Goldsmith loses to Briggs

San Diegans for Open Government wins case against city attorney

Emails from city attorney Jan Goldsmith's personal email address discussing city business are public record, ruled Judge Joel Wohlfeil in a January 23 ruling.

In his ruling, judge Wohlfeil sided with Cory Briggs/San Diegans for Open Government who asserted that Goldsmith and his attorneys violated the state public records act by refusing to turn over emails from Goldsmith's Yahoo account.

"The Court questions whether the city unreasonably narrowed the request such that it pertained only to email messages maintained on the private Yahoo server. If so, this can be interpreted as an evasive response intended to avoid responding. Rather than reject the [public records act] request in total, the city could have sought clarification per section 6253.1, or attempted to provide a partial response (as it later did). Thus, the city's initial response appears to be improper and Petitioner is entitled to a judicial declaration stating as much," Wohlfeil wrote in his ruling.

"Admittedly, the City Attorney uses his personal email account to conduct City business because it is ‘convenient’ for the discharge of his official duties. Given the mandate that the [public records act] must be broadly construed, there is a strong policy argument that can be made in favor of disclosure of these emails. If the Court were to draw a bright line rule prohibiting any disclosure from a private account, then public officials could avoid the harsh light of public scrutiny whenever they desired by simply reverting to use of a private email account."

The ruling puts an end to a long and expensive legal battle for Goldsmith and his attorneys. Last year the city attorney asked for outside legal help on the case, a decision that cost the city more than $150,000 in legal fees plus in-house hours. But Goldsmith's argument was flawed from the beginning.

Cory Briggs asked to read Goldsmith's emails pertaining to city business in January 2014. Deputy city attorney Bill Gersten denied the request.

"Responding to your request, and as you likely are aware, the email [email protected] is not a city email address, nor does the city have access to such an individual's personal email account," Gersten wrote. "Consequently, any emails contained within that personal account are neither owned, used, prepared or retained by the City and thus are not public records within the meaning of California Government Code section 6252(e)."

Wohlfeil rejected that argument on January 23.

"The City's privacy argument may be characterized as a 'red herring,' or a logical fallacy. [San Diegans for Open Government]'s request is limited to emails that 'pertain in any way to the official business of the City of San Diego.' Such 'official business' could not, by definition be protected by the City Attorney's right to personal privacy. Stated another way, the City Attorney's personal business could not, under any interpretation, be included within the ‘official business’ of the City. The disclosure [San Diegans for Open Government] seeks is limited to a narrow subset of the City Attorney's emails: those pertaining to City business that have not already been forwarded to the City's email server."

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Update: City agrees to settle Todd Gloria's email case. On Monday city councilmembers agreed to settle the lawsuit filed by San Diegans for Open Government against councilmember Todd Gloria. Terms of the settlement include an admission from city saying it failed to follow PRA laws, as well as attorney's fees to be decided by a judge. Here's a portion of the agreement:

***Acknowledgements. The City acknowledges that under Government Code section 6253(b), it was required to determine within ten(10) days from receipt of the May 2 &3, 2013 requests whether the requests, in whole or in part, sought copies of disclosable public records, as defined by Government Code section 6252(e), in the City's possession and to promptly notify Plaintiff of the determination and the reasons therefor. The City further acknowledges that the May 14, 2013, letter response, which was postmarked May 16, 2013, fell outside of the ten (10) day period set forth in Government Code section 6253(b).

The City also acknowledges that, under Government Code section 6253.1(a); it has a duty, to the extent reasonable under the circumstances: (1) to assist members of tl1e public identify records and information that are responsive to CPRA requests; (2) to describe the information technology and physical location in which records exist; and (3) to provide suggestions for overcoming any practical basis for denying access to the records or information sought. The City further acknowledges that May 14,2013, letter response failed to comply with the requirements set forth in Government Code section62S3.1 (a).***

Wow Judith Swink you want to blame the attorney who brought a reasonable suit to enforce an open government law rather then the obstructing public officials for the cost of the suit? That's stupid.

My comment does not in any way criticize or imply criticism of Cory Briggs for bringing the lawsuit. You chose to read sarcasm into my sincere thanks to Cory for forcing the issue and prevailing.

You know what? I'm guilty of failing to recognize sarcasm. Oh the shame since it was supposed to be a family trait.

My bad. Sorry.

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