Morro Bay law presentation, 1995
(This was prepared for the 1995 Journalism Association of Community
Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor of
communications at California State University, Fullerton).
1994 BROWN ACT AMENDMENTS: A POSTSCRIPT
The Ralph M. Brown Act, California's local government open meeting law, was revised extensively over the last two years. The changes in the Brown Act were the primary topic of last year's Morro Bay law presentation.
Shortly after the Morro Bay conference, another bill to amend the Brown Act was introduced and quickly approved by the Legislature. This bill, designated as SB752, was intended to clean up a number of errors and inconsistencies that crept into the Brown Act during the earlier rewrite.
Probably the most important substantive change made by SB752 is a simplification of the requirements for criminal prosecution of public officials who participate in illegal closed meetings. It is now a misdemeanor for any local official to participate in such a meeting: (1) if action is taken and (2) he/she knows or has reason to know that the meeting should be open.
The earlier Brown Act amendments included language requiring proof that a public official specifically intended to violate the public's right to know for a successful criminal prosecution. Media and public interest groups criticized that provision, arguing that it would make it too difficult to prosecute Brown Act violators. Under the new language, no showing of specific intent is necessary; it is sufficient if the offending official should have known that a particular meeting was required to be open. For example, if an official goes to a seminar on the Brown Act and then attends a secret meeting where action is taken in clear violation of the rules presented during the seminar, he/she could be prosecuted.
Here are some of the other major provisions of the Brown Act as it stands now:
*It applies to all elected and appointed policy-making boards and commissions of local government, including school boards, city councils, planning commissions and county boards of supervisors, as well as advisory bodies created by an official act of one of these boards or commissions.
*Its open-meeting requirements still apply to community college academic senates and student government bodies, including their advisory boards, according to two separate Attorney General's Opinions, which carry the force of law until overruled by an appellate court (See 66 Ops.Cal.Atty.Gen. 252, 1983; and 75 Ops.Cal.Atty.Gen. 143, 1992).
*Local government agencies must hold their meetings at regularly scheduled times, giving 24 hours advance notice of special meetings to the media and certain others who request it.
*The agenda for each meeting must be available for public inspection 72 hours prior to regular meetings, and no action may be taken on matters not included in the agenda except during certain emergencies and other unforeseen situations (during emergencies a two-thirds majority may vote to add an item to the agenda and waive the 72-hour rule).
*The agenda must contain a brief description of each item of business. *Meetings must be held in places accessible to the public at no charge.
*Closed sessions are permitted for only a few purposes. The primary ones are discussion of public safety and the security of public buildings, discussion of potential and pending litigation with an attorney, certain real estate and collective bargaining negotiations, evaluations of license and permit applications where an open discussion would invade the privacy of a rehabilitated ex-convict, and discussions of personnel matters such as hiring, firing, disciplinary actions, promotions and performance evaluations (but not government officials' salaries--they must be discussed only in open meetings).
*The specific reason for each closed session must be explained in detail, with any vote taken at a closed meeting announced afterward (voting by secret ballot is not allowed; how each person voted must be disclosed).
*Under the "less-than-a-quorum" exception, small groups from a government body may meet in secret under certain circumstances. However, this exception does not apply to official standing committees.
*Filming, videotaping and broadcasting of meetings is permitted unless it is unduly disruptive.
*Most meetings must be held within the boundaries of the government agency, although there are several exceptions.
*The Brown Act now applies to most private corporations created by local government agencies.
*Materials that are given to members of a legislative body by anyone during a meeting must be available for public inspection.
*The "null and void" provision, which allows any person to sue to have actions taken at illegal secret meetings ruled null and void by a court, still has little clout. It requires nothing more than a vote at an open meeting to ratify any action taken illegally in secret. Once ratified, the action cannot be nullified by a court.
*The Brown Act now forbids government bodies to muzzle their own members by forbidding them to publicly criticize that body.
*The terms of out-of-court settlements of lawsuits are now required to be made public.
*Most discussions of budgets and related financial matters must occur
during open sessions.
ACCESS TO CAMPUS CRIME INFORMATION
A problem that continues to trouble campus journalists is secrecy by campus police departments. Administrators sometimes try to justify withholding crime information on the ground that the Buckley Amendment requires it. However, Congress has amended the Buckley Amendment (formally known as the Family Educational Rights and Privacy Act) to make it clear that campus crime reports are not required to be kept confidential. In particular, Section 1232g(4)(B)(ii) of the Buckley Amendment (20 U.S.C. 1232g) declares that law enforcement records are not educational records; they are not subject to the Buckley Amendment. Congress added this language to the Buckley Amendment in 1992 amidst a public outcry about efforts by some college administrators to keep information about campus crimes secret. The Buckley Amendment does not require that crime records be open, but neither does it require that they be kept confidential if they would otherwise be open.
In California, many law enforcement records are now open for public inspection. The California Public Records Act has been amended to require the release of most crime reports and arrest information, including the names of those arrested. In many instances, the identities of victims must also be disclosed (although the Public Records Act has provisions to protect the privacy of many sex crime victims, for example). Under Section 6254f of the Government Code, only law enforcement intelligence records and records of ongoing investigations are broadly exempt from public disclosure.
In addition, there have been several court decisions holding that a government agency may not release records to one member of the press or public and then refuse to release them to others. A campus police agency cannot release crime reports to a community newspaper and then refuse to release them to the campus newspaper.
What about a campus security department whose officers are not sworn law enforcement officers? Section 67380 of the Education Code reiterates the provisions of the Public Records Act requiring the release of crime information by law enforcement agencies and then says:
"For purposes of this paragraph and subparagraph (A) of paragraph (1),
the campus police, campus security personnel and campus safety authorities
described in subparagraph (A) of paragraph (1) shall be included within
the meaning of "state or local police agency" and "state and local law
enforcement agency," as those terms are used in subdivision (F) of Section
6254 of the Government Code" (i.e., the California Public Records Act)."
LIBEL IN CYBERSPACE
Much has been written recently about the risk of lawsuits stemming from communications in cyberspace. One such article that was somewhat imprecise, if not misleading, was recently downloaded from another source and posted on JACC News. Let's clarify a few basic points about libel and slander under California law.
Defamation is a broad legal term that includes both libel and slander. It's not really correct to refer to "defamation and libel" as legal hazards in cyberspace. Libel is a subcategory of defamation, as is slander. A libel is a written defamatory statement. A slander is one that is spoken or "communicat(ed) by radio or any mechanical or other means."
Also, only false statements of fact (as opposed to opinion) are actionable under recent court decisions. California, like most states, affords broad protection to expressions of opinion such as those commonplace in flame wars. To win a libel or slander suit, the plaintiff must prove that a false, unprivileged factual statement was made. Often the plaintiff must also prove special damages (out-of-pocket, monetary losses resulting from the libel or slander).
Here are the basic legal definitions of libel and slander contained in sections 45 and 46 of the California Civil Code:
"(Sec. 45) Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
(Sec. 45a) A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.
(Sec. 46) Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage."
As noted earlier, recent court decisions have narrowed these definitions, limiting them to false statements of fact--not expressions of opinion. To accuse someone falsely of a crime is still defamatory; to say that someone is a jerk is not. Also, even false statements of fact that are made during government proceedings or contained in government documents are usually privileged: a "fair and true report" of such charges is not an actionable libel.
Although there are sure to be more lawsuits based on messages posted
along the information superhighway, the law of libel--including its defenses--applies
even in cyberspace.
"SLAPP" LAWSUITS IN CALIFORNIA
A new acronym has gained wide acceptance recently: SLAPP (strategic lawsuits against public participation). Because it is so costly to defend a lawsuit, some large corporations have begun to sue (or threaten to sue) citizens who oppose corporate activities in the public arena--as a way of intimidating them into silence. This most often happens when a real estate developer proposes a large project and citizens launch a campaign to oppose the project at city council or planning commission hearings. Leaders of these citizen groups sometimes receive letters from the developer's lawyers telling them they will be sued for libel or slander if they don't stop criticizing the project. Such lawsuits have been given the SLAPP acronym because they take aim at the very foundation of democracy: the right of citizens to speak out on local public issues.
The SLAPP acronym was first used by Penelope Canan and George W. Pring, two Denver University professors who advocated legislation to curb these lawsuits in an article published by the California Western University Law Review in 1990.
California now has one of the toughest anti-SLAPP laws in America. Other states that had enacted anti-SLAPP laws by late 1994 were Delaware, Minnesota, Nevada, New York, Oklahoma, Rhode Island and Washington. In California, the state courts have begun to apply the anti-SLAPP law aggressively, greatly expanding the legal protection for citizens who speak out on controversial issues.
The California anti-SLAPP law requires entities such as corporations that sue citizens because of their public participation to show at the outset that there is a "probability" the lawsuit has a valid basis and is not merely a form of harassment. If a court determines that there is not a "probability" that the corporation has a valid case, the lawsuit is to be dismissed quickly, sparing the citizen-defendants the expense of fighting a prolonged legal battle against a corporation (or other well-funded entity). Corporations must pay citizen-defendants' legal expenses if such a lawsuit is dismissed before trial. On the other hand, citizen-defendants must pay a corporation's legal expenses incurred in opposing the motion for dismissal if a court rules that the lawsuit is valid enough that it should not be dismissed before trial. The full text of the anti-SLAPP law is in Section 425.16 of the Code of Civil Procedure.
During its first two years of existence, California's anti-SLAPP law was used by about 50 defendants who sought to have SLAPP cases against them dismissed. In 1994, the anti-SLAPP law was upheld and applied in two appellate court decisions, Wilcox v. Superior Court (Peters), 27 Cal. App. 4th 809 (1994), and Dixon v. Superior Court of Orange County, 30 Cal. App. 4th 733 (1994). In both, the appellate court ordered the dismissal of a lawsuit on the ground that it was a SLAPP suit with little chance of success at trial.
The Wilcox decision involved a complex dispute in which an organization of court reporters sued an individual. This case held that the anti-SLAPP law can be used by persons who are sued in retaliation for many different constitutionally protected activities--not just for speaking out on a controversial issue at a government hearing.
The Dixon decision went even further, halting a libel suit by
an environmental assessment company against a retired college professor
who questioned the company's competence during an environmental review
proceeding. In this case, the court noted that the California Environmental
Quality Act specifically invites the public to comment on environmental
impact reports. Therefore, citizens' comments on these reports should be
absolutely privileged even if they are libelous and malicious, the court
held. Citizens should have a right to express their opinions on controversial
issues when public comments are solicited by law, without having to fear
SLAPP lawsuits regardless of a citizen's motives, the court concluded.
When this appellate ruling was announced, lawyers for both sides agreed
that it breaks new legal ground, providing broad new legal protection for
citizen-activists who speak out in the public arena.
AN EXCERPT FROM THE CALIFORNIA PUBLIC RECORDS ACT
(Section 6254f of the California Government Code)
Law Enforcement Records Exempt from Public Disclosure
(f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes, except that state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, vandalism, vehicle theft, or a crime as defined by subdivision (c) of Section 13960, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, nothing in this division shall require the disclosure of that portion of those investigative files which reflect the analysis or conclusions of the investigating officer.
Other provisions of this subdivision notwithstanding, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) The full name, current address, and occupation of every individual arrested by the agency, the individual's physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the Penal
Code, the time, substance, and location of all complaints or requests for
assistance received by the agency and the time and nature of the response
thereto, including, to the extent the information regarding crimes alleged
or committed or any other incident investigated is recorded, the time,
date, and location of occurrence, the time and date of the report, the
name, age, and current address of the victim, except that the address of
the victim of any crime defined by Section 261, 264, 264.1, 273a, 273d,
273.5, 286, 288, 288a, 289, 422.6, 422.7, or 422.75 of the Penal Code shall
not be disclosed, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons involved.
The name of a victim of any crime defined by Section 261, 264, 264.1, 273a,
273d, 273.5, 286, 288, 288a, 289, 422.6, 422.7, or 422.75 of the Penal
Code may be withheld at the victim's request, or at the request of the
victim's parent or guardian if the victim is a minor. When a person is
the victim of more than one crime, information disclosing that the person
is a victim of a crime defined by Section 261, 264, 264.1, 273a, 273d,
286, 288, 288a, 289, 422.6, 422.7, or 422.75 of the Penal Code may be deleted
at the request of the victim, or the victim's parent or guardian if the
victim is a minor, in making the report of the crime, or of any crime or
incident accompanying the crime, available to the public in compliance
with the requirements of this paragraph.