OPEN GOVERNMENT — "With
iPhones and Blackberries becoming must-have accessories, San Jose is
poised to approve a ground-breaking disclosure policy that would ensure
elected leaders don't use those personal devices to skirt
public-records laws," reports John Woolfolk in the San Jose Mercury News.

Most cities have taken a
position that e-mails and other electronic messages are only subject to
public disclosure if they're on the city's official network. Watchdog
groups around the country say that leaves a gaping loophole for elected
officials to secretly discuss public business through private e-mail,
cell phones and other devices.

On Wednesday — five months after
the Mercury News first raised the issue — a San Jose council committee
voted to make messages about public matters that council members send
or receive on such personal devices subject to disclosure, just like
other official records.

Peter Scheer, executive director of the First Amendment Coalition, called San Jose's proposed policy "a big step forward." "I
don't think anybody has come this far yet," Scheer said. "The city has
recognized that if you don't take this step, the public's right to
electronic records is not really very meaningful, because it's so easy
to transfer important communications from official e-mail to a private
e-mail account."

The policy would apply to the mayor,
council members and their staffs. It does not require them to retain
messages sent via a personal e-mail account or device for any length of
time.

The council's Rules and
Open Government Committee, chaired by Mayor Chuck Reed, voted
unanimously for the proposed policy. Also approved was a proposal
requiring council members to disclose
messages from lobbyists and other interested parties that they receive
during council meetings. The recommendations goes to the full City
Council next month.

But if the city receives a records request, they must
provide any relevant city-related messages stored in their personal
devices. The only exceptions would be communications that are exempted
from the California Public Records Act, such as those dealing with
sensitive legal matters.

The idea for such a policy emerged last
year when the Mercury News requested messages sent or received by
council members during meetings in a three-month period. City lawyers
refused to include any sent to the officials' personal phones and
e-mail accounts, citing privacy and practicality.

But a couple of
council members voluntarily provided their private cell phone logs and
text messages. Among them was a note from the phone of Phaedra
Ellis-Lamkins, then-leader of the South Bay Labor Council, to
Councilman Sam Liccardo. Sent during a council meeting on a
controversial plan to give millions of city dollars to a downtown
retail project, the message appeared to offer directions on how to vote.

Council members have said such communiqués regularly arrive from interested advocates — even at the moment votes are being cast.

The
public records act generally requires government agencies to disclose
documents and electronic communications concerning public business. But
the law is unclear about how to treat records about public matters that
aren't stored by the government.

In one recent case, a newspaper
sued to obtain e-mails from a Tracy councilwoman's private computer
about a proposed public project. An appeals court ruled against the
paper on technical grounds that did not address the core issue.

Organizations
representing California cities and counties had argued in Tracy's
support that governments could not be expected to disclose personal
records they don't directly control and that to do so would invade
privacy. But Reed and other San Jose officials disagreed.

"Just
because it's not retained by the city," Reed said Wednesday, "is not a
reason for it not to be considered a public record."