It’s been almost one year since the 6th District Court of Appeal decided San Jose city officials could keep private the texts and emails about city business they had sent on personal cellphones, from personal accounts.
Consider that ruling against the furor ignited this month when it became public knowledge that Hillary Clinton used a personal email account to conduct official business while secretary of state, so her emails were not routinely archived for public record.
“I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” Clinton said last week. “Looking back, it would have been better” to carry two.
Clinton’s admission put a national focus on the public’s right to know just as we head into the 10th annual Sunshine Week, an initiative supported by the news media, civic groups and other organizations to focus on and encourage open government and freedom of information.
The outcry over Clinton’s use of a personal account also raises an important question for Californians: Why is there no similar controversy here when our politicians and officials use a personal account or device to conduct public business? Or when a court rules that such behavior is OK?
The 6th District court decision mucked up the public’s right to official records in this state. It overturned a lower-court ruling that the records should be available to the public.
The case started when activist Ted Smith used California’s Public Records Act to request records from the city but was denied those attached to personal cellphones rather than city equipment. He sued and initially won his case in Santa Clara Superior Court. Media organizations have supported his legal effort, including The McClatchy Co., publisher of The Sacramento Bee; the California Newspaper Publishers Association; the Los Angeles Times Communications LLC; the First Amendment Coalition; and the California Broadcasters Association.
Now the case – San Jose v. Smith – is before the California Supreme Court. San Francisco First Amendment attorney Karl Olson said we likely won’t see a decision until some time in 2016.
It is ironic that technology advances that have whittled away at our personal privacy have had an opposite effect on transparency, giving public officials an easy ability to keep conversations secret.
It’s not just about email, either. The San Jose case includes texts. It does not address the many other options available today to communicate, whether Facebook Messenger, a private conversation on Twitter, the ephemeral conversation available through Snapchat, Wickr or even the Mark Cuban-funded Cyber Dust. The list is long.
As with many of us, it’s become routine for some politicians to communicate through text or social media. I surveyed a handful of reporters at The Bee who cover state and local government and heard it often is the most reliable way for reporters to reach an official for comment on a story.
What happens, then, when a California politician – as with Hillary Clinton – finds it more convenient to use Facebook Messenger or tweet or any number of other options while doing the public’s business? It’s pretty normal behavior to communicate that way, yet it is unclear from reporter inquiries last week whether the state Legislature, or Sacramento City and Sacramento County, prohibit official communication through social media that are not archived for the public record.
The 6th District court’s decision applies to personal devices and personal accounts. Under that decision, an official could for instance use Wickr on a personal phone, which enables group conversations with up to 10 people, doesn’t allow any conversation to be shared or monitored, and comes equipped with the ability to schedule the conversation to expire or to use a “shredder” to delete all files from the device. You don’t need to be a conspiracy theorist to imagine a quorum of council members discussing an issue through Wickr, thus violating the Brown Act. Lest you think that not likely, consider the corruption uncovered by the Los Angeles Times at the city of Bell. Or the effort by Dixon officials to hide email conversations as The Bee investigated a multibillion-dollar movie studio proposal.
The marketing promises of Wickr make Clinton’s use of personal email seem a bit quaint. Certainly, it shows that the battle to hold public officials accountable, and to make public records available for posterity, feels at times like poking a very slender finger into a giant hole in the dike.
Nonetheless, it’s Sunshine Week, and poking is in order. It won’t bring down our democracy for a routine text to be lost to the public record. But as we learned from allegations of high-profile Senate corruption cases last year, official behavior can even stray into criminal territory. More often, we might have a public servant widely considered to be honest and committed who nonetheless steps into a firestorm of controversy. Shouldn’t they be held accountable for positions and comments, regardless of how they are communicated?
A healthy, robust democracy requires transparency. Sunshine Week is about the public’s right to that transparency. Democracy might be messy, contentious or downright unpleasant. Public views might be polarized. That’s all part of the deal. So is the public’s right to know.