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Court rules that CA Public Records Act applies to public officials’ private e-mail accounts

By Lou Russo

March 24, 2013 (Alpine)--In a Superior Court in California on March 19, 2013, a decision was filed which should make every Californian happy. The Honorable James P. Kleinberg decided that you, a citizen of California, have the right to view the records of public servants concerning the public’s business, in any form, regardless of where they are stored. Let me quote from the decision:

“[It is] unlikely the Legislature intended to render documents confidential based on their location, rather than their content.”

Why is this so important? Well, in California there are a number of statues to ensure that our government operates in an open manner. One of these is the Brown Act, the open meeting law which states:

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

The other important statue is the California Public Records Act (CPRA) which states:

“…every person has a right to inspect any public record,…” subject to particular exemptions.

However, as stated by Peter Scheer, executive director of the First Amendment Coalition, “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).”

One of the ways public officials have been avoiding open government, even here in Alpine, is by using private email accounts. County Counsel has been steadfast in asserting that private email accounts are not subject to the provisions of the CPRA because those records are not, as required by the CPRA, “… prepared, owned, used, or retained…” by the County.

In fact, at the required planning group training sessions, the County has been recommending that local planning groups not have a planning group webserver and email accounts, presumably because they could be searched for “public records”. (You will have to ask the County Board of Supervisors and the County Planning Commission why they would want County Counsel to give that “counsel”, though I think we all know why.)

That argument has now been vaporized by Judge Kleinberg.

All of us may now request to see “public records” on officials’ and government employees’ private, personal email accounts; and not just personal email accounts the officials say they have created for their public business, but ANY private account where they may conduct ANY public duty and where ANY “public record” may be stored.

In the case of the local planning groups, the County can now extend its search for public records into the private email accounts of public officials.

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