Some public employees and elected officials might have been busy destroying their personal cell phones, tablets and computers this weekend after the California Supreme Court agreed to review if communications on privately owned electronic devices regarding a public matter are public records and must be open for public inspection.
Environmental activist Ted Smith sought access to messages sent on private devices through private accounts of the San Jose Mayor and City Council members regarding land use in the city. San Jose refused to comply and Mr. Smith filed a lawsuit under California’s Public Records Act (Gov. Code 6250-6270).
A Superior Court trial judge ordered the City of San Jose to turn over the communications. But the city appealed, and in March an Appellate Court vacated Smith’s order granting summary judgment and then granted summary judgment to the city that electronic communications sent and received by public officials on their own devices are not public records regardless of the topic.
By granting a “real party in interest” in Ted Smith’s request for rehearing of his open-records claim, the six-judge panel of the Supreme Court of California are getting involved in the raging debate regarding access to a whole level of extra-legal lobbying and horse trading that takes place privately–despite California’s Brown Act that requires public hearings by city councils, boards of supervisors, and regional government boards, local government agencies created by state or federal law regarding legislative and rule making activities.
According to the Associated Press, “26 states view the use of private emails for government business as public records, California and the rest have no clear rules or prevailing case law–a source for continuing turmoil in state courts, according to the Reporters Committee for the Freedom of the Press.”
The City of San Jose is backed by the League of California Cities, representing the states 456 incorporated communities. The League argues that an adverse ruling in favor of Mr. Smith would require California’s state and local government to track millions of employees’ and elected official’s multi-millions of electronic devices to be capable of complying with expanded private records requests.
Media corporations and free speech advocates from both the Left and the Right have lined up with the environmentalist’s lawsuit in seeking the records access precedent. They argue that exempting emails sent privately about government business runs contrary to a slew of laws that followed passage of California’s pioneering Open Records Act in 1968. The advocates argue that policies and procedures can be developed to safeguard officials from embarrassing disclosures of their private lives.
Last year, Governor Jerry Brown and the Democrat controlled State Legislature tried to limit severely the public’s right to know what their government is up to by pulling $20 million of state funding for local government agencies to respond to requests made under the Public Records Act, originally signed by Governor Ronald Reagan.
A strange bedfellows coalition of progressive environmentalists, Tea Party conservatives and corporate media interests lit up social media in opposition. The Governor and Legislature quickly capitulated and reinserted the public records request funding.
California clearly needs more public disclosure after a string of scandals involving elected legislators. One state senator was charged with conspiring to traffic in arms from the Philippines, and taking bribes from undercover F.B.I. agents including one who posed as a marijuana dealer. Another was accused of taking bribes from federal agents impersonating Hollywood film executives. And a third was convicted of perjury and voter fraud after lying about where he lived when he ran for office.
With Democrats dominating both houses of the Legislature and all elected constitutional officers in California, Mr. Smith’s lawsuit represents a huge threat to government business as usual. Under the California Supreme Court rules, it will take about a year for both parties and their supporters to present their briefs and conduct any oral arguments. But if Mr. Smith wins, Californians may learn allot more about the private activities that influence government.
The lawsuit is: Smith v. City of San Jose (March 19, 2013, No. 1-09-CV-150427).
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