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California Supreme Court: Communications on Personal Accounts Are Public Records Subject to Disclosure

  • Vol. 2017, No. 3
  • March 02, 2017

Vol. 2017,No. 3 | March 02, 2017

This morning, a unanimous California Supreme Court held that written communications of public officials or employees on their private electronic devices/accounts that involve agency business are public records under the California Public Records Act (CPRA).  (City of San Jose v. Superior Court (March 2, 2017, S218066) __ Cal. 5th __.) As such, these communications are subject to disclosure in response to a CPRA request absent an exemption.  Disagreeing with the Court of Appeal below, the Supreme Court concluded that a broad interpretation of the CPRA to include records regarding public business exchanged through private accounts/devices was consistent with the intent of the CPRA.

Responding to concerns about the privacy rights of public officials and employees and the ability of agencies to search private accounts/devices, the Court provided some guidance for responding to CPRA requests.  For example, the Court suggested that adopting policies requiring use of agency email accounts or providing training to employees on what constitutes a “public record” under the CPRA could minimize the need to search private accounts/devices.  While this guidance may be helpful, the Court’s decision in the case is likely to create more questions than it answers, at least in the short term.

Background

The case centered on the City of San Jose’s response to a CPRA request for “[a]ny and all voicemails, emails or text messages sent or received on private electronic devices used by [the Mayor], members of the City Council, or their staff, regarding any matters concerning the City of San Jose.”  The City disclosed communications made using City accounts, but withheld communications made using personal accounts.  In the resulting litigation, the Superior Court ruled against the City.  The California Court of Appeal reversed, and held that communications by public officials on personal electronic devices/accounts were not subject to disclosure under the CPRA.  The Court of Appeal reasoned that these communications were not “public records” within the meaning of the CPRA because they were not “prepared, owned, used, or retained” by the agency.

The Supreme Court overturned the Court of Appeal.  It held that “[e]mployees’ communications about official agency business may be subject to [the] CPRA regardless of the type of account used in their preparation or transmission.”  Thus, a writing prepared by or retained by a public employee conducting agency business is considered to be prepared by or retained by the agency under the CPRA’s definition of “public record,” even if the writing is prepared or retained on a personal device/account.

This ruling denies categorical protection from disclosure under the CPRA for communications relating to public business by agency employees through personal devices/accounts, but it does not necessarily mandate disclosure.  The Supreme Court only held that such communications are public records subject to the CPRA’s requirements.  Thus, the same considerations and exemptions that bear on disclosure of other public records apply.

Impact

The Supreme Court’s ruling could have substantial impacts for local education agencies.  To date, many agencies have considered communications sent on private accounts/devices to be outside the scope of CPRA requests.  Today’s ruling will likely make it difficult to take this approach going forward.

While agencies will need to await future cases to decide exactly how this requirement is to be implemented, agencies should not wait to respond to the ruling.  Districts should consider examining how their officials and employees communicate about agency business, whether policies regarding the systems used for communications about agency business should be adopted or revised, and/or whether officials and employees should receive training on the requirements of the CPRA.  These steps can help each agency find the best way for it to comply with the newly-defined scope of the CPRA with minimal disruption to its operations.


 

Click here to read our recent article produced for CSBA.

 

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