In 2009, Ted Smith presented the City of San Jose with a Public Records Act (PRA) request for communications regarding a development project for the City.  Among other things, Smith sought voicemails, emails or texts sent or received on personal electronic devices used by the mayor, city council members and staff.  The City agreed to produce records stored on its servers and those transmitted to or from private devices using City accounts, but did not produce communications from the individuals' personal electronic accounts that were stored solely on personal devices or servers.

Smith filed an action for declaratory relief.  The trial court found that the City was required to produce the requested communications notwithstanding the fact that the communications were not directly accessible by the City because they were sent from and received on private devices using private accounts.  The City filed a petition for writ of mandate to overturn the judgment granted in Smith's favor, which the Court of Appeal granted.  

On appeal, the Court of Appeal addressed the issue of whether private communications, which were not stored on City servers and not directly accessible by the City, are public records under the PRA (Government Code section 6250 et seq.).

While both parties made various policy arguments, the Court of Appeal noted that the question could only be answered by analyzing the language of the PRA.  The PRA's definition of "public records" includes any writing relating to the public's business that is "prepared, owned, used, or retained by any state or local agency."  While Smith argued that a local agency can only act through its officials and employees, the PRA's definition of "local agency" does not include the individual members or representatives of the agency.  Thus, the City must prepare, own, use, or retain the writing in order for it to be a public record, and any writings the City cannot access cannot fall within the definition of public record.  The Court acknowledged concerns voiced by Smith and the news media that City employees and officials could conduct business out of public review by using personal accounts and personal devices, but stated that the concern must be addressed by the Legislature.

Thus, the Court held that the requested records, communications sent or received by public employees and officials on exclusively private devices using their private accounts, were not public records.  It granted the City's petition for writ of mandate and ordered the superior court to grant summary judgment in the City's favor.   

Note: 

As Smith may seek review of this decision by the state Supreme Court, this may not be the last word on the matter.  If the Supreme Court were to overturn or amend this Court of Appeal's decision, public agencies would be subject to that higher court's ruling.

It is also important to note that while the communications sent to/received by public employees and officials on exclusively private devices using private accounts are not public records under the PRA, the public meeting requirements of the Brown Act can still apply, and private records may still be discoverable in civil or criminal litigation or as the result of other court action.

Further, it cannot be overlooked that the City of San Jose did produce records sent from/received on private devices that were stored on the City's servers.  Thus, it remains possible that some seemingly "private" communications may still be subject to disclosure.  For instance, if a councilmember uses a personal laptop to log into a city network to send/receive emails, then a private email sent from the council member's Gmail account and stored on city servers would potentially be subject to disclosure under the Act. 

Finally, PRA requests continue to raise complicated legal questions regarding whether records are public records and/or exempt from disclosure.  A failure to timely comply with the PRA can result in an order to disclose records as well as an order to pay attorney's fees.  We therefore recommend that agencies designate one or more individuals to receive in-depth training and to regularly respond to PRA requests to minimize the risks associated with non-compliance.

City of San Jose v. Superior Court (2014) __ Cal.App.4th__ [2014 WL 1254821].