"The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."
Introduction to The Ralph M. Brown Act
HOW TO NOTICE A PUBLIC MEETING
RESPOND TO REQUESTS FOR PUBLIC INFORMATION
A GUIDE FOR OAKLAND CITY STAFF
Oakland is one of several California cities to have adopted a "sunshine" ordinance. These ordinances attempt to provide the public with greater opportunities to access public meetings and information. They also create special obligations on City employees to ensure these opportunities are fulfilled.
The Oakland Sunshine Ordinance and the State of California's open meeting law, the Ralph M. Brown Act, contain specific requirements to ensure that the public has an effective right to learn about, attend, and participate in public meetings. With few exceptions, all city boards, commissions, and their respective committees must conduct their business publicly and provide ample notice of the items to be considered.
In addition, the Oakland Sunshine Ordinance, together with the California Public Records Act, governs how and under what circumstances the City must respond to requests for public information.
This guide is intended to assist City staff in meeting the specific requirements of the Brown Act, the Public Records Act and the Oakland Sunshine Ordinance.* * * The contents of this guide are meant to provide general information only; any specific questions regarding your obligations under the law should be directed to the Office of the City Attorney or the Public Ethics Commission.
Special "Notes" are provided throughout this guide as helpful hints in complying with the open meeting and public record laws. A copy of the Oakland Sunshine Ordinance can be accessed through the Public Ethics Commission's website at Oaklandnet.com.
The Public Ethics Commission is interested in any comments, corrections or suggestions you may wish to offer. Please feel free to contact the Public Ethics Commission staff at 510-238-3593 (telephone) or 510-238-3315 (fax).
The Brown Act is a state law that applies to all legislative bodies in the State of California. The Oakland Sunshine Ordinance is a local law that was enacted in 1997 to supplement the Brown Act and to provide greater public access to the workings of Oakland government.
The following is a description of local bodies that are subject to the Sunshine Ordinance:
Under the Sunshine Ordinance, a "meeting" for which public notice must first be given is defined as:
1) any congregation of a majority of the members of a local body in which
any item within its subject matter jurisdiction is heard, discussed or deliberated; or,
2) any use of direct or indirect communication that causes a majority of the members of a local body to become aware of their respective views on an item of business and negotiate a consensus regarding that item.
A "meal gathering" conducted immediately before, during or after a public meeting is considered a part of the public meeting and must be properly noticed and made open to the public.
The Sunshine Ordinance does not include in its definition of a "meeting" individual conversations between members of a local body and a single person (such as a constituent); attending community meetings or conferences; or attending purely social, recreational, or ceremonial occasions (so long as the members do not discuss business items within their jurisdiction).
SEE ATTACHMENT 1: Sample Meeting Agenda
There are three types of public meetings recognized under the Brown Act and Sunshine Ordinance: Regular Meetings, Special Meetings, and Emergency Meetings. Each has its own particular notice requirements, which are discussed below.
All of Oakland's local bodies must take formal action (by a motion and vote) to establish a regular time and place for holding regular meetings. (For example: "7:00 p.m. on the first Monday of every month at City Hall.") The Sunshine Ordinance states that "whenever reasonably possible" such regular meetings shall be conducted on weekday evenings.
A special meeting may be called by the presiding officer or by a majority of the local body at a date, time, or place that deviates from the regular meeting schedule.
An "emergency meeting" can be called only in specific situations that are usually quite rare. An "emergency" exists when a majority of the members determine that a "work stoppage or other activity" or a "crippling disaster" has occurred that severely impairs public health or safety. Any further discussion of "emergency meetings" is beyond the scope of this guide.
PROVIDING NOTICE FOR A PUBLIC MEETING
Under the Sunshine Ordinance and Brown Act, boards and commissions must post and distribute a copy of the agenda within certain time limits before a public meeting occurs. The amount of time depends on whether it is a regular meeting or a special meeting. (There are also additional pre-meeting requirements discussed in the next section on "Agendas, Agenda-Related Materials And Agenda Subscribers.")
Notice For A Regular Meeting
The agenda for all regular meetings must be posted at least 72 hours before the meeting in a location that is freely accessible to the public 24 hours a day. The Sunshine Ordinance also requires that copies of the agenda and all agenda-related materials (i.e., the agenda package) be filed with the City Clerk's office 72 hours before the meeting. (The City Council, Board of Port Commissioners and the Public Ethics Commission must meet these same posting requirements ten days in advance of their meetings as well as post notice on-line.)
Notice For A Special Meeting
Special meetings must be noticed under the Sunshine Ordinance by:
1) posting a copy of the agenda in a location freely available to the public at least 48 hours before the stated time of the meeting (excluding Saturdays, Sundays and holidays).
2) delivering to each member of the local body, news media, and any person who has previously requested notice in writing (See "Agenda Subscribers", below) a copy of the agenda at least 48 hours before the stated time of the meeting (excluding Saturdays, Sundays and holidays). The agendas may be delivered in person, mailed, faxed or e-mailed.
3) filing a copy of the agenda and all agenda-related materials in the Office of the City Clerk at least 48 hours before the stated time of the meeting (excluding Saturdays, Sundays and holidays).
If the special meeting is held in a location other than the regular meeting place, then the above special meeting notice requirements must be met at least ten (10) days before the meeting date. This ten-day requirement does not apply if the meeting is held in the same building as the local body's regular meetings.
Canceling a Meeting
To the extent practicable, all special meetings must be cancelled by delivering a "NOTICE OF CANCELLATION" under the same procedure as for noticing a special meeting. However, for meetings cancelled on short notice or due to a lack of members, good meeting practice requires that cancellation be announced at the time and place of the noticed meeting.
SEE ATTACHMENT 2: Sample "Notice Of Cancellation."
Cure And Correction Of An Improperly Noticed Meeting
The actions a local body takes at a meeting may be challenged on the basis that the notice provided for that meeting did not meet the requirements of the Brown Act or the Sunshine Ordinance. Any local body whose actions are challenged may "cure and correct" the alleged violation by placing the challenged action on a subsequent meeting agenda to affirm or supersede the action after first taking any new public testimony.
If a person files a formal complaint with the Public Ethics Commission alleging that meeting notice requirements were not met, and the Commission determines that a violation occurred, then the local body must agendize for immediate determination whether to cure or correct the violation at the local body's next regular meeting.
AGENDAS, AGENDA-RELATED MATERIALS AND AGENDA SUBSCRIBERS
Meeting agendas must specify the date, time, and location of the meeting and a brief general description of each item of business to be transacted or discussed. Agenda items should be informative and give the public sufficient information to decide whether or not to attend a meeting. Agendas must avoid the use of abbreviations or acronyms whose meaning would not be known to the general public.
If an item is not on the agenda for a regular meeting, there may be no action or discussion about it at the meeting unless:
1) two-thirds of the members present at the meeting (or if less than two-thirds of the members are present, then all of the members) vote that there is a need to take immediate action which came to the attention of the local body after the agenda was posted and the need to take immediate action a) is required to avoid a "substantial adverse impact" that would occur if the action were deferred to a subsequent special or regular meeting; b) the item relates to federal or state legislation; or, c) the item relates to a purely ceremonial or commendatory action; and
2) the item was continued to a meeting no more than five days after a properly noticed meeting in which the item was on the agenda.
Contact the City Attorney if you think any of the above conditions apply!
Members of a local body may ask a question for clarification, make a brief report or announcement of their activities, refer a matter to staff, or direct staff to place on a future agenda any item or matter that is not listed on the agenda.
If an item is not on the agenda for a special meeting, there may be no action or discussion on the item, period.
SEE ATTACHMENT 1: Sample Meeting Agenda
SEE ATTACHMENT 3: Sample Pre-meeting Checklist
Agenda-related materials are defined as the agenda, reports, and any other document prepared and forwarded to the local body that provides background information or recommendations concerning the subject matter of any agenda item.
The agenda and all agenda-related material (except material that is exempt from public disclosure under state or federal law) is a public record subject to public inspection and copying. Every local body is required to make agenda-related materials available to the public without delay.
Under the Brown Act and Sunshine Ordinance, any person may request that a copy of the agenda and agenda-related materials be mailed to that person. To qualify as an agenda subscriber, the person must make a written request to the Office of the City Clerk and renew it annually following January 1 of each year. The agenda subscriber may be charged a fee for "reasonable mailing costs."
The local body is required to mail copies of the agenda and agenda-related materials at the time the agenda is posted or at the time the materials are distributed to a majority of the members of the local body, whichever occurs first.
CONDUCT OF A MEETING
The Brown Act and Sunshine Ordinance do not expressly state how a public meeting must be conducted. There are issues that may arise at a public meeting however, that may affect whether the meeting complies with open meeting laws after the meeting begins. The following is a brief summary of those issues:
Presence Of A Quorum
Unless otherwise provided in the city ordinance or resolution creating the local body, a majority of the members typically constitutes the quorum. A quorum is necessary before the local body can take any formal action; a majority of a quorum is required to take action on behalf of the local body.
No Barriers To Attendance
No local body shall conduct a meeting, conference, or other function in any facility that is inaccessible to persons with physical disabilities or where members of the public must pay or purchase something to gain entrance.
Meetings Must Be Recorded
With few exceptions, all local bodies in Oakland must make an audio recording of their open, regular and special meetings. All recordings are public records that may be inspected during regular business hours. The recordings must be preserved for at least four years. The local body must provide, without charge, the equipment necessary for the public's inspection of any audio or visual recording. Any person may record or photograph any meeting as long as these activities do not unreasonably disrupt the proceedings.
Right To Public Comment At A Meeting
Every regular and special meeting at which action is proposed to be taken shall provide an opportunity for members of the public to directly address the local body before action is taken on the item.
In addition to permitting speakers to address the local body before action is taken on any item, every regular and special meeting agenda must provide an opportunity for members of the public to comment directly on an item of interest to the public that is within the local body's jurisdiction.
It is City policy that persons addressing a local body be entitled to a minimum of two minutes of speaking time per agenda item, subject to the discretion of the chairperson of the meeting.
The chairperson may reduce this minimum amount of speaking time only after publicly announcing the reasons for any reduction. Among the acceptable reasons are: a) constraints on the time allocated or anticipated for the meeting; b) the number and complexity of agenda items; and, c) the number of persons wishing to address the local body.
Any time constraints imposed on public testimony must be adopted at the outset and uniformly applied.
While the local body may adopt reasonable rules regulating the order and decorum of public testimony, the local body may not prohibit criticism of its policies, procedures, programs, or services, or of its acts or omissions. This generally applies to criticisms offered by a member of the local body as well.
Cancellation Or Continuation Of An Agenda Item
An item on the agenda may be cancelled or continued by a vote of the local body at the meeting, or by issuing formal notice of the cancellation or continuance if known far enough in advance of the meeting. Any continued item must specify the time and place of the meeting at which the item will be heard, and should be placed on the next meeting agenda.
Conditions On The Right To Attend Or To Speak At A Public Meeting
The local body may request that members of the public wishing to speak provide their names on a speaker's card to facilitate staff responses or for inclusion in the minutes of the meeting. However, the public cannot be required to give names or sign a register as a condition of attending a public meeting.
TAKING AND KEEPING MINUTES
The Sunshine Ordinance requires that all local bodies (except advisory bodies created and appointed by the Mayor) take and keep minutes of their meetings. At a minimum, minutes should contain at least the following information:
A draft of the minutes of each meeting must be available for public inspection and copying no later than ten (10) business days after the meeting.
The officially adopted minutes must be available for public inspection and copying no later than five (5) business days after the meeting at which the minutes were formally adopted.
SEE ATTACHMENT 4: Sample Meeting Minutes
REQUESTS FOR PUBLIC INFORMATION
The Oakland Sunshine Ordinance works in concert with the California Public Records Act to ensure that public, non-confidential information is made available promptly to those who request it.
Requests To Inspect A Public Record
Public records must be open to inspection at all times during regular business hours. A "public record" includes any writing containing information relating to the conduct of public business "prepared, owned, used, or retained" by a local agency regardless of its physical form or characteristics.
As a general rule, the Sunshine Ordinance favors the disclosure of records. Any refusal to disclose a record must be justified in writing. (See "Written Justification For Withholding Documents" below.)
Requests To Obtain Copies Of An Identifiable Record
A local agency must provide exact copies of any public record upon request. The request for a copy of a public record must be "focused and specific" but need not be in writing.
Under state law, City employees must assist persons who request an inspection or copies of public records. First, they must help identify records being sought. They must describe the "information technology and physical location" in which the records exist, and they must provide suggestions for overcoming any practical basis for denying access to the records or information sought.
Charging For Copies
The City of Oakland requires that single copies of any current agenda be provided without charge. Copies of any other public record (except for environmental impact reports) may be charged a fee that is established under the Oakland Master Fee Schedule. This fee may be charged in advance of providing a copy of the record.
When To Respond To Requests For Copies
The copying and distribution of public records must be accomplished "promptly." As a practical matter, if the record can be located quickly and there is no doubt about its public nature, simply provide the record at the time of the request. Otherwise, tell the requestor immediately the earliest time when the records can be made available for inspection or copying.
Sometimes, additional time may be required to respond to a request for public records. Under state law, a local body has up to ten days to determine whether a request for copies seeks a disclosable public record in the possession of the local body.
A local body, agency or department must "promptly" notify the person making the request whether the records are disclosable and the reasons why if the record cannot be produced. The reasons justifying any denial must set forth the name and title or position of each person responsible for the denial.
In certain unusual circumstances, it may be necessary to request an extension of the ten-day deadline. You should contact the Office of the City Attorney if you think you will require additional time to respond.
Immediate Disclosure Requests
One of the unique features of the Oakland Sunshine Ordinance is its provisions requiring "immediate disclosure" of certain records.
Any person may request the immediate disclosure of any record that has been previously distributed to the public, such as past meeting agendas and agenda packages. The request must be in writing and provide the requestor's name and a telephone number, fax or email address.
Once the requestor has provided his or her information, the local body must provide a copy of the document immediately, but in no case longer than three business days. If additional time is necessary to respond, the requestor must be notified within that three business-day period and provided a determination of whether the documents will be disclosed within seven days of the request.
Requests For "Oral Public Information"
Another unique feature of the Oakland Sunshine Ordinance is its policy regarding "oral" public information. Every Oakland agency director must designate a person "knowledgeable about the affairs of the agency" in order to facilitate the inspection and copying of public records and to provide oral information about agency plans, policies and positions. The names of such persons must be submitted to the Office of the City Clerk and posted on-line.
Written Justification For Withholding Documents
No record can be withheld in its entirety unless all information contained in it is exempt from disclosure by law. In some cases, it may be necessary to delete or segregate confidential material from an otherwise public document. Any such deleted or segregated material must be identified by a footnote or other reference indicating the appropriate reason why the information is being withheld.
You should consult with the Office of the City Attorney to discuss the appropriate reasons for withholding any document.
Mediation Of Public Record Disputes
Any person whose request for a public record has been denied by the City may demand mediation of his or her denied request through the Oakland Public Ethics Commission. Mediation must generally begin within ten days after the request for mediation is made. The local body or agency must designate a person to participate. The mediator's recommendations are not binding.
"Notice Of Cancellation"
A "NOTICE OF CANCELLATION" should be sent out on the letterhead of the local body and include the following:
THE _____(Name of Body)______ (REGULAR/SPECIAL) MEETING SET FOR ___(date, time & location)___ HAS BEEN CANCELLED.
THE NEXT MEETING IS SCHEDULED FOR __(date, time & location)___.
Signature of Presiding Officer or Designee