Kevin Valine

City responds to court’s email decision

Modesto will be reviewing and updating its public records policies now that the California Supreme Court has ruled government officials’ emails from their personal accounts are public records if they are about official business. The ruling from last week applies to text messages on private devices.

City Attorney Adam Lindgren said the city has not had a policy on whether to provide emails regarding city business from private accounts. He would not say whether the city had provided emails from personal accounts in response to records requests.

“I’m going to focus my answer on going forward and not going backward,” Lindgren said. But he hinted at an answer when he said Modesto “may be supplementing public records requests ... with additional records.”

But Lindgren said Modesto’s policy is that city business should be conducted on the city’s computers and email system. He added that private emails that are forwarded to the city’s email system are included in public records requests.

The court decision stemmed from a San Jose case in which an activist sought communications from city officials’ personal accounts and devices related to a proposed development. The city had denied the request, saying the records were not public.

So have Modesto officials conducted the public’s business on private accounts and devices? The answer is yes, according to emails gathered by Modesto resident Emerson Drake from a public records request from the city. Drake said he found several emails from council members with private email addresses from a stack of emails roughly a foot high.

The emails were from last year. Among them was a May 2016 email from attorney George Petrulakis to the private accounts of Mayor Ted Brandvold and Councilman Mani Grewal about the mayor’s budget message.

Brandvold said he does not make it a practice to use private email for city business. He said he was working at home and used private email because he could not at the time access the city email system from his computer. Brandvold took office in late February 2016. He said the email turned up in a public records request because he forwarded it to the city email account of the City Council’s executive assistant.

Grewal said he believes he was included in the email because he serves on the council’s finance committee. He said he also conducts city business on city accounts and cannot control who sends him email to his private account.

Petrulakis included PMZ Real Estate CEO Mike Zagaris and Modesto businessman Chuck Bryant in his email. They were serving on the mayor’s 100-day budget review committee. And Petrulakis and Bryant advised Brandvold during his campaign and continue to help him.

There also are emails from Councilman Bill Zoslocki about making and accepting appointments. Zoslocki said the calendar function on the city’s email is slow and cumbersome. He makes appointments on his personal email and forwards them to the city.

And there was an email from Salida resident Katherine Borges to Councilman Tony Madrigal’s city email account asking him whether his personal email had been hacked. Madrigal said scammers hacked his account and were sending emails to his contacts saying he was stranded overseas and needed money to get home.

Drake estimates he has made about 100 public records requests with Modesto and this is the first time he has noticed city officials’ personal emails turning up. He said he has filed another request for emails associated with these private accounts.

“I’m curious about how they are going to respond,” he said, “how they will handle it.”

The California Supreme Court provided guidance in how to protect public employees’ and officials’ privacy rights while producing relevant records. The court said employees and officials could search their own accounts and devices for public records as long as they have been trained in how to identify public records and provide a statement about why a record is public or private. And agencies could discourage using private accounts and devices for public business.

Kevin Valine: 209-578-2316

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