by Cosmo Garvin

Regular readers know that Mayor Kevin Johnson recently sued SN&R and the city of Sacramento. He did this to block release of a few hundred emails, from his staff’s private “OMKJ” Gmail accounts, which Johnson claims are protected by attorney-client privilege. The emails have to do with his attempted takeover of the National Conference of Black Mayors, and its subsequent bankruptcy.

In the process, Johnson exposed the extent to which he is hiding emails, which ought to subject to the California Public Records Act, from public view, and from the control of the City Clerk, City Manager and City Attorney. 

SN&R talked with our attorney, Thomas R. Burke, about the problems with K.J.’s shadow email system. When we spoke late last week, Burke had just headed off an effort by Johnson’s lawyers—the Ballard Spahr law firm—to use their lawsuit to block release of any emails to SN&R, not just the ones the city had identified as being potentially sensitive attorney-client communication. 

Let’s back up. Can you explain why Ballard’s initial request that SN&R change its public-records request was a problem? Why you knew immediately it was not appropriate?

There were two problems with what Ballard Spahr was requesting. First, they were—without any way for you to confirm it—asserting that the attorney-client privilege applied to documents that were somehow in the hands of the Sacramento city attorney. They wanted you to sign off in the abstract that you would not contest whether or not the records were protected by the attorney-client privilege without exception. Without any qualifications, without knowing anything about it, without knowing how many there were. Without knowing how the review process had been done without knowing whether the privilege had been waived. Without anything.

And they did it while threatening the newspaper with litigation. That’s never appropriate, in my book. You don’t threaten reporters for simply doing their job and for not agreeing in advance in the abstract to something that will, necessarily, limit legitimate information that they are seeking. What it does in turn, it actually makes a reporter even more interested in the documents. 

Sure. And a lot of other people, too. We’ve been concerned at SN&R for a long time that these private emails would be used to do a bunch of city business and then not be available to the public. This lawsuit revealed that the worst-case scenario was true. At first, we thought we were getting emails from these accounts. Now it’s clear we’re not getting most of them. So what do you make of that?

This case is an extraordinary opportunity to look at all of the machinations that come from having private email accounts being used by public officials. That shows you’ve got a regular habit and practice of city staffers using private accounts for official business. It shows you how many people on city salaries were involved in that process. 

We tried to reiterate to the city attorney that we want all of the OMKJ emails, not just the ones on city servers. The Public Records Act applies to all of them. The city clerk and city attorney, their position is, “Well, there’s this case in the California Supreme Court, and until that’s sorted out, don’t know what to tell you.” And then, additionally, “You don’t really have a public records request, because these are not in the possession of the city. We don’t have them, we can’t give them to you.”

It is not an acceptable answer, in this day and age, to say, “If we don’t have it we are not subject to the Public Records Act.” There are so many other issues. Whether they be FPPC, whether they be document-retention, or litigation against the city, or any number of reasons that obligates the city to keep track of its records for people doing city business. 

And if they know, as they do now through this lawsuit, that city business is being conducted by employees on city time and yet the city doesn’t have the ability to access those records, something has to change, and it needs to change immediately. Not awaiting a resolution from the California Supreme Court.  Because the need to access  those records is now. It’s not dependent on an outcome from the Supreme Court. If documents are routinely being created on private email accounts, they have to fix that problem. They can’t simply say, “We have no way to control it.”

They have a way to control it. There are absolutely ways to control it. It depends on whether there is sufficient political will by the city to do something about it.

I’ve been thinking about the San Jose case. For a long time, I thought “Oh yeah, these are very similar cases.” But my understanding of San Jose is that those were folks [city officials] who were getting communication on their private devices and on their actual personal email accounts. Right? That’s different than, say, I come into a job, I’m assigned a city of Sacramento email address, I’m assigned an OMKJ email address. We do 80 percent of our work on the OMKJ email addresses. Do you see what I’m saying? It seems different.

You are absolutely spot-on about that. That is the distinction. One of the reasons the city of San Jose decision was what it was in the Court of Appeal was a concern about the ability of a city to control someone’s personal devices.

It is a bigger problem here, where the city attorney says, “I don’t have access” to accounts they know were set up by city staff, where a substantial volume of city work is being done on the accounts. It’s very different.

It would seem to me that even if tomorrow the Supreme Court said in San Jose, “You know what, we’re going to go with the Court of Appeal here,” that would not necessarily apply here. It’s such a different situation.

I think that’s right. This is now a confirmed situation of the city having substantial numbers of emails having to do with the city business—because they land on city servers—that involve the use of city employees paid on city time doing city business. And, again, the real find came out of last week’s hearing: The city was confirming that have no direct access to those accounts. They only get them because these emails land on the city servers. 

Tell me about Ballard Spahr’s attempt to say the city couldn’t release any records to SN&R while the lawsuit is being resolved.

The bottom line is this: Ballard Spahr thought, and told the court, it had everybody agreed to a process whereby Ballard Spahr would get to review any documents that are potentially privileged.

So that the entire universe of documents, not just documents that the city attorney determines are potentially attorney-client privileged could be reviewed by Ballard Spahr to avoid an inadvertent disclosure of attorney-client-privileged documents. 

Ultimately, the court said that the [National Conference of Black Mayors] has no legal authority to compel it, to give it the right to review in advance non-potentially privileged emails. There is just no authority for that and that was never what the court anticipated. 

It would be a nightmare to try to get any records under those conditions.

Correct. The city was adamant that they would never agree to that. What it illustrates for the bigger picture is that this is a pernicious kind of lawsuit. It’s against the News & Review for simply doing it’s job to seek access to public records about what the mayor is doing with the private email accounts.

What the News & Review is doing is absolutely protected news-gathering activity and it is what good journalists do. A lawsuit like this inevitably target that kind of activity under the guise of simply protecting attorney-client privileged information. And we saw this week we saw the pernicious nature of this kind of an action. It led to a delay on the part of the city producing documents to the News & Review. It certainly saw Ballard Spahr asserting very directly that it had the right to review thousands of emails in advance that had nothing to do with the attorney-client privilege. This approach was quickly shut down by the court. As it should have been.