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Government Law

Paper’s ‘sunshine week’ project seeking private-account emails on public business is mostly cloudy

Posted Mar 24, 2014 4:45 PM CDT
By Terry Carter

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The San Diego Union-Tribune got very practical with its celebration of the recent national Sunshine Week—itself the brainchild of the American Society of News Editors for educating the public on the need for more openness and less secrecy in government.

The U-T published a lengthy feature based on its request for certain email records from more than 100 government administrators across the region. The newspaper asked to see samples of personal emails discussing the public’s business—emails sent from workers' Gmail, Yahoo or other personal accounts.

The effort did not stuff the newspaper's inbox. Samples came back from just two of the more than 100 administrators queried: Grossmont Healthcare District and the city of Lemon Grove.

Some responded that they had no such records, some said the emails are not for public viewing and others simply did not respond.

The San Diego law firm Stutz Artiano Shinoff and Holtz represents 40 of San Diego County 42 school districts, and told the newspaper that emails in private accounts don’t fall under the California Public Records Act “because the district does not have actual or constructive possession over any such private account.”

The firm pointed to a California appeals court decision in 2012 concerning the City of Selma in Fresno County, which said that an agency has constructive possession of records “if it has the right to control the records, either directly or through another person.”

But the U-T also asked for emails sent to and from the top executive of each local government agency. In March 2013, a Santa Clara County Superior Court judge ruled in a case involving San Jose officials that government business done through private email accounts “reasonably falls within the definition of a record ‘retained' by the city.”

San Jose is appealing.

“My sense is that many local governments haven’t updated their policies to cover what happens with personal email,” Jodi Cleesattle, a San Diego lawyer and member of the Society of Professional Journalists’ Freedom of Information Committee.

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