The San Diego City Council is expected this month to consider an ordinance that would make public record of emails and text messages sent from elected officials’ and non-union employees’ private electronic devices as long as they are related to city business.
In a January 28 memo, councilmember David Alvarez requested council president Sherri Lightner place a draft ordinance on the council's agenda as soon as possible.
The draft ordinance, authored by deputy city attorney William Gersten, who oversees public records requests for the city, states, "Whereas, to further transparency and public disclosure of city records, all documents, communications and other writings created or received in the course of conducting city business by appointed or elected city officers or unrepresented city employees, regardless of medium, are classified as city records for purposes of disclosure..."
Alvarez used a January 13 opinion from the city attorney's office, which had been accused of blocking similar measures in the past, as evidence that the council needs to act.
In that opinion, Gersten wrote that his office sees "no legal impediment to this moving forward to city council for adoption in February as an ordinance and reinforcement as a voter-approved proposition in June to ensure that it cannot be amended or rescinded in the future without voter approval."
Gersten cautioned, however, that until municipal unions agree to meet with the city and eventually agree to open up their private devices to public disclosure, the ordinance would only pertain to elected officials, appointed committee members, and any non-union employees.
Support from the city attorney's office is key to moving forward. It didn't come easy. As reported by the Reader, open-government advocacy group, Californians Aware and the group's president, former San Diego city councilmember Donna Frye, fought for a similar measure in 2014 but lost as a result of alleged obstruction from city attorney Jan Goldsmith's office.
“It just got worse and worse, with a faction on the city council insisting that the city attorney must be satisfied and with that office raising the ‘invites litigation’ bogeyman at each opportunity,” Californians Aware's lead attorney Terry Francke told the Reader in a 2014 interview.
“After repeated attempts to tamp down that concern with language changes and definition of terms, we finally ran into what seemed like a gratuitous stall pretext just to make the process miss the deadline for the June  ballot.”
The 2014 ballot measure arrived at a time when Goldsmith had been slapped with a lawsuit from San Diegans for Open Government over his office's refusal to release certain emails that he had sent from private email accounts on personal devices to reporters and others.
In November 2015, an appellate court agreed with a lower court’s decision that while Goldsmith did send emails from his private device and accounts to his city email address, nonetheless they were deemed public. In addition to fighting over the release of additional emails, the city and opposing attorney Cory Briggs are fighting over attorney fees in the case. The yet-to-be-decided-upon fees do not include the $150,000 that the city paid outside counsel to defend the lawsuit in early 2015, as reported by the Reader.
As the court case winds down, and with the support from the city attorney's office, Californians Aware's open-government proposal appears to be gaining momentum, and Alvarez is now the driving force.
"I would request that this ordinance be docketed for city council consideration in February," he wrote in his January 28 memo. "Additionally, if the council chooses to move forward with the ordinance, all meet and confer obligations with represented employees should take place immediately."