Business Improvement District chiefs in San Diego can obtain email addresses of business owners from city records, Goldsmith holds
Those who have business licenses from the city of San Diego may be seeing some new unsolicited email in their inboxes, thanks to a Memorandum of Law issued Friday by the office of City Attorney Jan Goldsmith.
"Business Improvement District associations (BID) established in the City of San Diego have asked the City Treasurer to provide them with the electronic mail (e-mail) address of each person or entity who holds a business tax certificate," says the January 11 memorandum, which goes on rhetorically ask, "May the City Treasurer produce e-mail addresses provided to the City by applicants on an application for a Business Tax Certificate to the BID?"
The answer, according to the city attorney, is yes--with one possibly tricky qualification.
"The City Treasurer may produce e-mail addresses provided to the City by applicants on an application for a Business Tax Certificate to the BID so long as the e-mail address is used by the certificate holder for business, and not personal, purposes."
Noting that legal opinions of years past had furnished mixed guidance on making the city’s business license records public, the memo goes on to say:
A business tax application is a "public record" because it relates to the conduct of the public's business, and is used and retained by the City, which registers all persons who do business in the City of San Diego. The question therefore is whether a business' e-mail address, which is provided on an application, is exempt from disclosure.
While we could argue that a person who registers a business with the City is providing a business' contact information, such as one would an address, we understand that a significant number of persons operate small businesses out of their homes.
Such persons may be using their personal e-mail address for the limited purpose of communicating with the City about their business tax account, and would not consent to the sharing of this personal information with third parties.
As there are no cases on point, we recommend a conservative approach due to the possibility that some persons may be providing the City with a personal e-mail address with the belief that the address will not be disclosed to a third party. If an e-mail address is obviously that of a business, then we believe disclosure of that e-mail address is permissible.
The memorandum offers examples of some exemptions:
For instance, a student who babysits, a stay-at-home parent who works on typing assignments from time to time, an occasional dog walker, or a person who prepares a limited number of tax returns each year.
Goldsmith's final conclusion, as drafted by deputy city attorney Mara W. Elliott and addressed to Robbin Kulek, director of the city's treasury operations:
The City Treasurer may produce e-mail addresses provided to the City by applicants on an application for a Business Tax Certificate to the BID so long as the e-mail address is used for business, and not personal, purposes. This will require City Treasurer staff to review each e-mail address prior to disclosure.
The city's so-called business improvement districts and their major promoter, Little Italy's Marco LiMandri, have sometimes been controversial, as Dorian Hargrove reported here last year.
The districts and their management also spawned a high-profile wrongful termination lawsuit involving ex-mayor Jerry Sanders, as covered by Don Bauder here in November 2011.