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City Fights to Keep Lid on Officials’ Texts & Emails

SAN JOSE, Calif. (CN) - The San Jose City Council voted unanimously to appeal a finding that opens the emails and text messages of officials to California's public records law.

Activist Ted Smith sued San Jose, its council members and mayor Chuck Reed - who ran as a champion for open government - in 2009 after the city refused Smith's request for emails, texts and voice messages sent or received by officials regarding a downtown redevelopment project. The city had claimed it lacked authority to access records from personal devices or private accounts.

Last month, Santa Clara County Superior Court Judge James Kleinberg granted Smith summary judgment against San Jose, finding that the California Public Records Act (PRA) extends to any official communication - regardless of where the record originated or how it is stored.

"Defendants would have records that otherwise fall within the PRA's definition of 'public record' to be shielded from disclosure by their location in private accounts of city officials," Kleinberg wrote. "As plaintiff argues, under defendants' interpretation of the PRA, a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

Kleinberg also rebuffed San Jose's protest that a broader interpretation of the PRA places an undue burden on governments, which will have to expand record searches into homes and personal devices of employees and officials. He noted that San Jose officials adopted Mayor Reed's recommendation in 2010 for a Sunshine Reform Task Force to make digital communications about city business available to the public.

"Defendants have made no showing regarding the burden of collecting records from the private accounts of the individuals listed in plaintiff's request," Kleinberg wrote.

The San Jose City Council made the Sunshine reforms permanent in 2012. But Mayor Reed says that Kleinberg's order could potentially involve the arduous task of applying disclosure rules to the city's 5,500 employees.

"It's about the scope of it," Reed told the San Jose Mercury News. "I think it's too broad. It sets up practical problems."

The city's appeal directly contradicts its own policies of openness in the digital age.

"A council member is not a governmental entity," the San Jose's writ of mandate to the Sixth Appellate District states. "A council member is an individual public official with no authority to act alone on behalf of the city. Consequently, emails and documents found on a council member's personal computer or personal electronic device do not fall within the definition of a public record because any record personally and individually created by a council member is not a documentation of a transaction or activity of the city as a local agency."

Open-government advocates who lauded Kleinberg's decision last month rejoiced in the news of San Jose's appeal.

"I'm glad the city is appealing the ruling, since it is likely to be affirmed on appeal," First Amendment Coalition executive director Peter Scheer told the San Jose Mercury News. "That will force all California cities and counties to treat emails about government business as public records, regardless of the status or ownership of the email accounts or devices. What matters is the substance of the message - is it about government business or is it purely personal - not the technology."

Scheer acknowledged that privacy concerns may be legitimate where public business is conducted on private devices.

He recommended that public employees start copying messages about public business to their official emails to facilitate search requests.

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