Joyce Terhaar

From the Executive Editor: Ruling makes it easier for public officials to keep secrets

Remember the $2.8 billion movie studio proposed for Dixon? The one that turned out to be a mirage because the woman behind it had a long history of bad debt, broken promises and angry investors, who were out millions?

The reporting by Sam Stanton and Marjie Lundstrom revealed information vital to Dixon residents and city officials. In the resulting public glare, Carissa Carpenter and her company left town. The deal died.

Yet one issue that came up in their reporting remains a concern for all who believe that work done by public officials, on behalf of the public, ought to be open to scrutiny by the public.

That hasn’t always been the case when public officials – in Dixon or elsewhere – use personal cellphones or other electronic devices.

On March 27 in a published decision, the 6th District Court of Appeal determined that San Jose city officials could keep private any texts or emails about city business that they had sent on their personal cellphones or other electronic devices.

The appellate court reversed a Santa Clara Superior Court decision that would have made the records publicly available after activist Ted Smith sued. Several media organizations, including The Sacramento Bee’s owner, The McClatchy Co., the California Newspaper Publishers Association, the Los Angeles Times Communications LLC, the First Amendment Coalition and California Broadcasters Association supported Smith’s case.

“What a horrible decision – a complete road map for public officials to skirt the (California Public Records Act),” said Jim Ewert, general counsel for the publishers association, of the appellate decision.

The case is not over. Smith will seek state Supreme Court review; McClatchy and others will urge the court to do so.

In the meantime, this decision will have resonance throughout the state. It is the only appellate court decision about whether these records should be publicly available. First Amendment attorneys say the decision will guide public officials’ behavior. If the media or others sue for public access, trial judges will follow it.

Even as today’s technological advances make greater transparency a public expectation, decisions like this one make it easier to use that technology to keep secrets. The line between work and a personal life has been blurred in private and public workplaces alike as employees handle email and other communication after hours. It’s not uncommon for a public official to carry only a personal cellphone – Sacramento Mayor Kevin Johnson may be the most prominent of local officials – which means public business is routinely carried out on personal devices.

In the Dixon movie studio investigation, Lundstrom and Stanton discovered early on that City Manager Jim Lindley was using personal email to work on the studio proposal. They reported last year that after they filed a public records request for the emails, Dixon officials said they couldn’t provide them because Lindley “regularly deletes his personal emails as his normal practice.”

Interestingly, the city also pointed out that (at that time) there was not a “controlling court opinion” that they had to provide the emails.

“This despite the fact that we had proof he not only was conducting city business, he was advising her (Carpenter) on how to deal with us and exhorting her to move forward with the project,” Stanton said.

In this case, the emails had circulated among several people and a source leaked them to The Bee. Had that not happened, “We would have been left with Dixon officials claiming they had done nothing questionable or behind the scenes in their pursuit of the ‘studio,’ ” Stanton said.

“At a minimum, the ‘private’ emails … also showed Lindley’s growing concern that the $100,000 (Carpenter) was to have provided Dixon was never going to arrive.”

In its San Jose decision – and despite its final conclusion – the appeals court quotes the Legislature’s intent in creating the state Public Records Act, writing that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

I agree.

So what now? The court says the Legislature needs to clean up the Public Records Act language to make clear that official communication on personal devices is public record.

That’s one solution and likely the best.

Another is a state Supreme Court review that affirms the decision made in Santa Clara Superior Court.

Until either happens, however, public officials can take the initiative to create policies that public business should be conducted in ways open to public scrutiny, using government email addresses or telephone systems.

Given the recent high-profile corruption cases involving California senators, and the record fine against Sacramento lobbyist Kevin Sloat for activity to influence politicians, it would be one simple step toward regaining public trust.