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Right to know: State court says officials' private emails can be public records

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In a world where texts and emails can be haphazardly sent, received, and stored across a litany of devices and accounts, the California Supreme Court has a firm new message for government officials: When it comes to the public’s business, all communications—regardless of the device, medium, or account they originate from—are public records subject to disclosure under the Public Records Act.

In a landmark ruling on March 2, the California Supreme Court sided with San Jose resident Ted Smith, who filed a lawsuit against the city of San Jose in 2009 when the city refused to release emails and text messages between government officials on private accounts.

The city argued that officials’ private accounts fell outside the purview of the Public Records Act and that searching for the requested records would be a violation of privacy. Smith retorted that since his request targeted communications about a major development project in downtown San Jose, any related email or text—whether originating from a public or private device—was a public record.

The state Supreme Court unanimously ruled with Smith, overturning an appeals court decision siding with the city, and embraced a broader interpretation of the Public Records Act, which was enacted in 1968 and added to the state Constitution in 2004.

“If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny,” the court wrote.

By shielding government officials’ private accounts from public view regardless of the content, the court argued, “such an expedient would gut the public’s presumptive right of access.”

The ruling has implications for government agencies in San Luis Obispo County, as it will immediately change the way staff handles Public Records Act requests going forward, local city and county officials told New Times.

SLO County Counsel Rita Neal, SLO City Attorney Christine Dietrick, and Paso Robles City Attorney Iris Yang said that their respective agencies did not consider private emails as part of previous public records requests. In light of the ruling, they will add an additional step to processing requests for specific communications: to instruct officials to search through their private messaging accounts and hand over all relevant documents.

That step comes at the direct advice of the court, which offered guidance in the ruling for agencies to comply without violating officials’ privacy. The court said it expects “reasonable efforts” from agencies to find the documents, short of conducting “extraordinarily extensive or intrusive searches.” Basically, the burden is on an individual official to determine if a record of private communication is both the public’s business and relevant to the records request at hand.

Neal said it’s not much different from how her office already relies on department heads to search for emails on the county’s server.

“The burden has generally always been on the employee,” Neal said. “I trust they’re doing that search.”

Dietrick said she was “not wildly shocked” at the court decision and called it “helpful.” She noted that setting guidelines for officials to understand where to draw the line between their personal business and the city’s business could prove tedious.

“I guess the more complicated question is, what is a public record for that purpose?” Dietrick said.

All three attorneys said they already advise their employees not to use their personal devices to communicate about city business. Neal indicated her office would consider bringing a policy in front of the Board of Supervisors that would aim to discourage the use of private accounts or make sure private communications were getting logged into the public server.

“The question becomes, what policies do you put in place to ensure the documents are preserved?” Neal said.

The court’s decision is a victory for reporters and open government advocates like Julie Tacker, a Los Osos resident and former board member for the Los Osos CSD, who frequently files public records requests with local agencies as part of her own investigations.

Tacker said she was in “complete agreement” with the decision and noted that her many prior efforts to obtain officials’ private emails and text messages have been stonewalled by local agencies.

“It’s a win for the public, and officials are forced to be more transparent,” Tacker said of the ruling.

Nikki Moore, an attorney with the California Newspaper Publishers Association, which served as an amicus party to Smith in the lawsuit against San Jose, praised the ruling as “clearly right” but noted the challenges implicit in leaving agencies and individual officials to discern what communications to share.

“It’s always our struggle; the agency has all the cards,” Moore said, but added that if an official willingly withheld a damning email, for example, any recipient of that email could come forward with proof of it and cause embarrassment.

The Supreme Court decision hits as four public officials in SLO County are embroiled in controversies about allegedly engaging in clandestine communications that would constitute Brown Act violations. Three SLO County supervisors were recently accused of having “serial meetings”—indirect meetings through a third party—to formulate a majority vote on groundwater policy, while Arroyo Grande Mayor Jim Hill is being investigated by the city and the South County Sanitation District (for which Hill is a board member) for allegedly sharing confidential information with unauthorized recipients.

Neal indicated that local media outlets (including New Times) have submitted requests since the ruling asking for communication among officials—a records search that will now broaden to include private accounts.

You can reach Staff Writer Peter Johnson at pjohnson@newtimesslo.com.

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