Friday, March 3, 2017

#62 / "Trust Me" Doesn't Cut It

Justices of the California Supreme Court: Standing, from left: Justice Mariano-Florentino Cuéllar, Justice Carol Corrigan, Justice Goodwin Liu, and Justice Leondra Kruger. Seated, from left: Justice Kathryn Werdegar, Chief Justice Tani Cantil-Sakauye, and Justice Ming Chin.

On March 2, 2017, the California Supreme Court issued a decision holding that communications made by government employees, relating to the public's business, are "public records," even if those communications are made by way of a private email account, or through the use of a private cellphone. All such communications, the Court said, are subject to disclosure pursuant to the California Public Records Act (CPRA).  

The case just decided began with a request made under the California Public Records Act in 2009. Ted Smith, one of the founders of the Silicon Valley Toxics Coalition, and a friend of mine, asked for records from certain officials in the City of San Jose. The City of San Jose resisted that request, claiming that the records sought were not "public," because the communications in question were carried out using private email accounts and private cellphones. 

Smith sued the City, and a trial judge said that the records being sought were public. San Jose appealed that trial court decision, and the Sixth District Court of Appeal said that the records were not subject to disclosure under the California Public Records Act, because they were not located on servers directly controlled by the City. Finally, almost eight years after Smith's original request, the Supreme Court agreed with the trial judge, and reversed the Court of Appeal, and held that the records sought by Ted Smith were, in fact, subject to disclosure pursuant to the requirements of the Public Records Act. 

This is an important decision, which came down squarely on the side of public disclosure and open government. I thought one part of the Court's statement of decision was of particular interest: 

The City's interpretation would allow evasion of CPRA simply by the use of a personal account. We are aware of no California law requiring that public officials or employees use only government accounts to conduct public business. If communications sent through personal accounts were categorically excluded from CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts. The City's interpretation “would not only put an increasing amount of information beyond the public's grasp but also encourage government officials to conduct the public's business in private.” (Senate, Whose Business Is It: Is Public Business Conducted on Officials’ Personal Electronic Devices Subject to State Open Records Laws? (2014) 19 Comm. L. & Pol‟y 293, 322.)

It is no answer to say, as did the Court of Appeal, that we must presume public officials conduct official business in the public's best interest. The Constitution neither creates nor requires such an optimistic presumption. Indeed, the rationale behind the Act is that it is for the public to make that determination, based on information to which it is entitled under the law. Open access to government records is essential to verify that government officials are acting responsibly and held accountable to the public they serve. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) “Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.” (Ibid.)

The highlighted language rejects the idea that members of the public are going to have to accept "trust me" statements from their public officials. No one should have to "presume" that public officials are conducting official business in the public's best interest. We have a right to know what our public officials are doing, and what they are saying, so we can make up our own minds about whose interests are being served. 

Giving public officials the benefit of a "presumption" that they will always act in the public interest would do just what the Supreme Court says it would do. It would actually encourage "the arbitrary exercise of official power and secrecy in the political process.”

"Trust me" doesn't cut it, where the public's business is concerned. Kudos to the California Supreme Court for making this absolutely clear! 

And now, here is my question: Who is going to send a copy of this decision to President Trump? Somebody ought to make it available to Attorney General Jeff Sessions, and to the other members of the current Administration!

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