaf or others disabled?
See SFSO 67.13.
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Tapes of the meeting made by the agency: Should all covered meetings be at least audiotaped? Should the tapes be preserved longer than the Brown Act’s 30 days?
See SFSO 67.14.
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Addressing the body: Should the presiding officer announce up front which if any agenda items have been reshuffled in order or continued to a later meeting?
See SFSO 67.15.
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Meeting minutes: What content should be required? How much inclusion of citizens’ comments to the body? How soon should the draft minutes be ready for public access?
See SFSO 67.16.
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Rights of members of the body: How free should they be to speak their minds or allude to closed session topics or actions?
See SFSO 67.17.
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OTHER THOUGHTS ON MEETING RULES:
The following are not addressed in either the SF or the CC ordinances, but do relate to issues that arise from time to time, and could be candidates for consideration.

  1. Use of the Internet and e-mail to maximum sunshine advantage. In addition to posting meeting agendas and materials on the agency site (see good example here), consider creating a listserv that sends an e-mail alert link to the currently posted agenda to anyone who signs up for it.
  2. Clear rules on how e-mail can and can’t be used for communications to and among members of legislative bodies. See AG opinion on the subject.
  3. No closed personnel sessions relating to the chief executive officer. Period. This is the single most consequential individual in the government, and how he/she is hired, evaluated, etc. is essential not only to understanding how the big problems of the agency are dealt with, but to holding accountable the elected officials in performing their single most significant function. The CEO is the lens on the whole operation, and one the public has a right and a need to look through. Those who are not ready for this scrutiny can serve elsewhere or, to put it more positively, those who are ready for the scrutiny are the kind of people you want for those big bucks.
  4. Sunshining of all proposed closed session actions that lock in commitments, to allow time for informed public comment. Not just settlements, but collective bargaining and real property agreements as well. No more secretly bargained deals announced as a fait accompli.
  5. Allowance of citizens to place agency-relevant matters on a future (one or two meetings hence) agenda, at least with concurrence of two out of five members, etc. Education Code provides for something like this (no concurrence required) with respect to school boards. This doesn’t require that the body say or do anything in particular about the issue, but it does remove the Brown Act barrier — “We can’t talk about it because it’s not on the agenda.”
  6. No removal or arrest of a citizen speaker unless both his or her disruptive activity and the removal have been videotaped, to be kept as evidence.

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RECORDS AND INFORMATION
Records access process: How prompt an inspection right? What maximum fee for copies? How much requester-friendly help, instead of playing mum or “hide-the-ball?” One official assigned to enforce compliance and “order” an uncooperative official or department to provide access, and annually report on compliance agency-wide? Role of a “task force” in the appeals process? Jurisdiction of superior court to order compliance? Role of agency’s chief counsel in enforcement? Public access to his/her opinions on the ordinance? Special rules on electronically stored data?
See SFSO 67.21.
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Computer software and systems: In upgrade purchasing, how should the agency shop for software products that increase the ease of public access?
See SFSO 67.21-1.
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Policy on release of information orally by agency employees: What access does public have? Protection for employees’ personal opinions, stated as such? Protection for them in releasing public information?
See SFSO 67.21.1.
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A window on messages to and from public bodies: How to manage public scrutiny?
See SFSO 67.23.
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Which records and information will NOT be withheld based on various exemptions, or to put it positively, will always be deemed public, without argument: Drafts? Litigation? Personnel? Law enforcement? (Note that a city can, unlike a county, adopt a policy requiring its law enforcement department to permit greater access than would the CPRA) Contracts/bids/proposals? Budgets and financial data? How about a policy of NOT asserting the CPRA balancing test? Or of the deliberative process privilege?
See SFSO 67.24.
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Access to records governed by privacy-type exemptions from, or prohibitions against, disclosure: Contra Costa County has a provision that allows a requester to get in touch, in a “blind” process, with the people whose information is being protected, in order to explain why the information is being sought, and ask them to waive confidentiality or otherwise provide access to the information. This approach puts the individual in question where he or she has a right to be and may want to be: in a position to allow sharing of experiences for some mutual advantage or in the public interest.
Read an article about this approach, “Shielding Privacy v. Brandishing the SPEAR”.
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How soon and in what manner must access requests be responded to? If it will help and the requester has no objection, can the custodian ask what the purpose of the request is? But what is the rule otherwise? Does the requester have to wait until all of a lengthy request has been processed to see the first records “cleared” for release?
See SFSO 67.25.
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Can the agency charge for the cost of attorney review and redaction?
See SFSO 67.26.
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How clearly and thoroughly must a decision against disclosure be explained to the requester?
See SFSO 67.27.
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How are fees for copying to be set?
See SFSO 67.28.
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How is the public to know just what kinds of information the agency keeps, and in what department?
See SFSO 67.29.
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May retiring or otherwise departing officials take “their” records with them?
See SFSO 67.29-1.
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What information must the agency’s lobbyist report publicly, and how often? May agency funds be used to lobby for secrecy laws?
See SFSO 67.29-4.
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Are top officials’ appointment calendars public?
See SFSO 67.29.5.
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Should outside funding sources be revealed on the Internet?
See SFSO 67.29-6.
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What about messages and correspondence — paper or electronic? What retention and access policies? What about the documentation of private entities authorized to charge for providing a public service, e.g. towing companies?
See SFSO 67.29-7.
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OTHER THOUGHTS ON INFORMATION ACCESS RULES: 
The following are not addressed in either the SF or the CC ordinances, but do relate to issues that arise from time to time, and could be candidates for consideration.

  1. Window on critical processes: There should be a publicly accessible file (preferably also on the agency’s web site as well — see 5 below) into which is placed any document provided to or received from the other party to litigation, to real property negotiations, to negotiations with employee units in collective bargaining, or to contract negotiations with individual, unrepresented employees. What is shared with these parties is not privileged or destructive in any manner to the agency’s own litigation or bargaining position, and is a legitimate matter for public scrutiny.
  2. Preserving E-mails, etc.: Among the first assignments of the oversight body (see below) should be to consult with department heads and others to draw up a list of categories or processes with respect to which ALL e-mail or paper documents must be preserved by the sender and/or recipient public employee, for at least X period, whether or not believed to be a matter of public record at the time. Once a record is destroyed or disposed of, the question of whether it is publicly accessible becomes moot. Officials and departments should not have the power of resolving such disputes by annihilating the subject matter.
  3. Knowledgeable PIOs: The agency should employ no public information officer who is not trained in the state sunshine laws and the ordinance, and who is not motivated to be an advocate for public access.
  4. No Purchased Silence: The agency should forswear offering any inducement to any party to actual or potential litigation, or to any other agreement, or to any outgoing employee, to discourage him or her from discussing or revealing information unless disclosure of that information is independently prohibited by state or federal law. No bargained gags.
  5. Routine Online Disclosure: The agency should disclose on its web site copies of any and all documents in the following categories:
    • — Critical process documents as in 1 above.
    • — Contracts in amounts above $___, or for certain goods or services irrespective of the amount (to avoid chunking to stay below the threshold), identifying the official or department ordering, the item or job ordered, the contractors, the dollar amount, dates, etc.
    • — Any document to which access has been provided pursuant to a request from the public, whether or not expressly citing state sunshine laws or the ordinance.
    • Add your own items

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ENFORCEMENT OF THE ORDINANCE
What oversight body should be created to ensure training of employees, provide a complaint forum, advise on needed reforms, etc.? How should it be constituted?
See SFSO 67.30.
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Which officers of the agency are responsible for which functions under the ordinance?
See SFSO 67.31.
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What duty does the agency assume to encourage other local agencies to adopt sunshine policies?
See SFSO 67.32.
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What obligation do department heads and managers have to undergo periodic training about compliance with the ordinance?
See SFSO 67.33.
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What is the consequence for a responsible official’s willful refusal to comply with the ordinance?
See SFSO 67.34.
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Can one sue under the ordinance? Are attorney’s fees and costs available if the plaintiff wins?
See SFSO 67.35.
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What is the relationship of the ordinance to other agency ordinances or policies it appears to conflict with?
See SFSO 67.36.
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What happens if a provision of the ordinance is found invalid because in conflict with some state or federal law?
See SFSO 67.37.
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What about those pesky pagers and cell phones going off at meetings?
See SFSO 67A.1.
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OTHER THOUGHTS ON ENFORCEMENT: 

  1. Provide carrots as well as sticks. Consider bonuses or other material incentives, as well as public recognition, for employees who demonstrate best practices in all the little ways that can’t be mandated. Reward what you want to see modeled.
  2. An oversight body is ESSENTIAL, and it should be given the horsepower, support and prestige to make membership coveted. Populate it with the richest mix of relevant talent, interest and experience possible: not just journalists, lawyers and public interest advocates but librarians, political scientists, information technology wizards, and retired government insiders (preferably from elsewhere) with keen cant detectors. All with patience and a good sense of humor, for this panel will be governed by the ordinance and expected to show it can work!

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