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Auburn resident sues for council member's emails

City says private emails should not be public record
By: Sara Seyydin Journal Staff Writer
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Should city council members? personal emails be a matter of public record? That?s one question a Placer County Superior Court will have to decide in the coming months. An Auburn resident and the First Amendment Coalition filed a lawsuit against the City of Auburn and its council members for not providing records of personal emails related to the ballot initiative for Auburn to become a charter city. Court documents dated June 1 show that Victoria Connolly, an Auburn resident and member of the grassroots group fighting the Wal-Mart project, and the coalition are asking a judge to rule that the council members conduct a forensic search of all of the computers they have used since January 1, 2010 and turn over records of their personal emails related to city business. The lawsuit asks for the court to invalidate the city?s current policy, which allows for deletion of emails after 30 days, and require them to retain the records for two years. Connolly?s legal representation says the goal of the lawsuit is to bring about transparency and compliance with the California Constitution. The city?s legal representation says they haven?t responded to the complaint officially yet, but since the emails were on the council members? personal email accounts they are protected by their First Amendment rights. Council members say they believe if all emails were a matter of public record, their constituents wouldn?t feel comfortable emailing anymore. Karl Olson, Connolly?s attorney, said citizens should have the right to read council members? emails that pertain to city business. ?When city officials discuss or conduct city business, the writings should be open regardless of whose computer they use,? Olson said. Connolly made her first California Public Records Act Request on Sept. 12, 2011. She asked for copies of any emails, letters or other written, recorded or videoed correspondence or records between council members and non-governmental entities having to do with the building and contracting industry related to Auburn becoming a charter city from Jan. 1, 2008 to Sept. 12, 2011. Initially, she said her interest was in finding out if outside groups influenced the council members to put the charter city initiative on the ballot. Council members say no outside groups were responsible for influencing the council?s decision. In a past interview, Connolly said the city responded to her request by telling her there were no records within the scope of her request, but in November she said she conducted her own search of the city?s administrative files and found documents that were more than 30 days old and weren?t put in the files within 30 days. After subsequent requests, the city provided her with some emails and documents related to the issue, but council members have said they will not release any correspondence between them and their constituents. Court documents show that in one email released by the city, the council members were cautioned to ?keep in mind that they (the unions) will be looking for any sound bites to use against the City.? Michael Colantuono, attorney for the City of Auburn, said the rest of the emails Connolly and the coalition are asking for don?t meet the criteria for being a matter of public record and he believes there is no precedent for the release of the private emails. He has advised the council members to hire a different law firm to represent them in their interests, while he will continue to represent the city in its interests. They will meet in closed session to discuss the lawsuit and will vote on the law firm in public at Monday night?s city council meeting. Colantuono said the city is also proposing a settlement, but wouldn?t discuss the terms of it. ?This issue is one of those test cases that will answer an interesting question, if of course it gets litigated,? Colantuono said. Currently, the case is scheduled to be heard at 8:30 a.m. on July 24 at Placer County Superior Court. Auburn Mayor Kevin Hanley said while he wasn?t speaking for the council, he thinks it would be appropriate to review the city?s email policy and ensure they are consistent with other cities. As for the lawsuit, he said making all of the communications between council members and their constituents public could have unintended consequences. He said based on the tone of many of the emails he gets from constituents, they probably do not think an email is a matter of public record. ?I think it?s a threat to the privacy and First Amendment rights of every Auburn resident and it would be ultimately destructive to the relationship between the Auburn resident and their elected city council members,? Hanley said. Citizens would feel that any outside interest could read their thoughts on an issue and possibly retaliate, he added. Connolly said she disagrees and believes that when a constituent sends an email to city council, they expect it to be public record. She has said that she is not working with any unions that may oppose charter cities or the group Preserve Auburn ? ?No? on Measure A. Council members are required to take ethics courses on the Ralph M. Brown Act and he supports full disclosure to the public, Hanley said. That includes not conducting serial meetings via email or at social gatherings. Dr. Bill Kirby, councilmember, said it comes down to an issue of privacy. He said he has given Connolly all of his email correspondence with the city, but will not include any between him and his constituents. ?I think there is no precedent in giving up that kind of email at all,? Kirby said. ?If it was between me and another council member, I would release that. It?s about the privacy of the constituents.? Reach Sara Seyydin at saras@goldcountrymedia.com, or follow her on Twitter @AJ_News.