CMPR - CARLE MACKIE POWER & ROSS
   
March 03, 2017
 
 
Public Records Act Update:

Private Devices & Email Accounts

 

Tina Wallis, Of Counsel
 
In a long-watched case, the California Supreme Court issued an opinion this week addressing how the use of private electronic devices intersects with the Public Records Act. In this case, San Jose v. Superior Court, a resident objected to a redevelopment project and submitted a request for public records under the Public Records Act to the City of San Jose.  The request included all emails and text messages sent or received by city employees or officials on private devices. The trial court ruled that communications about public business, sent on private devices, were subject to disclosure.  The Court of Appeal disagreed and said they are not.  The California Supreme Court reversed, holding that substantive communications about public business are subject to disclosure under the California Public Records Act, even if the communication is sent or stored on a private device.

The California Constitution gives citizens a right to access information concerning the conduct of the public’s business by mandating that public officials’ writings “shall be open to public scrutiny.”  The Public Records Act, a state statute, declares that access to information concerning the public’s business is a fundamental and necessary right belonging to every person in California.  This statute must be broadly construed to provide access to the public and narrowly construed when limiting the public’s access to records.  Essentially, all public records are subject to disclosure unless there is a stated, or express, exemption from disclosure.

As the Supreme Court observed, in these modern times with multiple devices, email accounts, text messages, and other electronic platforms, the lines between an official communication and an electronic aside can be blurry.  The sometimes difficult job of distinguishing between an official communication and an aside requires looking at the content, context, purpose, intended audience, and author of the communication; as opposed to where the communication was stored or on whose device it was sent.  Communications that substantively relate to the conduct of the public’s business must be disclosed under the Public Records Act, unless an exemption to disclosure applies.  Conversely, primarily personal communications that only incidentally mention agency business do not need to be disclosed.  Thus, a writing – which includes text messages and emails sent or stored on personal devices or email accounts – substantively related to the conduct of the public’s business, is subject to disclosure under the Public Records Act.  

The Court stated this result is necessary in order to ensure open access to government communications so that the public can verify that public officials are acting responsibly and are accountable to the public.  This result also prevents public officials from evading the Public Records Act by simply switching devices or email accounts.

The Supreme Court considered employee privacy issues and provided guidance on how public agencies can comply with the Public Records Act when records are on a public employee’s or official’s private device or email account.  When this occurs, the focus should be on the content of the communication, not its location.  Agencies can adopt policies addressing how to handle these situations and they can require employees or officials to copy their government accounts for all communications involving the public’s business.  When responding to a request for public records, the agency may rely on the employee or official to search their personal files for responsive materials.  This respects an individual’s privacy rights while responding to the request for public records. For materials and communications stored on private devices or accounts that are not disclosed, the official or employee may provide an affidavit, containing sufficient facts to show that the materials being withheld are not public records.  The Court was careful to explain that it was not endorsing any particular search method, but was merely providing guidance to agencies struggling with this issue.

We now have clarity - anyone substantively interacting with a state or local agency in California about the conduct of the public’s business should assume that the communication is a disclosable public record, irrespective of how the communication occurs or where it is stored.

Please do not hesitate to contact Tina Wallis at twallis@cmprlaw.com or (707) 526-4200 if you have questions or concerns regarding this article.
 
 
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