For years government officials in California have known that their emails about official business are subject to disclosure as public records. Although mayors, city managers, supervisors and superintendents may not like this, the applicability of the public records law to email messages is settled.
You will not be shocked to learn, however, that many government officials try to avoid disclosure by using their personal email account to send and receive emails about government business. Whether the use of a gmail account instead of one's official dot-gov account is sufficient to transform otherwise public records -- records that belong to the people -- into the personal property of government officials, will be decided soon by the Third District Court of Appeal.
The case is Smith v. City of San Jose, involving emails about city business that were held by the mayor of San Jose in his personal email account. (Disclosure: My organization, the First Amendment Coalition, has filed an amicus brief opposing San Jose in this matter). The Superior Court ruled in favor of disclosure, reasoning that a record's status as a public record depends on its content only, and that the city possessed the records through the mayor as the city's agent.
The Superior Court decision is clearly correct. The mayor's possession of the contested emails is imputed to the city and establishes legal possession by the city in the same way that the city is responsible generally for actions by its officials within the scope of their duties. An analogy will prove the point: Suppose the mayor, after hours, takes delivery of a signed city contract sent to his home address. There is no doubt that the contract is a public record of San Jose, notwithstanding that it is located outside the walls of city hall. It's a San Jose public record through the mayor's possession of the document.
Another issue that has surfaced on appeal concerns the mechanism for obtaining the emails -- specifically, emails that are indisputably about government business -- in the event the appeals court agrees that the emails are San Jose's public records. San Jose argues that compelled public access to emails in the mayor's private email account would amount to an illegal "search and seizure" under the fourth amendment to the U.S. constitution.
The argument is intriguing -- but nonetheless wrong. Fourth amendment safeguards would indeed be implicated if a government IT staffer, police officer or other government agent conducted a forced, non-consensual search of the mayor's personal email, sifting through private messages to and from friends and family to locate and copy those email messages about purely government business. The coerced access by government to personal emails -- in order to find non-personal emails -- is the step that triggers constitutional scrutiny.
But these issues are not raised at all if the search for emails about government business is conducted not by government agents but by the mayor herself. The mayor's privacy interests cannot be compromised in any way by exposure to her own personal emails -- she has already composed or read them, after all.
This is true even if the mayor is forced -- for example, by court order, backed up with the threat of contempt -- to conduct the search. While such a court order may be coercive in the extreme, the fourth amendment is irrelevant so long as access to truly personal emails is confined to the individual who wrote or received them. Privacy interests, by definition, are completely protected. Government transparency enables the people to hold government accountable, and public access to officials' communications about government -- whether digital or on paper, in email accounts registered to a city or to a mayor or council member personally -- are the essence of transparency.
The public has lost patience with elected representatives who game the legal rules to avoid disclosure of information to which the public is entitled. We'll soon find out if the judiciary also has lost patience.
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Peter Scheer, a lawyer and journalist, is executive director of the
First Amendment Coalition, a San Rafael, CA-based nonprofit committed
to free speech and government transparency.