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Wednesday, June 13, 2012

Publisher’s Notebook

• Whose Emails Are They? Could Case Impact Malibu? •

BY ANNE SOBLE

A lawsuit filed two weeks ago by the First Amendment Coalition maintains that all city officials’ emails about government business are public records. This obviously would include all emails sent and received on municipality-owned computer equipment, but the Coalition also asserts that emails on city business sent or received on officials’ personal email accounts should be public.
The Coalition is a non-profit public interest group focusing attention on freedom of speech and open government issues through education, litigation, public advocacy and government oversight.
The lawsuit that was filed against the city of Auburn and its city council on June 1 in Placer County Superior Court also challenges Auburn’s policies—similar in ways to some of those in Malibu and many other local governments—of deleting government emails based on content or a set time after they have been received.
Deletion may be mandated even when those emails—as documentation of the official workings of city government—might come under the rubric of the Public Records Act and subject to public access.
Legal counsel for the multiple plaintiffs in the Auburn litigation contend that the public has a right to see all council members’ emails about city business, even when they are on their own computers and using personal email accounts.
The First Amendment Coalition asserts that there should be no dispute that council members’ emails on government business, when sent from a dot-gov or, in Malibu’s case, a dot-org email account, are subject to the Public Records Act.
In addition to wanting to have Public Records Act requirements met, there almost appears to be an unstated concern lest the use of a personal email account becomes the means to evade public disclosure requirements or even a method to hide conflict of interest and possible malfeasance.
Auburn bases its policy of deleting emails on the determination that emails are “transitory” documentation and, as such, do not constitute public records, even though the city also makes a contradictory acknowledgement that some email messages may have official content.
The Coalition contends that the Auburn email policy violates a California statute (Government Code Section 34090(d)) requiring that public records be retained for at least two years.
Now that email has replaced paper forms of communication for most public agencies and officials, the broader issues of government transparency and public accountability may depend on what happens in the Placer County Superior Courthouse.

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