Questions Presented

1. Do 45 C.F.R. Part 1607 or Part 1619 require a recipient to make available for public review minutes from public board meetings?

2. Do 45 C.F.R. Part 1607 or Part 1619 require a recipient to make public the agenda of an upcoming board meeting?

3. Does 45 C.F.R. Part 1607 require a recipient to post notice of a board meeting in a manner reasonably calculated to be viewed by the public?

Brief Answers

1. Neither Part 1607 nor Part 1619 requires a recipient to make available for public review meeting minutes of public board meetings. Publicly releasing any available board meeting minutes, however, is a sound practice that appropriately promotes transparency by organizations operating with government-provided funds.

Part 1607 requires recipients to give “timely and reasonable prior public notice of all meetings[.]” Neither Part 1607’s text nor its regulatory history suggests that the requirement of prior public notice of all meetings creates a separate requirement that public board meeting minutes be disclosed subsequent to such meetings.

Part 1619 requires recipients to adopt procedures “for affording the public appropriate access to . . . the recipient’s written policies, procedures, and guidelines, . . . and other materials that the recipient determines should be disclosed.” This provision does not address disclosure of board meeting minutes but instead requires a recipient to determine what documents should be made available to the public and how to give the public access.

Although neither Part 1607 nor Part 1619 requires recipients to make available meeting minutes, providing them to the public is a sound practice that enhances public participation in a recipient’s program, increases transparency, and helps the recipient be accountable to the community it serves. LSC encourages recipients to make available meeting minutes to the extent minutes are kept.

2. As described above, the texts of Part 1607 and 1619 do not require a recipient to make public the agenda of an upcoming board meeting. Nevertheless, good governance practices support providing a public agenda for upcoming meetings to promote informed participation by clients and other members of the community served by the recipient. Accordingly, LSC encourages recipients to make available meeting agendas in advance of public meetings.

3. As described above, Part 1607 requires a recipient to give “timely and reasonable” notice of board meetings. Although this Part does not provide specific guidance regarding what notice is required, the notice must be reasonably calculated to be available for review by the public.

Background

A member of a grantee’s governing board sought guidance regarding board meeting notice requirements and disclosure of meeting materials. The questions presented raise issues under two LSC regulations, 45 C.F.R. Parts 1607 and 1619.[fn]This advisory opinion only addresses requirements under LSC’s regulations. It does not consider whether any state laws may apply.[/fn]

I. 45 C.F.R. Part 1607: Public notice of governing body meetings

Section 1007(c) of the LSC Act requires a recipient’s governing body to meet certain composition requirements and prohibits compensation for attorneys serving on a governing body. 42 U.S.C. § 2996f(c). LSC determined, however, that “there are sound and persuasive policy reasons for going beyond the Act” and for imposing additional requirements on recipients. 41 Fed. Reg. 25899, 25899 (June 23, 1976) (preamble to Part 1607). As a result, LSC adopted, in Part 1607, requirements that a recipient’s governing body hold at least four meetings a year and that a recipient give “timely and reasonable prior public notice of all meetings[.]” 45 C.F.R. § 1607.4(a).

The current text of this regulation does not identify specific requirements necessary to provide “timely and reasonable” notice. The regulatory history and prior advisory opinions of the Office of General Counsel make clear that Part 1607 requires notice to be appropriate considering local circumstances. The original Part 1607, adopted in 1976, required “[t]imely and effective notice” to be given. 41 Fed. Reg. at 25900 (final rule). Opinions issued while the original language was in place noted that the regulation did not provide “specific guidance” regarding notice. Advisory Opinion dated Feb. 16, 1979; see also Advisory Opinion dated Dec. 22, 1992 (paid newspaper publication not required); Advisory Opinion dated Apr. 9, 1987 (“length and method [of giving notice] are not specifically articulated”); Advisory Opinion dated Feb. 16, 1979 (specific number of days prior to meeting notice published not required); Advisory Opinion 76-7 (Nov. 30, 1976) (newspaper publication not required). In an Advisory Opinion dated February 16, 1979, LSC considered whether effective notice requires publication of agenda items to be considered. Advisory Opinion dated Feb. 16, 1979. The Office of General Counsel opined that the regulation does not require publishing the agenda and noted that the “precise [notice] standards” “would vary depending on the circumstances of each local program.” Id. The opinion further stated, however, that “[a]lthough the regulation does not require that the agenda be published in advance, to the extent that it is available prior to the publication of the notice, it would be desirable to include a statement of the items to be discussed.” Id. LSC has also explained that, under Part 1607, appropriate notice should “give[] actual notice to a substantial and wide part of the community interested in the program’s activities and policies[,]” Advisory Opinion 76-7 (Nov. 30, 1976), including staff members and members of the client community, Advisory Opinion dated Feb. 16, 1979; see also id. (“To be effective, notice should appear conspicuously in the legal services program office and in those other places where legal services clients are likely to see it.”).

In 1994, LSC revised § 1607.4(a) to require “timely and reasonable” notice rather than “timely and effective” notice. 59 Fed. Reg. 65249, 65252 (Dec. 19, 1994) (preamble to Part 1607). “Effective” prior public notice “prove[d] to be a difficult concept to enforce and may be very fact-specific[,]” and – in an era that predated the public Internet – LSC did not want to encourage recipients to spend large amounts of money on advertising nor assume that notice was not “effective” “simply because few members of the public showed up at a board meeting.” Id. LSC concluded that the proper standard should require “reasonable” prior public notice, “so that recipients would be required to do only what is reasonable under the specific local circumstances.” Id.

II. 45 C.F.R. Part 1619: Disclosure of information

Unlike LSC, recipients are not subject to the Freedom of Information Act (FOIA). 41 Fed. Reg. 41724, 41724 (Sept. 23, 1976) (proposed rule); see 42 U.S.C. § 2996d(g) (applying FOIA to LSC). LSC nevertheless determined that the public has a legitimate interest in certain information, including recipients’ policies and guidelines and information about governing body members. 42 Fed. Reg. 4848, 4848 (Jan. 26, 1977) (preamble to Part 1619). Therefore, LSC promulgated Part 1619, which states, “A recipient shall adopt a procedure for affording the public appropriate access to . . . the recipient’s written policies, procedures, and guidelines, the names and addresses of the members of its governing body, and other materials that the recipient determines should be disclosed.” 45 C.F.R. § 1619.2.

The Office of General Counsel clarified what this regulation required in an Advisory Opinion dated June 21, 1989. In response to a question regarding a recipient’s staff attorneys’ right to access minutes of a board meeting, the opinion stated that Part 1619 imposes “no obligation on the part of [a recipient] to disclose its board minutes to the public.” Id. The opinion emphasized that § 1619.2 instead required a recipient to adopt procedures to provide the public access to materials and that a recipient therefore “may, but need not determine that it will, disclose board meeting minutes to the public.” Id.

The Office of General Counsel reaffirmed this interpretation in an Advisory Opinion dated September 10, 1997. A recipient asked whether it must provide copies of past board meeting minutes and “all documents to be considered at all future board meetings” to a union that represents some of a recipient’s employees. Id. The opinion again concluded that “Board minutes and documents for consideration by a recipient board are not included in this requirement, unless the requested documents are included in your program board’s adopted procedures for disclosure.” Id.

Analysis

1. Making available for public review meeting minutes of public board meetings

Neither Part 1607 nor Part 1619 requires a recipient to make governing body meeting minutes available for public review.

Neither Part 1607’s text nor its regulatory history suggest that the requirement of prior public notice of all meetings creates a separate requirement that public board meeting minutes be disclosed subsequent to such meetings.

Part 1619 also does not require disclosure of board meeting minutes, as the Office of General Counsel explained in two opinions. See Advisory Opinion dated Sept. 10, 1997; Advisory Opinion dated June 21, 1989. As Part 1619 states and the opinions demonstrate, a recipient must instead have a procedure affording the public access to “materials that the recipient determines should be disclosed.” See 45 C.F.R. § 1619.2; Advisory Opinion dated Sept. 10, 1997; Advisory Opinion dated June 21, 1989.

Nevertheless, LSC encourages disclosing board meeting minutes upon request as a matter of good board governance. Providing meeting minutes allows staff and the public to participate in and be aware of matters affecting the recipient beyond those people able to attend a meeting. Public disclosure of meeting minutes also encourages a recipient’s board to be accountable to the community it serves. Increasing public participation furthers the purpose of Part 1607: “insur[ing] that the governing body of a recipient will be well qualified to guide a recipient in its efforts to provide high-quality legal assistance to those who otherwise would be unable to obtain adequate legal counsel and to insure that the recipient is accountable to its clients.” 45 C.F.R. § 1607.1. This conclusion is supported by American Bar Association standards that encourage a legal aid provider’s governing body to “operate in a way that encourages communication with the legal and low income communities” and “invite input from communities affected by its decisions.” ABA Standards for the Provision of Civil Legal Aid 1.3, p. 33 (2007). For these reasons, LSC encourages recipients to provide the public access to existing board meeting minutes upon request.

2. Making public the agenda of an upcoming board meeting

Neither Part 1607 nor Part 1619 requires a recipient to make public the agenda of an upcoming board meeting. The Office of General Counsel previously advised that Part 1607 does not require a recipient to make public a meeting agenda. Advisory Opinion dated Feb. 16, 1979. Additionally, nothing in Part 1619, its regulatory history, or subsequent opinions can be read to require a recipient publish an agenda of an upcoming board meeting.

Nevertheless, although LSC regulations do not require provision of an agenda, doing so reflects best practices in legal services governance. Publishing board agendas would encourage attendance of members of the community at meetings and better inform them of the topics for discussion. This furthers the purpose of Part 1607 to ensure the recipient is accountable to clients. 45 C.F.R. § 1607.1. The American Bar Association standards similarly encourage legal services organizations to provide interested persons a complete agenda with “as much supportive and explanatory information as possible . . . to provide an opportunity for review and analysis of significant matters.” ABA Standards for the Provision of Civil Legal Aid 1.3, p. 34 (2007). Accordingly, LSC encourages recipients to make public agendas of upcoming board meetings. See Advisory Opinion dated Feb. 16, 1979 (“[T]o the extent that it is available prior to the publication of the notice, it would be desirable to include a statement of the items to be discussed.”).

3. Posting notice in a manner reasonably calculated to be viewed by the public

Part 1607 does not identify specific notice requirements for recipients’ board meetings, but rather requires notice to be “reasonable under the specific local circumstances.” 59 Fed. Reg. 65249, 65252 (Dec. 19, 1994). Regardless of a recipient’s local circumstances, however, notice must inform “a substantial and wide part of the community interested in the program’s activities and policies” of the upcoming meeting. Advisory Opinion 76-7 (Nov. 30, 1976). To reach this “substantial and wide part of the community[,]” as a practical matter, the notice must be reasonably available for review by the public.

Local circumstances dictate how a recipient must provide notice that is reasonably calculated to be viewed by the public. In some circumstances, posting notice on a recipient’s website may be sufficient. Considering the potential for high viewership of online materials, LSC encourages recipients to post notice of upcoming board meetings (and, as explained previously, meeting agendas) online, including on recipients’ own websites and social media platforms.

Conclusion

Parts 1607 and 1619 do not require a recipient to provide access to board meeting minutes. Part 1619 requires a recipient to determine if minutes should be disclosed and, where appropriate, develop procedures by which to disclose them. Also, Parts 1607 and 1619 do not require a recipient to make public the agenda of an upcoming board meeting. Nevertheless, good governance practices support both providing access to board meeting minutes upon request and making public the agenda of an upcoming board meeting. Finally, Part 1607 requires notice to be reasonably calculated to be viewed by the public, although specific methods of meeting this requirement depend on local circumstances. LSC encourages recipients to post materials online because of the potential for high viewership.

RONALD S. FLAGG

General Counsel and Vice President for Legal Affairs

BLAIR L. GILBERT

Graduate Fellow