Should the text messages that council president Todd Gloria sends during council hearings be made available to the public? And, if so, should Gloria have to appear in court or under oath to discuss those messages?
Many of those questions will be answered this Friday, March 14, when superior-court judge Joel Wohlfeil decides whether a lawsuit against council president Todd Gloria over his use of text messages and emails from his personal account violates his right to privacy and whether the case should be dismissed.
Since January 2013, the city has been slapped with several lawsuits for violating the state's public records law.
Last May, attorney Cory Briggs challenged council president Gloria to turn over text messages and emails sent from Gloria's private smartphone during council hearings from January 2013 to May 2013. In December of last year, Gloria as well as Verizon Communications were served with a subpoena to turn over the messages. In January, Gloria was handed a notice of deposition in the case.
"We are in a world of social media and mobile devices," reads a court document filed by Briggs in opposition to the city's motion to quash the case. "People are constantly connected. In the legal field, we have had to deal with electronic communications in discovery, how to deal with confidentiality on social media, and how to keep privileged material secure on mobile devices. In the public records world, we are now dealing with what to do when government officials are using private devices and accounts for official business.
“[San Diegans for Open Government] understands that there are privacy issues to balance and has tried to carefully walk that line in propounding discovery. [We] also believe the best way to avoid being placed in an uncomfortable position is to avoid mingling private, personal communications with communications about official business. However, it is too late for that here, and, at this juncture, the question is how to obtain the factual information necessary to resolve this litigation even when there are also legal questions to be answered."
City attorneys, however, sit on the other side of the fence when it comes to making private emails public, regardless of whether or not they are discussing city business. They say the request to view Gloria's text messages violates his privacy, regardless of the time or content. Adding to that, David Karlin, the deputy city attorney arguing the case, says a subpoena only compounds Gloria's right to privacy.
"...[F]ederal Constitution rights would also be impacted by this deposition and production requests," was the city's response to the deposition request, citing a 2010 court case that states "individuals do not lose Fourth Amendment rights merely because they work for [a] government instead of a private employer."
In addition, Karlin wrote to Briggs in a January 9 letter, "the legislature has decided that litigants cannot use the discovery process to obtain the types of telephone records which [Briggs] seeks without the written consent of the individual whose records are being sought."
In his opposition to the motion, Briggs says it's an open-and-shut case.
"Quite frankly, if he did not use his cell phone/smart phone to text message regarding City business or his private e-mail account to conduct such business, presumably the City would simply assert that there are no responsive records in those categories. If Council President Gloria did not use his cell phone/smart phone send or receive text messages regarding City business or his private e-mail account, it would not be burdensome or difficult to identify the public records responsive to [San Diegans for Open Government's California Public Records Act] request."
Judge Wohfeil's decision will come at an important time for similar fights for text messages and emails from elected officials. On March 11, the Sixth Appellate Court will discuss whether to appeal a decision from a Santa Clara judge who ordered text messages from mayor Chuck Reed should be made public. The decision has not yet been handed down.