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Editorial

Hillary Redux: Long Beach Mayor/Council Tout And Talk But Mock And Block Email Transparency


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(Mar. 8, 2015) -- What Hillary Clinton did and now claims she is undoing, LB's Mayor and City Councilmembers get away with every day...with a middle finger raised to transparency. LB's electeds continue to exploit a legal loophole/uncertainty under state law -- that they could fix locally as Councilmembers "on any Tuesday" -- by concealing from the public how the public's business is conducted by using private email backchannels that shrug the CA Public Records Act.

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The Public Records Act, written in an era before email, covers records "owned, used or retained by" government bodies...so of course government officials now claim emails sent or saved on their personal email accounts -- even when used to conduct public business -- aren't "owned, used or retained by" a government body and thus neededn't be disclosed. This leads to the following anamalous result: If an email related to the public's business is sent or saved on a ",gov" email address, it is a public record that's disclosable in response to a Public Records Act request. [We've found the City of Long Beach to be generally quite good in respecting this.] However, if the identical email on the public's business is sent via a private email system, the City deems that email to be outside the terms of the Public Records Act and it becomes invisible to the public and the press.

For roughly half a decade, LBREPORT.com has publicly opposed this anti-transparent, obfuscatory status quo. Fortunately, LB's poicy-setting City Council can change this practice "on any Tuesday." Unfortunately, it hasn't...and in an infamous, ugly action in 2013 (Amnesia File below), a former Council under Mayor Foster refused even to second a motion to discuss greater openness for the public.

While talking transparency, Long Beach City Hall is mocking and blocking transparency. No, Long Beach isn't unique among City Halls; others do the same thing but that doesn't make it any better. California's First Amendment Coalition described the digital maneuver in this 2009 essay by its Executive Director Peter Scheer. An excerpt follows:

[First Amendment Coalition text]...All public officials favor open government in principle. Who would dare say otherwise? In reality, however, they are in a perpetual search, guided by clever lawyers, for new ways to circumvent disclosure requirements -- at best, because they view requests for records as a nuisance, and at worst, because they have something to hide (which can range from the merely embarrassing to the indictable).

The latest device for openness avoidance is the use of personal email accounts (and, increasingly, text messaging too) for government communications. Mayors, city council members, agency executives and school superintendents have been told that if they do government business on their gmail or yahoo accounts -- anything but their official .gov email -- their communications, no matter how focused on government matters, will never see the light of day...

Lawyers for local government say that email and text messages sent or received on a private account, no matter their content, are not "public records" because they are not "...owned, used, or retained by" a government agency, as the Public Records Act requires. Electronic communications are "owned, used, or retained by" government only if they reside on a government server, they say. Despite the superficial plausibility of this reasoning, it is, indeed, only superficially plausible.

A government agency doesn't do anything except through people -- employees, elected officials, consultants, whatever -- who are the government's agents. Without getting too deep into legalese here, the point is that the actions of the government's agents are imputed to the government, and the government is responsible for those actions. An arrest by a police officer, a mayor's promise to a campaign contributor, a public school teacher's grading of a student paper -- all are actions of and by the government entity that these people represent.

The same is true for written communications about government matters that these people create or receive, regardless of the technology used or the account status. The communications are "owned," "used" and "retained" by government because they are owned, used and retained by persons in their capacity as agents of the government.

Here's an analogy. Suppose the mayor of your town, at a private meeting in her private home, signs a written agreement with a contractor to expand the local airport. The agreement is a paper document in the mayor's house, miles away from her office at city hall. There is no doubt that this document is a public record that belongs to the town because it is "owned," "used" and "retained" by the mayor as the town's agent. Nothing changes if the document sits, not on the mayor's kitchen table, but in the digital in-box of her personal email account at msn.com. Either way, it's indisputably a public record that belongs to the town...

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Below are salient portions of the LB City Council's record to date:

  • On April 16, 2013, seven then-Council incumbents -- Garcia, Lowenthal, DeLong, O'Donnell, Johnson, Austin and Neal (Andrews absent) -- sat silently and refused to second a motion by then-Councilwoman Gerrie Schipske to discuss in a Council committee several transparency measures she proposed. They included: Require elected officials to disclose non-public communications about public business [i.e., would have removed the current non-transparency incentive for using private emails in conducting public business]; ban political contributions from contractors and those having business before the City Council; require Councilmembers to disclose any communications being received during Council meetings from lobbyists; and request a recommendation from the Committee on each within 90 days.

    When not one Councilmember seconded her motion, Councilwoman Schipske said "how sad" and Mayor Foster sought to move on without public testimony on the item, but retired Deputy City Attorney Jim McCabe came to the public speakers podium and sought to be heard. Mr. McCabe commended Councilwoman Schipske for bringing item forward...and commented that in his view, the item would have to be brought to the voters. To hear the item (total time under six minutes), click here. To date not one of LB's nine current Councilmembers has moved to change this status quo.

  • LB Councilmembers could direct the City Attorney to file a "Friend of the Court" brief [as its done in other cases] supporting the pro-transparency position of the plaintiff, a local activist in San Jose, CA, whose case has now reached the CA Supreme Court. In that case, the local resident sought access to his city officials' emails...and he WON at the trial court level, when a judge ruled that the Public Records Act DOES cover private emails. Unfortunately, that victory was reversed by a mid-level appellate court [and various City Hall advocacy groups are now ganging up in urging the Court to rule against the local resident.].

  • Regardless of what the CA Supreme Court does or doesn't do, LB Assemblyman Patrick O'Donnell (elected Nov. 2014) could support statewide legislation to update the Public Records Act and fix its current uncertainty/loophole. Assemblyman O'Donnell told us at a March 7, 2015 public event (because we ambushed him and asked) that he's open to listening on the matter. That's not a commitment but it's better than the current Council's conduct which, despite much talk of transparency, pretends to ignore the issue.
  • Regardless of what the CA Supreme Court or Sac'to's legislature do or don't do, a LB City Council majority could close the email loophole as practiced by Long Beach City Hall "on any Tuesday." The Public Records Act explicitly allows cities to provide greater transparency than Sac'to's minimum pre-internet Records Act requires. In other words, a Council majority (subject to a Mayoral veto that 2/3 of the Council could override) could enact a LB measure that would unambiguously make emails by LB Councilmembers, Mayor and city staff public records when conducting the public's business even if sent or store on private email systems.

The First Amendment Coalition has prepared a simple model policy to address this issue. To view the First Amendment Coalition's reasoning for its model policy, click here. Its key points are:

  • All agency staff, when communicating by email on agency business, must use the agency's email system and server OR copy such emails to an address on the agency server.

  • All email on the agency's email server will be preserved for a minimum of TWO years.

  • The storage of emails on an agency server does not affect their status under the California Public Records Act (CPRA). When responding to a CPRA request for emails, the agency may consider the applicability of any relevant CPRA exemption.

The public is waiting for at least one principled Councilmember to agendize the model policy for Council and public discussion. When that Councilmember makes his/her motion, we're interested in seeking which which Councilmembers will, or won't, correct the ugly action of the past and put Long Beach on the side of digital transparency and email openness.

LBREPORT.com has been unflinching for half a decade in urging digital transparency and we don't intend to stop now. The email issue is symptomatic of other internet issues beyond the scope of this editorial...but in our opinion, enacting the First Amendment Coalition model policy would be movement in the right direction.

After others outted her actions, Hillary Clinton has grasped that her previous actions aren't politically tenable. In contrast, LB's current Councilmembers continue to stain their records by enabling anti-transparent City policies that let themselves, and others, hide the conduct the public's business by using private emails.


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