HIGHLIGHTS:

  • The Supreme Court of California has decided unanimously that communications made or stored on a public employee's personal account, including emails sent from a personal account and text messages sent from a personal phone, may be subject to disclosure under the California Public Records Act (CPRA).
  • The decision concluded that exempting public documents created with or retained on personal accounts would be contrary to the CPRA's purpose of providing open access to government records.
  • The Court said that privacy concerns should be addressed on a case-by-case basis, and that personal information not pertaining to the conduct of public business could be redacted from any records to be produced or presented for review.

In City of San Jose v. Superior Court, No. S218066 (Cal. Mar. 2, 2017), the Supreme Court of California decided unanimously that communications made or stored on a public employee's personal account, including emails sent from a personal account and text messages sent from a personal phone, may be subject to disclosure under the California Public Records Act (CPRA).The ruling answered a major question regarding the scope of the CPRA, holding that the public records "do not lose [their public] status because they are located in an employee's personal account." The court went on to say that a "writing retained by a public employee conducting agency business has been 'retained by' the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account."

The case involved an individual's requested disclosure of a request for 32 categories of public records from the City of San Jose, its redevelopment agency and the agency's executive director, along with certain other elected officials and their staffs. The requested documents 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 disclosed communications made using city telephone numbers and email accounts, but did not disclose communications made using the individuals' personal accounts.

Writings Created With or Retained on Personal Accounts Regarding Public Business are Public Records

The Court framed the issue narrowly, saying that the issue was whether writings concerning the conduct of public business are beyond the reach of the CPRA merely because they were sent or received using a nongovernmental account. It concluded that exempting public documents created with or retained on personal accounts would be contrary to the CPRA's purpose of providing open access to government records.

Redefining a Public Record

Not every communication made by a public employee that the public may find interesting will be subject to disclosure. The Court recognized that the ease and immediacy of electronic communication has encouraged the sharing of fleeting thoughts and random bits of information, with varying degrees of import, that were not contemplated when the CPRA was enacted in 1968. Thus, the Court held that "to qualify as a public record under the CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public's business. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records."

This test departs from the notion that only purely personal communications totally void of reference to governmental activities are excluded from the CPRA's definition of public records. The Court stated such a notion may work well in some circumstances, but may sweep too broadly when applied to electronic communications sent through personal accounts.

Rules on Privacy Remain Vague

The city argued that privacy interests of government employees weighed against interpreting "public records" to include material in personal accounts. The Court addressed this by saying that privacy concerns should be addressed on a case-by-case basis, and that personal information not pertaining to the conduct of public business could be redacted from any records to be produced or presented for review. In addition, the CPRA already limits or exempts disclosure of various kinds of information, including personal financial data, personnel and medical files, and material protected by evidentiary privileges.

Guidance for Conducting Searches of Personal Accounts

The Court concluded its decision by providing guidance for conducting searches of personal accounts in order to comply with the CPRA. In general, the scope of an agency's search for public records need only be reasonably calculated to locate responsive documents. This means that when an agency receives a CPRA request, it must communicate the scope of the information requested to the custodian of its records. If the records are held in an employee's personal account, then the communication should be given to the employee in question and the employee may search her own personal files, accounts and devices for responsive material.

The Court likened this approach to the practice of individual employees searching their own records in response to Freedom of Information Act requests, which has been approved by federal courts so long as the employees have been properly trained to distinguish between public and personal records.

The Court also adopted a procedure whereby employees who withhold personal records from their employers must submit an affidavit with facts sufficient to show that the information is not a "public record" under the CPRA. So long as the affidavit gives the requester and the trial court a sufficient factual basis to determine that withheld material is nonresponsive, the agency is deemed to have performed an adequate search.

Finally, the Court suggested that public agencies may avoid the necessity of searching personal accounts entirely if they enact policies that require employees to use or copy their government accounts for all communications touching on public business.

Practical Impact

In light of this recent decision, it is important for all public employees – and those communicating with public employees – to remember that all written communications of any sort, including personal emails and text messages, may be public records and may be retained. As public records subject to the CPRA, these communications may be produced to anybody upon request, without the need of a subpoena, litigation or notice to the non-public communicating party. As a result, personal emails and text messages may now be archived and remain discoverable years after they were deleted from the device or account that sent or received them.