Why Mayor Kevin Johnson sued SN&R, what we've learned—and what happens next

“The mayor is completely open and transparent.” That’s what Mayor Kevin Johnson’s spokesman Ben Sosenko told the TV cameras and reporters gathered outside Sacramento Superior Court Room 44 last week.

Shortly before that, Sosenko flatly refused to answer any of SN&R’s questions about the mayor’s use of private emails to do city business. He made it clear that he didn’t intend to answer any of SN&R’s questions any time soon, either.

“It is what it is,” he said with a smirk.

Regular readers know that, last week, Johnson took SN&R and the city of Sacramento to court, in order to block the city from releasing about 100 emails, which the mayor says are protected by attorney-client privilege (read about the lawsuit on SN&R’s Page Burner blog).

But the bigger story may be that, thanks to Johnson’s lawsuit, we now know that the mayor has actually failed to turn over thousands of emails from his private Gmail accounts. Those emails were sent by city employees, doing city business, and aren’t protected by attorney-client privilege.

Outside the courtroom, SN&R attorney Thomas Burke told the gathered media that Johnson’s use of private email accounts is a way to get around the California Public Records Act. “There’s no way to check whether or not you have access to everything that they’re doing in the public’s business,” Burke said.

Sosenko wouldn’t talk to SN&R, but assured the other reporters gathered that the Gmail accounts, which use “OMKJ” for “Office of Mayor Kevin Johnson” in the address, were no problem, because “the private email accounts are used for things that are not city business.”

Not even remotely true: The OMKJ emails accounts are routinely used for city business. To take just a few examples: Johnson and his staff used outside emails extensively to discuss strategy for the 2013 arena deal. Other OMKJ emails obtained by SN&R show Sosenko responding to an article in the Bee about an anti-gang program, and developing talking points for remarks Johnson made to Sacramento police officers about the unrest in Ferguson, Mo. By using these outside accounts, Johnson has effectively short-circuited California’s public-records law. And no one on the city council, or the city manager or city attorney, seems willing to do anything about it.

Back in March, SN&R requested any emails sent and received using the set of special “OMKJ” Gmail accounts used by the mayor’s staff (see “Special delivery” by Cosmo Garvin, SN&R News, April 23). In mid-June, the Bee asked for emails related to Johnson’s dealings with the National Conference of Black Mayors. They asked for these because, last year, Johnson used city staff to mount a “coup”—his attorney’s words—in that organization. And, not surprisingly, the whole thing devolved into lawsuits and a nasty bankruptcy fight, which are ongoing (see “K.J. Inc. strikes again”, SN&R Bites, June 11.

The Sacramento city attorney was reviewing records related to both media requests and found about 100 emails between the mayor’s office and the law firm Ballard Spahr, which is representing Johnson in the legal fight over NCBM.

Even though the emails potentially contained attorney-client communication, the city attorney decided there wasn’t a clear legal basis to withhold the records from the two newspapers. Instead, the city attorney contacted Ballard Spahr and let them know that, “absent a court order,” the records would be released.

SN&R didn’t know about any of this at the time. And SN&R has never asked for any records that legitimately fell under attorney-client privilege.

But as outlined in last week’s Bites column, Ballard Spahr made an explicit threat to SN&R: Change your public-records request or get sued.

That seemed to us at SN&R like a terrible idea. We didn’t know which, if any, of the emails really contained attorney-client privilege communication, or if such a side-agreement would be used to hide records that really ought to have been disclosed.

At that time, Ballard Spahr attorney David Pittinsky said that The Sacramento Bee had agreed to his demands right away, and that if SN&R wouldn’t fold, “We’ll be forced to litigate with you alone.”

Assistant City Attorney Michael Benner also told SN&R at this time that the city was due to release records to The Sacramento Bee sometime in early July. SN&R would get a batch of emails at some undetermined date in the future.

But in its court filings, Ballard Spahr said SN&R “stubbornly refused” to modify its public-records request, while the reasonable Sacramento Bee complied.

That’s not true. Bee reporter Marissa Lang wrote in an email to Ballard Spahr that “we’ve decided that any emails independently found by the city attorney to fall under attorney-client privilege can be omitted from our PRA request.”

The Bee’s position was that the city attorney should do its job and determine what’s privileged and what’s not. That’s essentially the same as SN&R’s position, though with less incredulous laughter.

And the Bee clarified in a later story that it never agreed to Ballard Spahr’s demand. Unfortunately, they also wrote that, while the Bee was waiting for a determination from the city attorney, “The News & Review, however, was insisting on getting all of the emails right away, which is why Johnson went to court.”

Again, not true. Eventually, the Bee corrected this error. But it wasn’t the only media outlet to repeat the narrative of the bad, “stubborn” SN&R that Team K.J. was pushing.

So why did SN&R get taken to court, even though it took the same position as the Bee, and even though the Bee was actually first in the queue to get its records? For the same reason SN&R is always singled out for special treatment by the mayor’s office.

As Sosenko says: It is what it is.

In court last week, SN&R’s lawyer Burke suggested—and Judge Christopher Krueger agreed—that the city should provide a “privilege log” of the emails that Johnson wants to keep private.

The log would contain at least some information about the sender and receiver of each email, and the newspapers—and any member of the public—can use this info to challenge the assertion of attorney-client privilege. If an agreement can’t be made, it’s back to court.

According to the city attorney, all of the emails in question came from OMKJ Gmail accounts, but were copied, forwarded or sent directly to “cityofsacramento.org” accounts. That’s how they wound up on city servers.

So, there’s an argument to be had about whether attorney-client privilege was waived, since those emails were forwarded around to other city employees.

K.J.’s attorney also claims to be asserting attorney-client privilege on behalf of the National Conference of Black Mayors. Not true, according to the NCBM board of directors.

On July 2—the same day K.J. took SN&R to court—the NCBM board passed a resolution saying Ballard Spahr does not represent the organization, and has no right to assert attorney-client privilege. The NCBM board has also asked that the emails be released to the public.

But, as Ballard Spahr attorney Peter Haviland noted, control of NCBM is currently being disputed in two court cases in Atlanta.

Again, SN&R never asked to receive emails that are legitimately protected from public disclosure by the attorney-client privilege. SN&R did ask for all emails from the OMKJ Gmail accounts, because they are emails between city employees doing city business. That’s obvious from the content of those emails, and also from the letters “OMKJ”—for “Office of Mayor Kevin Johnson”—right there in the email addresses.

What we didn’t know, until Johnson took SN&R to court, is that there are many more emails from Johnson’s OMKJ accounts, probably thousands, that have nothing to do with NCBM, and that contain no attorney-client privileged information, which the mayor is refusing to turn over.

Wendy Klock-Johnson is assistant city clerk and the city’s main public-records wrangler. She said that in response to SN&R’s records request the city clerk had conducted a search on city servers for emails from the OMKJ accounts. Next, the city clerk’s office asked the mayor’s office for emails from those OMKJ Gmail accounts.

Little by little, SN&R started to receive batches of emails, a few hundred pages at a time. As the first batches of emails arrived, it seemed like the mayor’s office was complying with SN&R’s public records request. Craig Powell with the city watchdog group Eye on Sacramento even praised the mayor for his openness and transparency.

But City Attorney James Sanchez let the cat out of the bag in court last week: The mayor’s office never actually sent any emails to the city clerk in response to her request. The only emails disclosed to SN&R were those that had just happened to wind up on city servers.

There have been some comparisons made between Johnson’s use of private email accounts and Hillary Clinton’s email scandal. Clinton also used outside email accounts, and outside servers, for U.S. Department of State business. The difference is that, after the media made a fuss, Clinton and the state department started releasing all of those emails to the public.

By contrast, Sacramento’s “completely open and transparent” mayor is keeping most of his emails hidden.

But he’s not the only one. In 2013, the Santa Clara County Superior Court ruled that all emails used by San Jose city officials to conduct city business—even if they are sent using personal phones and private email accounts—were subject to the California Public Records Act. But a year later, the Sixth District Court of Appeal overturned the ruling, and now the case is before the California Supreme Court.

Sacramento city officials say there’s no policy requiring city employees to use city email accounts for city business. And, absent some action by the city council or California Supreme Court, there’s nothing requiring Johnson to make public the emails from his “Office of Mayor Kevin Johnson” Gmail accounts.

So the real story may not be the hundreds of emails that Johnson is trying to hide, but the thousands of emails he is already hiding.