So why are we making a fuss about this? Because we think the city is on shaky legal ground in withholding e-mails from the public.

The city argues that the 692 e-mails I’ve requested are subject to the “deliberative process privilege.” In short, the city claims it must keep the e-mails secret to protect the officials’ decision-making process. If those officials knew the public would see what they e-mailed about, the city argues, they’d be less likely to discuss policy candidly. And the harm that would inflict on the public outweighs the benefits of being transparent, the city says.

But the city already turned over some e-mails in which its officials — Alex Ruiz, the Water Department’s assistant director and Gerry Braun, the U-T columnist turned Sanders aide — discuss policy ideas. And it turned over drafts of some documents in responding to our request, despite claiming that drafts should be kept secret.

In justifying its case, the city cites a 1991 court ruling against the Los Angeles Times that allowed Gov. George Deukmejian to keep his calendars secret. That case has since been challenged. The California First Amendment Coalition sued Gov. Arnold Schwarzenegger for his calendars; Schwarzenegger turned them over in a pre-trial settlement.

What was different? California voters approved Proposition 59 in 2004. The ballot argument for the ballot measure said:

Proposition 59 is about open and responsible government. A government that can hide what it does will never be accountable to the public it is supposed to serve. We need to know what the government is doing and how decisions are made in order to make the government work for us.

In 2005, former City Attorney Mike Aguirre opined that in the wake of Proposition 59, the Times-Deukmejian case “is of dubious authority.”

Aguirre’s opinion said voters had decided that keeping an eye on government officials outweighed the benefits of keeping their decision-making process secret. Aguirre’s opinion said with the proposition’s passage:

Voters in their law-making capacity appear more concerned about the corruption secret government makes possible than chilling the discussions amongst their public officials.

I asked City Attorney Jan Goldsmith today whether Aguirre’s legal opinion was still being followed. Yes, he said. In an e-mail, Goldsmith wrote:

The Opinion is on our web site and its legal analysis is sound. There has been no change in interpretation.

So, at the same time that Goldsmith stands behind the opinion, which concluded the Times-Deukmejian case is of “dubious authority,” his attorneys are citing it to me as the main reason for keeping those 692 e-mails from being disclosed.


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