Personal Email & Electronic Device Communications by Public Officials Not Considered Public Records, An Expanded Look

By William E. Adams.

Armed with the California Public Records Act (CPRA), environmental activist Ted Smith submitted requests for production of 32 categories of public records involving specific correspondence between the San Jose Mayor, members of city council and their staff relating to a major city redevelopment project.  The City of San Jose complied in part, producing all communications except voicemails, emails and text messages sent or received on private electronic devices.  Smith sought declaratory relief, demanding that these public officials turn over the “exempted” communications.

This raised the issue: Do public officials’ private communications, not stored on city servers and not directly accessible by the city, nonetheless constitute “public records” that fall under the umbrella of the CPRA?  Not according to the March 27th, 2014 California Court of Appeal decision in City of San Jose v. Sup. Ct. (Smith).

Background

The CPRA (currently codified as California Government Code §§ 6250 through 6276.48) was enacted in 1968 as an attempt to hold government officials accountable to the public by allowing access to records upon request, unless exempted by law.  The CPRA defined public records broadly to include all records relating to the public’s business if “prepared, owned, used or retained by any state or local agency.” Citing the CPRA, in 2009, Smith sent a request to the City of San Jose for access to records including voicemails, emails and text messages which had been sent and received on the private electronic devices of Mayor Chuck Reed, members of city council and their staff.  The City refused to provide correspondence that might be responsive to the request if they derived from private phone records, emails and texts, taking the position that such communications were not controlled by the City, and thus, were not “public records” under the CPRA.  Smith initiated a lawsuit seeking declaratory relief and argued that local agencies can “only act through their officials and employees,” allowing the communications to fall under the CPRA.

In March of 2013, a Santa Clara County superior court held that the materials being sought by Smith should be considered public records under the CPRA, in spite of the fact that they were on personal electronic devices and on servers not controlled by the City (City of San Jose v. Sup. Ct.).  The Court of Appeal for the Sixth Appellate District, however, overturned the decision, holding that the plain language of the 1968 statute does not encompass individuals or members or representatives of the public body, and thus, private communications—even about government business—fall outside of the definition of public records.

Trial Court’s Decision Overturned by the Appellate Court

By overturning the trial court’s decision, the Sixth District Court of Appeal held that government workers can keep communications private if sent and received on personal electronic devices.  Avoiding making any kind of policy decision, the court instead focused on the plain language of the statute.  The Court of Appeal reasoned that had the legislature intended to incorporate individual officers or employees under “local agency,” it could have done so.  The court recognized that city officials’ ability to easily conceal their communications is a serious concern, but deferred to the legislature to deter this kind of conduct, should it wish to do so.  The court likened the facts in this matter to a Pennsylvania case (In re Silberstein) in which a request was made for the communications between a citizen and the commissioners serving on a township board.  There, the township produced writings in its possession, but withheld emails written by a commissioner using his personal account on a private computer.  The Pennsylvania trial court held that such communications did not constitute “public records” under Pennsylvania’s Right-to-Know law.  The California Court of Appeal agreed with this rationale, thus holding the Mayor’s and city officials’ communications did not fall under the CPRA.

Potential Impact of the Decision

In the interest of complete transparency, some public agencies are adopting their own policies, making messages about public business sent on private devices available upon request.  However, for the time being, most California public officials and employees can communicate via private emails on personal devices without risk of the communications going public.  Of course, because the 1968 enactment of the CPRA predated email, cell phones, text messages, personal tablets, Skype, FaceTime and other various modern means of electronic communications, there is a strong possibility that California Legislature could update the law, especially in light of this decision.  Additionally, should the California Supreme Court grant review, and issue a contrary ruling, public agency employees may also be subject to producing these kinds of communications upon request. Considering the uncertainty, public employees and officials are urged to use caution in their correspondence, even on their own private emails and personal devices.

William E. Adams is Managing Partner of Michelman & Robinson, LLP’s San Francisco office, and handles litigation matters on behalf of government entities, municipalities and businesses.  Mr. Adams can be reached at 415.882.7770 or by email at wadams@mrllp.com

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