LOS ANGELES (AP) — California has no blanket policy restricting the use of personal email accounts to conduct government business, and it’s among about two dozen states that have no clear rules or precedent-setting cases addressing whether those communications are public records.
The lack of clear policy in California, advocates say, could allow officials to shield sensitive electronic communications from public scrutiny by using personal email accounts.
State Attorney General Kamala Harris, a candidate for U.S. Senate, disclosed Wednesday that she uses a private email account to communicate with senior staff in rare instances.
Former Secretary of State Hillary Rodham Clinton has faced sharp criticism over her use of a private email account while at the State Department and has acknowledged deleting thousands of them.
If government employees are using personal email accounts for government business, “that means communications or records that are the property of the government, that may be actually important to the operation of government ... are residing in an email account to which government has no regular access,” Peter Scheer, executive director of the First Amendment Coalition, said Thursday.
“Kamala Harris and everybody else should be concerned for the same reason Hillary Clinton is concerned,” Scheer said. “No one has been saying Hillary Clinton did the right thing to use her private email for government business.”
In Maryland, for example, an email discussing public matters in private email is a public record, according to the Reporters Committee for Freedom of the Press. The issue has not been specifically addressed in Michigan. In Connecticut, they are considered public records, subject to exemptions. And in Florida emails are treated no differently than other public records.
Open-government advocates warn that California’s lack of restrictions on private email use while conducting government work raises the potential that important communications or documents could be lost, or intentionally concealed from the public.
Last year, the California Supreme Court said it will decide if private emails and other electronic communications of government officials are public records open for inspection. In accepting the case involving the San Jose mayor and City Council, the court stepped in to settle a long-simmering debate over access to public employees’ private communications on personal devices discussing government issues.
The confusion over the status of private emails is partly caused by the law being outrun by technology. Since email came into wide use, activists have been battling at all levels of government over whether public matters discussed on private devices linked to personal accounts are subject to the state Public Records Act, which requires officials to divulge many government records for public inspection.
According to the California Government Operations Agency, there is no specific state policy that addresses the use of personal emails while conducting state business. Last year, Congress amended federal rules to prohibit the use of non-official email addresses to conduct government business, unless messages are copied to an official account within 20 days.
In California, however, “the customary practice for state official business is to use state email accounts for state work,” said agency spokeswoman Lynda Gledhill.
Terry Francke, general counsel of Californians Aware, a group that promotes government transparency, said the gap in state law that permits use of private email accounts in state business is “depressing but not surprising.”
“I’ve always assumed that when state or local officials want to cover their tracks, they use their private email to conceal what’s being done and who else is involved in doing or influencing it,” Francke said. Such emails can be quickly erased, either manually or automatically, he noted.
And while the state sets minimum preservation periods for most agency records, emails frequently have not been deemed “records” subject to those laws, Francke added. The state allows individual departments to set policy for retaining records.
Scheer said there has been discussion about changing the law but the proposal has “no traction because the legislators don’t want to give up the ability to hide from public-record requests ... which the status quo allows them to do.”
“The real story here is that Hillary Clinton’s problems should be seen as a real wake-up call” in California, he added.