If the California Supreme Court should decide that government officials’ private emails about public business cannot be reached by Public Records Act requests, the Brown Act requirements for open and public local government decision-making could be fatally undermined as well.

The court has had before it for more than a year a decision by the Sixth District Court of Appeal holding that officials’ private emails are not public records, even if they clearly are used to conduct public business, since they are not “prepared, owned, used, or retained” by a public agency.

The Sixth District mentioned only in passing the 2004 amendment to the California Constitution declaring that “the writings of public officials and agencies shall be open to public scrutiny,” instead stressing the privacy interests of officials that would be infringed by “a requirement that the government search individuals’ personal computers and other devices for information potentially responsive to [CPRA] requests.”

If the Supreme Court were to agree, or otherwise to rule that officials’ private email accounts by definition are not repositories of accessible public records, communications among majorities of local councils, boards and commissions could stay in the private sector as well, escaping Brown Act enforcement.

An example can be found in the June 8 final report of the Fresno County Grand Jury concerning citizen complaints of Brown Act violations and other troubling behavior by a three-member majority of the governing board of the Selma Unified School District. That trio, who without explanation and over a strong public protest, voted to fire a popular superintendent early last year, were subsequently recalled.

But meanwhile the grand jury’s pursuit of the Brown Act allegations was stymied. As its report notes,

The Grand Jury’s request to review email exchanges between the trustees revealed that no Selma Unified trustee had a district email account . . . Instead, trustees conducted board business under their personal email accounts. Email exchanges among the trustees could not be reviewed by the Grand Jury because they were stored on individual trustees’ electronic equipment, outside the server of the school district. As a consequence, the Grand Jury could not investigate the alleged Brown Act violations regarding the superintendent’s termination via their email correspondence. Similarly, the Grand Jury was not able to determine whether serial meetings might have been conducted electronically in violation of the statute.

Although the Grand Jury was not able to corroborate timelines or direct exchanges by the majority, numerous witnesses indicated the superintendent’s termination seemed too well orchestrated for there to have not been advance discussion by Trustees A, B and E.

Witnesses told the Grand Jury that Trustee A sent an email to the rest of the board after the superintendent’s termination, soliciting opinions about a suitable replacement. [The Brown Act] states, “A majority of the body shall not, outside of an authorized meeting, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the Board.” The Grand Jury was unable to corroborate the testimony because it had no access to trustees’ email accounts.