SANTA MONICA, CA, March 3, 2017 — A unanimous California Supreme Court ruling that the public has the right to access communications sent by public officials via personal email accounts is a victory for transparency in government, Consumer Watchdog said today.
“The California Supreme Court today struck a blow against secrecy in government. Public officials can no longer use private email accounts to skirt public disclosure laws in California,” said Carmen Balber, executive director of Consumer Watchdog.
In the case, San Jose vs Superior Court (Smith), city officials in San Jose had refused to release communications under the Public Records Act that were sent via the mayor and city council members’ private email accounts. Public officials across California have used what they called a gray area in the law to refuse disclosure of public documents on the same grounds.
For example, appointees to the state health exchange, Covered California, use only private email accounts. In 2014, Consumer Watchdog submitted a Public Records Act request to Covered California seeking any communications between board members or staff and the health insurance industry concerning 2014’s Proposition 45. Prop. 45 would have required health insurance companies to publicly justify and get rate increases approved before they take effect. Covered California threw its weight behind the health insurance industry and loudly opposed the measure. In response to the public records request, Covered California said board members don’t have official exchange email accounts and maintained that any emails sent or received through Board members’ personal accounts were not subject to disclosure.
After the November 2014 election, Covered California released some emails that revealed a symbiotic relationship between exchange staff and the insurance industry, however board member emails were never produced.
Senior federal government officials have been scrutinized for the same practice, including not only Hillary Clinton but also the former heads of the Environmental Protection Agency and Health and Human Services. Federal officials are now prohibited from using personal accounts if they do not turn over copies of all official communications to the National Archives within 20 days.
Even after the Court’s decision, allowing California officials to use private emails remains problematic, said Consumer Watchdog, because there is no oversight of how records are retained in private email accounts or how those emails must be searched in the event of a public records request.
“To erase all doubt, the legislature should consider prohibiting the use of private email addresses for government communications altogether,” said Balber.