Sunday, March 30, 2014

Court says public documents become private as soon as they are hidden by public servants

(Updated) The California Court of Appeal has found that a public servant, using a public agency's computer, on a public agency desk, while being paid by the public agency to do the agency's business, is NOT creating a public record as long as that person uses a private email account. It's ridiculous to say that an email created under such circumstances is not a public record within the meaning of the California Public Records Act.

But I guess this decision makes it easy to figure out why public officials and employees use private email to do public business.

Why don't they use their work email accounts? The answer seems obvious: to skirt the laws regarding public records. And now the California Court of Appeal has given its stamp of approval to this practice.

Public servants who want to keep their actions secret breathed a sigh of relief when the California Court of Appeal made it easy for them to conceal documents regarding public issues.

The law says that “‘Public records’ includes 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."

Clearly, when a "state or local agency" prepares a document, it is an actual human being, an official or employee or contract worker who is preparing it, not a disembodied "public agency".

The law doesn't say that the document must be prepared AND retained by the agency in order to be a public record. It says the documents must be prepared OR retained by that agency. If a public servant is being paid by the taxpayers to work on a public issue, then his or her writing about that issue is a public record.

Yet San Jose attorney Rick Doyle says that documents that "aren't retained or held by the public agency" aren't public records. Public servants simply have to hide public documents in order for those documents to become private! And the Court of Appeal agreed with him.

The California Court of Appeal basically found in the San Jose emails case that if a document is not in the possession of the public entity, then it isn't public. Would this also apply to paper documents? Logic would seem to require that it would.

These shredded documents survived a burning spree in a parking lot at San Ysidro School District

Apparently, a document can be switched at will from public to private. In the San Jose case, all that is needed is to send it using a private email account rather than a public email account. So why is the FBI investigating Manuel Paul of San Ysidro School District for burning documents?

Perhaps public officials aren't off the hook quite yet. An agency may not have to turn over documents that have been converted from public to private, but the court has NOT found that the act of conversion itself is legal. Obviously, it would be extremely difficult to turn over a document that had been incinerated. (Manuel Paul was a client of Dan Shinoff (below), who applauded the Court of Appeal decision.)

Richard Doyle

Attorney James McManis says, "When you think about it -- it's just nuts. If they can hide stuff by using their private devices, that's no way to run a railroad."

James McManis

I have to agree with him. The decision is clearly a gift from the Court of Appeal to those who want to circumvent the California Public Records Act.

San Diego school attorney Dan Shinoff, who is known for working hard to keep secret the actions of school officials, spoke for many when he applauded the California Court of Appeal for protecting public servants who prepare, use and retain written information about public business in their private email accounts.

Dan Shinoff of Stutz Artiano Shinoff & Holtz

Mr. Shinoff, who represents 40 of the county's 42 school districts, applauded the judge's ruling: “It's my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications."

In my case, Maura Larkins v. Richard Werlin, Mr. Shinoff made copies of documents created by employees at Chula Vista Elementary School District, and then told those employees to keep the originals in their homes. Later Mr. Shinoff and his partner Ray Artiano said in a deposition that the records couldn't be found at their law office. Since Mr. Shinoff represents 40 of the 42 districts in San Diego County, I'm guessing that there are a lot of public documents stashed away in private homes in the county. This makes me wonder if Mr. Shinoff is keeping evidence from my case squirreled away at his house.

The San Jose decision concludes:

We conclude that the language of the CPRA does not afford a construction that imposes on the City an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a CPRA request for messages relating to City business.

Whether such a duty better serves public policy is a matter for the Legislature, not the courts, to decide. In addition, it is within the province of the agency to devise its own rules for disclosure of communications related to public business.

The obstacles noted by petitioners and the League—the legal and practical impediments attendant to the extra task of policing private devices and accounts would also be addressed more appropriately by the Legislature or the agency, not the courts.

I certainly agree that it is burdensome for public agencies to search for public records in someone's private email account. So why do those agencies allow officials and employees to use personal accounts for public business?

We clearly need a law forbidding public servants from using private email for public business and from using private storage for public records. Until then, I expect that ethically questionable transactions will take place through private email--and there won't be much reason to request public emails. The important information won't be there. The California Public Records Act won't be worth much.

San Jose court: Government workers can keep messages from personal devices private
By Mike Rosenberg
Mercury News

SAN JOSE -- In a decision that draws a line on public access to government records, an appeals court ruled Thursday that government workers in San Jose and beyond can keep their communications private if they send them on a personal device like a cell phone.

The Sixth District Court of Appeal decision directly affects South Bay counties and sets legal precedent in California that could influence judges in other parts of the state, although the issue is likely to remain unsettled until the California Supreme Court weighs in.

Last year, open records advocates had defeated San Jose City Hall in the lower courts in a case over whether the city's 5,500 workers had to make public messages sent on their private devices. Typically, for instance, emails sent or received on a city's system would be subject to disclosure under the California Public Records Act. But it was not clear whether the same employee could keep a government-related message sent from a personal Gmail account private.

Media groups and open government activists argued officials could skirt the spirit of the landmark 1968 Public Records Act by texting, calling or emailing about government business with their personal devices. But city officials, aided in court by the California League of Cities, said they have no control over the employees' personal accounts and it would be costly and unwieldy to compile the records.

The city emerged victorious Thursday in the 6th District following a hearing in San Jose earlier this month. In a 3-0 ruling, justices Franklin Elia, Conrad Rushing and Eugene Premo said it should be up to the California Legislature to determine which records are public -- not the courts.

The decision reversed a March 2013 ruling from a Santa Clara County Superior Court judge who said "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

But James McManis -- the attorney for activist Ted Smith, who first sued to get access to the records -- said "they haven't heard the last from us." His group will petition the state's highest court for a final review, but it's up to California Supreme Court justices to decide whether to accept the case.

"When you think about it -- it's just nuts," McManis said. "If they can hide stuff by using their private devices, that's no way to run a railroad."

City Attorney Rick Doyle said the California records law, passed in an age well before texting or email, "never contemplated" that private devices would be subject to records requests.

"These aren't retained or held by the public agency and individuals aren't the public agencies," Doyle said. "They may work for the public agency, but it's not the same thing."

Doyle said San Jose has among the best sunshine ordinances in the state. Ironically, he noted, the city in 2010 approved a policy that makes messages about public business sent on private devices public, but it only applies to the City Council and their staff. But even then, the rule is tough to enforce.

"They're on the honor system on that," Doyle said. "They're supposed to turn (the records) over."

Ruling favors secret Gmail for officials
Appeal court says cities can't be required to disclose personal accounts
By Ashly McGlone
March 28, 2014

A court ruling out of San Jose involving emails of public officials could have implications in San Diego and across the state.

A three-judge appeals panel struck down a March 2013 decision by Santa Clara County Superior Court Judge James P. Kleinberg, who had found that the emails and texts of public officials using their personal accounts or devices become public records if they are discussing government business.

“Politicians read into the law what they want to read into the law in order to keep their secrets secret,” said San Diego attorney Cory Briggs, who has filed a similar lawsuit here. “Gmail is going to get a lot busier with politicians’ communications in light of this ruling. Good day to buy stock in Google, and it’s a sad day for open government and democracy.”

The ruling reversed Kleinberg’s order for the City of San Jose to turn certain messages over to resident Ted Smith, who sought them in a public records request.

The appeals court found that a public official’s Gmail or Yahoo account is not in possession of the city, and therefore can’t be considered public.

“Any control the city has over its employees' behavior is not equivalent to control over, or even access to, the text messages and e-mail sent to and from its employees' private devices and accounts,” Associate Justice Franklin D. Elia wrote. “That city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern; but such conduct is for our lawmakers to deter with appropriate legislation.”

San Jose City Attorney Rick Doyle said of the victory, “I think the court recognizes privacy interests of individuals, including public officials,” adding that the earlier ruling “was too broad and the Legislature hasn’t gone there yet.”

“It’s the reality of technology getting beyond what the law is,” said Doyle, who has served as city attorney for more than 14 years. “Judge Kleinberg was equating ‘you are a public official,’ ‘you are the city’ and that’s just not true.”

Attorney Dan Shinoff, who represents 40 of the county’s 42 school districts, applauded the judge’s ruling.

“It’s my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications,” Shinoff said.

Members of the plaintiff’s legal team said they would seek a review from the state Supreme Court in hopes of appealing the decision that Attorney James McManis calls “dead wrong.”

“We are supposed to have transparency and this is prompting secrecy,” McManis said. “Now they have the green light to put this stuff on private devices with the comfort that no one is ever going to find out.”

“They are supposed to be serving the people and are not supposed to be conducting business behind closed doors and emails.” McManis said, “If they don’t want people looking at their emails then they shouldn’t use private emails. That’s a real simple choice for them to make.”

State public records law says in part, “‘Public records’ includes 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.”

Donna Frye, president of the nonprofit Californians Aware and a former San Diego city councilwoman, said the ruling doesn’t comport with a plain reading of state public records law and opens the door to additional legal problems.

“They can essentially conduct full meetings in full view of the public. They can sit up there and form collective concurrences and violate not only the Public Records Act, but the Brown Act,” Frye said. “Just because technology allows people to communicate in different ways, it doesn’t mean the intention about what is a public record has changed… I hope the Legislature will act so that it’s statewide, so that it doesn’t have to be done on a city-by-city or county-by-county basis.”

In the meantime though, Frye’s group is still working with San Diego council members David Alvarez and Marti Emerald to get a city charter amendment onto the November ballot that would require city officials to copy a city email on city-related communications sent from a personal account, require emails to be kept for two years and deem certain records of city contractors public.

The Court of Appeal ruling may buttress the position the city of San Diego has taken in two lawsuits by Briggs seeking personal emails of public officials discussing government business. The City Attorney’s Office has taken the position that the emails are not public. Officials there declined to comment on the ruling. A hearing is scheduled for April 11.

See related post at San Diego Education Report blog.

Update Mar. 31, 2014: "We are not hiding anything."

I couldn't help thinking of the public agencies in California whose officials and employees use private emails to conduct business when I saw another story about authorities who don't want to release information--but insist that they're not trying to hide information from the public.

Perhaps the Malaysian government gave a wrong quote because one of their lawyers took the recording--and the transcript--home for safe keeping. I think the philosophy might be pretty much the same in both places: keep the truth secret because it might contradict the story we come up with.

MH370: New last words from cockpit: 'Good night Malaysian three seven zero'
By Catherine E. Shoichet, Faith Karimi and KJ Kwon, CNN
March 31, 2014
Source: CNN

They were words heard around the world as investigators searched for the missing Malaysia Airlines plane.

Weeks ago, Malaysian authorities said the last message from the airplane cockpit was, "All right, good night."

The sign-off to air traffic controllers, which investigators said was spoken by the plane's copilot, was among the few concrete details officials released in a mystery that's baffled investigators and drawn global attention since the Boeing 777 disappeared with 239 people aboard mid-flight on March 8.

There's only one problem. It turns out, it wasn't true.

On Monday, Malaysia's Transport Ministry said the final voice transmission from the cockpit of Flight 370 was actually "Good night Malaysian three seven zero."

And authorities are still trying to determine whether it was the plane's pilot or copilot who said them.

The new language is routine and is not a sign that anything untoward occurred aboard the flight, said CNN aviation analyst Mary Schiavo.

But the change in wording weeks into the search for the missing plane raises questions about how Malaysian officials have handled the investigation.

"It speaks to credibility issues, unfortunately," Schiavo said.

"We haven't had a straight, clear word that we can have a lot of fidelity in," said Michael Goldfarb, former chief of staff at the U.S. Federal Aviation Administration. "We have the tragedy of the crash, we have the tragedy of an investigation gone awry and then we have questions about where we go from here."

No matter what the pilots' last words were, it's hard to understand what they mean without more details from authorities about what they said and how they said it, CNN aviation analyst Miles O'Brien told "The Lead with Jake Tapper" on Monday.

"Without the preceding information ... either the transcript or the recordings themselves, it's difficult to know what any of that really means," he said. "And that's the problem with this investigation, which has been so opaque."

Malaysian authorities have defended their handling of the situation.

Acting Transportation Minister Hishammuddin Hussein said Monday that authorities were not hiding anything by declining to release some details of the missing flight. Some details are part of ongoing investigations into what happened to the plane, he said.

"We are not hiding anything," he said. "We are just following the procedure that is being set."...

A culture of silence?? The following article talks about "corporate culture". But I think we're talking about human nature. Reflexive dishonesty seems to be rampant. GM will pay, but I doubt that it will significantly change its corporate culture. Consumers will continue to be in danger.

Why did GM take so long to respond to deadly defect? Corporate culture may hold answer.
By Michael A. Fletcher and Steven Mufson
Washington Post
March 30,2014

The part costs less than $10 wholesale. The fix takes less than an hour. A mechanic removes a few screws and connectors, takes off a plastic shroud, pops in the new switch, and the customer is back on the road.

It’s relatively cheap and easy to replace the flawed ignition switch that has been blamed for at least 13 deaths, including a fatal June 2013 crash in Quebec newly linked to the defect. Yet General Motors waited more than a decade before recalling 2.6 million Chevrolet Cobalts and other small cars.

GM’s failure to alert customers sooner could end up costing the automaker hundreds of millions of dollars in fines and much more in reputational damage. It has already cost the lives of the drivers, who perished at least in part because the faulty switches suddenly shut off their cars, stiffening brakes and power steering and disabling air bags.

With so much at stake, why didn’t GM act sooner?

The answer, according to many people familiar with the automaker, is a corporate culture reluctant to pass along bad news...

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