School officials withheld messages from the public, highlighting transparency law’s limits

Some Grossmont Union High School District board trustees and administrators are not disclosing their text messages in response to public record requests, despite evidence that they have exchanged many such texts discussing district business with each other.

Their failure to provide the records highlights some of the limits of California’s public record law — and raises issues now being litigated before the state’s top court.

In March, The San Diego Union-Tribune submitted a public record request to Grossmont Union High School District for text messages and emails exchanged between board members and Jerry Hobbs, a paralegal who was secretly advising the board on district matters for months and was eventually made district chief of staff. This inner circle of select board trustees and administrators used private messaging to plot against political enemies and discuss issues such as the election and promotion of their allies and layoffs of their opponents.

Two trustees, Jim Kelly and Scott Eckert, provided many texts and group chat messages in response to the requests, albeit incomplete ones. Some messages were cut off, and the trustees did not provide all of the messages contained in their group chats.

But when the Union-Tribune later submitted identical record requests to four other members of the inner circle — Trustees Gary Woods and Rob Shield, and administrators Jessica Merschtina and Coleen Topper — only Shield provided any text messages. The rest declined to provide any text messages, even though Kelly’s and Eckert’s records showed that all four of them had exchanged several messages in group chats that included Hobbs.

Shield provided text messages he had individually exchanged with Hobbs, but he provided no messages from the group chats he was in with Hobbs and other members.

None of those four people responded to questions as to why they did not produce the messages, or whether they deleted them.

It’s unclear whether they had also exchanged additional text messages beyond what was shown in Kelly’s and Eckert’s records.

California’s public record law details what records should be deemed public — but it says less about how to ensure that public agencies thoroughly search for and provide all records responsive to a request, or even whether agencies are forbidden from deleting records after receiving a public record request asking for them.

These issues are now at play in an ongoing case before the California Supreme Court, known as City of Gilroy v. Superior Court.

Public officials’ emails, texts and other electronic communications are subject to the Public Records Act even when exchanged via private devices and accounts, as long as they contain information relating to the “conduct of the public’s business.” That was clarified in the state Supreme Court’s 2017 ruling in City of San Jose v. Superior Court.

The question of how such records should be retrieved, however, is less clear.

The Public Records Act requires that agencies take “reasonable effort” to locate all disclosable records, but it does not prescribe specific search methods.

And “reasonable effort” does not require agencies to conduct “extraordinarily extensive or intrusive searches,” the San Jose ruling said, noting that the public’s right to information needs to be balanced with officials’ personal privacy.

In the San Jose ruling, the state Supreme Court suggested that agencies can have employees and officials search their own personal accounts and files for responsive records to protect their privacy. But the court also said it was not declaring whether any particular search method is “required or necessarily adequate.”

As a result, public agencies often rely on their officials or employees to produce records from their personal accounts and devices. But that means officials and employees could simply choose not to provide records from their personal accounts or devices — as was the case with Grossmont.

“(Searches) are supposed to be conducted in good faith, but obviously it’s kind of on the honor system,” said David Loy, legal director for the First Amendment Coalition.

Grossmont said it relied on the trustees and administrators to search their own personal devices and accounts for responsive records, and that it couldn’t search them itself.

When the Union-Tribune asked why text messages were missing from its public record productions, the district replied that it had satisfied its obligations under the Public Records Act and had done all it legally can “without taking an undue burden.”

California’s highest court is now mulling related issues in City of Gilroy v. Superior Court.

The case involves a nonprofit, Law Foundation of Silicon Valley, that in 2019 had requested Gilroy police body-cam footage of officers conducting homeless encampment sweeps. The city provided some footage but later told the foundation that it had deleted all other footage, in line with its record retention policy, while the foundation’s request was still pending, the organization said.

The Public Records Act does not say anything about record retention. Other state laws enforce general record retention requirements, but such laws are not clear about all kinds of records, such as emails and text messages.

The foundation sued the city and argued that the city had committed several Public Records Act violations, saying it delayed responding to the record requests, failed to conduct an adequate search for records and destroyed responsive records while its requests were pending.

A trial court agreed with the foundation that the city had conducted an inadequate search, but it disagreed with the argument that the city violated the law by failing to preserve its responsive records after receiving the request.

An appeals court later ruled in favor of the city, saying that the Public Records Act doesn’t allow trial courts to rule on any public records issue except whether a certain record should be disclosed.

The court said the Public Records Act only provides remedies for disputes as to whether certain records should be disclosed — not for other issues, such as whether an agency adequately searched for responsive records or whether it was allowed to delete records being sought in a request.

The First Amendment Coalition, a pro-transparency legal nonprofit that supports the Law Foundation of Silicon Valley in its case, disagreed and in late 2023 urged the state Supreme Court to review the case.

The coalition argues the court does have the power to make other rulings about the records law, such as ruling whether an agency performed an adequate search for records. And it should be a no-brainer, Loy said, that agencies should not be allowed to delete potentially responsive records after receiving a request for them.

“Our position is the Public Records Act has to be construed that way, or the Public Records Act is meaningless,” Loy said.