Requirements when materials are provided less than 72 hours prior to a regular meeting

Board members should note a new ruling regarding timing and document access

The Brown Act aims to ensure that government meetings are open, transparent and supportive of public participation. Within the Act is a series of required actions to ensure transparency, including providing meeting materials that are public records to the public for review. The recent case of Sierra Watch v. Placer County et. al sheds light on the nuanced nature of how meeting materials must be made available to the public by local agencies subject to the Brown Act.

Members of the public have the right to review the agenda of a board’s upcoming meeting. Government Code section 54954.2 specifically requires that the governing body post the agenda for a regular meeting 72 hours before the meeting and 24 hours before a special meeting. This includes posting the agenda in a physical location and on the agency’s “primary internet homepage.” (Gov. Code § 54954.2)(a)(2)(A).) In addition to making the agenda available, materials related to agenda items and used by the governing body during a meeting must also be made available for review. (Gov. Code, § 54957.5, subd. (b)(2).) However, the timeline for making materials available for review is not straightforward. The determining factor for when, where and how to make materials available to the public is when the board itself receives the materials. There are three timeframes that may apply:

1. If board members receive the materials more than 72 hours before the scheduled meeting, then the materials are deemed public records and must be made available upon request and without delay. The location where the documents can be publicly inspected must be included in the posted agenda. (Gov. Code, §§ 54954.1 and 54957.5, subd. (a).)
2. If a member of the governing body or staff of the local agency prepared the materials, and the governing body received the materials during the meeting, the public must have access to the materials during the meeting. (Gov. Code, § 54957.5, subd. (c).) If someone outside of the local agency prepared the materials and gave them to the governing body during the meeting, the public must receive access to the materials after the meeting. (Gov. Code, § 54957.5, subd. (c).)
3. If governing body members receive the materials less than 72 hours before a regular meeting, then the materials must be made available for public inspection at the same time they are distributed to the governing body. (Gov. Code, § 54957.5, subd. (b)(1) and (2).)

The recent case Sierra Watch v. Placer County et. al. addresses logistics related to when materials are received within the 72-hour window before a meeting. In the case, Placer County and a developer reached an agreement related to an environmental impact report for a resort development in Tahoe on a Friday evening. A meeting of the Board of Supervisors was scheduled for the following Tuesday. When the parties reached the agreement, the clerk sent a memorandum prepared by county counsel detailing the new terms of the revised agreement to the governing body members. The clerk also placed the materials in the Placer County clerk’s office for public review. Both actions took place around 5:40 p.m. on Friday evening, after the clerk’s office closed.

Sierra Watch, an interested party in the matter, argued that this action violated the Brown Act requirements for materials provided to governing body members less than 72 hours in advance of a meeting because they could not access the documents in the closed clerk’s office at the time the materials were distributed to the board. The Court of Appeal agreed and outlined that the plain language of Government Code section 54957.5, which states when and where materials must be accessible to the public, makes a clear distinction between simply “placing” the materials in the designated location and making the materials “available” for inspection. Based on this distinction, the clerk’s actions were insufficient to make the new agreement “available” because the office was closed.

The court went on to say that it is “at least plausible the Legislature thought it best that board members and the public have equal opportunity to review late submissions, even if achieving that requirement would on occasion result in less time for board members to review these submissions.” In other words, the court emphasized that at times it may be necessary to withhold materials from members of a governing body to ensure that members of the public receive the materials at the same time as the board. This ensures the public has an equal opportunity for review in advance of a meeting so that they may address the board on the item(s) in question. Further, the court stated that posting materials online is not a “location” sufficient to meet the availability requirement.

In practice, the Sierra Watch case means that district and county office of education staff should carefully monitor when materials are provided to board members, especially when there is less than 72 hours before the meeting. The court did not give an exact timeframe that specifies when materials are properly “available,” and more case law or legislative action may result to clarify what meets the availability requirement detailed by the Sierra Watch court.