Are Communications of Public Officials on their Private Electronic Devices Subject to the Public Records Act?
On June 25 2014, the California Supreme Court granted review of the decision in City of San Jose v. Superior Court of Santa Clara County (2014) 169 Cal. Rptr. 3d 840. In a case that will be watched closely by California public agencies and officials and employees of such agencies, as well as by advocates of transparency in government, the Supreme Court will determine whether written communications pertaining to City business, including e-mails and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on City servers and (c) are not directly accessible by the City, are “public records” within the meaning of the California Public Records Act.
The California Public Records Act (Gov. Code 6250 et seq.) affords the public the right to inspect and be provided copies of information retained by State and local agencies. The Public Records Act defines public records as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” The Public Records Act regulates the public’s access and includes exemptions for particular records that do not have to be disclosed.
In the City of San Jose case, an individual making a public records request sought to obtain messages sent or received by San Jose public officials (the mayor and 10 council members) and employees on their private electronic devices regarding the City’s downtown redevelopment plans. The City disclosed responsive, nonexempt communications that had been made using City accounts. However, the City did not disclose messages using private accounts, which were not stored on the City’s servers and were not directly accessible by the City. The Requestor brought an action in the Superior Court to require the disclosure of the communications contained on the private accounts. The Superior Court ruled against the City and in favor of the Requestor. The City then filed a Petition for Writ of Mandate or Prohibition in the Court of Appeal.
The Court of Appeal ruled in favor of the City. The Court held that the City was not required to disclose messages using private accounts, which were not stored on the City’s servers and were not directly accessible by the City because the messages were not Public Records “prepared, owned, used, or retained” by the City. The Court of Appeal discussed the privacy interests of the public agency officials and employees and the practical impediments associated with policing private devices and accounts and concluded that any such regulation should be addressed by the Legislature.
The City of San Jose case has been depublished and no longer provides comfort to officials who use their personal electronic devices to communicate about their agencies’ business. Whether the Supreme Court will affirm or reverse is anyone’s guess. It is important to remember, however, that even if the Supreme Court agrees with the Court of Appeal, public agency officials and employees will still have to be cautious when engaging in what they believe to be private correspondence electronically. Communications made while logged into a public agency network would be subject to the Public Records Act, even under the Court of Appeal’s reasoning. In addition, the public meeting requirements of the Brown Act apply to communications made on private devices. Further, communications made on private devices can be discoverable as part of a civil case or criminal prosecution.
Identifying what is and what is not a public record under the Public Records Act can be tricky. Disclosing a record that is exempt, such as a record covered by the attorney-client privilege, can unnecessarily expose the agency to liability. Conversely, failing to disclose a pubic record can result in legal action against the agency that may include paying the requestor’s attorney’s fees.
Heather Whitham is a partner at Carmel & Naccasha, LLP. Her practice focuses primarily on representing public agency clients, including advising on compliance with the Public Records Act. Heather can be reached at email@example.com or 805-546-8785.