Category: California Public Records Act

City of San Jose v. Super. Ct., 3/2/17, SC

Last week the Supreme Court weighed in on an important California Public Records Act (CPRA) issue – Can city officials evade the disclosure obligations of the CPRA by using personal email and text accounts to transact public business? Here, Ted Smith requested information from the City of San Jose, targeting information about its redevelopment activities.  His requests includes emails and texts “sent or received on private electronic devices used by” the mayor, two city council members, and their staffs.  The City refused to produce documents from staff members’ private accounts, claiming that those materials were not “public records” and therefore were not subject to the CPRA.  Smith sued and won in the trial court, but the appellate court reversed.  Held: Reversed.

The court concluded that “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”  This strikes me as self-evident and how this got to the Supreme Court is really a mystery.  The policy of the CPRA is promote democracy, which is premised on disclosure and transparency.  The idea that government could circumvent the CPRA and conduct its business in secret by the use of personal accounts is anathema.

The principles underlying the CPRA all support the Court’s conclusion: The CPRA is supposed to be interpreted broadly and creates a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” It contains an exemption to maintain individual privacy rights and a catchall exemption. California citizens felt so strongly about this issue that they passed Proposition 59, which amended the California Constitution to ensure that the CPRA is applied broadly.

The CPRA applies to “public records,” which are defined as (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.  The CPRA defines writing to include transmitting by electronic mail and “every other means of recording upon any tangible thing any form of communication.”  So it covers electronic communications. 

Prong two differentiates between the public official’s public business and private affairs, a line that can admittedly be murky. The court attempted to fashion a guideline when applying prong 2: “Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard.”

As to prongs 3 and 4, the Court felt that a broad construction of the CPRA supported finding that those elements had been met: “If an agency employee prepares a writing that substantively relates to the conduct of public business, that writing would appear to satisfy the Act’s definition of a public record.” The Court rejected the City’s argument that emails and texts in the possession of its officials on their private accounts is “beyond” their reach (not owned, used or retained by the agency).  As a practical matter, that argument simply seems untrue. Moreover, precedent supports the disclosure of public records that are in the government’s constructive possession.  The court cited a case where the City had to disclose a third party consultant’s field survey because the City had a contractual right to own and possess that material.  

The court said that writing retained by a public employee conducting agency business has also been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.
The City’s suggestion to the contrary would not only put an “increasing amount of information beyond the public’s grasp but also encourage government officials to conduct the public’s business in private.”

The City’s various arguments concerning the privacy rights of public officials are non-sequitur – private information can be redacted from disclosure (obviously).  The City’s concerns that it would have to intrude into the personal matters of its employees were also weak: The government does not have to search all of the employee’s personal records and may reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.  The court cited federal authorities applying FOIA (the federal version of the same law and upon which the CPRA was based) that have approved of individual employees conducting their own searches and segregating public records from personal records, so long as the employees have been properly trained in how to distinguish between the two. 

One moral of this story: City officials should keep their private accounts private – and use only certain public email or phone/text accounts for public business if possible.