SAN JOSE -- San Jose drew praise for its progressive approach to open government in the digital age by adopting a policy three years ago making elected officials' personal email and text messages about city business public records subject to disclosure.

But the City Council this week voted unanimously to appeal a judge's ruling last month that effectively applies that policy to the whole city workforce by declaring government employees' communications about public business subject to the California Public Records Act whether on official or private devices.

The case sets up a showdown that will be watched statewide and beyond over what open-government advocates say has become a gaping hole in public records law that was written in the typewriter era and didn't contemplate officials with Gmail, Facebook and iPhones. And they say, bring it on.

"I'm glad the city is appealing the ruling, since it is likely to be affirmed on appeal," said Peter Scheer, executive director of the First Amendment Coalition in San Rafael. "That will force all California cities and counties to treat emails about government business as public records, regardless of the status or ownership of the email accounts or devices. What matters is the substance of the message -- is it about government business or is it purely personal? -- not the technology."

San Jose Mayor Chuck Reed, who ran as an open-government champion, had made the same argument in 2010 when he pushed a policy that would require disclosure of messages about city business sent or received by the mayor, council members and their staffs whether they were communicated on personal or city phones and networks. The City Council approved the policy unanimously in March 2010 on a trial basis and, citing no problems since, made it permanent in December.

Scheer said at the time the council adopted the policy that he knew of no other city that had gone so far in updating public records policy to account for modern technology. Most cities have fought efforts to force disclosure of officials' messages on private networks, citing both privacy concerns and practical questions of how a government could search for relevant documents and messages on phones and email networks it doesn't control.

Reed said that such disclosure rules covering private devices and networks can be justified and managed on a small scale involving a few dozen elected officials and their staffs. But he said the council appealed out of concern that applying those rules throughout a city organization of 5,500 full-time employees -- the practical effect of a decision that personal emails are subject to the California Public Records Act -- would be invasive and burdensome.

"It's about the scope of it," Reed said. "I think it's too broad. It sets up practical problems."

The case originated in June 2009 when activist Ted Smith requested voice mails, text messages, and emails sent or received by the mayor and council members related to a downtown redevelopment project in San Jose, whether on official or personal networks and devices. He sued in August that year when the city claimed it lacked authority to access any records on officials' private personal accounts.

Last month, Santa Clara County Superior Court Judge James P. Kleinberg ruled in Smith's favor, stating that under the city's interpretation of public records law, "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

"Regardless of where a record is retained, if it is drafted by a public official," Kleinberg wrote, it "constitutes a 'public record.' "

Scheer said that while the practical and privacy concerns cities have raised are legitimate, they can easily be overcome by requiring public officials to copy messages about public business to their official email where the city can search for and retrieve it.

In the city's petition with the Sixth District Court of Appeal, San Jose argues that the council disclosure policy for private email and phone networks is irrelevant to Smith's case because it was adopted 10 months after his records request and was not retroactive. The city added that "local policies simply do not affect the courts' interpretation of the Public Records Act," and that the council had chosen to limit its policy to affect about 30 city employees.

But San Jose also advanced arguments that seemingly conflict with the policy that the council adopted for itself.

"A council member is not a governmental entity," San Jose's appellate filing stated. "A council member is an individual public official with no authority to act alone on behalf of the city. Consequently, emails and documents found on a council member's personal computer or personal electronic device do not fall within the definition of a public record because any record personally and individually created by a council member is not a documentation of a transaction or activity of the city as a local agency."

Contact John Woolfolk at 408-975-9346. Follow him on Twitter at Twitter.com/johnwoolfolk1.

San Jose's Open government
San Jose pioneered public access to government-related messages to and from top city officials' personal electronic devices and accounts, but is now fighting a landmark ruling that would enshrine that policy in state public records law. A brief history of the issue:
  • 1968 California Public Records Act signed into law requiring governments to make most records available for public inspection upon request.
  • 2004 California voters overwhelmingly approve Proposition 59 making access to public officials' writings a state constitutional right.
  • 2009 San Jose activist Ted Smith sues the city after it refuses to provide access to mayor and council member private emails and other messages regarding a downtown redevelopment project.
  • 2010 San Jose City Council unanimously adopts trial policy that requires personal emails, texts and other messages about city business sent to and from elected officials and their staffs be subject to disclosure.
  • 2012 San Jose City Council makes policy of disclosing elected officials' personal messages about city business permanent.
  • 2013 Santa Clara County Superior Court Judge James Kleinberg rules in Smith's favor, city appeals.