Sunshine experiment in Palo Alto

San Francisco Bay Guardian

he Palo Alto City Council is conducting a unique experiment in its efforts to comply with the Ralph M. Brown Act, which requires government bodies to conduct business in a public way.

Palo Alto now posts e-mails from council members on the city's Web site (www.cityofpaloalto.org/council), providing easy access to all with Internet capabilities. The e-mails were first posted online following a 2003 settlement of a Brown Act lawsuit against the city of Palo Alto by two local newspapers — Palo Alto Weekly and The San Jose Mercury News.

Eight private e-mails were in question, disclosing the votes of a closed city council session, and while the city never admitted guilt in violating the Brown Act, language in the settlement established the practice of posting council e-mails on the Web site and making them available in council agenda packets prior to meetings.

Peter Scheer, executive director of the California First Amendment Coalition, questions the merits of the system.

"Some people would look at this and think it is a giant and serial violation of the Brown Act — but I wouldn't necessarily say that," Scheer told the Guardian, noting that the prohibition on serial meetings bans such an approach. But he said that this is an interesting experiment, as long as council members don't deliberate by e-mail. But assistant city manager Emily Harrison told us the messages avoid Brown Act violations by sticking to basic questions about agenda items, which the public can scrutinize.

The city of San Francisco has no such system in place, and e-mails to and from the Board of Supervisors is available only through direct request. Frank Darby, the city's Sunshine Ordinance Task Force administrator, said that the city had never looked into putting one in place.

"We are not required to post e-mails [under the Sunshine Ordinance]," Darby said. However, he added, the city "constantly monitors" itself to ensure that it is in accordance with the Sunshine law. "There may be some people who disagree and feel that maybe we should put every e-mail online — but currently the Sunshine Ordinance does not require that e-mails be made available online."

Main Street America

You've heard all about the demise of newspapers. But what about community newspapers, those weeklies, twice-weeklies and three-times-a-week papers that report on local news?

This just in from the National Newspaper Association: Readership of community newspapers has increased slightly — from 81 percent in 2005 to 83 percent in 2007.

"We know community newspapers have a different story to tell than some of the big dailies," says Steve Haynes, president of NNA and of Haynes Publishing Co. in Kansas.

Read more here.
(Photo of Tracy Press intern Evan Gong)

Similar public records cases

These two cases, which are similar to the Tracy Press' pending suit over a councilwoman's e-mails, recently crossed my desk. One is settled, and the other is before a state supreme court.

• A state district judge in Texas has ruled that the city of Dallas must release e-mails requested nearly two years before by The Dallas Morning News, including messages from a city official's BlackBerry and personal e-mail account.

"This is a really important decision," said Charles Davis, executive director of the National Freedom of Information Coalition. "One of the arguments we're seeing emerge among public officials is that certain delivery platforms or technological devices should be, by their very nature, private, because they own them, or they keep them in their pocket. The delivery platform doesn't make any difference. It's what the content of the message is. If the content of the message is about governing, then it should be public."

• The Ohio Supreme Court has taken a case in which a retired prosecutor has sued a state representative for e-mail and text messages from private accounts that pertain to state business. Attorney General Marc Dann has said that both are public documents if they deal with government business, even if they come from private accounts

Congress passes Open Government Act

Here's a reason to cheer!

Congress has passed the Open Government Act, the first significant reform of the Freedom of Information Act in more a decade. President Bush is expected to sign S. 2488, which would create a tracking system and hotline for requesters, waive fees if federal agencies miss deadlines, create a FOIA ombudsman and make it easier for the public to recover legal fees when litigation helps the release of records.

Press Club takes notice

The San Francisco Peninsula Press Club weighs in on our appeal for a councilwoman's e-mail, with links to our opening brief to the appeals court and friend-of-the-court brief.
HERE'S THE LINK.