Agran's E-Mail Mania

By Stephen C. Smith
Irvine Tattler Publisher
Posted June 9, 2008

---

Click Here to watch the May 27, 2008 City Council discussion about the e-mail agenda item. Windows Media Player and a broadband (cable modem, DSL) Internet connection required.

Click Here to read the June 10, 2008 staff report.

---

Larry Agran claims newsletters sent to constituents by Christina Shea are “political spam” and illegal under the State Constitution. (Photo Source: City of Irvine)

Councilman Larry Agran has no problem stuffing your mailbox with unsolicited slate mailers promoting his allies while smearing his opponents — paid for by slush fund donations from developers and Great Park contractors.

But when Councilwoman Christina Shea wants to send electronic newsletters to Irvine residents, that's a different matter.

During the May 27, 2008 City Council meeting, Agran accused Shea of “political spam” for sending an electronic newsletter to Irvine residents informing them about city issues.

Shea contacted both Irvine's City Manager and City Attorney to inquire what e-mail address lists collected by City Hall were available to the public. Citing the California Public Records Act, and precedents established by providing e-mail addresses to the Great Park Conservancy and Great Park Corporation contractors, city staff provided her with those lists.

Agran wants the City Council majority to adopt a policy that would keep Shea from using Irvine's e-mail lists to inform the public who elected her.

Reality vs. Agran

“In light of the State of the State Constitution, which expressly — expressly — in Article I Section I preserves privacy, I happen to believe that if we establish protective policies here that those would trump the Public Records Act if indeed there were a challenge,” Agran declared.

Agran's interpretation of the law has several flaws.

To begin with, a municipality cannot adopt a policy that would “trump” state law. That would leave a City Council free to adopt any rule it wanted to hide incriminating documents from the public.

One example of this would be Agran's attempt to hide from Shea and Councilman Steven Choi evidence that he tried to hire a friend as the Great Park CEO instead of more qualified applicants. After a Superior Court judge indicated that the Great Park Corporation was required by state law to provide the applicants' resumes to Shea and Choi, Agran and his allies on the corporation's board of directors capitulated.

Agran, well known as someone who shies away from technology, apparently doesn't understand that e-mail addresses are no more confidential than street addresses.

If you send an e-mail, that message displays your e-mail address so the recipient knows who sent it. That's no different than receiving an envelope with a return address on it.

In fact, California requires slate mailers such as those sent by Agran and his allies to have the return address and ID number of the slate mailer committee that sent them. To not include that information is a crime.

Just as you have a greater expectation that the contents of an envelope are more private than the addresses on its face, you also have a greater expectation that the content of your e-mail will be kept private from warrantless government intrusion. A federal court ruled in June 2007 that the government may not view the contents of an e-mail without a search warrant.

Contrary to Agran's interpretation of state law, the California Legislature has already defined which electronically stored information is considered private.

California's Security Breach Law, passed by the 2002 Legislature and commonly known as SB 1386, defines what is considered personal information protected by the law:

(d) For purposes of this section, "breach of the security of the system" means unauthorized aquisition of computerized data that compromises the security, confidentiality, or integrity of personal information maintained by the agency. Good faith acquisition of personal information by an employee or agent of the agency for the purposes of the agency is not a breach of the security of the system, provided that the personal information is not used or subject to further unauthorized disclosure.
(e) For purposes of this section, "personal information" means an individual's first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted:
     (1) Social security number.
     (2) Driver's license number or California Identification Card number.
     (3) Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account.
(f) For purposes of this section, "personal information" does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.

Section (f) is the key passage.

Businesses in the private sector maintain customer lists that often include an e-mail address. They protect the confidentiality of a customer's information, not just for privacy concerns but also to keep competitors from courting their customers.

The public sector is different because it is subject to the Public Records Act. There's nothing sensitive or confidential about an e-mail address.

Some people may not want to receive an unsolicited e-mail from their government, which is why standard protocol is to offer recipients an “unsubscribe” option not to receive future e-mails.

Shea said she offered such an option. So did the Conservancy and Great Park Corporation.

Agran's own “political spam” — hit-piece slate mailers attacking Shea while promoting his political allies — don't offer his recipients that option. They keep showing up in your mailbox.

The staff report for the June 10 City Council meeting, signed by the City Manager and City Clerk, note that Irvine's Quick Records web site has “over 6 million pages of documents ... with over 4 million available without a login to the general public.” The report notes, “Numerous records available via Irvine Quick Records contain documents that have email addresses contained in them.” Acknowledging “the redaction of all email addresses is technically possible,” staff concludes that a “manual review could take several years to complete” and “would require a significant cost and dedicated allocation of staff time.”

The report also states, “the use of City resources to produce and disseminate e-newsletters is an appropriate City expenditure as long as the content of the newsletter is confined to matters of official City business or concern and other matters subject to the City's jurisdiction.” So what Shea did was perfectly legal.

Of course, in the alternate reality that is the world of Larry Agran, the facts don't really matter.

Just as Agran, Mayor Beth Krom and Councilman Sukhee Kang fabricated a false charge that Shea solicited developers for lobbying work to justify spending $200,000 to promote Krom's re-election in November, expect them to fabricate new charges that Shea is somehow abusing “private” e-mail addresses for political purposes — which would be illegal, if she used city equipment to do it.

Agran also uttered the bizarre and unsubstantiated claim that persons unknown might obtain e-mail addresses from the city for the purpose of selling them — which might be setting the stage for yet more “political spam” in your mailbox this fall smearing Shea.

The Further Adventures of Todd Gallinger

During the May 27 City Council meeting, Shea accused Agran, Krom and Kang of using an Irvine attorney named Todd Gallinger and his associate Scott Alexander to review her e-mails and memos sent since she returned to the City Council in December 2002.

The Irvine Tattler reported on May 26 that Gallinger created a committee called Yes on Measure H and used Orange County Democratic Party money to smear Shea. According to Anthony Kuo, Shea's former executive assistant, Councilman Kang introduced him to Gallinger at a prayer breakfast last November.

Shea said that Gallinger and Alexander submitted a series of Public Records Act requests between February and May 2008. According to the City Clerk, among the items they requested were “Last six months of all signed waiver forms from riders of the Great Park Balloon.” (I wonder if those forms include the signee's e-mail address ...) They also requested “All photographs of all current Councilmembers, includes photos of events, meetings, etc.”

Krom denied knowing Gallinger, even though documents obtained by the Irvine Tattler showed that Krom and Gallinger both paid Kenny the Printer on May 13 to print mailers smearing Shea. Gallinger subsequently denied any connection to Krom, claiming it was a coincidence that he and Krom were at the same printer on the same day ordering mailers with similar content.

It is this author's opinion that Gallinger and Alexander were conducting opposition research, a standard tactic in preparation for smearing a candidate. Which would be nothing new in the world of Larry Agran.