San Jose is proposing a disclosure policy to make sure its public officials do not use such devices as iPhones and BlackBerrys to skirt open government laws. -DB
January 21, 2010
By John Woolfolk
With iPhones and BlackBerrys becoming must-have accessories, San Jose is poised to approve a groundbreaking disclosure policy that would ensure elected leaders don’t use those personal devices to skirt public-records laws.
Most cities have taken a position that e-mails and other electronic messages are only subject to public disclosure if they’re on the city’s official network. Watchdog groups around the country say that leaves a gaping loophole for elected officials to secretly discuss public business through private e-mail, cell phones and other devices.
On Wednesday — five months after the Mercury News first raised the issue — a San Jose council committee voted to make messages about public matters that council members send or receive on such personal devices subject to disclosure, just like other official records.
Peter Scheer, executive director of the First Amendment Coalition, called San Jose’s proposed policy “a big step forward.”
“I don’t think anybody has come this far yet,” Scheer said. “The city has recognized that if you don’t take this step, the public’s right to electronic records is not really very meaningful, because it’s so easy to transfer important communications from official e-mail to a private e-mail account.”
The council’s Rules and Open Government Committee, chaired by Mayor Chuck Reed, voted unanimously for the proposed policy. Also approved was a proposal requiring council members to disclose messages from lobbyists and other interested parties that they receive during council meetings. The recommendations go to the full City Council next month.
But if the city receives a records request, they must provide any relevant city-related messages stored in their personal devices. The only exceptions would be communications that are exempted from the California Public Records Act, such as those dealing with sensitive legal matters.
The idea for such a policy emerged last year when the Mercury News requested messages sent or received by council members during meetings in a three-month period. City lawyers refused to include any sent to the officials’ personal phones and e-mail accounts, citing privacy and practicality.
But a couple of council members voluntarily provided their private cell phone logs and text messages. Among them was a note from the phone of Phaedra Ellis-Lamkins, then-leader of the South Bay Labor Council, to Councilman Sam Liccardo. Sent during a council meeting on a controversial plan to give millions of city dollars to a downtown retail project, the message appeared to offer directions on how to vote.
Council members have said such communiqués regularly arrive from interested advocates — even at the moment votes are being cast.
The public records act generally requires government agencies to disclose documents and electronic communications concerning public business. But the law is unclear about how to treat records about public matters that aren’t stored by the government.
“Just because it’s not retained by the city,” Reed said Wednesday, “is not a reason for it not to be considered a public record.”
Copyright 2010 San Jose Mercury News