The East Bay Express reported earlier this month that Oakland Administrator Deanna Santana used her personal email to receive a draft copy of a report that was critical of how city police handled Occupy protests.

This is quite bad. Santana has a city email account, funded by her employers. They're called taxpayers.

Yet she sent specific instructions to the report's author: "I only need one copy ... you can send it to djsantana@comcast.net," according to emails the Express' Ali Winston obtained. She sent that request from her city email, leaving a public trail.

Her Oakland account, not Comcast, is where Santana needs to be conducting all public business. There's only one reason I can think of why she would want the report sent to a private account: to soften it while keeping a harsher version from the public. Why?

As Winston wrote, Santana's the police department's boss. As the department teeters on the brink of a federal takeover following years of failed reform efforts, Santana finds herself close to being tainted by those failures. The critical report, made public in June, was but another step toward the Justice Department taking control in Oakland.

Winston reported that Santana told him she had asked for a copy of the report in a form in which she could edit it because it was "riddled with errors."


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But its author, consultant Thomas Frazier, stood firm. While he sent her a copy, the document wasn't in a form that she could change, Winston reported. (Full disclosure: Winston was a student of mine at UC Berkeley. He was also a paid researcher for a book I published.)

Now, my concern isn't the report itself, but Santana's apparent effort to secretly edit its contents and her use of a private email to do it.

When I spoke to Santana last week she said that "from the bottom of (her) heart" she only wanted to make sure Frazier's report "was complete and thorough." She was worried that a draft copy might be leaked, so she asked for it to be sent to her private email.

But Winston reported that other emails he obtained between Frazier and Santana show Santana tried to keep critical portions of the report from being made public.

It seems clear that this mess involved more than helping Frazier get his facts straight. And given that Santana commands the police department and made the decision to have it remove Occupy's tent village from in front of City Hall on Oct. 25, she has a conflict of interest in being involved at all, a point that she disputed when we spoke.

Public officials use private email accounts to communicate secretly, or at least outside what they think can be disclosed under the public records act. It's shameful. Santana told me she considers public business conducted with her private account to be public record. That's great, but she and others who do this need to stop for the sake of their own integrity. The law is antiquated, giving unscrupulous officials a place to hide.

It defines a public record as: anything written or otherwise recorded that contains public business. It must also be "prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."

But the Public Records Act, signed into law by former Gov. Ronald Reagan in 1968, needs major overhauling to catch up with our technological age. It no longer is where information resides that defines its public nature, it's the subject matter. That's just common sense.

The problem is that in 2008 state appellate justices upheld an idiotic decision by a San Joaquin County Superior Court judge that emails in the private account of a Tracy City Council member weren't public records even though they contained public business.

In that case, council member Suzanne Tucker used personal email though her home computer to correspond in her official capacity with the U.S. Department of Energy about a proposed expansion of Livermore National Laboratory. Tracy's leaders didn't disclose Tucker's emails when the Tracy Press asked for all official correspondence about the lab. But the Press also asked the energy department for emails and it released Tucker's. Eventually it all ended up in court, seeming like a certain decision on the side of transparency.

But Judge Lauren Thomasson strapped on blinders and interpreted the law literally: Tucker wasn't a "state or local agency." Her computer and email were private despite what she might be discussing with the feds.

The Press appealed. But appellate justices sided with Thomasson on a technicality. The newspaper's original request didn't name Tucker. It just asked for all council email. Tucker, justices wrote, wasn't a named party in the suit. Out it went.

Five years later, we are left with nothing concrete on this issue. How many public officials use private email for public business? How can we even know? But let's not be naive. It happens. One needs to look no further than Deanna Santana.

From the bottom of my heart I can tell you the Public Records Act needs to be brought into the 21st Century. Now.

Thomas Peele is an investigative reporter for this newspaper and teaches a class on public records at UC Berkeley. Reach him at tpeele@bayareanewsgroup.com. Follow him at twitter.com/Thomas_peele.