A small victory for public records in Sacramento

This week Sacramento Superior Court Judge Christopher Krueger ordered Sacramento Mayor Kevin Johnson to turn over most of the contested emails in Johnson’s lawsuit against the city of Sacramento and the Sacramento news and review

It’s a small but I think significant victory for the First Amendment and for the paper. I’m thankful SN&R was willing to spend the money to defend a reporter’s right to file a public records request without being subjected to bullying legal action.

However I have other reasons for feeling… discouraged? ambivalent? about City Hall’s irresponsible non-policy on City emails, and lack of willingness to call out Johnson’s obvious wrongdoing.

I won’t go into all of the back story again here. Suffice it to say that Johnson and his pro bono legal team at the law firm of Ballard Spahr claimed that about 500 emails from a batch that the city was preparing to turn over to me in response to a public records request were in fact exempt from disclosure under the California Public Records Act because of attorney-client privilege.

After a year of court hearings Judge Krueger ruled just 43 of the emails were actually exempt because they contain actual legal advice or other privileged communication between Johnson and Johnson’s employees and his attorneys. (The hundreds of emails that Team KJ had initially declared privileged were whittled down to about 113 records after the first couple of hearings.)

I have no idea what’s in the remaining emails that the judge says KJ now has to turn over. I’m sure some of it is interesting. I’m sure much of it is not. You can pretty much tell that from the Krueger’s comments during the last hearing on Friday:

“Every document that says ‘legal’ or ‘Ballard Spahr’ on it does not become privileged just by the talismanic recitation of that word.”

If that were the case, he noted, there would be nothing to stop any public agency from running every document it wanted to keep secret by it lawyers and declaring it privileged communication, and thus beyond he reach of pubic scrutiny.

And Krueger clearly felt the Mayor’s lawyers were claiming privilege over documents they had no business trying to hide, often really run-of-the-mill stuff, like meeting agendas.

That makes it seem even more like this whole thing was just a way to try harass and intimidate SN&R. The paper has had to spend tens of thousands of dollars to defend the basic right to file public records requests and God bless them for doing it. (And thanks for nothing, Sacramento Bee!) The City will have had to spend tens of thousands of dollars as well. But Johnson gets a totally free ride. He’s basically leveraged his public office to get free legal representation, to go after reporters for doing their jobs. That’s crazy to me.

And in the end, despite Krueger’s favorable ruling, a much bigger problem remains. We’ve been fighting in court for a year over a small batch of records that ended up in the hands of the City Attorney. The much bigger problem is the thousands and thousands of emails that Johnson has refused to turn over, which were generated by his OMKJ email accounts. Those accounts were clearly set up for purposes of avoiding the Public Records Act, and nobody at City Hall is willing to do anything about it. It’s a huge problem for so much city business to be deliberately hidden from public view. And it’s completely irresponsible for the City Attorney, City Manager and City Council to let that go on.

I am hopeful that the California Supreme Court will support the Public Records Act, when it decides in Smith vs San Jose later this year, a case with somewhat similar facts to what’s happening here in Sacramento.

And a recent decision in the Washington D.C. Circuit is also hopeful, though it was specifically about the federal Freedom of Information Act.

But really it’s up to the people of Sacramento and their political leadership to put in place of Common Sense policy on public records and public employee email communication. The City Council has had a lot of opportunity to do that via a long-awaited and still unfinished package of ethics and transparency rules. But so far the Council has skirted the email issue, and it looks like the ethics rules will be pretty weak overall.

So yes, hurray for SN&R for sticking up for the PRA, and for having some success. Beyond that there’s little to celebrate.

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