Hear It: CA Supreme Court Oral Arguments On Whether Gov't Officials' Emails / Texts On Public's Business Are Public Records Under CA Law

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(Dec. 8, 2016, 6:20 a.m.) -- As carried LIVE on LBREPORT.com's front page on Dec. 7, the CA Supreme Court heard oral arguments in City of San Jose v. Superior Court, confronting the issue of whether written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, are "public records" within the meaning of the California Public Records Act.

To hear on-demand extended audio (mp3, 76 minutes), click here.

[Scroll down for further.]

The case began when San Jose resident Ted Smith sought records under the CA Public Records Act about a downtown development project funded partly by the City, and included in his request records on the commercial email accounts of San Jose's Mayor and Councilmembers. San Jose City Hall refused to provide the records; Mr. Smith sued; a trial court sided with Smith; an appeals court reversed...and the CA Supreme Court agreed to hear the case.

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At the CA Supreme Court oral arguments, attorneys argued in this order: the attorney for San Jose citizen-activist Smith opened, followed by an attorney for the CA Newspaper Publishers Ass'n (among parties including McClatchy Newspapers, the CA Broadcasters Ass'n, L.A. Times Communications who supported Public Records Act access), followed by San Jose Assistant City Attorney Nora Frimann (opposed) and short rebuttal from Mr. Smith's attorney.

Others submitting Friend of the Court briefs included the Electronic Frontier Foundation and ACLU of CA in support of Public Records Act access...while the League of CA Cities (in which the City of Long Beach is a dues-paying member) opposed allowing Public Records Act access.

LBREPORT.com has consistently supported Public Records Act to city officials' commercial emails when dealing with the public's business. To our knowledge, no other LB media outlet or any current Long Beach elected officials or candidates for public office have taken that position, or taken any position in the case.

Oral arguments went beyond their usual one hour period, extending to roughly 80 minutes. LBREPORT.com lost roughly five minutes of our audio recording due to a digital glich in our computer (although our online webfeed continued uninterrupted; we inserted a "whoosh" sound to indicate the relatively small audio portion we lost.)

Although Long Beach City Hall isn't a party and didn't participate in the case, the Supreme Court's ruling will be relevant to government openness and transparency in our city (and all cities, counties, gov't entities statewide.)

As previously reported by LBREPORT.com, LB Mayor Robert Garcia has a commercial email address and JetBlue's LB lobbyist used it to communicate with Garcia on a recent non-controversial item [which we suspect has also been used by them and other City lobbyists, insiders and the like on substantive matters of public business.] Mayor Garcia hasn't publicly admitted to this and he and his office have thus far failed to release email communications on his commercial email address dealing with the now pending JetBlue / customs facility / int'l flights issue.

Councilwowman Suzie Price has been more forthright and publicly acknowledged that she uses a commercial email address to communicate on a variety of issues and has publicly invited the residents to use that email address to communicate directly with her (and she does so with them).

In our opinion, if LB electeds or staffers use commercial email accounts/texts and the like) in conducting the public's business, those electeds should practice the open government and transparency they preach and make those emails public when asked to do so on specific issues by the public or press.

LB's City Council could have and still can enact an ordinance requiring this from city officials but in 2013, then-Councilmembers -- including then Vice Mayor/Councilman Garcia -- refused to second a motion by then-Councilwoman Schipske to discuss the issue in a Council committee. CA's state legislators (locally including Assemblyman O'Donnell, Assembly Speaker Rendon, state Senators Lara and Nguyen and their colleagues) could have amended the Public Records Act years ago, and still can, to make unambiguously clear that it applies to commercial emails, texts and digital communications dealing with the public's business.

The CA Supreme Court is expected to issue an opinion in the coming months...and LBREPORT.com will continue to closely follow this case and LB City Hall's response or non-response on this issue.