Community activist Ted Smith suspected backroom dealing at San Jose City Hall.

San Jose’s former mayor was asking the City Council for government money to help develop a project downtown. Smith filed a public records request for all communications related to the development from elected officials and their staff.

The city responded, providing some records but maintaining that emails, texts and other communications sent by government employees on their private devices were not covered by the California Public Records Act.

Nearly eight years later, the downtown project is complete, helped in part by city funds approved by elected San Jose officials. Smith never received the communications he sought.


But his request is likely to produce new rules to deter government officials from using private phones and computers to keep their communications secret.

During a hearing last month, the California Supreme Court appeared ready to rule that government business conducted on private telephones and computers must be made public.

The quandary expressed by justices was how to fashion a rule to protect the privacy of government employees and still ensure that public business was open to inspection.

Smith, 71, a former lawyer who has spent much of his life working for nonprofit groups, said the behind-the-scenes dealings with the San Jose City Council and the developer remain important to know, even though the project is complete.


“I learned, early on, the famous Louis Brandeis quote,” he said, referring to the U.S. Supreme Court justice who served from 1916 to 1939. “ ‘Sunshine is said to be the best of disinfectants.’ That has always made sense to me.”

In examining Smith’s case, the justices of the state’s top court grappled with several questions: How can government ensure employees retain business-related emails and texts on their private devices? What happens if the communications have been deleted?

Will a new rule make it impossible for employees to discuss their work online for fear it will become a public record? Would a message to a friend or family member about a boss, a work project or colleagues have to be disclosed because the topic involved public business?

“If I say my boss is a jerk, am I conducting public business?” Justice Carol A. Corrigan asked during the hearing.


If I say my boss is a jerk, am I conducting public business?” Justice Carol A. Corrigan

Associations of cities, counties and school boards throughout the state have urged the court to side with San Jose.

They argue that any rule that requires them to turn over communications on private devices would be a huge and costly burden.

“There used to be state funds for the public records mandate,” San Jose Assistant City Atty. Nora Frimann told the court. “That has gone away.”


The Public Records Act became law in the 1960s, when “ ‘server’ meant somebody who serves you food,” Justice Mariano-Florentino Cuellar noted during the hearing. Voters later enshrined the right to public records in the state Constitution.

Karl Olson, representing the news media, including The Times, argued that many public officials are deliberately using personal computers and telephones to conceal their communications. The practice is widespread, Olson wrote.

The examples Olson cited included Hillary Clinton’s use of a private account while secretary of state, the disclosure of emails that showed aides to New Jersey Gov. Chris Christie created a mammoth traffic jam to punish a Christie foe, and a host of other cases involving public officials using private email addresses in Los Angeles, San Diego, San Francisco and Sacramento.

Without conceding that public officials are using private accounts to evade scrutiny, San Jose’s Frimann said making those communications public wouldn’t necessarily provide the public with more information.


“If private accounts become public records, people will go to phones or meetings” to protect confidentiality, the assistant city attorney said.

Frimann also questioned how cities and counties would handle communications on Facebook, Snapchat or other forums.

“It sounds like a big practical problem,” said Justice Kathryn Mickle Werdegar.

The League of California Cities has urged the court to put the onus on individual officials if the justices rule that private devices are not off limits.


The group posed the example of a city manager who emails a brother from home one evening.

The city manager mentions that Walmart has applied for a permit and expresses his or her views. The brother responds, mentioning that a Walmart had recently located in his city.

If the city then received a public records act request for communications involving the Walmart application, the city would have to search all the private devices of its employees and would be responsible for violating the law if the city manager refused to consent to a search of his home computer, the group said.

“Such a system is unworkable,” the group said.


Though California’s justices appeared to agree that government business done on private devices should be made public, some worried about the consequences of such a ruling.

Justice Goodwin Liu, an appointee of Gov. Brown, warned: “We are walking into a big unknown.”

Using the example of a camel peeking under a tent, Liu said a legal rule could jeopardize people’s right to privacy: “There’s a whole lot of things under the tent.”

Liu also wondered how city officials would collect emails and texts from employees.


“Does the employer rifle through the emails and decide which ones are public business and which are not?” he asked.

Other members of the court suggested that public record requests will be specific enough to ensure that only relevant communications are disclosed.

A trial court judge sided with Smith, but a Court of Appeal ruled for San Jose. The California Supreme Court will decide the case by early March.

James McManis, Smith’s lawyer, said in an interview that he hopes the court simply rules that government business on private devices is public record and allows future litigation to decide the parameters of what governments must do.


“When these guys think their private devices are safe, I think they are going to say all kinds of stuff they would never say on a city-owned device,” McManis said.

“If the court rules, as it should, that these are public records, I guarantee you the use of private devices will stop immediately.”

maura.dolan@latimes.com

Twitter: @mauradolan


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