Then-Secretary of State Hillary Rodham Clinton checks her BlackBerry inside a C-17 military plane in 2011 upon her departure from Malta, bound for Tripoli, Libya. Her use of personal email adds fire to a legal debate over what constitutes a public record. Kevin Lamarque Associated Press file
Then-Secretary of State Hillary Rodham Clinton checks her BlackBerry inside a C-17 military plane in 2011 upon her departure from Malta, bound for Tripoli, Libya. Her use of personal email adds fire to a legal debate over what constitutes a public record. Kevin Lamarque Associated Press file

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Capitol Alert

Hillary Clinton emails illuminate California debate about what’s public

By Christopher Cadelago

ccadelago@sacbee.com

March 06, 2015 06:40 PM

UPDATED August 06, 2015 12:21 PM

Hillary Rodham Clinton did it. So did Mitt Romney. And Sarah Palin.

But reliance on private email accounts to conduct government business has for some time irked citizens and watchdog organizations who argue the tactic has been exploited to effectively shield conversations from public view.

California law on the subject remains unsettled, leaving many public officials essentially free to conduct back-channel communication. The Legislature has made no moves to clarify the situation, and a court battle is raging in San Jose.

“A big part of the problem here is you have no way of telling whether someone is conducting business by private account unless there is some accidental slip,” said Terry Francke, general counsel for the open government group Californians Aware.

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Jim Evans, a spokesman for Gov. Jerry Brown, said the administration believes there is no law governing state officials’ use of personal email. But as a matter of general policy and practice, he said, the Governor’s Office encourages that official business be done on government email accounts.

That contrasts with states like Florida, which boasts one of the nation’s strongest public-records laws. Former Florida Gov. Jeb Bush, who also used a private account on a personal server, was made to relinquish work-related documents from his two terms as the state’s chief executive.

The state and federal scenarios highlight how changes in technology continue to refine traditional work spaces.

For Clinton, a prospective presidential candidate, likely many of the tens of thousands of emails sent from her own address would be subject to the federal Freedom of Information Act. As officials scrutinize the emails from her time as secretary of state for possible release, attorneys here are arguing a case before the California Supreme Court that at last could decide what kinds of communications must be disclosed.

Ted Smith, a local activist, sued the city of San Jose after unsuccessfully setting out to inspect emails and text messages sent or received by officials on private devices or accounts.

Last March, the 6th District Court of Appeal held that the California Public Records Act does not require the city to produce messages from personal devices that are not accessible to an agency. Nor does it require the city to search those devices and accounts for messages relating to official business.

The showdown already has had an impact. Last summer, it was cited when the state health insurance exchange, Covered California, reviewed a request for emails between commissioners. The requests came from Consumer Watchdog, which at the time was campaigning for an ultimately unsuccessful statewide ballot measure to regulate health insurance rates.

Covered California, which does not provide government email addresses to its five-member volunteer board, told the group that board members voluntarily agreed to search their own accounts and produce any related emails. At least one board member did not provide any documents.

Andrea Rosen, the exchange’s attorney, said that until the Supreme Court decides the San Jose case, Covered California would continue to rely on the appellate court’s analysis and reasoning.

“Production of these emails does not waive our future rights regarding the privacy of Board members or anyone else’ private email accounts,” she wrote.

Jamie Court, the president of Consumer Watchdog, said his organization plans to ask the Supreme Court to issue a ruling that covers all public officials, including those on boards such as the health exchange.

“When there is no policy, they can delete their emails as much as they want,” Court said. “The reason there is a Public Records Act is ... if (an email) was destroyed, it becomes a violation of the law.”

In the San Jose case, Smith’s lawyer, James McManis, contends the city’s decision to exclude documents just because they’re stored on private accounts would undermine the public’s right of access and create an easy way for public employees to conceal wrongdoing.

“They don’t want to have to produce any of the emails and I suspect the reason why is they would probably be embarrassing,” McManis said in a phone interview. “I just don’t see how these officials can do stuff on the Q.T. and say ‘Well, that’s not a public record,’ when it’s clearly a part of the public’s business.”

Smith’s lawyers note that courts in other states have ruled that public records are defined by their content.

They cite a case in Washington where a court found that text messages concerning public business were disclosable despite residing on an official’s cellphone. In a Texas case, the court concluded that the personal email correspondence of a commissioner qualified as public information.

San Jose City Attorney Richard Doyle did not respond to requests for comment. But his attorneys reiterated in a recent filing that voicemails, text messages and emails related to public business but stored solely in private accounts are not a public records because they aren’t prepared, owned or retained by the agency. Joining in their argument is the League of California Cities, the group that lobbies on behalf of municipal governments.

The league’s lawyers claim a host of potential pitfalls. While local agencies are mandated to operate transparently, they state in their court filing, that must be balanced against the privacy interests of public officials and employees. Public employees don’t surrender their private space by accepting a public position, the argument continues. “Such an interpretation would dissuade many good and qualified individuals from entering public service.”

Patrick Whitnell, general counsel for the league, said the court would need to provide guidance on how to obtain records without violating the state and federal constitutions. “We are not really sure how a city could get access to emails that are on an official’s personal email account,” he said.

The league concludes that the practical and legal burdens that could be imposed on localities should be resolved by the Legislature, not the state’s high court.

There has been little appetite for that, with Democratic leadership at the Capitol saying they have no plans to address the issue.

John Casey, a spokesman for Assembly Speaker Toni Atkins, D-San Diego, said she’s been focused on transportation and housing proposals as well as how best to tackle the University of California’s budget.

“However, if the Supreme Court decides disclosure of emails is in need of further clarity, we will be prepared to look at that,” Casey said.

Francke said he believes lawmakers will hold off until after the court acts, in part because no one has come up with a practicable way to police a new policy.

He suggested a legislative solution: a flat prohibition against sending any email on a private account and a requirement to turn over to the agencies any incoming emails that land there.

Call Christopher Cadelago, Bee Capitol Bureau, (916) 326-5538. Follow him on Twitter @ccadelago.