San Diego city attorney Jan Goldsmith's emails sent to and from his personal accounts discussing city business are a matter of public record, ruled an appellate court on October 28.

"...[D]uring Goldsmith's tenure as city attorney, the city enacted an administrative regulation, signed by Goldsmith and a number of other individuals, limiting use of the City's computer system to 'work-related city business purposes only' and warning that '[p]ersonal files should not to be [sic] stored on city equipment.' Knowing of this new policy, Goldsmith continued forwarding the e-mails from his personal account to his city account; again, presumably because they pertained to his work as the city attorney...

"...Thus, to the extent the e-mails are not exempt from disclosure by the attorney-client privilege or attorney work product doctrine, they should be produced."

Long time coming

The ruling comes nearly two years after nonprofit advocacy group San Diegans for Open Government and attorney Cory Briggs requested to view emails sent from three of Goldsmith's personal accounts. The city attorney's office denied Briggs’s request. Briggs responded with a lawsuit. Shortly after, the city attorney's office identified nearly 1000 emails sent from lobbyists, reporters, and advocacy groups, including the League of California Cities, to his private accounts, which were then forwarded to the city's server.

During the course of the following year, a legal battle over the emails ensued. Attempting to quash the lawsuit, Goldsmith, with special authorization from San Diego's chief operating officer Scott Chadwick, retained outside legal help at the cost of $150,000 to fight from having to turn over the emails. The outside legal help didn't pan out.

In March of this year San Diego Superior Court judge Joel Wohlfeil ordered the city to turn over 25,000 pages of emails sent from Goldsmith's three private accounts, a far cry from the 962 emails the city attorney's office initially produced.

Club membership privileges limited

The threads included hundreds of messages from members of the League of California Cities. The league is a private advocacy group comprised of elected officials throughout the state whose purpose, according to their website, is "to strengthen and protect local control for cities through education and advocacy to enhance the quality of life for all Californians."

As San Diego's city attorney, Goldsmith is a permanent member of the club.

Shortly after Wohlfeil's ruling, in an effort to keep the correspondence private, the league appealed the decision. On October 28, the appellate court rejected the argument that the emails should be considered attorney/client privilege and thus exempt from the public record.

"Here, although the e-mails were sent to Goldsmith's personal account, Goldsmith deemed them as pertaining to his work as the city attorney and as city business by forwarding them to his city account. This constitutes strong evidence that the e-mails, retained by Goldsmith in his city account, pertain to his work as the city attorney and constitute public records. Significantly, Goldsmith is a member of the [league] based solely on his role as the city's attorney. Presumably, any action Goldsmith took regarding the e-mails was based on his role as the city attorney to further not only the League's interests, but also the city's interests.

"Additionally, we are not persuaded by the league's argument that, because it is a private organization and [the league's] role is to further the statewide mission of the League, Goldsmith's participation in [it] was not connected to his work as the city attorney or city business. Accordingly, we reject the league's argument that the e-mails are not public records."

The appellate court did however remand the case back to Wohlfeil to review the emails before releasing them to the public.

Not everyone can be a winner

Both Briggs and the city attorney's office are claiming victory in the case.

Briggs says the decision helps to clear the way for a more transparent city government and will help to prevent elected officials from using private devices and personal accounts to conduct city business without the public's knowledge.

"It's a great ruling because it means private e-mails concerning official city business conducted by public officials cannot be used as a way of hiding what those officials are doing while on the public's time," Briggs says. "It's also great because it prevents public officials from blowing hot and cold by claiming that their so-called 'private' activities — which they get to do only by virtue of their being public officials in the first place — are not subject to disclosure and public scrutiny."

On the other hand, Goldsmith's spokesperson Gerry Braun says the case was frivolous from the get-go.

"[T]he Court of Appeal has now joined the lower court in blessing the City Attorney’s practice of forwarding city emails to the city email system. For a year, you have accused [Goldsmith] of misusing his private emails. This is the time to tell your readers that you were wrong, that the City Attorney’s practice of forwarding these emails was appropriate and that the accusations were found false….

"[O]ne of [Goldsmith's] duties is to serve as a permanent member of the legal committee, as did his predecessors. The City Charter precludes the City Attorney from having a law practice on the side. It does not preclude involvement in professional organizations."

Whew. That guy used to be a reporter. Here's the money part...

While the extent of the release of Goldsmith's emails with the League of California Cities to the public will be ultimately decided by Judge Wohlfeil, the two sides continue their fight over legal fees.

In June of this year, city councilmembers — with the exception of councilmember David Alvarez — voted to appeal an earlier court decision to not impose sanctions on Briggs for claiming that Goldsmith was wasting taxpayer money by communicating with the media and other groups on his personal devices and private emails during business hours. The city is asking the court to fine Briggs $55,772 — the amount of legal fees the city will have to pay Briggs — for bringing a frivolous action.

If the appeal is dismissed, not only will the city (read: taxpayers) will be on the hook for Briggs’s attorney's fees but also the money spent on outside legal help and in-office hours spent on the case.