A few years ago, City Councilmember Don Lane remembers Robert Norse, a perennial critic of city officials, throwing a pointed question his way: “Do you ever use your private email to talk about City Council issues?”
“I don’t do it very much, and I try to steer away from it, but I wouldn’t say, ‘No, I never have done it,’” recalls Lane, one of a handful of city councilmembers who have used private email addresses in some official capacity, of how the question was a wake-up call. “From that moment on, it raised my consciousness.”
Every now and then, someone will email Lane at his personal Cruzio email address about a city issue. And should someone make a public records request on a given topic, he says he will include messages about city-related business from his personal email account if there are any. But just to be safe, he also makes a point of carbon copying his city email address when he replies to such emails.
That’s exactly how officials everywhere should respond, says government transparency expert Peter Scheer—but they often don’t.
Scheer is the director of the First Amendment Coalition, which is based in San Rafael. He says all local governments should have a policy stating that if someone is going to use a non-government email, like a Gmail account, they need to either cc: their city address or forward their messages to an official account, preserving them for public records.
“It’s possible to have it both ways. You can use your personal email. But you have to have a policy that if you use your private email, you have to send your copy to the city’s server,” he says.
In 2016, our options for communicating with one another via technology continue to expand. And when it comes to the regulations that ensure transparency, most governments across the country are still, at least in some ways, like the Wild, Wild West.
The city of Auburn has a policy like the one Scheer calls for, but such policies don’t appear to be very common. In Santa Cruz County, no local government has a protocol regarding emails, personal or otherwise.
The topic of emails and government is one that readers will, of course, be familiar with because of Hillary Clinton’s use of a private email server while she was Secretary of State. Transparency and security concerns spurred an FBI investigation, resulting in scathing criticism from both the FBI and the State Department—a specter that continues to hang over the presidential candidate during the Democratic National Convention this week.    
But it’s not just a Clinton issue—arm-wrestling matches over the “private” emails of government officials have been playing out all over the country, and California is no exception. A lawsuit fighting for the non-city emails of former San Jose Mayor Chuck Reed and other officials there about a city project has been sent to the California Supreme Court after a lower appeals court demanded that Reed and company turn them over. And earlier this month, a court order embattled Sacramento Mayor Kevin Johnson to turn over more than 50 personal emails on city matters to the Sacramento News and Review.
Scheer and others have additionally called for the email records of the members of the California Coastal Commission. Activists are seeking a window into the commission’s backdoor discussions that led to the firing of esteemed director Charles Lester—and the commissioners, apparently, do not have official Coastal Commission email addresses.
Earlier this month, the U.S. Court of Appeals in Washington D.C. ruled that government officials may not use private email accounts to dodge Freedom of Information Act requests. Essentially, the case, which overturns a lower court’s ruling, states that as long as the employee is corresponding about government business, they are doing so as a government agent.
Tony Condotti, the city attorney for both Santa Cruz and Capitola, says it’s a “best practice” for city officials to keep city business on their city email. “In so doing, they don’t create the problem of intermingling their personal email communications with those that relate to city business. Also, it keeps clear that the communications are a public record,” Condotti says.
A few Santa Cruz city councilmembers have been known to use non-government emails over the years—something that could create confusion when it comes to public records requests.
In 2012, activist Steve Schnaar, a Bike Church mechanic, looked into why the city had ended a popular bike distribution at the Bike Church, and began making public records requests. The city’s records coordinator told him at first that then-Vice Mayor Hilary Bryant had more records, but she later followed up with Schnaar that “those emails were under a personal email account and not relevant to any city business.”
Schnaar felt that city officials were hiding something. “What are the protocols for public employees using private email addresses?” he asked me at the time, suggesting I look into it.
Bryant, who is no longer on the council, did not return messages seeking comment for this story, but the distribution ended up going to the Bike Dojo after she put in a good word for them, which critics said was inappropriate because of her connections with the owners. (The city ultimately took the distribution away from the Dojo as well, setting up its own distribution because the business was not a nonprofit, like the Bike Church, and was therefore ineligible for the program.)
In past years, City Councilmember David Terrazas has used his private email address for city business, although he now asks people to reach him on his city address. City Councilmember Pamela Comstock says she has three email addresses, one for her personal use, one for her day job and a third for her council position. She says when she checks her email remotely, her phone will sometimes reply to the wrong address, and she finds herself constantly forwarding emails to her city email or cc:ing her correct address.
Councilmember Micah Posner uses a non-city email address to send out newsletters and updates, although he was on vacation and unavailable for comment as of deadline. (Ironically, his personal email sent back an auto-reply about his schedule, but his city one did not.)
In Scotts Valley, the mayor and all of the city councilmembers use their own personal email addresses, which are posted on the city’s website. Tracy Ferrara, the Scotts Valley city clerk, says their emails are, nonetheless, available when someone files a public records request.
Lane notes that even a request for someone’s city email in Santa Cruz requires a certain degree of trust in public officials. When someone makes a request for his messages, he still has to go through his archives himself, copying and pasting messages one by one.
Scheer says that, in general, if someone uses their private email and doesn’t comply with a public records request, it’s often easier for them to hide their messages. It creates extra steps for community members to access them, and they would never be able to do so without filing a lawsuit.
As forms of communicating become more advanced, it becomes easier for government officials to avoid public oversight, he adds. Scheer, who has written about this topic for nearly a decade, says that he has never heard of anyone filing suit over Facebook messages, for instance.
“The issue really hasn’t changed that much,” says Scheer, “although certainly technologies do complicate it.”