Clarity Blog

Clarity Blog

OMG! Texts R Public!

A judge in San Jose has ruled in favor of a community activist seeking to close what many see as a flagrant loophole in California’s public record act – the continuing privacy of text messages sent and received by elected and appointed public officials and public employees. Private email accounts were also included in the judge’s ruling.

Santa Clara County Superior Court Judge James P. Kleinberg ruled that “emails, texts and other messages sent to and from personal devices by Mayor Chuck Reed, council members and redevelopment officials about city business including subsidizing a development in San Pedro Square downtown on property owned by former Mayor Tom McEnery and his family” should be turned over to the activist who filed a Public Records Act request for them. Read the Contra Costa Times article here.

The decision doesn’t have statewide application yet, but it’s only a matter of time.  Public officials should not be caught short by this decision – it was bound to happen. California has a strong public disclosure tradition that has morphed over the years in include other emerging technologies – faxes, emails – so any public official or public agency employee who thought their text messages would remain out of the public view was short-sighted.

Our rule of thumb when working with public agencies is that any and every communication may become public, so every communication needs to pass scrutiny of the “What if this was on the front page?” sort. We advise others to take the same approach.

After all, the best way to avoid a crisis is to not do things that could cause one.

 

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