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Posts Tagged ‘California Public Records Act’

March 2, 2017 – A Very Important Day for Californians

Posted by Craig P. Alexander on March 18, 2017

While not getting front page news status – on March 2, 2017 two very important decisions were handed down by the Courts affecting Californian’s right to obtain documents from their government.

Two California courts on a single day broadened the public’s access to government documents via a California Public Records Act (“CPRA”) request.

In one case (City of San Jose v. Superior Court (Smith)), the California Supreme Court unanimously declared on March 2 that public officials’ e-mails and texts are in fact public documents, even when they are sent over personal devices.

In a related case on that same day, a state appeals court in Los Angeles declared that the public is allowed to seek “discovery” in lawsuits filed by requestors of public documents to enforce their rights in Court under the CPRA statute.

Both cases are widely seen as a victory for transparency, and a reaffirmation of the state’s Watergate-era California Public Records Act.

To read the rest of my post on this go to this link: One One Day in Two Decisions…

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Court Of Appeal Chooses Not To Keep Up With The Times In Refusing To Extend Public Records Act To Private Email And Text Accounts

Posted by Greg Woodard on April 24, 2014

The assault on the Public Records Act (“PRA”) has garnered a lot of attention recently.  Last year, the legislature attempted to make compliance with the PRA voluntary, rather than mandatory as it currently is.  The swift outcry led to a hasty, and wise, retreat and the bill died as it should have.  However, the Court of Appeal has again stepped in the PRA fray, and I believe it missed an opportunity to close a dangerous loophole created by technology outpacing the law.

In City of San Jose v. Superior Court, decided last month, the 6th Circuit Court of Appeal was faced with the question of whether emails and text messages sent to or from public officials’ and public employees’ private electronic devices, using their private accounts, were required to be disclosed pursuant to a proper PRA request.  The trial court had held that communications on private devices were “public records” under the PRA and were required to be produced.  Unfortunately, the Court of Appeal disagreed and reversed the trial court.

With the Court of Appeal now holding that communications using private devices are not subject to disclosure under the PRA, the potential for abuse is obvious.  In fact, the City of San Jose Court specifically stated “[t]hat city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern. . .”  However, the Court left it to the legislature to deter such behavior with appropriate legislation.  I will note the irony given that the Democrats in the legislature recently wanted to gut the PRA by making it voluntary.

This trend towards making government less transparent is troubling. We already have seen that Obama’s EPA officials have used their private email accounts to aid environmentalists, with the head of the EPA creating fake email names to hide her actions.  It is likely that a large number of public officials and employees are using their private accounts for public business, whether it is to hide those communications from public view or not.

Given how slowly the state legislature reacts to decisions like these (and its own efforts to undermine the PRA), I believe that the best way to curb these abuses is for local cities, counties, and other agencies to implement their own policies prohibiting officials and employees from using their private devices or accounts to conduct public business.  These policies will only be effective if violations are dealt with severely.  This also could increase costs for local agencies should they choose to purchase electronic devices for each public official and employee, but the resulting transparency should be worth the cost.

Posted in California | Tagged: | 3 Comments »

Mission Viejo’s Public Records Retention Policy, Or Lack Thereof, Needs Review

Posted by Greg Woodard on December 17, 2013

The Public Records Act, along with the Brown Act, are the two most important state statutes that are supposed to provide open and transparent government from local city councils, boards, and other agencies.  Mission Viejo needs to review its document retention policy to determine whether it is being as transparent as possible.

On October 24, 2013, Mission Viejo resident Larry Gilbert made a simple Public Records Act request for all communications between Dennis Wilberg, the Mission Viejo City Manager, and the city managers of Laguna Hills, Laguna Niguel, San Juan Capistrano and San Clemente regarding Gilbert and the Community Common Sense newspaper from August 1, 2013 to the date of the request.  Gilbert knew Wilberg had sent an email on September 12, 2013 to the San Juan Capistrano City Manager referencing Gilbert and Common Sense because he had received a copy of it from a friend.  However, even though Gilbert made the request just over 40 days after Wilberg sent the email, the City responded that it had no documents responsive to Gilbert’s request.  At the December 2, 2013 City Council meeting, when pressed by Gilbert about his request, Wilberg stated that he had deleted the email so it was no longer available for production.

Given the proliferation of email accounts among local elected officials and staff, the issue of email retention has become increasingly important.  In late 2011/early 2012, an Anaheim Planning Director told staff, under the threat of disciplinary action, to delete old documents and electronic files.  Earlier this year, a Modesto attorney sued to stop the city from automatically deleting emails that were more than 30 days old.  Open-government advocates are alarmed at the short duration that some local agencies keep emails before purging them.

As these and other cases demonstrate, cities and other local agencies struggle to balance the need for public transparency with the need to maintain their records in an efficient manner.  While state law does not state how long emails should be retained, it does require many records be maintained for two years.  Moreover, many open-government advocates assert that purging after 30 days is neither required by law, nor in the spirit of guaranteeing the most open and transparent government possible.

I asked all five Mission Viejo council members to provide me with the city’s document retention policy, as well as whether the city had done any analysis of the cost of keeping emails longer than 30 days.  I only received a response from two council members.  Rhonda Reardon stated, “we need to take a good hard look at our email retention policy.  The questions you raised are good questions and will be the basis for our discussion on our communication retention policy in 2014.”  Cathy Schlicht stated that she not aware of any city-wide purge system in place for emails, and that when she was assigned her email account she was told never to delete emails.  Schlicht said that she only deletes the non-city addressed emails from various organizations and some staff emails on items such personal holiday greetings, out of office responses, as well as the City’s newsletters.  Schlicht keeps all official communications between herself and staff, as well as email exchanges between council members and the public, and between council members themselves.  Schlicht maintains that she has her emails back to 2008 when she was elected to the City Council.

It appears that there is a disconnect between what Schlicht was told (never to delete emails) and what Wilberg did (delete an email within 40 days of receiving it).  It is this type of disconnect that raises the real possibility that important (or incriminating) documents are being deleted, and that is why Mission Viejo, as well as all other Orange County cities, needs to review its public document retention policies and ensure that its efforts err on the side of the public and open government.

Posted in Mission Viejo, Orange County | Tagged: , , , , | 3 Comments »

Arrogancy of Legislative Leaders

Posted by Allen Wilson on July 1, 2013

The San Jose Mercury News article “Steinberg reportedly rebukes Yee over public records stance” asks the question:  Did Senate Democrats leaders did a private dress down of Senator Leland Yee (D-San Francisco) for speaking in opposition to the proposed water down of the California Public Records Act?

Senate President Darrell Steinberg says he didn’t dress down Yee.

Senator Yee will not discuss.

The article explains two credible capitol sources says Steinberg was not pleased with Senator Yee speaking with the San Jose Mercury News about the topic.

The article goes on to explain that Democratic leaders felt Yee had hung them out dry in public.

The very telling quote from one of the capitol sources says, “God forbid you vote your conscience, and then tell people why.”

There are credible tales of legislative leaders on both sides of the aisle who use bully tactics on certain members of their own caucus who dare to speak their own mind despite the fact that every Senator and Assemblymember are elected by the people from their respective districts.

The unwritten rule in Sacramento that legislators have no right to “embarrass leader(s) of their own respective caucus”.

The horror!

As we approach the 237th Birthday of our Republic should serve as a reminder why the founders told King George III to fly a kite and the days of going to his court to kiss his ring for his blessings are over.

If every member votes with their own conscience without being excoriated by the Sacramento aristocrats, then perhaps Sacramento would be a civilized place and that every voice is heard as envisioned by our Founders.

We can only hope and pray that arrogance by legislative leaders would be the thing of the past.

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