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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  1. 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.

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