Agencies Don’t Have to Cancel Meetings When Website Outages Temporarily Affect Availability of Online Agendas
by Derek P. Cole on February 1, 2016
posted in Meetings,
Local agency officials are well aware of the basic requirements for public-meeting agendas. They know, for instance, that agendas for regular meetings must be posted at least 72 hours in advance. In light of legislation that took effect in 2012, they also know that if their agencies post agendas online—which most local agencies now do—the agendas must be posted online within the same timeframe.
But what happens if an agency’s website goes down during the period in which the agenda must be online? Does that mean the agency can’t take any action on any of the business items for the affected agenda? Or, worse, does the agency have to cancel the meeting altogether?
Given the propensity of technology to not always cooperate, and given the frequency of controversial matters that come before local governments, some may be surprised a court has not yet decided this subject. And, while this means it remains true there is “no case on point,” the State Attorney General has now at least provided some guidance.
The Attorney General Opinion
In a January 19, 2016 opinion, the Attorney General has opined that technical difficulties that cause online agendas to become unavailable are not an automatic reason to prevent consideration of agenda items. In a fairly short opinion, the Attorney General noted that an overly strict interpretation of the Brown Act—one that would preclude agencies acting from any time an agenda became unavailable, even if very briefly—might cause agencies to not post agendas online to avoid potential liability. The result of such an interpretation, the Attorney General observed, would be to “reduce the availability of public information, contrary to the Brown Act’s goals.”
Fortunately, the Brown Act does not employ such a hyper-technical standard. Instead, it allows courts to grant relief only when agencies do not “substantially comply” with the Act’s requirements. For this reason, the Attorney General noted that when agencies experience website difficulties, resulting in online agendas becoming unavailable for some period of time, this same “substantial compliance” standard should apply; there is no automatic requirement that agencies cancel their meetings.
As technological difficulties are practically a fact of life, agencies may find it reassuring to have this guidance. But “substantial compliance” still leaves room for interpretation. For this reason, the Attorney General opinion does not provide any black-and-white standard for determining when website outages cross the line and prevent agencies from meeting. The Attorney General explained, rather, that the key is for agencies to determine whether the website outage was substantial enough to possibly mislead the public.
So When Should a Meeting Be Cancelled?
Obviously, the absence of a single, defined standard means that opinions may still differ as to when website problems are serious enough to require a meeting be cancelled. Perhaps recognizing this, the Attorney General tried to provide some clarity by noting that while “fleeting or trivial technical” difficulties are not significant, an agency should cancel its meeting if “citizens looking for a meeting notice or agenda might have been misled or confused, or mistakenly believed that no meeting was scheduled.” The key, then, is to determine if the technical difficulties could possibly have an effect on public attendance or meeting participation.
A number of questions can help agencies decide if this point has been reached: Most important, how long was the online agenda unavailable? Did the website outage occur at a time of day when high internet traffic could be expected? Were other methods of noticing the meeting satisfied? For instance, were agendas properly posted in designated location and mailed or e-mailed to persons who requested to be on agenda distribution lists? Also, if public hearing items were scheduled to be on the particular agenda at issue, were the newspaper notices of those hearing published properly? And, were local media outlets and beat reporters given their customary notice of the meetings?
Ultimately, each situation will have to stand on its own facts. As with any question about Brown Act compliance, agency counsel should always be asked to advise when situations like these arise.