July 2, 2017 (San Diego’s East County) – San Diegans for Open Government (SDOG), a government watchdog group, filed a lawsuit in January against the Grossmont Union High School District and Superintendent Tim Glover.  It alleges that the defendants “intentionally used personal e-mail accounts and text-messaging devices (e.g., mobile phones and tablets) to communicate about illegal political activity they were conducting—without being subject to public scrutiny—on Measure BB appearing on the November ballot.”

SDOG requested records including emails and texts sent to or from Glover’s personal electronic devices regarding Measure BB, but did not receive all of the records requested under the California Public Records Act.

Before filing the suit, attorney Cory Briggs sent a letter on behalf of Nick Marinovich and other clients to Superintendent Glover stating, “It is believed that you may have engaged in illegal, potentially criminal political activity.”  Marinovich formerly served on the GUHSD’s Citizens Bond Oversight Commission.

The letter contends that Glover may, during working hours, have pressured parents, students and/or subordinates to campaign for Measure BB including working a phonebank at Grossmont Center.  Briggs further contended that it is believed Glover directed employees to fill in on the phone bank during work hours as needed, and spent money on such political activities.

Briggs’ letter warned that keeping secret, altering or destroying public records is a felony punishable by up to four years in prison. He also asked for expense reports and reimbursements.

The District, in its response dated January 12, denied the allegations.  Among other arguments, the District contended that it “denies and contests the legal conclusion that the requested records are public records.” The District also argued that it had no control over or access to records on Glover’s personal devices.  Glover, in his response, similarly argued that messages on his personal devices are not public records subject to disclosure.  He denies any illegal activity and insists that he work on Measure BB was as a volunteer on his own time, but has refused to disclose personal email and text message records that could prove or disprove that contention.

But in March, the California Supreme Court issued a landmark ruling in City of San Jose v. Superior Court (Smith) S218066.  In its decision, the state’s highest court ruled that “emails and text messages sent or received on public officials’ private devices are subject to disclosure under the California Public Records Act, which had originally been designed to cover paper documents,” according to a commentary published by the esteemed law firm Latham & Watkins.

The Supreme Court recognized that in applying the California Public Records Act, a court should recognize that “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”  The Court observed that “openness in government is essential to the functioning of democracy.”

Not all private emails or texts count as public records, only those that relate in a substantive way to conduct of the public’s business.

The Court also rejected arguments by San Jose that it did not have access to employees’ private accounts. The Court relied on federal Freedom of Information Act cases, which found that a writing by a public employee conducting public business is considered “retained” by the agency and that such employees have a duty to disclose such information in response to a public information request.  However, to protect employees’ privacy, the court also held that an agency may rely on employees to search their own personal files, accounts and devices, as long as they have been trained to distinguish between personal and public records.

The Supreme Court’s ruling leaves unanswered questions, and left open for a Court of Appeal to determine whether the policies for a search of personal accounts is adequate to meet requirements of the Public Records Act.  But state’s high court made clear that agencies cannot evade disclosure requirements by claiming that all private communications are exempted from disclosure.

The case against Grossmont and Superintendent Glover has not yet been heard by the Superior Court in San Diego, so it remains to be seen whether or not the defendants will be forced to turn over the records sought by San Diegans for Open Government.  But the Supreme Court’s recent ruling appears to have substantially strengthened the plaintiff’s case.