"Now that the public has focused the Legislature's attention on the Public Records Act, this would be a good time to plug a loophole in that law that threatens the public's right to know what its government is doing," Mr. Scheer told LBREPORT.com in an email reply to our inquiry on the matter. Mr. Scheer's reply noted what he described as "the increasingly common practice of public officials, when communicating about government business, to use a personal/private email account -- rather than an official government account -- for the purpose of avoiding the PRA [Public Records Act.]" He continued:

Although, in my opinion, the PRA's existing language is sufficient to cover officials' emails about government business regardless of the account used, the courts have yet to resolve this issue definitively, and we could wait a long time for a solution though litigation. Accordingly, a small revision to the PRA to plug this loophole would be extremely worthwhile -- an excellent use of the Legislature's attention and professed desire to strengthen open-government rights.

Mr. Scheer described the internet loophole in an August 2009 essay on the First Amendment Coalition's website, recommending cc'ing communications on the public's business to a .gov domain or other public database. LBREPORT.com has previously cited Mr. Scheer's essay in editorially urging the Long Beach City Council to take such action. In April 2013, no Council incumbents would second a motion by Councilwoman Gerrie Schipske to discuss doing so. (coverage here, including audio). LBREPORT.com has since editorialized in favor of mandating the practice statewide in connection with SCA 3.

On July 3 [following a state Senate vote advancing SCA 3 to the Assembly], LBREPORT.com asked Mr. Scheer by email for his position on the matter and received his reply cited in this story.

SCA 3 surfaced in late June after Assembly and state Senate majorities voted in late June 2013 for a budget "trailer" bill that ended state reimbursement for local costs under the Public Records Act, an action that would have made local government compliance with key portions of the Public Records Act voluntary.

The action drew intense criticism from media and open government groups, prompting Assembly and state Senate majorities to reverse themselves and restore reimbursement for the remainder of FY14 while state Senators Mark Leno and President Pro Tem Darrell Steinberg proposed SCA 3. If approved by voters statewide in June 2014, SCA 3 would prevent annual state budget battles over Public Records Act and Brown Act reimbursements by requiring local government [and potentially records requesters] to pay costs now paid by Sacramento.

In urging state Senate passage of the measure on July 3, Senator Leno acknowledged that SCA 3 is a fiscal measure that doesn't substantively change current law. He noted that SCA 3 is supported by the CA Newspaper Publishers Ass'n and the First Amendment Coalition and placed a letter in the Senate Journal on the measure's intent. [LBREPORT.com will add a link to it shortly.] The measure passed the state Senate on a 37-0 vote.

The internet loophole stems from the Public Records Act's current verbiage defining public records as "prepared, owned, used, or retained" by state or local government bodies, which invites local officials to argue that their communications on government matters aren't public records if conducted via commercial (non-government) email accounts or personally owned websites ("nameofpolitician.com.").

In March 2013, a San Jose judge pierced this veil (Ted Smith v. City of San Jose), ruling that emails and texts on government business must be disclosed even if communicated on government officials' private email or text; the case has been appealed by San Jose City Hall.

As noted in 2009 by the First Amendment Coalition, local government bodies could address this issue by requiring their officials to copy all communications on government matters conducted through their commercial email or personally run websites to a .gov or other designated database. In April, 2013, Long Beach Councilwoman Schipske (who follows the practice with her own blog) agendized an item to discuss applying this practice to other City Hall officials; no other Councilmember seconded her motion to discuss the measure .

Meanwhile, SCA 3 now advances to the Assembly. Placement on the June 2014 statewide ballot would coincide with expiration of FY14 state funding for Public Records Act compliance under the recently enacted FY14 budget trailer bill.

Developing with further to follow on LBREPORT.com.