The case, City of San Jose v. Superior Court of Santa Clara County, revolves around one question: “Are writings concerning the conduct of public business beyond (the California Public Records Act’s) reach merely because they were sent or received using a nongovernmental account?”

The superior court ruled that records concerning the public’s business should be turned over to the public upon request; the appeals court, however, found that agencies do not have “an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency,” or to even search for them.

The case goes back to 2009, when a local citizen, Ted Smith, sought records regarding the activities of the city of San Jose’s redevelopment agency, its executive director and some elected officials including the mayor and two City Council members, as the court explained. The city produced the requested documents from official phone numbers and email accounts – but would not provide information stored on the officials’ personal accounts.

The city offered a simplistic defense. Messages created on personal accounts are not public records because they are not within the control of the city. If the city had prevailed, the ramifications would be immense. Elected officials and governmental staff working for California’s numerous government agencies could legally shield sensitive information from the public merely by conducting such business on their personal email account or cellphone.

The appeals court exempted “huge swaths” of information based on where the information was located, not based on content, explained Jim Ewert, general counsel for the California Newspaper Publishers’ Association, which filed an amicus brief in the case. “If the Supreme Court had not decided (this way), it would have eviscerated the California Public Records Act,” he added.

A Los Angeles Times editorial captured the likely effect had the appeals-court decision stood: “As soon as a public official realizes that his constituents have no right to look at anything he says on his personal cellphone or laptop, he’ll simply do all of his sensitive or secret communications on those devices. With a flick of the wrist, public officials will exempt themselves from accountability.”

The state high court recognized the new reality of email and other electronic communications, even though the state Constitution and the public-records act were crafted in a time before such communications were envisioned. “It requires recognition,” the Supreme Court found, “that, in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”

The appeals court was concerned about the problems inherent in capturing and turning over records that were out of an agency’s control. But the state high court, while not mandating any particular policy in dealing with such matters, offered some possible scenarios in dealing with a public records request.

For instance, as a Lexology article explains, an agency could require employees to search their own emails for relevant records or develop a policy requiring “all emails involving agency business, sent by an employee through a private account, to be copied to the employee’s agency email account.” The main point is the court upheld the idea that the public has a right to access a public record, even if the details of obtaining it are up for debate.

In fact, the court explained that because the city did not try to search for any particular documents in its employees’ personal accounts, “the legality of a specific kind of search is not before us.” But it found that agencies are obliged to at least try to locate and disclose any such public documents on private servers “with reasonable effort.”

The decision, however, does not change the complex balancing act that exists between public access and privacy rights. Some documents are protected from public exposure, but the court’s ruling finds that the location of those documents – on a public or private server – has nothing to do with whether or not those documents are legitimate public records.

The high court quoted from the state’s public records act, which defines a public record as “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.” Not everything produced by a public employee is public, of course, and it might take hair-splitting to determine where to draw the line.

Here, the court used an example to illustrate the point: An employee’s email to a spouse complaining that “my coworker is an idiot,” is unlikely to be considered public, whereas “an email to a superior reporting the coworker’s mismanagement of an agency project might well be.” The court agreed that public employees do not “forfeit all rights to privacy.” But the city of San Jose claimed an exemption for all communications from personal accounts, which was an open invitation for employees to evade the clear intent of open-records laws.

The high court was not persuaded by the city’s argument that the Legislature required public access only to records “accessible to the agency as a whole.” Many genuinely public documents, it explained, are stored in “filing cabinets and ledgers” that would not be accessible to all of an agency’s employees.

The question, of course, is whether the document was produced by employees who are conducting business on behalf of the agency. It’s not a matter of where the document is stored that determines whether the public should have access to it. If, for instance, an agency contracted with a consultant to produce a report, then the agency – and therefore the public – has a right to that document even if the consultant is retaining that document, according to the court.

The recent presidential election reinforces the significance of these distinctions. “Our concerns are not fanciful,” the newspaper association’s brief explained. “For example, former Secretary of State and … presidential candidate Hillary Rodham Clinton turned over 50,000 pages of government-related emails that she had kept on a private account, although federal regulations, since 2009, have required that all emails be preserved as part of an agency’s record-keeping system.” Many other states consider public records on private servers to be accessible to the public.

While local and state government agencies still need to come up with policies that detail exactly how such records must be maintained and disclosed, the court resolved the fundamental principle: A public document is a public document, even if it was created and stored in a private email account.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

The April 3 ruling  interprets a part of Proposition 59, passed by the voters in 2004, to bolster public access to the records of government.

“If the intent of Proposition 59 was to exclude legislative proceedings and records from its reach, it could have plainly so stated,” Superior Court Judge Michael Kenny ruled.

State lawyers contend that Proposition 59 did not address state lawmaker records and asked the court to toss the lawsuit.

Kenny’s ruling allows the Bay Area News Group and its sister Los Angeles News Group to move forward with their effort to obtain the schedules of former state Sens. Ronald Calderon and Leland Yee, who face separate federal corruption prosecutions.

A hearing on the merits of the case is scheduled for May 1.

Constitutional right of access

From the Associated Press story regarding Kenny’s ruling:

Duffy Carolan, a lawyer for the Bay Area News Group and the Los Angeles News Group, said the ruling was significant because it provides another means to challenge exemptions the Legislature has relied on to protect its records.

“This is the first time a court has ever ruled that constitutional right of access applies to the legislative branch of government,” Carolan said. “They’re claiming that their records and meetings are exempt from the constitutional right of access.”

The AP does another excellent story on state lawmakers and open records here.

Differing transparency standards

A win for the news groups would pave the way to a clarifying statute and mean the public could review lawmakers’ emails, invoices, travel expenses and personal calendars – records already available for other government officials under the California Public Records Act.

Such a legal victory would also allow California to join Illinois, Kentucky and Missouri, among other states, in holding lawmakers to the same transparency standard that applies to the rest of the public sector.

Other states have provisions in the law that exempt specified materials.

In Maine, for example, “legislative papers and reports, working papers, drafts, internal memoranda, and similar works in progress are not public until signed and publicly distributed in accordance with rules of the Legislature.”

Others, that only wave at the notion of transparency, like Michigan, are locked down and allow the public no access at all to the records of legislators.

“In all states, the legislatures claim to be open, but when you set your own rules, you get to pick and choose who’s open, and that’s what legislators do,” the late Ken Bunting, who was director of the National Freedom of Information Coalition at the University of Missouri in Columbia, told me in a 2013 interview. “They are open when it’s convenient and closed when it’s more to their convenience.”

Overstated exemptions

In the California case, “as the trial the court noted, the Legislature in drafting the text of Prop. 59 could have easily said that it was categorically exempt from that constitutional amendment,” Terry Francke, general counsel for Californians Aware, a group that promotes open government, said in an email. “It did not. The often heard observation that the Legislature exempted itself from the constitutional amendment of Proposition 59 is an overstatement.”

In states that do allow the public to access the records of lawmakers, there are often exemptions for claims of deliberative process or unfinished business.

Lawmakers haven’t touched the issue this session and have barely waved at sunshine measures since convening in December.

So far, 56 measures have been introduced that include the words “public records,” according to a review by CalWatchdog.com.

Many mentions are simply reinforcing the fact that certain records and communication are or are not subject to the state’s open records laws.

Among them:

• A measure seeking to regulate the use of drones by a public entity initially sought to make drone logs “or any related record” subject to disclosure with law enforcement restrictions. The bill was later amended, with the drone text scrapped.
• A bill called the “Internet Poker Consumer Protection Act of 2015” to legalize online poker includes an exemption for “proprietary” information on the application for a license to operate an intrastate poker website.
• The state’s Department of Veterans Affairs would have an inspector general under a measure that would also exempt from disclosure any request by the inspector general for an investigation of wrongdoing at a state-run veterans’ home.
• The first draft of a bill regarding public access to complaints against a law enforcement officer granted public access to that complaint but allowed a department to store complaints in either the officer’s or the custodial officer’s personnel file, which would potentially thwart or at least delay the public’s access to that complaint. That bill was later amended, with that language removed.
• Information regarding the death of any persons in the custody of a state agency or officer would have to be posted on the state Department of Justice website under another bill. Current law allows public access to reports regarding deaths of persons in the custody of law enforcement.

Steve Miller can be reached at 517-775-9952 and avalanche50@hotmail.com. His website is www.Avalanche50.com

Graphic by flickr user Democracy Chronicles, used via a Creative Commons license.

This was illustrated perfectly by the “Big Dig” — the Boston tunnel and road building project that was the most expensive of its kind in U.S. history. This is from the banner story in the Boston Globe on Sunday, April 9, 2000 — long after the local, state and federal governments had sunk billions of dollars into the project:

“Big Dig managers have systematically covered up hundreds of millions of dollars in cost overruns for years through shell-game accounting that made public estimates for the road-and-tunnel work little more than a mirage.

“While state officials insisted the project was on time, on budget, and tightly managed, a two-month Boston Globe investigation found little of that was true.

“The Globe’s investigation revealed the project has been hemorrhaging money since early 1998 and that its work schedule has slipped so badly it will take as much as a year longer to complete than publicly acknowledged.

“Its management has failed to hold contractors to their bids, or to penalize them for mistakes, resulting in massive cost increases that are still growing. At the same time, managers have been dropping expenses and adding dubious credits to artificially balance the books.

“Until recently, voters, investors, and taxpayers had been assured that the most expensive roadwork in US history was cruising along smoothly. But officials — led by James J. Kerasiotes, the project’s top man — have persistently withheld evidence, turning the Big Dig’s budget into a numerical charade. …

“Federal officials are preparing to release an audit this week that is expected to show the Big Dig’s cost could reach $13.6 billion — $2.8 billion more than projected just six months ago.”

Ridiculous stonewalling from bullet-train officials

Are similar shenanigans going on behind the scenes at the California High Speed Rail Authority? Authority-watcher Kathy Hamilton, writing at examiner.com, makes a powerful case that when it comes to openness, the bullet train is Big Dig the Sequel:

“Attempting to get information from the High-Speed Rail Authority (HSR) is like pulling teeth since they often delay or refuse to give information when it may be detrimental to the project.

“The California Public Records Act requires state agencies to disclose records and to assist the public in finding the information they need. There are very few, narrowly defined exceptions and it is guaranteed by the state constitution.

“But with the High-Speed Rail Authority, whether they release the information or not depends on who you are and what you are asking for. Here are various responses one can expect when asking for information from the rail authority.

“· It’s draft, you can’t have it

“· Narrow down your request, it’s too broad

“· We need time to find it (the more delayed the better)

“· We have to mail it to you, files are too big

“· It’s a trade secret

“· Client/Attorney Privilege

“· You get some documents but the attachments are missing

“· You can’t have the record because the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

“· We need clarification, which ends up taking a lot of time. An actual example: They have asked the requestor what does the word ‘communication’ means.

“· It doesn’t exist.”

Do you have any doubt that if the CHSRA was actually open we’d see exposes like the Boston Globe’s on the Big Dig?

Me, neither.

As horrible as the project has been, it’s probably far, far worse than we’ve managed to find out.

By TORI RICHARDS

A recent appellate court decision could have far-reaching impact on whether citizens can successfully fight government agencies for documents under the California Public Records Act.

Attorneys battling for public records only have one big hammer — attorneys’ fees upon winning in court. Now this important element has been curtailed in a recent court opinion. This will make government agencies less likely to produce records in a timely manner and not fear lawsuits that would normally come out of their budgets.

Said Paul Boylan, an attorney who specializes in CPRA lawsuits:

This case in particular shows that the citizen will not be awarded fees and costs unless the citizen can affirmatively and definitively prove that the governmental agency delayed or withheld information in bad faith — an evidentiary burden that a citizen is unlikely to be able to meet.

In the face of such a daunting burden of proof, no attorney will agree to represent a citizen in such a case unless they receive payment up front, and very few common people can afford what it would cost. And that means that governmental agencies can violate the CPRA without fear of being ordered to pay a petitioner’s fees and costs if they make it look like they were acting in good faith — which is easy to do and hard to disprove.

The California Public Records Act clearly spells out the legal right to obtaining government records. In reality, it often takes a lawsuit to enforce this.

“Ordinary citizens and most media outlets don’t have the legal expertise and resources to fight these types of cases,” said Chris Farrell, a director at Judicial Watch, which fights government waste. “The government routinely stalls record releases for months and years, and engages in procedural gamesmanship as techniques to jack up legal fees and discourage requesters.

No doubt about it, attaining public records is a rich man’s endeavor. Government agencies often drag cases out for years, leaving requesters with no other option than suing. Delays equal money as the two parties spend endless hours in court arguing over what is public and what is not. This racks up attorney fees unaffordable to most citizens and many media outlets.

“There is an incredible range of response time with [California] government agencies,” said attorney Roger Myers, a partner with Holm Roberts & Owen and legal counsel for the First Amendment Coalition, a watchdog group. “Some are very responsive, others are not and you don’t get anything unless you pester, holler, and scream.”

Crews v. City of Willows

In the decision Crews v. City of Willows, filed Nov. 23, 2010, the California 3rd District Court of Appeal carved out an exception that isn’t specifically detailed in the language of the CPRA. But the opinion is not published, meaning it is non-binding statewide.

However, any judge deciding whether to award fees could be swayed by this opinion, especially if their court is within the 3rd Appellate District.

The exception allows for government agencies to produce documents after the 10-day deadline if they put forth a “good faith effort” to comply with the request during the original deadline. Agencies which have shown such an effort aren’t liable for attorneys’ fees if the requester decides to sue to enforce their demand.

The law mandates attorneys’ fees for a winning party and often the threat of having to pay such an award is the only hammer requesters have in getting compliance. But in this appellate opinion, the requester didn’t “prevail” because the government in question was planning on releasing the documents anyway.

The lawsuit stems from a 2009 request that publisher Tim Crews of the Sacramento Valley Mirror newspaper made for job applications to a government post in the rural city of Willows. The documents weren’t produced until after the paper sued. Glenn County Superior Court Judge Peter Twede refused to grant attorneys’ fees and the matter was appealed.

“In the city of Willows case, Judge Twede behaved no differently than many other judges by stretching the law to find a reason — any reason — to prevent a prevailing party from recouping their fees and costs,” said Boylan, the attorney representing the Mirror.

Boylan said Twede went out of his way to side with Willows — even making arguments on behalf of the city that its own attorney didn’t make. In the end, the judge ended up applying a California doctrine pertaining to attorneys in general cases, when he should have been looking at the language of the California Public Records Act, Boylan said.

“This is an example of a widespread and growing hostility toward those seeking to enforce the CPRA,” Boylan said.

In the underlying case, Mirror publisher Tim Crews requested applications to a Planning Commission vacancy. The city clerk provided redacted copies the following day. The clerk testified that the city attorney was not available to review the request, so out of caution she redacted the applicants’ personal information.

When the 10-day deadline passed without the release of the unredacted versions, the paper sued. The documents were released a month after the lawsuit was filed. The city told the court that the Mirror never requested unredacted versions, so they thought they had complied with the request.

The appellate court sided with Twede in a 34-page opinion, which said:

Under the unique circumstances of this case, where the undisputed evidence shows the City reasonably believed the redacted documents satisfied the request and did not know of any pending request for unredacted documents at the time the lawsuit was filed, appellant cannot claim a litigation success.

The standard test for determining whether someone has prevailed under the CPRA for purposes of recovering attorney fees is whether or not the litigation caused a previously withheld document to be released.

An Expensive Endeavor

In the end, it’s the taxpayers who lose on several fronts. If the request takes the form of a lawsuit, it’s often years before the records are relinquished, if at all. By then, the information could be of little value to the requester, especially if it involves a news story where the issue is no longer prevalent.

In normal cases, government agencies on the hook for paying the winners’ fees and also rack up expenses on their own end — all funded by taxpayers.

It’s too soon to see the impact of the Crews v. City of Willows case. Previously, the various agencies appeared to be more cautious in their appeals because they didn’t want the embarrassment of losing in an era of budget cutbacks and scrutiny, critics say.

Added Jim Ewert, legal counsel for the California Newspapers Publishers Association, added:

They are playing with Monopoly money because it’s not their money. Now that the resources are more limited, it is starting to enter their economic analysis.

The California Attorney General’s Office issued a statement saying it promptly informs requesters if a decision is made to extend the 10-day rule for compliance with the CPRA. They receive an average of 35 requests a month.

“At DOJ, we make every effort to comply with every PRA request within the statutorily prescribed time frames, regardless of requestor,” spokeswoman Debbie Mesloh said.

Half a million dollars in fees

So if the courts intervene, how much would it cost in attorneys’ fees?

“You’d be lucky to get away with only spending $10,000, and it can go up to half a million,” said Myers of the First Amendment Coalition. “To go through the first level and get a ruling from the trial court can cost $25,000 to $50,000 or more. Most are not appealed because of the risk that it could increase the fees.”

But those that are appealed have racked up some mind-boggling expenses.  The First Amendment Coalition litigated a case that is believed to be California’s largest award for attorneys’ fees: $500,000. It involved a lawsuit against Santa Clara County over access to a database. The Coalition filed the case in 2006 and won on the trial level, then the county appealed and lost three years later.

Attorney Boylan had represented citizens and media organizations in public records cases on a contingency basis. He has had a wide range of awards, mostly under $100,000.

One example on the lower end of the scale is the small Northern California city of Fortuna. City officials wanted to put in a new water system and one citizen thought it wasn’t warranted and a waste of money. She requested a schematic of the city’s water system.

“They said no, on behalf of national security grounds, because terrorists would use it to bomb the water system,” Boylan said. He was awarded $21,000 in fees.

But the king of all cases is believed to be Judicial Watch’s “Chinagate” Freedom of Information Act lawsuit against the U.S. Commerce Department during the Clinton era. The organization was asking for records of illegal 1996 campaign donations that were made in exchange for disclosing military secrets to China.

Four different lawsuits ensued, spanning a decade, in which the Commerce Department was found to have destroyed evidence and falsified testimony. The defendants lost on appeal and a judge ruled in favor of Judicial Watch, ordering the Commerce Department to pay $900,000 in attorneys’ fees.

According to the watchdog groups, government agencies have figured out which requesters have a track record of suing, and that enters into the agencies’ analysis of whether or not to comply.

“If an agency knows they are dealing with a requester with a capacity to file a lawsuit and a record of doing so, they are going to be much more compliant with the law,” said Peter Scheer, director of the First Amendment Coalition.

Farrell of Judicial Watch agreed. “These agencies know who they are and they know who will sue them. They would rather not go in front of a judge and explain why they are not obeying the law,” he said. “The average citizen gets jerked around much more; they know they can grind the citizen down.”