Secret government is now legal in California. There's no other way to say it.

Accountability, always more of an abstract concept than a reality in our strangely governed state, is dead.

Its killers are three appellate court justices who have, as they say, greenlighted elected officials and government workers to keep whatever secrets they want. All they have to do is open a Gmail account.

Or send a text from their private phone. Or a tweet, or an instant message. Even if that communication is all about public business it is now considered private and neither you, I, nor anyone else has legal right to access it.

We have to thank for this 6th District Court of Appeals Justices Frankin Elia, Conrad Rushing and Eugene Premo. Their ruling, unless overturned by the state Supreme Court, could haunt California for ages.

That's because the trio effectively kicked the issue back to the Legislature, which would have to amend the Public Records Act to fix the gaping loophole that allows politicians and bureaucrats to communicate secretly.

Please forgive me for being too jaded to think that the band of merry lawmakers in Sacramento would dare to do the right thing, or, if they somehow did, that Gov. Jerry Brown would sign it. Remember, Brown himself is notoriously nontransparent and no friend to the open government crowd.


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That makes the recent decision, written by Elia, all the more appalling. If anyone in Sacramento had interest in closing the loophole, it would have been long closed.

Instead of taking the broad and expansive view of transparency that voters demanded a decade ago when they passed Proposition 59 and made access a constitutional right in California, Elia and his colleagues took a narrow, hand-wringing position.

"We conclude that the (Public Records) Act does not require public access to communications between public officials using exclusively private cell phones or e-mail accounts," Elia wrote.

He might as well have shouted something like, "Yo. Switch to Gmail. Now. Use your private phones to text each other about the important stuff with impunity."

The texting will be great for people on public bodies, who could use their devices to communicate in real time about pending matters as they are discussed. They could count votes, give orders, snub us all.

The only person whose exercised any sense in this debate is Santa Clara County Superior Court Judge James Kleinberg, whose decision the appellate justices overturned.

Kleinberg seems to be a person bright enough to realize that trusting public officials to be transparent -- rather than requiring them to be transparent -- is a fool's errand.

In his ruling last year that San Jose had to turn over communications in which council members conducted public business by private means, Kleinberg saw the open door to dark government and tried to block it. It's the public communication that matters, not how it's sent or where it's stored.

Kleinberg wrote that "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own." Of course it could. And now, without a rejection of Elia and his colleagues' narrow reasoning by the Supreme Court, that's exactly what they will do in much more brazen ways.

It's been happening already for years. If you don't think so, take a quick buzz around some government websites and see how many elected officials list private email accounts as the way to contact them.

Or consider Pleasant Hill's nutty city clerk, Kim Lehmkuhl, who prefers to use her private Twitter account rather do her elected job of taking meeting minutes. She started to engage me in a series of tweets last month and when I suggested it would be more appropriate for her to use her official city email account to communicate as clerk, she wrote: "I'll communicate however I like about my job." That's exactly the problem.

She also claimed, "tweets are already public on the web."

They can be, but when they are controlled privately they can be taken down. Lehmkuhl has already claimed in response to a Public Records Act request for her tweets that she can't recover the ones she's deleted.

Public records are subject to retention laws and are accessible by others in government in control of accounts. Lehmkuhl is exactly the type of politician we should expect the courts to reign in, not enable.

What Elia seems to be telling us is to just trust government officials. If that were not so sad it would be so very laughable.

Thomas Peele is an investigative reporter for this newspaper and teaches public records at the UC Berkeley Graduate School of Journalism. He is also co-chair of the Society of Professional Journalists, Northern California Chapter, Freedom of Information Committee. Reach him at tpeele@bayareanewsgroup.com. Follow him at Twitter.com/thomas_peele.