Private Accounts May Be Subject To Disclosure Under The California Public Records Act

March 2, 2017 | Bulletin No. 127401.1

On March 2, 2017, the California Supreme Court published its ruling in the case of City of San Jose v. Superior Court, holding that when a city employee uses a personal account to communicate about the conduct of public business, those records may be subject to disclosure under the California Public Records Act (CPRA).

Background

In June 2009, petitioner Ted Smith requested disclosure of public records from the City of San Jose ("City") that concerned redevelopment efforts in downtown. The request included emails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. The city complied by disclosing records stored on City email accounts and communications made using City telephone numbers, but refused to disclose emails or text messages on private electronic devices used by those officials or employees.

Smith sued under the CPRA to compel disclosure of the communications on the basis that public records encompass all communications about official business, regardless of how those records are stored. The City countered that messages communicated through personal accounts or devices are not within the public agency's custody or control, and therefore, cannot be public records. The trial court issued an order to compel but the Court of Appeals reversed the trial court's order in favor of the City. The Supreme Court observed that “In today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”

As such, if a communication relating to official agency business is memorialized by an official or employee, that communication is a public record, even if it is created on a personal account. The Court reasoned that documents or communications that meet the CPRA’s definition of a “public record” do not lose their status merely because they are located in a private account or device.

Legal Conclusions

  • The CPRA Should be Broadly Construed: The court's ruling re-emphasized the mandate to broadly construe the CPRA and disclose every record, unless a statutory exception is shown.
  • Communications on Personal Accounts are not beyond the scope of the CPRA: The court refused to categorically exclude communications on personal accounts from the purview of the CPRA. Instead, the court set out factors to analyze the communications themselves, including the content, context, the audience to whom the writing was directed, and who prepared the communication. The court emphasized that, in order to qualify as a public record under the CPRA, the writing must relate in some substantive way to the conduct of the public's business.
  • For the purposes of interpreting the CPRA, there is no distinction between individual officers and the agency as a whole: The City argued that if writings were not accessible to the local agency as a whole, they cannot constitute public records under the CPRA because California statutes do not include individuals in the definition of "local agency". The court rejected this argument, saying that when a public employee prepares a writing to conduct agency business, they are working on behalf of the entire agency, and thus the writing constitutes a public record.
  • Public records do not lose their status as subject to the CPRA despite their location on private accounts: The City pointed to the fact that communications on personal accounts are not directly accessible to the agency, and should not be considered as "retained" by the agency. The court disagreed, saying that the definition of retention was broad; the more important question was whether the agency had the obligation to search for the public record, not whether the public record was located within the agency's walls or servers.
  • Privacy interests of government employees do not outweigh the public's interest in disclosure: While acknowledging that expanding the CPRA's definition of public records to include communications on personal accounts could raise privacy concerns, the court noted those could be protected in other ways, such as redaction of disclosed documents and procedural safeguards. The public's interest in disclosure was the paramount concern.

Guidance for Public Agencies, Officials, and Employees

The Court provided some guidance for agencies in conducting searches that comply with the law in the future.

  • Searches can be limited to those records agencies can locate with reasonable effort: Unless a public records request is overbroad or unduly burdensome, public agencies are obligated to disclose all records they can locate with reasonable effort. This does not require agencies undertake extraordinarily extensive or intrusive searches; simply that the methods employed should be reasonably calculated to locate responsive documents.
  • Agencies can rely on employees to search their own personal files, accounts, and devices: The Court explicitly gave permission to local agencies to rely on their employee's discretion in locating public records in their own accounts, so long as employees have been properly trained in how to distinguish between the two. Personal records can be withheld as long as the employees submit an affidavit with facts sufficient to show the information is not a public record.
  • Agency policies can help keep personal and public business separate: Making a comparative analysis to the Freedom of Information Act, the Federal counterpart to the CPRA, the Court noted that Federal agency employees are required to use their government accounts for all communications touching on public business. The Supreme Court suggested local agencies can adopt similar policies.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Mona G. Ebrahimi
mebrahimi@kmtg.com | 916.321.4597