Once private communications will now be available for the public to scrutinize (Photo Credit: Alex Ragone)
All eyes are on you, the city of San Jose, what’s your next move?
That’s what many California local governments would like answered after a Santa Clara County judge recently ordered private text messages, emails and other electronic communications sent and received by San Jose city officials, on their personal accounts and personal devices, be made public record.
“My initial, gut reaction to the ruling was yahoo!,” said Peter Scheer, Executive Director of the First Amendment Coalition. “It is a very well thought out decision and it is absolutely correct on the law. The status of government should not depend at all on the technicality or fortuity of which email server happens to be used in the communication that takes place.”
San Jose activist Ted Smith sued the city in 2009 after he said requests for the mayor and other city officials to turn over emails, texts and other messages, about city business, sent to and from personal devices, were refused.
Smith believed the city’s refusal was a big violation of California’s Public Records Act which requires communication of elected officials and other public figures on public issues be turned over upon request.
But the law was created before many of the technological luxuries we enjoy today like email or smartphones. “This court decision doesn’t affect the messages that they have that are not about government business. It’s a decision about email communications, text communication, that have substance concerns that involve local government business,” said Scheer.
Subsequent to the case filing, in 2010, San Jose adopted a policy. It states “if there is any information or messaging related to city matters on their personal devices, that those are subject to disclosure,” said city attorney Richard Doyle. “That includes the mayor, the city council and their staff.”
The recent court ruling raises some red flags.
“The court ruling is too broad. The concern is the decision applies to all 5000 city employees. When you’re talking about maintenance workers and administrative assistants and probably the bulk of the city employees, is like any organization, they don’t represent the city in terms of the decision making. They’re not the board of directors, they’re not the city council,” said Doyle.
So where do we draw the line between government officials’ public and private lives? Personal messages will more often than not, may be intermingled with official city business.
“The answer is two-fold,” said Scheer. “Number one, the selection should be made by the government official, the owner of the account, who makes the determination of what’s private and public. Secondly, smart, local government will do what a few other towns have done, like the city of Auburn. They set up a system that my organization helped, in which they adopted a policy that said, it’s okay to use your home account, go ahead, but policy says you have to send a copy, or cc it, to your government email account. Then when a public records request come in, they won’t have to go to their own computers and do searches because everything will already be in that database.”
No matter how you look at it, this ruling could have significant implications across the state.
“That’s correct. We’ve heard from cities like San Diego and Eureka. Everyone is concerned about this and they’re watching this,” said Doyle.
“Other cities, counties and school systems in the state should look at this and consider their options and respond as though this decision was binding to them because it may not be their government agency now, but might pertain to them soon,” said Scheer.
The San Jose city council has to decide whether they will appeal the lower courts decision to the Sixth District.
“The concern has been that this is a loophole if people want to avoid or evade the public records, etc. they just do it on their own devices and communicate off line, so to speak. I can see, and I think our council has recognized that as respect to them and their aides, but how far down the pecking order do you go?” said Doyle.
Nonetheless, Scheer believes this is a major step in the right direction towards better government.
“Local government should be open and public and transparent and if it is we end up with better government, more accountable and more responsive to the people and more honest government that creates better policy choices,” said Scheer.