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VIDEO: San Diego Council Committee Advances For Further Review Proposed Measure Declaring That City Hall Emails/Texts On Public Business Are Public Records If Sent/Received On Private/Personal Devices

Measure Is Proposed By Open Gov't Group CaliforniansAware; It's Similar To Part Of A LB Measure Blocked By Seven LB Councilmembers In 2013 ("Amnesia File" Coverage Included)


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(Jan. 17, 2016, 8:35 p.m.) -- On Jan. 13, 2016 a San Diego City Council committee advanced for City Attorney legal review and city staff operational considerations a proposed measure that would ensure emails and messages to and from City Hall officials on public business are public records regardless of whether they're sent or received using private / personal devices, subject to the CA Public Records Act.

In a unanimously approved motion, the committee will receive reports on these matters no later than June 15 at which time the committee could advance the measure to the full SD City Council for enactment as a municipal code ordinance or placement on a city ballot for voter approval as a Charter amendment.

The proposed measure was brought to the San Diego Council committee by former San Diego Councilwoman Donna Frye, who now heads the statewide non-profit open government group Californians Aware.

The measure is similar to part of a LB measure blocked by seven then-Long Beach Councilmembers in 2013 ("Amnesia File" below.)

[Scroll down for further.]


Using a procedure allowed by the San Diego City Council [similar to a procedure allowed by the LB City Council until the mid-1990s], Ms. Frye submitted a letter to the San Diego City Clerk seeking the item's agendized consideration. In a letter dated Jan. 5, 2016 on the letterhead of Californians Aware, Ms. Frye wrote:

[Frye Jan. 5, 2016 letter text] Californians Aware is submitting the following ballot measure for consideration by the San Diego City Council Rules Committee.

All documents, communications, and other writings, including emails and text messages, recorded in whatever medium, created or received in the course of conducting any City business by its appointed or elected officers, employees, departments, bodies or agents are deemed to be used and controlled by the City for purposes of public disclosure. In addition, all such records shall be presumed open to the public unless such access is prohibited by state or federal law or by an ordinance, regulation or policy of the City Council or other City authority that is consistent with San Diego City Charter Section 216.1. These and other City records shall be retained for a minimum of two years. [Italics in original]

The language could be added to the San Diego City Charter as section 216.2 or to the San Diego Municipal Code as appropriate.

It is our belief that "a communication relating to the conduct of the public's business that is maintained on the private accounts of city officers reasonably falls within the definition of a 'record' retained by the city." In other words, city officials should not be able to use their private cell phones or computers as a means of preventing disclosure of the public's business.

We respectfully request that the Rules Committee support this ballot measure and forward it to the City Council for placement on the June 2016 ballot.

To view on-demand VIDEO of the Committee's consideration of the item, click here.

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Public testimony was unanimously in support, and included supportive testimony from a boardmember of the San Diego Chapter of the Society of Professional Journalists. One Committee member voiced concern over the Council taking action before the CA Supreme Court rules on a case in San Jose that raises similar issues (see below) and the SD City Attorney's representative acknowledged that the High Court's ruling might (or might not) raise constitutional or privacy considerations (not known at this point.)

After a respectful discussion, the Committee voted without dissent to have the City Attorney examine operational and legal issues, including the impacts of the pending San Jose case and "meet and confer" labor issues; to have the City Clerk work with the City Attorney on operational issues, and have City Hall's public records request process improvement working group (internal staff group) develop recommenations for implementation; and to have all of this return to the Council's Rules Committee as a report before June 15.

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The issue of public and press access to email and text messages to and from public officials on public matters but sent via their private/personal devices and platforms has become a hot topic in media and open government circles...and is now before the CA Supreme Court.

In 2009, a San Jose citizen activist made a Public Records Act request for emails, texts and the like sent or received on personal devices used by Councilmembers and staffers; the City declined to provide those items; the citizen activist sued; a Superior Court (trial court) ordered the City to produce them; the City appealed and a CA Appellate Court ruled that emails and text messages, sent or received by public officials on their private electronic devices using their private accounts aren't public records under the Public Records Act.

The CA Supreme Court agreed to hear the case, which now pits journalists, media outlets and open government advocates against government officials and entities.

The CA Public Records Act explicitly allows government bodies to adopt greater openness provisions than the minimum requirements of Sacramento's Public Records Act text, which the LB City Council hasn't done, and in 2013 LB's then-Council majority blocked an effort by a then-Councilmember who tried to do so.

In April 2013, then-Long Beach Councilwoman Gerrie Schipske [a frequent advocate of open government and recognized as a "Champion of Change" by the Obama administration White House] agendized an item to discuss in a Council committee banning campaign contributions by contractors and others with business before the Council and requiring disclosure of Councilmembers' emails that currently avoid Public Record disclosure when officeholders use a non-City Hall website, email domain or social network.

Every other then-Council incumbent present at the Council meeting remained silent and refused to second Schipske's motion, effectively preventing its discussion in a Council committee.

The Councilmembers who did so include three remaining Long Beach incumbents: now-Mayor (then Vice Mayor) Robert Garcia, Vice Mayor Suja Lowenthal and Councilman Al Austin. (Councilman Dee Andrews was absent.) LBREPORT.com provides "Amnesia File" coverage below (including audio) of the April 2013 LB Council item.

The San Diego proposal had a similarly rocky start. Ms. Frye and Californians Aware attorney Terry Francke tried in 2014 to have the San Diego City Council put a measure on the ballot to enable public access to all emails, memos, and text messages from elected officials; words flew over when the 2014 proposal didn't proceed to consideration. The measure proposed now has now been reworded and in that form is now advancing.

Amnesia File

(April 20, 2013) -- Seven Long Beach City Council members sat silent and blocked an effort by Councilwoman Gerrie Schipske to discuss her agendized proposal to ban campaign contributions by contractors and others with business before the Council and to require disclosure of Councilmembers' emails that currently evade Public Record disclosure when officeholders use a non-City Hall website, email domain or social network.

Council incumbents Robert Garcia, Suja Lowenthal, Gary DeLong, Patrick O'Donnell, James Johnson, Al Austin and Steven Neal (Dee Andrews was absent) refused to second Schipske's motion to send the measures to the Council's Elections Oversight Committee (O'Donnell, Lowenthal, Andrews) for discussion and a report within 90 days.

Councilwoman Schipske sought public discussion in Committee of measures to:

  • Ban political contributions from contractors and those having business before the City Council; and

  • Require elected officials to disclose non-public communications about public business; and

  • 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.

In presenting the item, Councilwoman Schipske noted that the City of San Jose has already adopted the Public Record requirements on Council emails that she proposes, and said federal courts have upheld the restrictions on campaign contributions that she proposed. Councilwoman Schipske made her motion (which didn't require Council enacting, simply Committee discussion and a report); Mayor Foster invited a second...and stone silence resulted. After several seconds, the Mayor ruled that her measure died for a lack of a second.

"How sad," Councilwoman Schipske said, adding that she believes City Hall's current policies would likely invite lawsuits. Mayor Foster initially sought to move on without public testimony on the blocked item, but retired Deputy City Attorney Jim McCabe came to the public speakers podium and the Mayor allowed him to speak. 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.

For quick audio access to hear the item in full (total time under six minutes), click here

At the end of the Council meeting, another member of the public came to the public speakers' podium and expressed surprise that no Councilmember would allow Committee discussion of the changes proposed by Councilwoman Schipske.

As previously reported by LBREPORT.com, a "Deep Throat" source on City Hall's 14th floor [an individual not affiliated with Schipske's office] told us prior to the Council session that some Council offices and lobbyists were "freaking out" over Schipske's proposals.

The increasing use of non-City Hall domains by CA elected officials, which avoids Public Records Act disclosure of their communications, has been a matter of concern for open government advocates including the First Amendment Coalition. In August 2009, First Amendment Coalition Executive Director Peter Scheer wrote in an essay titled "Government officials use personal email and texting to avoid public access laws. Why not use technology to enhance accountability instead of to subvert it?":

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...

Councilwoman Schipske's proposal was the first agendized effort by any Long Beach Councilmember to change City policy on the issue. It proposed referral to the Council's Elections Oversight Committee for discussion and a recommendation back to the Council within 90 days.

The last time the Elections Oversight Committee met on any item was on Sept. 27, 2011, when it then-consisted of Councilmembers Robert Garcia (chair), Gary DeLong (vice chair) and Gerrie Schipske (member). On April 2, 2013, Mayor Foster reshuffled Council committee memberships...and the Elections Oversight Committee is now comprised of Councilmembers Patrick O'Donnell (chair), Suja Lowenthal (vice chair) and Dee Andrews (member).

Referral to a Council Committee for discussion is optional,.not mandatory, in enacting an ordinance.

Councilwoman Schipske (who was one of the first U.S. elected officials to use a non-taxpayer-paid blog to communicate with her constituents), says she routinely duplicates communications on GerrieSchispek.com on city matters to the City of LB's domain (.gov) in order to make them disclosable public records. Her website states: "Please note that this is not a City of Long Beach website and is not paid for nor maintained by taxpayer funds. If you contact Gerrie Schipske through this site on any matter pertaining to the City of Long Beach, a copy of your contact will be forwarded to her official city email as an official public record."

Other LB elected officials (including some who tout their support for transparency and openness) use non-City Hall websites for their officeholder positions that effectively avoid Public Records Act access to their emails and texts on city matters conducted through those websites or other non-City Hall domains.




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