California Supreme Court Issues Huge Government Transparency Ruling;
The Federalist Paper Projects
March 3, 2017
By Robert Gehl
The California Supreme Court ruled unanimously Thursday that the public has a right to see emails and text messages about public issues on government officials’ personal devices. The decision ends a long legal battle and sets a statewide president for records disclosure.
The ruling closes what was a loophole in the law that let public officials conduct the people’s business privately on their personal phones and computers outside the reach of the Freedom of Information Act, which until now, only covered government-issued devices, The Mercury-News reports.
“We hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act,” the court opinion said. “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”
The case stemmed back to 2009, when a former lawyer suspected San Jose officials were using their private phones and email accounts to hide dealings with the former Mayor, who was proposing a downtown development. He filed a public records request, but the city withheld anything on a private device.
In labor dispute cases for many years, it has been shown that employee calendars were admissible evidence in court for arbitration. Countrywide Financial vs Bundy was one of the pivotal points that I can recall. The claims in this case were solely for “non-payment” or untimely payment brought pursuant to Labor Code sections 203 and 204.
Not having legal background, I can in no way make reference on this case. However, at the time my Human Resource group and news articles made clear that whatever we wrote on a desk calendar was admissible in cases for court. We were told to keep our handwritten calendars and a copy of our online calendar on file so that if for any reason in a ten-year span it was needed as evidence, the paper trail would be available. The rule also noted that the records were part of the company records as well so we often kept both personal and desk copy.
I don’t know if it was unique to the company I worked for at the time but as far back as when I worked for the oil company as Secretary to the Treasurer in the late 1970’s, this was the rule and common practice.
According to an American Bar Association article written in 2011 goes into quite a bit of legal detail on such filings. At the conclusion, the article stated “significant time should be devoted to identifying and analyzing the authentication and admissibility issues relative to the electronic data involved in the litigation. Addressing these issues at the earliest possible phase is critical to a successful evidentiary presentation on summary judgment, at a hearing, or at trial.”
A few of the cases listed:
– United States v. Safavian which involved the political-corruption prosecution of the General Services Administration’s deputy chief of staff.
– Demarco v. Lehman Brothers Inc. when a motion to dismiss was defeated by email evidence.
– Jamsports & Entertainment, LLC v. Paradama Products when the court denied summary judgment where the email evidence was considered strong evidence of an intent to engage in anticompetitive behavior as alleged in the lawsuit.
– SEC v. Mozilo when the court found that certain emails supported a finding that the defendants acted with the intent to deceive or defraud.
– Pursuit Partners, LLC v. UBS in which the AG demonstrates the danger of informal “stream of consciousness” email writing.
Having stated the above, in the last eight years in particular there has been a massive and until now perhaps erroneous or “loophole exploitation” thought chain that “personal” electronic transmittals were different from “public” or “governmental” transmittals. In other words my personal email account (i.e. in most cases housed on my phone or laptop) could not be subject to legal review if I used it for a “business” purpose.
The most infamous example is Hillary being caught on tape in 2000 or so at a fundraiser. In the short video she blatantly notes she moved all her “public” to private email to evade any FOIA efforts to obtain information she did not want seen. Though what she did seems to be horrific especially for such a public figure, in reality the same premise has been around for as long as there have been crooked politicians trying to hide their “backroom” negotiations and profitable schemes from public knowledge. Inevitably, a few “less talented” or more angrily targeted get caught up in their web of lies and justice is served.
One of the premises in that ABA article noted was that the “company” had to have in place a policy of preserving and cataloging company emails for its security. Over the years this not only occurred but evolved as standard procedure for most companies because it became critical as a CYA measure.
Many states have addressed email management with some more specifically covered than others. Wording such as the following if interpreted by courts “all written and typed materials made by public officials in the course of conducting public business are subject to the law” should be inclusive of personal email accounts and like this State of California decision should by all rights close the “loophole”. A 2010 Open Records report by National Association of Counties attempts to bring light on this topic by state but obviously needs more current information or may have been updated just not shown in a quick search.
Liberals are sweating bullets now as they should be as their whole house of cards is being exposed. No longer does the general public accept that what they say is truth and must be accepted. Our blinders are off partly because Trump is in office and partly by their own blatantly criminal and audacious acts of tantrums and attacks.
Laws and constitutional rulings are finally being seen from courts. Now to force congress to stand on their oath and the constitution not cower before liberal threats, rants. or actions. Call them out on their attitudes. Bring them to court to prove their cases. STOP their attacks.
Truth rather than mendacious bombastic reporting is making a comeback in articles and minds around the country. Notice it is not often mainstream media sources but the dissemnation by internet users and localized sources that have turned the tide. Hopefully this tsunami of truth will sink the liberal leaky ships at least for the next fifty years.
The fight to keep internet less controlled and censored is an absolute must in order to bring these things to light. It is no wonder the UN wants total control of internet and countries are trying to force providers to bend to their collective will. The freedom of speech is precious and as we have been seeing easily manipulated by special interests if we do not stay on top of the topics or question the information.