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Santana's responded: "I only need one copy...you can send it to [her private email account]."
Although there is no explicit passage in the California Public Records Act that bars public officials from using their private email addresses for official business, there is much controversy as to whether private emails that involve official public business should be considered public records. Peter Scheer, the director of the First Amendment Coalition, believes communications by public officials from their personal accounts are public records, but the courts have yet to clarify the issue entirely. The gray area in the Public Records Act, Scheer said, has allowed officials to try to keep the public from having access to official public business.
"This uncertainty can be used by public officials who are trying to avoid channels of communication that would be subject to a public records request," said Scheer. "I believe it's inappropriate to do that."
Santana's directive to Frazier also raises questions about how much business the second most powerful city official in Oakland is conducting through her personal email accounts, thus potentially making them beyond the reach of city and state transparency laws.
Santana said in an interview that her request to Frazier was the only time she has asked to have official city business sent to her personal email account. "This was a one-time deal," she said, adding that she will make available to the public the emails from her private account to Frazier that related city business.
Santana also said that she sought to interact with Frazier through her private email because of security concerns and leaks at City Hall. "I have some people who actively monitor my email ... there had been some leaks of sensitive information from the City Administrator's Office," she said. She also said that eight to ten people had access to her schedule, and two people had continuous access to her City Hall email.
Frazier's consulting firm, Frazier Group LLC, submitted its final version of the Occupy Oakland report to the city on April 30. However, Santana did not appear pleased with the end product. A May 11 email from Frazier to Santana's email account at City Hall offered a glimpse into their argument about how much of the Frazier report's damning findings would become public.
"We feel strongly that bifurcating the Report into two sections, (Executive Summary and Internal Management Plan) masks the substance of our work," Frazier wrote. "Both myself personally and each member of my team consider it an ethical breach to split the report into two sections. Each of us individually, and all of us collectively will not do that."
Santana admitted to me that she had requested that Frazier "bifurcate" his report, and contended that her request was based on what another consultant had done in a 2009 report about a separate OPD scandal. She also asserted that if Frazier had done what she asked, she did not know what ultimately would have been included in the final report released to the public. She also noted that, "at the end of the day, nothing was redacted" in Frazier's report.
Nonetheless, emails show that Santana and Orologas tried repeatedly to redact portions of the consultant's work. At 5:03 p.m. on June 1, Orologas sent Frazier an email asking him to "send me a word version of the Oct report? Our City Attorney's Office has advised us that we need to do additional redactions to the report and will need the word copy to do this."
Frazier's response, however, was firm: "As far as the City Attorney redactions are concerned, I'm afraid we can't do that." After reminding Orologas about the previous rounds of edits his team went through with city officials, and the repeated delays of the report's release date, Frazier drew a line in the sand about further changes. "It is past time for any content changes," he wrote. "If there are technical changes, send them to us and we will consider them. Most importantly, this is a Frazier Group report, and we cannot allow modifications to it that are beyond our control through provision of a Word copy."
In another June 1 email from Orologas to Frazier, she noted to him that "Deanna and team brought to your attention that some report content exceeded the scope and/or required elimination because it revealed too much tactical information not generally shared beyond law enforcement experts."
Orologas further asserted that the April 30 version of Frazier's report contained errors, and tried again to convince Frazier to send a Microsoft Word copy, stating that the Oakland City Attorney's Office had cited potential legal risks created by the report. "We would be happy to share with you a redacted version before the report is released if that helps alleviate any concerns that you may have," Orologas wrote.
Frazier's response the following day reasserted his opposition to Oakland city officials changing his report and/or redacting substantial portions of it, stating, "[W]e strongly disagree with much of the commentary in your email." Frazier also responded to the city's objection about including tactical and munitions information in the report, noting that such information is "easily available on the internet" and that his report would "provide a clearer picture for the reader, but in no way compromised any future law enforcement actions." In the end, however, Frazier redacted the tactical and munitions information.