Sacramento mayor Kevin Johnson has filed a legal challenge against a local newspaper in an effort to block the release of e-mail records sought under California’s open records law.
In a petition filed in Sacramento Superior Court on Wednesday, private attorneys hired by Johnson are seeking to block the release of e-mails from one of Johnson’s personal accounts on the basis of attorney-client privilege.
The e-mails in question are at the center of a public records request filed by the Sacramento News & Review in which the newspaper reported the mayor and other city officials had been using private Google Mail accounts to conduct official city business.
Under the California Public Records Act, government officials at the state and local level are required to hand over records related to government matters, including correspondents sent from and received to official government e-mail accounts. However, certain records may be withheld under the CPRA, including documents that relate to attorney-client privilege.
The newspaper reported in March that Johnson and other city officials had been discussing and conducting official city business using third-party e-mail service providers instead of their government accounts. The paper identified Johnson’s Chief of Staff Daniel Conway and press spokesperson Ben Sosenko as using Google mail accounts; the paper said Johnson himself uses an account under the address kevinjohnson.com, which is paid for through a commercial service, according to records reviewed by The Desk.
Johnson has already handed over some of his e-mails to Michael Benner, the deputy city attorney for Sacramento, according to the News & Review. Benner said the e-mails were public records because they contained messages between Johnson and a private firm hired to handle an ongoing legal matter involving the mayor. Since the e-mails did not contain communications between Johnson and a city attorney, the e-mails were determined to be public records, Benner told the paper.
But sources close to the mayor told The Desk on Wednesday that an audit performed by the city attorney’s office turned up some e-mail records that “probably fit under the attorney-client privilege” exemption of the CPRA.
“Upon its review, it’s been discovered that approximately 100 emails contained in the responsive documents were communizations between the law firm…and the mayor and his staff,” the city attorney wrote in an email message sent to city officials. “It was deemed likely that these e-mails would be considered attorney-client privilege, but the city has no basis to claim this privilege between a third-party law firm involving non-city manners. The third-party law firm would have to assert the privilege through a court order.”
The e-mail written by the city attorney was provided verbally to The Desk by a source familiar with the ongoing dispute involving the records request. The Desk could not independently verify the authenticity of the e-mail message.
The e-mail would appear to contradict a claim reported by the News & Review in which the paper said Benner found the records from Johnson’s personal account were not exempt from disclosure under attorney-client privilege.
“As far as I’m concerned, these are public records,” Benner told the paper.
But Ballard Spahr, the private law firm hired by Johnson for the matter, disagrees.
“Public records requests are not intended to violate that privilege and the law does not allow disclosure of attorney-client privileged materials pursuant to public records requests,” Peter Haviland, an attorney for the firm, told The Desk by e-mail.
The petition filed in court on Wednesday notes that another newspaper, the Sacramento Bee, filed a similar request for records under the CPRA. According to an e-mail filed as part of the pleading on Wednesday, the Bee agreed to exempt “any e-mails independently found by the city attorney to fall under attorney-client privilege” from its records request.
Haviland said it would be “incorrect” to say the Bee’s stipulation would not apply to the disputed e-mails that Benner found to be public records.
“Most of the documents requested are public documents,” Haviland told The Desk. “A small group are privileged, and no one really disputes that.”
But the News & Review is disputing this, and the Bee says Haviland’s conclusion 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 said in an article published late Wednesday.
Cosmo Garvin, the News & Review reporter at the center of the case, said it was not up to news organizations to determine whether something is or is not legally exempt from records requests.
“It’s the city attorney’s job to say what’s covered by attorney-client privilege and then withhold it or not,” Garvin told The Desk by e-mail. “It’s not a reporter’s job to agree that some broad category of documents should be withheld. That’s not how it works.”
As far as Garvin and the News & Review are concerned, the city attorney’s office has already settled the issue. But Benjamin Sosenko, Johnson’s press secretary, said the matter is now up to a judge to decide.
“At the end of the day, this is just the mayor trying to protect the same privilege that’s granted to all citizens — that there’s an attorney-client relationship,” Sosenko said in a phone interview with The Desk. “The mayor isn’t suing anyone for damages…all the mayor is doing is being asked to be granted the same right of attorney-client privilege.”
Sosenko said he didn’t want to discuss why city officials used personal and government accounts to discuss official city business, but said the mayor is confident a judge will find the e-mails to be protected under attorney-client privilege. By policy, the city does not invoke attorney-client privilege when it involves an official and their privately-hired attorneys, which is why the petition was filed in court on Wednesday, Sosenko said.
“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.”
