What if the mayor is communicating with his aides, his allies, local businesses, whatever, with his personal email and cell phone, doing public business in a way that avoids the intent of the open-records laws?
This came up early in the Obama administration, when the president was allowed to keep his BlackBerry, but only with additional security features. His emails will be part of the public record forever, under the Presidential Records Act.
But that doesn’t trickle down to the local level, where I’ve many times sought email records from city officials only to be told that they “don’t exist.” That’s probably because they exist on private phones and email accounts.
As far as I know, this question has never been tested in court. But if everyone’s doing what Christie’s aides are doing, it makes a mockery of any public records law.
Let’s suppose that, as with Chris Christie’s staff, the mayor (or a senior aide) has been using his private cell phone to text with Ron Conway about another tech-industry tax break. And along the way, he mentions that there’s a city contract coming up that one of Conway’s companies ought to bid on. That’s city business, and it absolutely ought to be public; if he’d used a city email account, it would be.
But his personal cell phone? Or his personal email? Maybe not.
There is massive potential for mischief here.
Could the city decide that, while it’s fine to use personal electronic devices for official business, those texts have to be made public and can’t be deleted (as per city Sunshine law?) Or could the city decide that it’s against the rules to use private devices to engage in official city business? How do we deal with this? Because this is how public business is done now. In secret.
There was a Superior Court ruling in San Jose last year that the Public Records Act applies to private phone and email records if they’re used for government business. San Jose appealed the ruling, but I don’t know if the appeal has been heard or anything.
http://firstamendmentcoalition.org/2013/03/judge-plugs-private-email-loophole-in-public-records-law/
yea, they’re public records. I’ve been involved with at least two instances – up in the foothills and down on the central coast – where public officials were using private accounts for public business. In fact there was a lawsuit brought by the 1st amendment coalition against the city of auburn for this very fact. it was settled out but the outcome was disclosure of information and an agreement to issue all city council members an official city account for any and all city business.