Did you know that under the California Public Records Act (CPRA), you have the right to request emails and other communications from your public officials regarding government business?
Imagine the following scenario: A city of San Diego elected official uses a personal email account to conduct the public’s business. When a member of the public requests copies of those emails under the CPRA, the response is: “Any emails contained within that personal account are neither owned, used, prepared or retained by the city and thus are not public records.” In other words, you can’t see them, the case is closed and your only option is to go to court.
If this sounds familiar, it’s because it actually happened. In 2014, a lawsuit was filed to compel then-San Diego City Attorney Jan Goldsmith to turn over public records. He refused. In 2015, a court ruled that Mr. Goldsmith needed to provide copies of the emails in question to the public.
The legal challenge, court costs and denial of public access could have been avoided had the legislation that we first supported back in 2013, and every year thereafter, been approved. That proposal, sponsored by Californians Aware, required that public business conducted on private/personal devices is a public record. Unfortunately, due to fierce resistance at City Hall, the public missed out on true transparency for years. We know it is not just good public policy but also common sense that a public record remains public regardless of where it ends up being stored.
A federal court saw the absurdity of the argument against public disclosure. Last July, David Sentelle, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, noted that depriving citizens of their right to know what a public agency is doing simply by maintaining emails on an account in another domain makes as much sense as a public employee leaving documents in a file at a daughter’s house and then claiming that they are under her control.
The California Supreme Court recently issued a ruling on another CPRA case, stating that writings about public business are not excluded from the CPRA simply because they have been sent, received, or stored in a personal account.
This is a huge victory for the public and is timely because next week is Sunshine Week, an annual recognition of the importance of open government and the public’s right to know what its elected officials are doing and why. Sunshine Week provides a focus to discuss ways to make our local, state and federal government entities more accountable and open to the general public.
Of course, the best policy is stop using personal accounts for conducting the public’s business, but it is now time for the city to quickly adopt a policy that implements this court ruling. It is our intention to bring forward a policy that is easily understood by city employees and members of the public. Specifically, providing guidance on how to locate and provide documents stored on personal devices to ensure that members of the public have access to them.
Transparency is important to our democracy. People’s trust in government continues to be at historically low levels, with only 19 percent of Americans believing they can trust the federal government to do what is right, according to the Pew Research Center. Additionally, only 7 percent say local governments share data very effectively and only 19 percent could think of an example where local government did a good job of providing information to the public about data it collects. Such distrust was felt across all demographic groups and presumably due in part to a lack of government transparency and the public’s ability to know what its public officials are doing.
We believe that restoring faith in government is important. The city can only be successful when the public is confident that its elected leaders are transparent in their actions. Putting policies in place to make City Hall more accessible to public review is vital because when it comes to government decision making, sunlight is said to be the best of disinfectants.
– Councilmembers David Alvarez & Chris Ward