The

Governments Business is
the Publics Business
January 13, 2016

Background: What is the purpose of

the California Public Records Act?
To give the public access to informaIon that
enables them to monitor the funcIoning of
their government.
This means governmental records shall be
disclosed to the public, upon request, unless
there is a legal basis not to do so.

What is a Public Record?

*any wriIng containing informaIon rela%ng to the
conduct of the public's business prepared, owned,
used, or retained by any state or local agency
regardless of physical form or characterisIcs.
California Government Code Sec2on 6252(e)

*one that is necessary or convenient to the
discharge of an ocial duty.

What is a wriIng?
A wriIng" means any handwriIng, typewriIng,
prinIng, photostaIng, photographing, photocopying,
transmiRng by electronic mail or facsimile, and
every other means of recording upon any tangible
thing any form of communicaIon or representaIon,
including leSers, words, pictures, sounds, or
symbols, or combinaIons thereof, and any record
thereby created, regardless of the manner in which
the record has been stored. California Government Code Sec2on
6252 (g)

Why Does Open Government MaSer?

The public has a right to know what
its public ocials are doing and with
whom they are communicaIng.
Ensures equal access to informaIon.
Serves as a safeguard against
corrupIon which benets the city
and the public.

Is this a problem in our City?

The City has argued in court that a communicaIon or
wriIng relaIng to the conduct of the publics
business that is maintained on the private accounts
of city ocials does not meet the deniIon of a
record retained by the city and is therefore not
subject to disclosure under the California Public
Records Act.

Why is this a problem?

The city is spending our taxpayer money to
argue that public ocials can avoid the
California Public Records Act disclosure laws
by communicaIng the publics business on
their personal computers and email accounts.
This posiIon gives credence to the belief that
public ocials cannot be trusted to conduct
the publics business in public.
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Public Record or Private?

A public ocial sends an email or
text about the publics business
from his or her ocial city computer
or cell phone.

Public Record or Private?

Public Record or Private?

A public ocial sends the same
email or text about the publics
business from his or her personal
computer or private cell phone.

Public Record or Private?

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Other Problems
It also poses another fundamental problem
how will the public determine if the open
meeIng laws are being violated?
For example, the Brown Act does not allow
legislaIve bodies, such as city councils, to
meet or discuss in private how they will vote
in advance of a public meeIng.

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Other Problems- cont.

Doing so is called a collecIve concurrence and
it is against the law.
If public ocials can prevent the public from
nding out if a violaIon has occurred simply
by using their private email accounts or
personal cell phones, it will be impossible to
either prevent or prove illegal secret decisions
by any city bodies, present or future.
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Public Record or Private?

Three of the ve public ocials who serve on
a commiSee communicate with each other
using their city computers or city cell phones
to discuss how they will vote in advance of a
public meeIng.

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Public Record or Private?

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Public Record or Private?

Three of the ve public ocials who serve on
a commiSee communicate with each other
using their personal computers or private cell
phones to discuss how they will vote in
advance of a public meeIng.

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Public Record or Private?

If its the publics business, it does not maSer what device one
uses to communicate or where the record is retained- its
public.

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Proposed Language
All documents, communica2ons, and other wri2ngs,
including emails and text messages, recorded in
whatever medium, created or received in the course of
conduc2ng any City business by its appointed or
elected ocers, employees, departments, bodies or
agents, are deemed to be used and controlled by the
City for purposes of public disclosure. In addi2on, all
such records shall be presumed open to the public
unless such access is prohibited by state or federal law
or by an ordinance, regula2on or policy of the City
Council or other City authority that is consistent with
San Diego City Charter Sec2on 216.1. These and other
City records shall be retained for a minimum of two
years.
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Requested AcIon
Support our ballot measure; amend the San
Diego City Charter by adding SecIon 216.2
and send this to the City Council for
placement on the June 2016 ballot
or
Support our ballot measure; amend the San
Diego Municipal Code where appropriate and
send to the City Council for placement on the
June 2016 ballot
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Requested AcIon- cont.

Support the measure; direct the City ASorney
to prepare an amendment to the Municipal
Code and bring it back to the full council in 45
days.

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The Public has a Right to Know.

end