Communications From Officials’ Private Cell Phones and E-Mail Not Subject to Public Records Act

Editor’s Note: the following is a Legal Alert from Best Best & Krieger. Originally posted here.

[divider] [/divider]

Public Agencies are Free to Adopt Their Own Policies Regarding Access to Private Communications on Public Issues

A California Court of Appeal ruled last week that public agencies are not required to disclose communications from officials’ private cell phones and e-mail accounts under the Public Records Act (PRA). In the same vein, public agencies have no duty to search officials’ and employees’ private devices and accounts in response to a PRA request. The case of City of San Jose v. Superior Court confirms that agencies cannot be responsible for those records, in part because individual officials and employees are not subject to the PRA. Moreover, agencies have no access to those personal communications.

According to the court, public agencies are free to adopt their own policies regarding access to private communications on public issues. The court also acknowledged broader policy issues in the case, including the public’s right-to-know versus the administrative burdens agencies would face if they were forced to obtain individuals’ private communications. However, the court noted that the Legislature was better suited to address those policy concerns.

The San Jose case was prompted after Ted Smith submitted a PRA request to the City of San Jose asking for “any and all voicemails, emails, or text messages sent or received on private electronic devices” used by the mayor, councilmembers and city staff regarding “any matters concerning the City of San Jose.” The city rejected the request because under the PRA, the city did not “prepare, own, use, or retain” messages from those private devices.

Though a trial court sided with Smith, the Court of Appeal overturned that lower court ruling. In news reports, Smith’s attorney has indicated that his client will petition the California Supreme Court to review the Appellate Court decision.

For questions regarding this case or its implications for your agency, please contact one of the attorney authors of this legal alert listed at right in the Municipal Law practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.