City avoiding disclosure of personal email

Answer

Indeed, the issue of public officials using private email accounts and mobile phones to conduct the public’s business seems to be becoming a pervasive problem.

It would seem that if a government official uses a personal email account to send messages relating to the conduct of the public’s business, a strong argument could be made that those messages should be public. Otherwise, important government business could be conducted in secret. How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.

In January 2007, a newspaper in Tracy requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain emails, it did not produce emails between a city councilwoman from her personal email account and the lab. After the newspaper sued for the release of the emails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

Unfortunately, the Court of Appeal did not reach the substantive issue of whether the councilwoman’s emails from her private account were subject to the PRA, but instead only noted the trial court’s finding on this front regarding her non-status as a “local agency,” and then disposed of the case on procedural grounds.

The Court of Appeal did say that “[i]f [the councilwoman] had emailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal emails sent without using the City’s resources but discussing the City’s business are ‘public records.'” Id. at 1300.

Note, however, that in the context of legislators, the Court of Appeal in Rogers v. Superior Court, 19 Cal. App. 4th 469, 479-81 (1993), held that records of telephone calls made by city council members from city-owned cell phones and home offices were exempt from disclosure pursuant to the deliberative process privilege, which may allow nondisclosure of records relating the deliberations of agency officials.

This particular privilege is found in the Act’s “catch all” exemption, Gov’t Code § 6255. In coming to this conclusion, the court in Rogers stated:

“Disclosing the telephone numbers of persons with whom a city council member has spoken discloses the identity of such persons and is ‘the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the city council member. … [R]outline public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.”

If the city has advertised council members’ personal email addresses on its website, and has invited the public to communicate with council members through those email addresses, it would seem those email accounts are the council members’ de facto accounts for city business, and as such there would seem to be a strong argument that those records relating to the public’s business are subject to disclosure under the Public Records Act.

The danger of protecting such records related to personal cell phones and email accounts from disclosure is that it could create a mechanism to keep important government activity secret.

But the question is still a live one in California and in many other states. The release earlier this year of Sarah Palin’s emails from her personal account supports the notion that government officials cannot escape public records laws by conducting business through private modes of communication.

The issue has certainly caught the attention for various media organizations around the country: http://www.signonsandiego.com/news/2011/jun/17/gray-area-public-officials-on-private-emails/ (article from San Diego Union-Tribune).

If you haven’t done so already, you might want to write to submit a written request for the records to the city, and specify that you seek emails sent from council members’ email accounts, as advertised on the city’s website, that relate to official business.

As it sounds like the city has already done, it might push back and claim the records are not subject to disclosure, to which you might respond with the arguments above in favor of disclosure. You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition website at http://firstamendmentcoalition.org/category/resources/access-to-records/.

Finally, as a former reporter, the fact that council members are using personal emails for official communications may be a story worthy of coverage by local media. I have heard from another FAC inquirer that the article from the Union-Tribune in San Diego prompted officials there to instruct elected officials there that only the county’s email system should be used when discussing public business.

It may be worth contacting the local media and pitching a story about this problem. (Coincidentally, I was a newspapers reporter for the Morro Bay Sun-Bulletin, and then the Tribune, from 1999-2002; I believe I interviewed you on at least one occasion regarding the Los Osos sewer project.)

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.