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State Supreme Court Opinion Impacts Public Agencies

By Gary W. Schons, Best Best & Krieger.

The California Supreme Court has finally decided a question that has, for years, vexed courts, public officials, the media and citizen watchdogs: Are electronic communications — emails, voicemails and texts — on private devices or servers subject to disclosure under the state’s 48-year-old Public Records Act? In a ruling that arose from litigation involving a citizen watchdog and the City of San Jose, the Court held today that such communications may be subject to disclosure under the Act. The Court rejected the City and other allied governmental entities and associations’ position that such communications should not be subject to disclosure by a public agency since they are not in the public agency’s possession.

In a unanimous opinion, the Court announced that it would not permit public officials to conduct the public’s business on private devices and place those communications beyond the PRA’s reach. The Court referred — several times — to a constitutional mandate to broadly interpret the PRA in favor of public access. However, the Court acknowledged that the Act was dated, and that this case “concerns how laws, originally designed to cover paper documents, apply to evolving methods of electronic communication. It requires recognition that, in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.” The Court went on to assert that what it was deciding was a “narrow question” — namely, whether writings concerning the conduct of public business are beyond the reach of the PRA merely because they were sent or received using a nongovernment account. The Court’s answer was no, they are not.

The City of San Jose case began with a PRA request made by Ted Smith, a private citizen. Among other things, Smith sought electronic communications on the private devices of San Jose’s then mayor, councilmembers and employees regarding a real estate development in the City that involved public and private money. The City denied the request for the communications on the private devices asserting it did not prepare, own, use, or retain the communications. Therefore, the City asserted that it could not and would not produce them pursuant to the PRA.

Smith filed a lawsuit, asking the court to require the City, the former officials and employees to release the electronic communications. He prevailed in 2013, when a trial court judge found that the communications — which pertained to the public’s business — were subject to PRA disclosure even though they were located on a private device or server. The City appealed, and in a 2014 opinion, the Sixth District Court of Appeal agreed with the City. In reversing the trial court’s order, the appellate court found that, because the communications were not accessible to the City, it had no obligation under the PRA to produce them. The Supreme Court soon thereafter agreed to review the matter.

The Court applied a four-part test to determine whether these “private” communications could qualify as “public records” subject to the Act: “It is (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 heart of the analysis was whether the communication relates to the conduct of the public’s business. Here, the Court recognized that whether a writing is sufficiently related to public business will not always be clear. In providing practical examples, the Court suggested that context matters. The Court explained that an email from a public employee to a spouse complaining “my coworker is an idiot” is likely not a public record. However, an employee’s email to a manager about a co-worker’s mismanagement of an agency project might be. The opinion suggested looking to the following factors: content, context, purpose, audience, and whether the employee was acting within the scope of employment.

The Court had no problem finding that electronic communications prepared by public agency officials and employees are “prepared” by the agency, since such officials and employees act on the agency’s behalf. And, the Court held that an agency is considered to own, use or retain such communications because it has constructive possession of such communications through its control over its own employees. “A writing retained by a public employee conducting agency business has been ‘retained by’ the agency…even if the writing is retained in the employee’s personal account.”

The Court went on to address the serious policy considerations, which are likely of vital interest to public agency officials and employees. A main concern is protecting public officials’ and employees’ privacy.

The Court noted that any personal information contained within communications otherwise covered by the Act could be redacted. The court further noted that privacy concerns could and should be addressed on a case-by-case basis, starting with the statutory exemptions from disclosure contained in the Public Records Act (Government Code section 6254).

The next policy issue the Court addressed was how a public agency should search for agency-related communications on private devices while protecting officials’ and employees’ privacy. The Court opined that agencies should make a “reasonable effort” to locate records. A public agency is not required to launch “extraordinarily extensive or intrusive searches.” The Court suggested that public agencies should adopt internal policies for conducting such searches. When the request is for records in employees’ nongovernmental account, “an agency’s first step should be to communicate the request to the employees in question.” The Court concluded that the agency could then “reasonably rely on employees to search their own personal devices and accounts for responsive material.”

The Court acknowledged with approval another state’s process in which public employees who withhold personal records from their employer “must submit an affidavit with facts sufficient to show that the withheld information is not a ‘public record’” under that state’s public records law. The Court also suggested that agencies could require employees and officials to only use government accounts for public business communications. Moreover, agencies could require their employees to copy or forward messages relating to public business to their agency accounts.  The Court noted, however, that no “particular search method is required or necessarily adequate.” Meaning, this case will challenge agencies to develop policies and procedures to catch messages on private devices and accounts that relate to public business.

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Schons_GaryAs head of Best Best & Krieger’s Public Policy and Ethics Compliance practice, Gary W. Schons counsels public agencies, officials and private businesses who wish to promote public confidence in their decision-making processes by assuring that official conduct is above reproach. Prior to joining BBK Law, Gary served as a deputy district attorney and senior advisor for Law & Policy in the San Diego County District Attorney’s Office. In this role, he advised the District Attorney and her executive staff on legal, public integrity, legislative and policy issues and provided legal assistance to all 300 deputy district attorneys in the office. Gary is an active member of the California District Attorneys Association, lecturing and authoring articles for the association. He is also active in the San Diego County Bar Association, where he has served on the Judicial Elections Evaluation Committee. He can be reached by email, gary.schons@bbklaw.com or by phone, (619) 525-1348.

(Best Best & Krieger drafted an amicus brief in this case on behalf of the League of California Cities, California Association of Sanitation Agencies and California Special Districts Association.)

If you have any questions about this opinion or how it may impact your agency, please contact the  author of this Legal Alert listed to the right in the firm’s Government Policy & Public Integrity practice group, or your BB&K attorney.

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