SAN JOSE -- A Santa Clara County judge has ruled that San Jose must provide city officials' private text messages, emails or other electronic communications about city affairs in response to an activist's request, a potentially far-reaching decision that could settle a growing dispute over what open-government advocates say has become a glaring loophole in the state's public records law.

"This is an important decision," said Peter Scheer, executive director of the First Amendment Coalition, a Santa Rosa-based nonprofit organization dedicated to advancing free speech and open government. "It's an important advance. The judge has got to be right. Because if he's not right, then personal email accounts and personal texting accounts would constitute such a huge loophole in open government laws that they would basically render the basic requirements of the law meaningless."

City Attorney Rick Doyle could not say whether the city will appeal because he hasn't discussed the decision with the City Council. But he agreed that its potential would be broad, arguing it could be troubling on both practical and privacy grounds.

"It has implications statewide," Doyle said. "We have some real concerns about it."

The ruling by Santa Clara County Superior Court Judge James P. Kleinberg on Friday was a victory for San Jose activist Ted Smith, who sued the city in August 2009 over its refusal to disclose officials' personal electronic communications in response to his request. Smith had requested emails, texts and other messages sent to and from personal devices by Mayor Chuck Reed, council members and redevelopment officials about city business including subsidizing a development in San Pedro Square downtown on property owned by former Mayor Tom McEnery and his family.


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Smith's attorney, James McManis, said the city's refusal to provide the records was ironic given that Reed had championed open-government "sunshine reforms" and San Jose's groundbreaking policy, adopted in January 2010, that declared such personal electronic messaging by council members and their staff subject to disclosure.

"We hear about the Reed Reforms and sunshine, but when we ask to see the emails on private devices, we're refused," McManis said. "That's why I'm really happy we won."

Reed was traveling out of state, and his office had no immediate comment.

Smith, an environmental activist who founded the Silicon Valley Toxics Coalition, and McManis, a prominent lawyer, have a history of taking on City Hall on such things as lobbying regulations and campaign finance restrictions that McManis argued abridge free speech rights.

"His interest is summarized in two words," McManis said of his client. "Good government."

McManis had filed a complaint on behalf of an anonymous critic in 2008 accusing McEnery of violating the city's lobbying laws in meetings with city officials about subsidizing his San Pedro development plans. City commissioners who enforce the lobbying laws dismissed the complaint after their outside investigators deemed it largely without merit.

Smith's suit over the electronic records argued the city violated the California Public Records Act by refusing to turn over messages from personal phones and other devices in response to his June 2009 request. It named as defendants Reed, the City Council, the now-defunct redevelopment agency and its former director, Harry Mavrogenes.

The suit came as a growing nationwide battle waged over the line between government officials' public and private lives, as lawmakers embraced technology that enabled portable wireless phones to send and receive email and short text messages.

Doyle has previously pointed to arguments raised by the League of California Cities and the California State Association of Counties in fighting a Tracy newspaper's effort to compel a city councilwoman to produce personal emails on a proposed development. They contended that compelling disclosure from officials' personal accounts would be impractical because the government agency does not control access and storage. They also argued that such requests raise privacy concerns because messages regarding official business may be mingled with others about private matters. Doyle said that if the state Legislature intends for officials' private accounts to be subject to disclosure it should say so.

San Jose made headlines in January 2010 with its policy declaring personal texts, emails and other electronic messages of council members and their staff subject to disclosure. But the question of whether the California Public Records Act covers personal devices and accounts of public officials had remained unresolved, as the Tracy newspaper lost its 2007 case on appeal over a technicality. Scheer said that if Judge Kleinberg's decision stands, it would change that.

"It is, I believe, a correct interpretation and goes beyond certainly the practices of most cities and local governments," Scheer said. "It would bring a lot more of the most important communications within local governments within the jurisdiction of the Public Records Act."

Contact John Woolfolk at 408-975-9346. Follow him on Twitter at Twitter.com/johnwoolfolk1.