“Transparency in government actions and record keeping assures accountability by allowing people to verify that government is fulfilling its ethical responsibilities,” said Hana Callaghan, director of Government Ethics at the Markkula Center for Applied Ethics, during the August 21, 2015, meeting of the Center’s Public Sector Roundtable. For that reason, all public records are subject to public scrutiny.
In recent months, largely due to the controversy over former Secretary of State Hillary Clinton’s email records, there has been vigorous debate over whether the emails of government employees count as public record. While transparency in government is an ethical virtue, it can also become a tremendous burden to public officials, in terms of both workload and privacy.
The roundtable discussion, led by Julie Sherman (Senior Counsel) and Caroline E. Lee from the San Francisco law firm Hanson Bridgett, focused on what constitutes a public record in the state of California, who can request such records, and whether or not certain exemptions and legal loopholes allow the government to withhold information, specifically in regard to emails.
According to the California Public Records Act, a public record is “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 characteristic.” Sherman, who represents a variety of public agencies including cities, transportation districts and water districts, made it clear to the roundtable that emails about personal matters and only personal matters are not a public record.
Public agencies regularly encounter requests for all records, including emails. Members of the roundtable, which is comprised of various local government officials, gave examples of requests from litigious parties with their own private agendas. In such cases, many participants argued that the right to request information had been abused purely to act as a disruptive force.
When this happens, public record requests can become more than just a problem of privacy. They’re a resources problem, as many agencies simply don’t have the manpower to process the myriad requests. They actually impede the ability of employees to do their jobs.
One attendee suggested an amendment to the law requiring that the requester of public records specify his or her purpose, in the hope of weeding out egregious, unreasonable requests. This notion has been raised in the legislature before though, and it was met with serious opposition.
Electronic records management systems could also make it easier to archive emails and comply with requests, but not all agencies are equipped with the proper technology.
Then there’s the approach of clearing out emails on a regular basis. Can government agencies simply delete their emails and be done with them? Sherman noted that cities have gotten in trouble for auto-deleting emails after 60 days, 90 days, etc., and advises her clients to maintain all email records from the last two years. Anything beyond two years should be safe to purge.
Sherman often tells her clients to think of their emails as not belonging to them. For all intents and purposes that’s generally the rule, in the private sector as well as the public. But what about emails sent by government officials from private, non-city devices and accounts (think Hillary Clinton)? Are those subject to the California Public Records Act as well?
The Roundtable looked specifically at the case of City of San Jose v. Superior Court (2014) to discuss the matter. Initially the Santa Clara County Superior Court found that private emails (and text messages) were subject to disclosure. However, the Sixth District of California overturned the decision, “finding that the PRA does not require public access to communications between public officials using exclusively private cell phones or email accounts.” At present, the state awaits a final ruling from the California Supreme Court.
If the Sixth District’s ruling is upheld, it could create a huge loophole for all public officials, as they would be entitled to conduct all business on private phones and email accounts with complete confidentiality. Privacy would be maintained, but at the risk of the general public losing the transparency it deserves.
Should government agencies be required to monitor private emails to determine if public business is being conducted? Does a public official lose the right of privacy when he or she runs for public office? Will lack of privacy have a chilling effect on good people running for office?
On the other hand, if public officials are allowed to conduct public business on private servers will the temptation to act in the shadows be too great? How can the people verify that an official is acting properly if it is solely within the discretion of the official to decide what is a public document and what is private? Is there a security risk if public information is communicated on a wide variety of different private email accounts?
Elliot Zanger is the web writer at the Markkula Center for Applied Ethics.