When San Jose city officials use e-mail to conduct official business, open government may suffer. To track how outside interests can influence decisions, the public is now asking government officials to reveal the content of messages in private accounts. -DB

San Jose Mercury News
August 16, 2009
By Denis C. Theriault and John Woolfolk

The marathon San Jose City Council meeting was dragging into its fourth hour, and a text message buzzed into Councilman Sam Liccardo’s phone. It came from a top labor official closely following the discussion about a controversial downtown land deal. And it appeared to offer directions on how to vote.

Liccardo recalls being puzzled by the February missive, saying it seemed “intended for someone else.” But while council members say such communiqués regularly arrive from many interested advocates — even at the moment votes are being cast — the public may never know how strongly they influence city business.

When the Mercury News asked for all messages sent or received by council members during a three-month window of meetings, city lawyers refused to include any sent through personal phones and e-mail accounts, citing concerns of privacy and practicality. In essence, they said, public officials doing the public’s business is not public record — if they’re doing it on a private account.

The issue is only one instance in which San Jose’s actions fall short of its leaders’ promises of open-government reform. From the city manager to the police chief to the city attorney, top staffers have fought efforts to make public information that’s widely available in other cities.

And critics lay much of the blame on the man who took office nearly three years ago promising things would be different: Mayor Chuck Reed.

“There’s no question that the mayor is a less-strong advocate for open government than when he was running for mayor,” said Bob Brownstein, policy director for labor think-tank Working Partnerships and a member of the city’s Sunshine Reform Task Force. The citizen’s committee was appointed as Reed took office to draft new policies for government openness.

Reed emphatically disputes talk that he’s pulled back on his commitment.

“In almost every case, we’ve extended the public’s opportunity to see records,” he said. “In some cases, we are not doing it in the way some members of the task force want us to do it. But we’re still going beyond what we’re required to do.”

Reed added that he believes officials’ personal e-mails and texts about city business should be public. Though he said a week ago he did not intend to push the issue immediately, his spokeswoman said Friday he will make such a recommendation Tuesday and will turn over his own private messages on request.

Yet even as the City Council prepares Tuesday to take up the latest round of so-called “sunshine” proposals, some task force members and community leaders are complaining that Reed and other council members have already signaled their unwillingness to make a host of records — from police reports to memorandums used to craft city development deals — more available to the public.

Progress toward openness

To be sure, since Reed took office in early 2007, San Jose has made strides toward open-government reform.

His predecessor, Ron Gonzales, was blasted for a penchant for closed dealings that led to, among other controversies, a privately negotiated auto-race subsidy that went to the council only a day before a scheduled vote. Today, such deals must be announced at least 28 days before a vote, with detailed staff reports produced two weeks in advance.

Council members now post their official meeting calendars online, updating them weekly. And lobbyists must register with the city and report their meetings and fundraising activities every three months.

But although some sunshine task force members, including chairman Ed Rast, echo Reed’s satisfaction with the city’s progress, others see Tuesday’s discussion — on proposals crafted in part by Mercury News Managing Editor Bert Robinson — as one of missed opportunities.

They note that the council’s agenda-setting Rules Committee, which Reed chairs, has balked at endorsing recommendations requiring the automatic release of documents used in preparing city proposals, even after those proposals are made public. The same goes for the detailed numbers used to craft the city’s budget. Instead, city staffers would be allowed to use a “balancing test” before releasing any information, meaning they would weigh the public’s right to know against the city’s interest in keeping the material private.

And a move to require automatic release of police records has met such fierce resistance from law enforcement that the rules committee has indicated the records will be kept closed, although its recommendation is not final.

In another recent instance, police refused to produce the 911 recording of a May incident in which officers fatally shot a man, citing an ongoing investigation — even though police departments in Silicon Valley and nationwide routinely release emergency recordings.

E-mails, texts a new issue

Meanwhile, access to private e-mail and text messages is so fresh a “sunshine” concern that it wasn’t even considered by the task force. But nationally, some agencies have barred officials from conducting public business on private networks, and some have banned the use of private devices during meetings.

“Government officials are using private e-mail accounts, Gmail, Yahoo and so on, and there’s a very simple reason they are doing that,” said Peter Scheer, executive director of the California First Amendment Coalition. “They are doing that precisely so they can evade and avoid the disclosure obligations of the Public Records Act.”

Top officials recently ensnared in the debate include former Detroit Mayor Kwame Kilpatrick, who was charged with perjury after text messages from his city pager revealed an affair with an aide, and former Alaska Gov. Sarah Palin, who was slammed for routinely conducting state business through her private e-mail account in what critics said was a bid to avoid disclosure.
Here in the Bay Area, cities including Mountain View and San Francisco say they encourage officials to provide requested city records, even if they’re tied to private accounts.

But City Attorney Rick Doyle said that unless the City Council, the Legislature or a court compels him to do otherwise, San Jose will not consider e-mails or text messages stored outside city servers as official public records — regardless of whether the messages pertain to city business or even whether the phone or PDA used was partly paid for via a city subsidy.

The reason is twofold, Doyle said: Privacy concerns are legion, and many service providers do not store text messages for more than a few days.

Several council members, asked about their own habits, said text messaging has become an indispensable tool for keeping in touch with aides, city staff and others. And while they agreed in principle that city business ought to be made public, no matter the medium, only a pair of council members provided private records to reporters.

Councilman Pete Constant gave the Mercury News copies of his June and July cell phone bills. The text logs show Constant actually does most of his texting during council meetings, but overwhelmingly to his wife and his chief of staff.

Constant did not provide the messages themselves; he and most council members said they generally don’t save their text messages. Council members also said they worry about releasing material in which city messages sit side by side with dispatches about family issues.

Even Reed, who said he agrees in principle that “if a record is created about city business it ought to be a public record,” acknowledged there are technical hurdles.

Personal information, however, is routinely redacted when any public records are released, and council members would be able to sift through their own private messages before handing them over.

Only Liccardo provided any text messages as part of the Mercury News’ records request — but just two, because he said they were the only ones he had saved and sent to his private e-mail account.

The messages to Liccardo were sent from the phone of Phaedra Ellis-Lamkins, then-leader of the South Bay Labor Council, which was concerned about a proposal to give millions of city redevelopment dollars to former Mayor Tom McEnery. Now head of the Oakland-based environmental policy group Green for All, Ellis-Lamkins declined to comment.

But Liccardo, who has clashed with the city’s labor leaders, said he felt strongly about disclosing the messages.

“If they’re messages that are received while we are engaged in voting, it seems to me it’s awfully important for the public to know who’s feeding us information while we’re sitting there on the dais,” Liccardo said. “We have open meetings for a reason.”

Copyright 2009 San Jose Mercury News