1st Amendment News

FAC lawsuit leads to model CPRA policy for dot-gov email

Auburn and San Jose are the first cities in California to adopt policies acknowledging the public’s right of access to city officials’ emails about government business–regardless of the kind of email accounts used to send or receive those emails.

Emails have long been covered by the California’s Public Records Act (PRA), which treats paper records the same as digital records. But public officials wishing to avoid the PRA–often the same officials who most loudly proclaim their support for government transparency–have been avoiding prying voters by using a private email account instead of their official dot-gov account.

San Jose and Auburn have adopted policies that will block–at least partly–this end-run around the PRA. San Jose’s policy says that public records include messages sent or received over “personal devices not owned by the City or connected to a city computer network.”

The Auburn policy is more specific. It requires all emails about city business to be saved on a city database for at least two years. And council members’ emails on their private email accounts must be forwarded on a regular basis to the city database.

Auburn’s new policy is the result of a settlement of a PRA suit filed by FAC in early 2012. Prior to the suit, Auburn, like many California local governments, viewed emails as a lesser species of public records, subject to being erased or destroyed virtually any time. Auburn’s former “retention” policy OK’d deletion after only 30 days. Under the settlement, emails will be saved as long as paper-and-ink records

Auburn’s requirement that city emails, regardless of account type, be forwarded and saved in a city database solves a problem that cities face when presented with a PRA request for official emails on private email accounts: How to obtain copies of emails residing in accounts to which the city has no access separate from the employee-owner of the account? Searching the gmail accounts of all council members is awkward, to say the least.

Another advantage of Auburn’s policy is that, by creating a single and comprehensive repository of government emails, accessing these documents is hugely simplified. This benefits city staff, who can use the database for internal research. And the single archive, searchable with key words, improves compliance with the PRA while reducing the cost of responding to PRA requests

That said, the Auburn policy also has its limitations. For example, council members’ emails from constituents are exempted on grounds that constituents’ communications are protected by the first amendment’s right to “petition” government. Although FAC agrees that constituents’ communications implicate the right to petition, that right has never been seen as requiring confidentiality in communications with government. Auburn’s email policy would be improved by either removing this exemption or, as a compromise, requiring disclosure of council members’ communications with persons or firms having business before the City Council.

The San Jose and Auburn policies should serve as models for the rest of the state. Local governments that want to level with their citizens will follow their example. Local governments that persist in playing hide-the-ball with citizens will pay for their recalcitrance at election time. –Peter Scheer

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