SN&R prevails in yearlong First Amendment battle with Sacramento Mayor Kevin Johnson

Friday afternoon lumbered toward 5 o’clock as Sacramento Superior Court Judge Christopher Krueger patiently indulged Mayor Kevin Johnson’s attorney. The counsel, a dapper lawyer from Los Angeles named Scott Humphreys, wanted to retreat to the judge’s chambers, to discuss in private one final time why a few dozen mayoral emails from years ago should remain hidden from the public eye. But Krueger wasn’t having it. At one point, the judge even lifted his arms in a gesture of incredulity. And, later, flashed a smirk.

“Let me just tell you, the answer is no,” Krueger told the mayor’s counsel. “I’m not going to let this in chambers.” The judge then reminded Humphreys that SN&R and Johnson have had copious opportunity to debate the nature of the emails in question.

More than a year, in fact. But finally, this past Friday, Krueger ruled that Johnson and the city must make public 79 of the remaining 113 emails and records. Ballard Spahr, the firm that represents the mayor pro bono, needs to turn them over by July 18.

During the hearing, Humphreys was steadfast in his lobbying to keep some of the records secret. He contested that, since Ballard Spahr had reviewed firsthand many of the emails and attachments in question, they were clearly protected from disclosure because of “attorney-client privilege”—a phrase he repeated ad nauseam.

Eventually, Krueger schooled him on the law. “Every document that an attorney has seen does not fall under attorney-client privilege,” the judge explained—adding that this was legal fact no matter how many times Humphreys made a “talismanic recitation of those words.”

It was a memorable zing during a hearing that, after 16 months since the original request for emails, ended with a favorable ruling for SN&R.

This media company’s attorney called the judge’s order a big win for freedom of the press. “I was very pleased that the judge took the case seriously,” said Dan Laidman with Davis Wright Tremaine. “By not taking no for an answer and putting up this fight, the News & Review [obtained] hundreds of emails that shed light on how the mayor’s office operated and used public resources, and now hopefully more important information will be disclosed as well.”

Laidman said that this was the first case he was aware of where the mayor of a city had sued a media outlet to stop the release of documents under the California Public Records Act.

Jeff vonKaenel, president, majority owner and CEO of SN&R, was satisfied with the judge’s ruling. “We never thought the mayor had a case, and I always thought this was purely an intimidation lawsuit,” he said.

He described the fight for the emails as crucial. “This is an important issue, the mayor abusing city resources to work on his political agenda, and the people of Sacramento had a right to know what was going on,” he said.

SN&R’s legal fight with the mayor dates back to March of last year, when former contributing editor Cosmo Garvin made a CPRA request with the city clerk to acquire some of Johnson’s emails.

Specifically, Garvin had learned that the mayor was using private Gmail accounts —with address prefixes OMKJ, for Office of Mayor Kevin Johnson—in lieu of city-issued addresses. Garvin believed this allowed the mayor to circumvent public-records requests, since the city had no control over communications he and his staff made on Gmail.

Nevertheless, some OMKJ emails had ended up on city of Sacramento servers. The city clerk provided a batch of those emails to Garvin last spring, which he reported on by comparing Johnson’s Gmail accounts to Hillary Clinton’s use of a personal server as secretary of state (see “Special delivery” by Cosmo Garvin, SN&R News; April 23, 2015).

But there were more OMKJ emails out there and, last summer, the city attorney informed Ballard Spahr that some of these remaining Gmails included what the office viewed as private discussions between Johnson and his attorneys.

That’s when the mayor sued SN&R, and his own city, on July 1 of 2015. His intent was to obtain an injunction to halt the release of approximately 160 emails and documents.

After the mayor sued, the city attorney later ballooned the number of emails and documents it deemed potentially privileged to 475.

Other local media outlets, most notably The Sacramento Bee—which also had requested some of these controversial OMKJ emails—had the option to be part of SN&R’s case. “We were originally hoping others would join, like the Bee, but they backed away,” vonKaenel explained.

So, SN&R went it alone. And now, more than a year after Garvin’s initial records request, the company will soon obtain nearly all the emails Johnson fought to hide.

Of the original 475 records withheld by the city, the judge decided on Friday that only 34 were actually privileged communications between the mayor and his legal team.

SN&R’s victory, though, came with a hefty price tag.

“I did not think this lawsuit would be as expensive as its been, which is … probably close to $100,000 in legal costs,” vonKaenel said. The company has raised more than $32,000, he said, due to “many generous contributions from a wide assortment of sources,” including readers and a grant from First Look Media, which supports freedom-of-the-press legal battles.

Laidman explained that, because the company ended up obtaining a vast majority of the mayor’s emails, it has a strong case to recoup legal expenses. “We would likely be pursuing the recovery of News & Review’s attorney’s fees,” he said on Friday.

Nikki Moore, legal counsel with the California Newspaper Publishers Association, described Johnson’s lawsuit against SN&R as a “strategic lawsuit against public participation,” or “SLAPP,” case, which is a form of harassment against journalists. “These lawsuits make it more expensive for newspapers to obtain public records,” she wrote. “And, for the average citizen, it would make access almost impossible—and certainly scary—to be sued by the mayor.”

She explained that state law includes anti-SLAPP statutes, which are designed to protect reporters against those who want to squash their First Amendment rights to newsgathering.

It’s more common for labor groups, such as police or teachers’ unions, to litigate to prevent the release of public records, Laidman explained. When this happens, it’s called a “reverse-CPRA” or a “CPRA-SLAPP”—essentially a means to entomb a media outlet in legal bills.

Even Krueger referred to SN&R’s battle as unique. “This was sort of an unusual case,” he said in the courtroom on Friday.

Many of the emails and documents in this lawsuit pertain to the mayor’s 2013 takeover and “coup” of the Atlanta-based National Conference of Black Mayors. The OMKJ emails that SN&R has obtained so far reveal how Johnson’s mayoral staff, plus workers at his local education nonprofit, Stand Up, plotted to get him elected as president of NCBM.

On Friday, Krueger described many of these NCBM communications between Ballard Spahr and the mayor as strategy discussions, not legitimate legal counsel. “Are these really legal arguments? I see these as political arguments,” the judge observed.

Despite this window into “K.J. Inc.” and its machinations, Garvin questions whether the disputed emails will actually be newsworthy. “I have no idea what’s in the remaining emails that the judge says K.J. now has to turn over,” he wrote in an email. “I’m sure some of it is interesting. I’m sure much of it is not.”

Garvin thinks that the entire lawsuit was just a way for the mayor to “harass and intimidate” SN&R. “The paper has had to spend tens-of-thousands of dollars to defend the basic right to file public records requests—and God bless them for doing it,” he wrote. “But Johnson gets a totally free ride. He’s basically leveraged his public office to get free legal representation, to go after reporters for doing their jobs. That’s crazy to me.”

The city of Sacramento also had to spend tens of thousands of dollars on this case, Garvin reminded, since it was a co-respondent. SN&R has filed a public-records-act request to learn how much the mayor’s lawsuit ended up costing the city.

In the end, and despite Krueger’s positive ruling, a much bigger issue remains. “We’ve been fighting in court for a year over a small batch of records that ended up in the hands of the City Attorney,” Garvin wrote. “The much bigger problem is the thousands and thousands of emails that Johnson has refused to turn over, which were generated by his OMKJ email accounts.”

Freedom-of-information advocates say elected officials using private, non-city-administered email accounts to avoid the California Public Records Act is a growing trend. This summer, for instance, a grand jury dinged Bay Area governments for allowing elected officials to use private email.

So far, neither the courts nor the state Legislature has been inclined to address these email concerns. Ditto city of Sacramento officials, including incoming mayor Darrell Steinberg.

“It’s completely irresponsible for the city attorney, city manager and city council to let that go on,” Garvin argued.

Editor’s note: This story has been updated online to clarify SN&R’s legal recourse in regards to attorney’s fees.