The California Public Records Act is pretty straightforward as it pertains to the communication of Public Officials: “Records include all communications related to public businesses regardless of physical form or characteristics…Electronic records are included.”
But it seems as though that only applies if the Electronic records are done on a government email account, and not the personal email accounts of the public officials.
Talk about a major loophole. With this logic, a Councilmember could technically use his official City-issued email address to keep things on the level, but if they wanted to be sneaky, they could use their personal email addresses to get the Real Business done. And the public would do nothing about it.
But what about if a City issues or offers an official City email address and the Councilmembers decide to use and advertise their own personal email addresses on their City’s website? Then are all bets off?
In 2007, a newspaper in Tracy, Calif., requested communication between a Tracy Councilmember and a laboratory, and while the City provided some of the emails, it did not produce the emails coming from her personal email account. The paper sued to get those personal emails and lost, with the Superior Court saying, “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 Public Records Act” (Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008))
But a look to the Tracy website only offers us a generic council@ci.tracy.ca.us email address to contact the entire Mayor and City Council, and not individual email addresses, City-issueded nor personal. Apparently, if you sent an email to a specific councilmember using that general email address, a Council Executive Secretary would then distribute the email to the appropriate recipient on their personal email addresses.
In Newport Beach, while a City issued email address is offered, six of the seven Councilmembers declined them, instead listing their personal email addresses on the City website.
Recently, a California Public Records Act request was made in Newport Beach by local activist Bob Rush for correspondence between Councilmembers and the Newport Beach Chamber of Commerce’s Political Action Committee. Only two of the seven Councilmembers provided emails, while the other five declined, primarily because, “(the emails) are not retained by the public agency in the ordinary course of business.”
City Attorney Aaron Harp indicated that the request was made to all seven Councilmembers for their personal emails, but the fact that only two responded means that perhaps the other five had already deleted those emails. And while City Policy regarding emails on City computers dictates one thing, the City has no Council policy regarding City business conducted on personal email addresses.
Although, after I contacted the City for comment, numerous further emails were miraculously discovered by the City Attorney’s office for public release…
In that particular case, Peter Scheer of the First Amendment Coalition stated that he didn’t see how the City of Newport Beach could possibly avoid releasing all of the emails coming from the Councilmember’s personal email addresses if they related to City business, but he finished by saying that the California Public Records Act wasn’t exactly clear on how to deal with personal email addresses listed on Government websites and that the personal email disclosures hadn’t really been tested in the Courts.
But with the overwhelming public demand for total transparency, perhaps Newport Beach’s Councilmembers should follow the example of San Diego Councilman Carl DeMaio, who recently proposed a city law which mandated that city business discussed on non-city emails be subject to the public-records law. (Unsurprisingly, the proposal did meet with resistance from fellow politicians.)
Perhaps now, in this time of email-dominated communication, our Councilmembers should be more than happy to voluntarily give up all City business conducted on their personal email addresses, instead of hiding behind a soon-to-be closed loophole.
