TO: Bruce Brugmann

FROM: Terry Francke, California First Amendment Coalition

SUBJECT: City Attorney’s Memorandum re Oliver Luby and Kevin De Liban v. Ethics Commission


The City Attorney analogizes the unsolicited e-mail in question to “promotional material or advertisements. To keep unsolicited irrelevant material would place an unreasonable burden on the Department.” (emphasis added) Surely no one contends that the content of this e-mail is “irrelevant” to the Ethics Commission’s jurisdiction and responsibility, or that retaining it would create an unreasonable burden.

The memo concludes by suggesting that, in effect, the fact that the e-mail had no conclusive legal significance or probative value at the time permitted it to be disposed of prior to the possibility of determining that significance or value. In other words, those arguing for its preservation are speculating that it might have later significance or value for the Commission, the City Attorney says. On the other hand, the City Attorney is speculating that it might not. And the conclusion seems to be: In the presence of counterpoised speculations, the doubt should be resolved in favor of destruction. This resolution can hardly be reconciled with the object of the CPRA or the Sunshine Ordinance, which is that government activities be open to public scrutiny via public examination of records. If the law were such that only the record what government does, and not the record of what it learns and knows, were subject to scrutiny, then most recorded information in the government’s possession would be off limits to scrutiny. From the Watergate hearings up through the current controversy about national security intelligence, the central questions have been not only what government officials did (or didn’t do), but what they knew compared with what they did or did not do – what information was available to them.

Where government intercepts, however inadvertently, information of possible relevance to a law enforcement proceeding, it is absurd to suggest that it has either the duty or the discretion to resolve investigative doubt by returning the material to the sender and purging its files of any trace thereof, at least until the possible relevance of the information has been conclusively resolved in favor of the mistaken transmitter. One needs only to consider what the FBI, the SEC or the IRS would do with mistakenly sent e-mails dealing with matters subject to investigation and enforcement.

As for the cited cases, I believe that they provide either misplaced authority or little pertinence to the City Attorney’s argument.

1. In the Coldwell case the court actually concluded that the records sought were legitimately accessible to the public even though, in the nomenclature of the law at the time, they were technically not “public records.” The court stated (emphasis added):

We are of the opinion that the preliminary estimates and details which form this incompleted data are not of such a character as would constitute them public records. Until they receive some official approval the documents cannot be considered the act or the record of an act of the city engineer or the board of public works. They cannot be considered the official acts of the city engineer because compiled in his office, for he testified that 'I don't allow anything to go out of my office except it has my final, definite approval.' Before approved they have not attained the character and dignity of completed acts or documents of any kind. **883 Until a satisfactory plan or estimate is completed, the documents are but preliminaries in the course of *520 what will eventually be an act of the city engineer. When a satisfactory plan is adopted, all the others are discarded unless, as testified by the city engineer, they relate to the plan which is finally adopted, in which case they are included in the files with the accepted plan. Therefore these preliminary matters are not 'public records in the office of an officer,' within the meaning of the sections of the Codes and the charter.

We are of the opinion, however, that these documents and data are of such character as constitutes them 'other matters' within the meaning of section 1032 of the Political Code. In Whelan v. Superior Court, 114 Cal. 548, 46 Pac. 468, petitioner sought to be allowed to inspect certain instructions given to a sheriff by an execution creditor. In refusing the inspection, the court said:

'It does not by reason of being in writing, become a 'public record,' or any other public matter, in the office of the sheriff. The 'other matters' referred to in section 1032 [of the Political Code] which a citizen is entitled to inspect, is a matter which is 'public' and in which the whole public may have an interest.'

The word 'public' is defined in both the Standard and Webster's dictionaries as 'of, pertaining to, or affecting, the people at large or the community.' That the Hetch Hetchy project is a public matter, in which the public has an interest, cannot be doubted. It follows that the public has an interest in the plans and designs which are adopted for the completion of the project. The preliminary specifications and estimates are all steps in the process of forming an acceptable plan for carrying out the work. Although many of them are never completed, and many are destroyed, they all represent work which is being done in the course of completing the project. Not only is the work being done in the course of completing a public project, but it is being done by public officers and employees at public expense. That these plans are tentative and are subject to error or alteration cannot change their character, for, while they may not represent the final result of the work of the city engineer's office, they are important parts of that work. As such they are matters which affect the public, and in which the public has an interest, if that interest is only to see that the city engineer is taking steps toward the completion of *521 the Hetch Hetchy project. It must be held that the implied finding of the trial court that they are of such a character was justified. It is therefore unnecessary to consider whether these documents are such as the board of public works is required to keep.

2. In the Braun case, the “necessary or convenient” phrase is actually a quote from an earlier case, San Gabriel Valley Tribune. The Braun court continues immediately thereafter (emphasis added):

The court in San Gabriel Tribune included in its discussion of what is a public record the following: '"This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to ' the conduct of the public's business' could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.'

3. I’m not sure of the relevance of the CSU Fresno case at all.