In a recent ruling, the California Supreme Court addressed how laws such as the California Public Records Act (CPRA), originally designed to cover paper documents, apply to evolving methods of electronic communication. The court recognized that, in today’s environment, not all employment activity occurs during a conventional workday, or in an employer-maintained workplace. The court adjudicated a public records request concerning how the balance of the public’s right to know under the CPRA is balanced against an employee’s personal privacy interests. City of San Jose v. The Superior Court of Santa Clara County, Cal. Sup. Ct. No. S218066 (filed 3/2/17).

The suit arose out of a public records act request targeting documents relating to redevelopment efforts in downtown San Jose and included e-mails and text messages “sent or received on private electronic devices used by” certain municipal officials. The City disclosed communications made by using City telephone numbers and e-mail accounts but did not disclose communications using the individuals’ personal accounts. A lawsuit arose, where the trial court ordered disclosure but an intermediate appellate court ruled otherwise. The California Supreme Court reversed and ordered disclosure.

Particularly, the California Supreme Court faced the following question: Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account? Considering CPRA’s language and the important policy interests that it serves, the answer is no. Employees’ communications about official agency business may be subject to CPRA disclosure regardless of the type of account used, the preparation, or transmission.

The City argued that a document concerning official business is only a public record if located on a government agency’s computer servers or in its offices. Under this argument, indirect access would not be sufficient to compel disclosure under the CPRA. The court rejected this argument, finding that a document’s status as public or confidential does not turn on the arbitrary circumstance of where it is located.

The California Supreme Court remained cognizant of employees’ privacy rights in personal devices and accounts. It noted that agencies may develop appropriate internal policies regarding the scope and conduct of document searches. An agency can reasonably delegate employees to search their own devices, provided that there will be no circumvention of the CPRA’s intent. Affidavits can give the requesting party and a reviewing court sufficient factual basis to determine the adequacy of the search and whether withheld material is indeed nonresponsive.

This ruling is important given the evolving realities of the workplace, and we expect to see similar challenges in other states under public records laws. We will report on significant developments in the always delicate balance between the public’s right to know and the privacy interests of public employees who use their own devices and accounts in the workplace.