FAC v. Auburn City Council

July 24, 2012—The First Amendment Coalition is pleased to announce a landmark settlement in a case involving public access to government email messages.

The agreement with the city of Auburn, California requires the city to save emails for at least two years–replacing a prior policy of deleting most emails after 30 days. The agreement, approved by the city today, also assures public access to emails about government business even when officials send or receive them using a private email account.

“This settlement sets a new benchmark for transparency in government communications,” said Karl Olson, lawyer for FAC and co-plaintiff Victoria Connolly, a community activist in Auburn. “While not perfect, the procedures agreed to by Auburn will show cities, school boards and other agencies how they can increase citizens’ access to information without adding to operating costs.”

Under the agreement, ending a lawsuit filed by FAC and Connolly in May, Auburn pledges to stop its practice of deleting most city emails. Currently, Auburn preserves only a handful of emails selected by employees, while deleting all others after 30 days. Similar policies have been adopted by most governments and agencies in California, although some wait longer–60 days or 90 days typically–before deleting emails systematically.

Auburn pledges to adopt policies providing “that all email sent or received by the city’s email server will be preserved for two years and made available for public inspection on the same terms as other city records,” according to the agreement.

“As most government records became digital, public officials all over the state have fallen in love with their computer’s ‘delete’ key,” said Peter Scheer, executive director of FAC. “This agreement establishes the principle that government emails about government business are public records and have to be treated as such–meaning they all have to be retained and made available for inspection and copying,” he said.

Equally important, the city agreed to change its practices concerning Auburn officials’ use of their own private email accounts for communications about city business. Under the agreement, these are to be forwarded or copied to an address on the city’s email server, from which copies can be made available to citizens in response to public record requests.

The new policy for private email accounts will have an exception for email communications with constituents–defined as Auburn residents, business owners and property owners–sent to or from City Council members, the city Clerk and city Treasurer. For reasons of privacy, these emails will not have to be saved or copied to the city server.

However, the public, for the first time, will have access to emails that have been sent, using private email accounts, between and among City Council members and between Council members and city staff.

“Government officials in recent years have come to view private email accounts as a way to completely bypass open records laws, not just in Auburn but across the state” said co-plaintiff Connolly. “Auburn, in this settlement, is agreeing to close substantially this huge loophole in the handling of public records,” she said.

The two email issues addressed by the Auburn settlement–retention of emails and government officials’ use of private email accounts–are flash points for open-government advocates and government lawyers in cities and agencies across the state. However, neither issue has been addressed on the merits by an appellate court in California.

While a settlement does not create a legally-binding precedent for other cities, FAC plans to use the agreement with Auburn as a model that other governments and agencies should adopt. “Other cities and counties, if they are serious about providing transparency in government, will follow Auburn’s example, said Scheer. “It costs them nothing, while simplifying the management of emails and improving compliance with open-record laws,” he said.

The Auburn City Council members signed off on the settlement on Tuesday, following a meeting Monday night to adopt city policies to implement the settlement. –PS

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For more information, contact:

Peter Scheer, FAC
pscheer@firstamendmentcoalition.org
415.886.7081
firstamendmentcoalition.org

Karl Olson
Ram, Olson, Cereghino & Kopczynski
kolson@rocklawcal.com
415.433.4949

Victoria Connolly
vconnol@prodigy.net