Question of privilege raised at hearing over Sacramento mayor’s private e-mails

Sacramento News & Review editor Nick Miller (right) looks on as Sacramento City Attorney James Sanchez (left) speaks with reporters following a hearing at the Sacramento County Courthouse on June 2, 2015. (Photo: Matthew Keys / The Desk)
Nick Miller (right), the co-editor of the Sacramento News & Review newspaper, looks on as Sacramento City Attorney James Sanchez (left) speaks with reporters following a hearing at the Sacramento County Courthouse on July 2, 2015. (Photo: Matthew Keys / The Desk)

To understand the mood inside Judge Christopher Krueger’s courtroom at the Sacramento County Superior Courthouse on Wednesday, all one needed to do was bear witness to an exchange that took place during a brief recess — away from the eyes and ears of the attorneys, much of the press and the judge himself.

It was during this recess that Cosmo Garvin, a political reporter with the Sacramento News & Review newspaper, introduced himself to Benjamin Sosenko, the press secretary for Sacramento Mayor Kevin Johnson.

In that moment, if tension was tangible, you could cut it with a knife.

“I’d like to speak with the mayor’s office about — about anything, really,” Garvin said after an awkward handshake between the two.

Sosenko paused, mustered a nervous grin and with a hesitant cadence replied “Yeah, that — that seems unlikely anytime soon.”

“So you’re not going to talk with me ever?” Garvin asked.

“Ever? I didn’t say that,” Sosenko responded. “I never said that.”

The press secretary then turned to a nearby radio reporter and asked, “Did you have a question?”

That there is a strained relationship between the mayor’s office and journalists with the News & Review is hardly a surprise — the alternative newspaper has, after all, published a number of stories accusing Johnson of repeatedly blurring the lines between official city business and his personal interests.

But just how much the mayor has mixed his personal and political lives remains definitely unknown, and that is the source of the latest tension between the mayor and one faction of the local fourth estate.

On Wednesday, private attorneys hired by Johnson to represent him on a personal matter filed a legal challenge against the News and Review over a broad public records request that was submitted to the City of Sacramento earlier this year.

Benjamin Sosenko, the press secretary for Sacramento Mayor Kevin Johnson, speaks to reporters outside a courtroom on July 2, 2015. (Photo: Matthew Keys / The Desk)

That request, filed earlier in the year by Garvin himself, sought to obtain all e-mail records sent from the personal Google Mail accounts used by city officials — including Johnson — from the last two years.

In a sworn affidavit obtained by The Desk, Garvin says the city has produced three batches of e-mails each containing around 300 records out of thousands that have been identified as being potentially responsive to his request.

Also responsive are e-mail records containing communications between Johnson and a private law firm, Ballard Spahr, that purport to detail an ongoing legal issue involving the mayor’s leadership during his time with the National Conference of Black Mayors, a special interest group that Johnson resigned from last year.

Initially, a deputy city attorney told Garvin that because those e-mails had been caught up on city servers, they were considered to be public records. But the city attorney later e-mailed the mayor’s office and his attorneys at Ballard Spahr to say they weren’t sure if the e-mails detailing their communications were exempt under a provision of California’s Public Records Act that permits withholding of records related to attorney-client privilege. For Johnson’s attorneys, there’s absolutely no question that they are exempt from disclosure.

And that’s why the three sides were in court on Thursday.

For the News & Review, the issue has already been decided: If the e-mails had been transmitted between Johnson and his attorneys from a private account, there would be no question that the records would fall under attorney-client privilege.

But because the e-mails in question – about 100 of them — had been forwarded to city officials, Johnson waived his right to attorney-client privilege, argued News & Review attorney Thomas Burke. And because those e-mails were swept up by and stored on computer servers operated by the city, those records are now subject to open disclosure, Burke said.

Peter Haviland, one of Johnson’s attorneys from Ballard Spahr, says that isn’t the case. It doesn’t matter where the e-mails originated or how they got swept up by the city’s computer servers — they’re still exempt from disclosure under the law, Haviland argued in court.

In their pleading filed with the court on Wednesday, Ballard Spahr said they had worked with both the News & Review and another news organization, the Sacramento Bee, to clarify public records requests pertaining to the issue of Johnson’s personal e-mail messages. The law firm approached both news organizations with an appeal that each amend their requests to exclude records related to attorney-client privilege.

Ballard Spahr says the Sacramento Bee agreed to amend their records request last week to exclude the e-mails in question. But the News & Review “stubbornly refused” to amend their request, which prompted the law firm to file the legal challenge on behalf of the mayor.

Sacramento Superior Court Judge Christopher Krueger discusses Mayor Kevin Johnson’s email during a hearing on July 2, 2015. (Photo: Renée C. Byer / The Sacramento Bee / Handout / Pool)

“Most of the documents requested are public documents,” Haviland said in an interview with The Desk on Wednesday. “A small group [of records] are privileged, and no one really disputes that.”

But the two news organizations who filed the records request are disputing this. The News & Review asserts it is not up to journalists to decide what is and is not subject to disclosure by law. And the Bee says Ballard Spahr’s interpretation that the newspaper agreed to modify their request is incorrect.

“The Bee was awaiting a determination from the city attorney’s office on whether some of the emails between Johnson and his private attorney would be excluded from review on the grounds of attorney-client privilege,” the newspaper’s editors said in an article published late Wednesday.

An e-mail sent from the Bee’s Marissa Lang to one of Johnson’s private attorneys said that the newspaper would agree to omit “any e-mails independently found by the city attorney to fall under attorney-client privilege.” The e-mail was published Wednesday in court records filed by Ballard Spahr.

As far as the city is concerned, it remains unclear what is and is not subject to disclosure under the law — the city is hoping a judge will decide that once and for all. It, so far, has taken no position one way or another on whether the records should be released.

But one group that has taken a position on the matter is the National Conference of Black Mayors, the public interest group that was once spearheaded by Johnson. Before the court hearing on Thursday, the group emerged as an ally of the journalists seeking disclosure of the mayor’s e-mails.

“We want nothing to do with Kevin Johnson,” Vanessa Williams, an executive with the group, told the website Deadspin on Thursday. “He’s not even a member. He tried to ruin the organization. I dare Kevin Johnson to find one person with this organization who supports him.”

The legal challenge filed in Sacramento County Superior Court by Ballard Spahr listed the National Conference of Black Mayors as a petitioner in the case, something the group says it never authorized.

Before attorneys met in court on Thursday, the group passed a resolution affirming it had any “director indirect involvement” in the petition filed by Johnson and his attorneys against the city and the News & Review. The group said Johnson is “no longer a member in good standing” and that Ballard Spahr “does not have the proper standing to represent the interests or join the organization in any law suit,” saying the group terminated their business relationship with the firm last year.

Cosmo Garvin (right), a political journalist with the Sacramento News & Review, speaks with a television news reporter at the Sacramento County Courthouse on July 2, 2015. (Photo: Matthew Keys / The Desk)

Burke produced a copy of the group’s resolution during the second part of the hearing, saying he had only obtained it an hour beforehand. Haviland challenged the authenticity of the resolution, calling it “suspicious.” (In an e-mail to The Desk on Thursday, Haviland said the resolution was from a “rogue group” within the organization and that the document had “no legal authority to bind anyone.”)

The judge agreed to review the document but appeared to have his own doubts about its merits. He eventually decided the resolution would not be taken into consideration.

In the end, Judge Krueger said that the issue was made complicated by the fact that Johnson and other city officials had used both personal and government e-mail accounts interchangeably to discuss both city and non-city business.

To clarify the issue, the attorney representing the News & Review proposed creating a “privilege log” detailing the sender, recipient and a brief synopsis of each record in question. Attorneys for both Johnson and the city agreed to the suggestion, and a judge ordered all sides to put their stipulations in writing by July 7.

Under the tentative plan, the city attorney’s office and Ballard Spahr will work together to identify and list e-mail records that could be exempt from disclosure under the records law. That list will be handed over to the News & Review and itself made available as a public record once it is completed. As part of the plan, all parties must agree on a set deadline for the completion and turnover of the log; if the parties cannot agree, the judge will set the timeline himself.

Thomas Burke (right), the attorney representing the Sacramento News & Review, speaks to reporters outside a courtroom at the Sacramento County Courthouse on July 2, 2015. (Photo: Matthew Keys / The Desk)

Outside the courtroom, Haviland told reporters that the case wasn’t about suing anyone (the News & Review has repeatedly stated they believe they are being sued), but rather about asserting the mayor’s privilege of protected attorney-client communications that all citizens enjoy.

“There’s nothing in these e-mails that I think would be bad for the mayor or his political position,” Haviland said.

The News and Review isn’t so sure: Burke said the fact that city officials like Johnson are using private, unaudited e-mail accounts to conduct city business means there’s “no way to check whether or not you have access to everything they’re doing in the public’s business.”

In a telephone interview with The Desk on Wednesday, Sorosenko declined to speak on the record about why Sacramento officials use both personal and private e-mail accounts to discuss city business. But the mayor’s spokesperson affirmed his belief that the judge in the case would find in Johnson’s favor and block the release of the 100 or so e-mails in question.

“We believe there is a right to attorney-client relationships, and that a judge will recognize that and move forward,” Sosenko said. “If the judge says these [e-mails] are subject to the [CPRA], they will be turned over.”

Correction: An earlier version of this article misidentified the local reporter named as a respondent in the case. He is Cosmo Garvin, not Cosmo Gordon. Additionally, a photo caption has been updated to clarify Nick Miller’s position as co-editor of the Sacramento News & Review. 

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