Stockton is facing its share of challenges. As the city tries to get its financial house in order and address the violence that it has struggled with for the past few years, scandals and squabbles at the top of city government seem to dominate the headlines.
Emails from Mayor Anthony Silva about city business could shed important light on efforts to solve Stockton's problems. But getting those emails – which an expert said are public records – can be difficult.
Citing California's public records laws, News10 requested emails sent to and from Silva's work email account since he took office last January.
According to the records the city sent News10, Silva did not send a single message from his city email account for the entire months of May and June.
It's clear now that he did send messages dealing with city business, but when he did, he used his personal AOL account or texted from his cell phone.
According to California law, those emails and text messages are public records. Still, News10 met resistance trying to get those records. News10 requested all of the mayor's emails regarding Stockton's official business from his personal email and text message accounts. Our request was dated Aug. 19, 2013.
Stockton Public Information Officer Connie Cochran immediately said Silva's text messages were not public record.
After more than two months, the city did provide some emails from the mayor's personal email account. Most were related to the mayor's recruitment of volunteers for an advisory committee. Those emails included a few dozen people congratulating the mayor on the election or saying they were interested in serving on the committee. There was nothing related to day-to-day business or the serious challenges facing the city.
In fact, the records request yielded only four emails Silva sent from his AOL account. A few more messages sent from that account were written and signed by an intern.
In a cover letter that accompanied those emails, the city questioned the assertion that the messages were public.
"It is the City's position that e-mail messages present on private systems that are not maintained by the City are generally not public records," the letter said.
That statement, by the city's own admission in several emails obtained by News10, is not true.
Last May, City Attorney John Luebberke emailed the mayor about a public records request made by The Record, the daily newspaper in Stockton. It warns the mayor to use his city email account for city business, as use of his AOL email address for city business would expose that account to public records requests.
"This is further reminder that the response to this PRA (Public Records Act) request from the Record is due Monday and I have not heard from you in response to my messages sent on May 15 or my text message sent on May 20 as to when or if you intend to produce those requested records," the email states.
"As we discussed before, use of your personal email account for City business is problematic and will expose that account to requests such as this. While this particular request is quite limited, if you continue to use your personal account for City business you can expect more of the same. Once again, I strongly recommend you use the City email system for your City business," Luebberke wrote.
That wasn't the only indication that city officials understood emails sent to and from the mayor's AOL account for city business were public. Another email, this time from Assistant City Attorney Michael Roush, spelled it out again less than a week later.
"We are not aware of any existing policy but we did provide to the City Council recently a couple of memos alerting everyone to the potential problems that can occur if City business is conducted with personal devices," Roush wrote. "Those memos are attached, along with a decision from a trial court in Santa Clara County holding that records from a public official's private electronic media used by the official for City business was a public record that must be disclosed under the Public Records Act."
News10 requested the memo Roush referred to, but the city denied our request, saying the memo was privileged.
To get a second opinion, News10 contacted Peter Scheer, an attorney and executive director of the First Amendment Coalition, a non-profit organization dedicated to fighting for free speech and open government.
Scheer said Roush was correct in referencing the Santa Clara County Superior Court decision. He also said the mayor's text messages dealing with City business are public record and should have been handed over.
"The emails and the texts that are about government business, they are public records regardless of what account they are sent from or received on," Scheer said.
A recent blog post by Scheer on the First Amendment Coalition's website goes into more detail.
"Although mayors, city managers, supervisors and superintendents may not like this, the applicability of the public records law to email messages is settled," Scheer wrote. "You will not be shocked to learn, however, that many government officials try to avoid disclosure by using their personal email account to send and receive emails about government business."
The records received by News10 show that only four emails about city business were sent from Silva's AOL email address, which didn't seem to merit two warnings from the city attorney's office.
To test whether the mayor had really sent everything from his personal account dealing with city business, News10 requested in November any emails sent from the mayor's AOL account to 15 city employees.
More than a month later, the city sent dozens of emails from Silva's personal email account, none of which had been included in the original records request.
Scheer said this is problematic – he's concerned that elected officials are using their personal email accounts as a way to get around the California Public Records Act.
"If a government official says I don't have any, I never sent any, I never received any, but you can find the emails in possession of somebody else as the recipient – well then I think the public official has some explaining to do," Scheer said.
Silva maintained he's been 100 percent transparent and has not been elusive to the press.
But Silva also insisted his text messages, even the ones for city business, are not public records and would not be turned over.
And when asked why he used his personal email account for city business instead of his city email account, he said he wasn't trying to hide things from the public, but rather prying eyes at city hall.
"I wasn't 100 percent certain that whatever I typed in my private emails weren't going to be read as I typed them," Silva said.
And about those two separate sets of emails? Chalk that one up to a mistake.
"It probably was an oversight and I'm really sorry," Silva said.
