Mayor Who Sued His Own City Over A Public Records Request Ordered To Turn Over Official Emails Stashed In A Private Account

from the give-it-up dept

Nearly one year to the date from Sacramento mayor Kevin Johnson's filing of a lawsuit against his own city and a local journalist to block the release of emails from his personal Gmail account, a judge has ordered him to turn over most of the emails he's been fighting to withhold.

[T]his past Friday, Krueger ruled that Johnson and the city must make public 79 of the remaining 113 emails and records. Ballard Spahr, the firm that represents the mayor pro bono, needs to turn them over by July 18.

Johnson had long argued that emails from his personal account weren't subject to public records laws -- even those in which government business was discussed. And, indeed, the city has no policy in place preventing officials from using personal email accounts to conduct official business. However, that's not the same thing as saying these emails can't be obtained with public records requests.

When that argument failed to keep the emails from being released, Johnson's lawyer raised the good old "attorney-client privilege" as a shield against public disclosure. Judge Krueger shot that down as well.

During the hearing, Humphreys was steadfast in his lobbying to keep some of the records secret. He contested that, since Ballard Spahr had reviewed firsthand many of the emails and attachments in question, they were clearly protected from disclosure because of “attorney-client privilege”—a phrase he repeated ad nauseam.

Eventually, Krueger schooled him on the law. “Every document that an attorney has seen does not fall under attorney-client privilege,” the judge explained—adding that this was legal fact no matter how many times Humphreys made a “talismanic recitation of those words.”

In the end, it's a win for the Sacramento News & Review, which was one the parties named in Mayor Johnson's email-blocking lawsuit. Given the nature of the disputed emails, it's easy to see why Johnson wanted to keep them out of the public's hands. Many of the communications cover Johnson's takeover of the National Conference of Black Mayors -- a leadership position he held tenuously, briefly, and under a considerable amount of criticism.

Johnson's 2015 attempt to obtain an injunction against his own city followed his admission that he had destroyed several public records (in this case, text messages) responsive to requests pertaining to the city's $500 million sports arena.

Even though this legal battle has pried loose a few hundred emails over the past year, it's still only a small percentage of Mayor Johnson's "official business" communications safely stashed away in his personal account.

“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,” Garvin wrote. “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.”

Politicians are particularly adept at keeping their communications away from the public. Kevin Johnson is the rule, rather than the exception. Fortunately, the lack of internal policies forbidding this activity isn't preventing courts from finding responsive communications have been improperly withheld. But these findings come at a great expense for public records requesters -- many of which will abandon their requests rather than spend thousands of dollars in legal fees to obtain documents that rightfully belong to the public.

Filed Under: email, foia, kevin johnson, mayor, personal emails, scaramento


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  • icon
    Mason Wheeler (profile), 18 Jul 2016 @ 12:56pm

    Well, it's good to see somebody in government being held accountable for private email nonsense. Now if only we could apply it a bit more evenly...

    reply to this | link to this | view in chronology ]

  • identicon
    PRMan, 18 Jul 2016 @ 2:00pm

    Hmm...

    Maybe THIS is finally the way that we could get politicians to understand why encrypted messages that can't be unencrypted is so important.

    Pretty soon, they'll all be using Telegram so they "can't" respond to these requests...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2016 @ 2:03pm

      Re: Hmm...

      Ironically, they're safer picking up the phone and calling each other to discuss "sensitive" topics.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 18 Jul 2016 @ 2:57pm

      Re: Hmm...

      I can't seem to find the article at the moment unfortunately, but at least one city was/is already doing just that, using a communications service for official use that doesn't create records, which means there's nothing that can be handed over, lawsuit or not.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jul 2016 @ 8:59pm

        Re: Re: Hmm...

        Officials need to have official email and all audio communications must be on a line that records, transcribes and archives.

        If any official is found not using the official channels more than an occasional oops (that would need to be concretely defined) then there should be specific penalties (maybe a three strikes like they have made up for other criminals) up to and including automatic dismissal -- no debates -- just "You're Fired!".

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 18 Jul 2016 @ 2:04pm

    If the politicians cared about transparency as they often claim, there would be more prohibitions & penalties for the behavior.

    Hopefully the residents will look unfavorably on leadership who secretly did things that affected them & then wasted resources trying to hide what he was doing.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 18 Jul 2016 @ 3:00pm

      Re:

      Well of course politicians care about transparency, they are all for transparency when it comes to what the public is doing/saying, or what their political rivals are doing/saying, it's just that enthusiasm takes a wee bit of a dip when it comes to what they are doing/saying, because clearly that's private and no-one's business but theirs.

      reply to this | link to this | view in chronology ]

  • icon
    mr. sim (profile), 18 Jul 2016 @ 2:29pm

    he ain't going to have much luck hiding his emails now that U.S. Court of Appeals in recent District of Columbia Circuit court case of Competitive Enterprise Institute v. Office of Science and Technology Policy. a public official's private email is fair game for FOIA requests.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 18 Jul 2016 @ 3:03pm

      Re:

      Unfortunately there tends to be a vast difference more often than not between what the law says and how it's actually applied, especially if it's being applied against(rather than by) someone in a position of power.

      So sure that ruling may have made the emails fall under FOIA requests, now have fun prying them out individually via highly expensive and time consuming lawsuits.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2016 @ 4:54pm

    If you haven't done anything wrong,
    you have nothing to fear
    from divulging your emails .... right?


    LOL - these people are sooo predictable.

    reply to this | link to this | view in chronology ]

  • icon
    Matthew Cline (profile), 18 Jul 2016 @ 9:52pm

    ... since [lawyer] had reviewed firsthand many of the emails ...

    I had thought this was a genuine issue of attorney/client communication. I'd never have dreamed that someone would try to claim that their lawyer reviewing a document transforms it into attorney/client communication.

    reply to this | link to this | view in chronology ]


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