June 7, 2007

power of government officials to avoid disclosure of their emails

This is an issue with cities like Lakewood who for some unexplained reason allow city council members to use their own personal email on official city business when there is no technological reason for doing so. Also unlike most cities Lakewood has refused to post city emails of city councilmembers or top city staff: The effect is to all but eliminate traceable, dated written contact with the city or to discourage effective communication altogether while giving the impression that the city is "e" enabled. Quite frankly LAAG does not trust any so called tracking program set up by the city. (read about city touting is Jan 2007 "system") Whose to say these requests and all the follow up won't get "lost" or "accidentally deleted" after there is a public records act request for them?

Read on....

Tuesday, May 29, 2007

Tracy case tests the power of government officials to avoid disclosure of their emails on public business. Fed up Tracy residents should refuse to pay the officials’ legal fees.

By Peter Scheer

Those enterprising members of the Tracy City Council have come up with a strategy to hide from public view all their written communications about government business. With a bit of legal legerdemain, they claim to be able to evade state open-government laws, transforming their communications from public records into private correspondence.

How can they do that? Simple, according to their legal pleadings in a lawsuit in San Joaquin County Superior Court: When sending or receiving email, as long as the council members use their own computer (rather than a city-owned computer), and as long as they use their own email account (rather than an account set up by the city), their messages are not subject to the Public Records Act, no matter what the emails say or to whom they’re sent.

The Public Records Act defines a public record as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency . . .” (emphasis added.) Email that is not composed on a Tracy computer or transmitted via a Tracy email account or server is not “prepared, owned, used or retained” by the city of Tracy, argue the council members.

This novel theory is advanced in a case involving Lawrence Livermore Laboratory, the subject of considerable public interest and media scrutiny in San Joaquin County. The Tracy Press requested, under the Public Records Act, copies of emails between city council members and the lab concerning a proposal to build a bio-agent weapons research facility. The newspaper filed suit after its request was denied on grounds the emails were not public records. (Full disclosure: CFAC filed a friend-of-the-court brief in this case in support of Tracy Press.)

You don’t have to be a First Amendment expert to see that Tracy’s theory, if accepted by the courts, would convert California’s Public Records Act into its opposite, an Official Secrecy Act. Elected officials and public employees would use official email accounts for proclamations, resolutions, press releases and other official drivel intended for public consumption, while switching to their personal yahoo accounts, insulated from public attention, for everything else--which is to say, all communications that are remotely substantive, important, sensitive, controversial or otherwise of interest.

Fortunately, the City Council’s creative interpretation of the Public Records Act is dead wrong.

Public officials, whether employees or elected officers, are agents of their respective governmental entities when they engage in public business. A city council member in Tracy, when composing and sending an email about Lawrence Livermore Lab--indisputably the “public’s business” for someone in that position--does so as an agent of Tracy. The linkage is not optional; it is inescapable given the subject of the email.

As agent of the city of Tracy, the council member’s composing and sending the email is imputed to Tracy, even if the council member believes or wishes otherwise. Tracy, in other words, is deemed to have “prepared, owned . . . [and] used” the email to the same extent as the council member--which means the email is a public record belonging to Tracy.

But even if the email could be withheld lawfully under the Public Records Act, it has to be turned over under Article I, § 3(b) of the California Constitution. Article I, § 3(b), better known as Proposition 59 (enacted in 2004), creates a new constitutional right to the “writings of public officials.” The right is independent of the Public Records Act or any other law. The right would exist even if the Legislature, in a paroxysm of secrecy, repealed all open-government statutes.

The analysis under Article I, § 3(b) is simple. Are the contested emails “writings”? The answer is clearly yes. Are council members “public officials”? Yes again. The emails therefore must be disclosed. How they were created and transmitted over the internet--the ownership of the computer and email account--are appropriately irrelevant under Article I, § 3(b).

The Tracy City Council has been clever in its attempt to immunize email from open-government mandates. But one wonders whether the residents of Tracy will share their representatives’ enthusiasm for cutting off public access to all the council members’ most important written communications. If not, here’s a suggestion for the folks in Tracy: Make the council members pay their own legal fees in this case. That will give them pause the next time they try to make themselves less accountable to voters by curtailing access to information voters have every right to see.

Peter Scheer, a lawyer and journalist, is executive director of CFAC

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