On March 2, 2017, in what is easily the sunniest day in this long, wet winter, the Supreme Court of California issued a landmark ruling regarding the California Public Records Act (Cal. Govt. Code § 6250 et seq.), holding that communications related to the conduct of public business do not cease to be public records merely because they were sent or received using a personal account. City of San Jose v. Superior Court (Smith), __ Cal.4th __ (2016) (Case No. S218066). The Court’s cogent opinion ensures broad access to public records in all forms and in all locations, including emails and text messages located on private accounts, devices, and servers.
The PRA establishes a basic rule requiring disclosure of “public records” upon request, creating “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” Every such record “must be disclosed unless a statutory exception is shown.” Moreover, the PRA is augmented by the constitutional imperative of Proposition 59, which amended the state Constitution to provide that statutes such as the PRA “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”
The PRA defines “public records” to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” A public record thus has four essential components. It is (1) a writing, (2) with content relating to the conduct of the public’s business, that is (3) prepared by, or (4) owned, used, or retained by any state or local agency.
The case arose out of this statutory and constitutional backdrop, following a request in 2009 for disclosure of 32 categories of public records from the City of San Jose, its former redevelopment agency, and the former agency’s executive director, along with certain other elected officials and their staffs. The requested documents concerned redevelopment efforts in downtown San Jose and 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.
The petitioner sued the City for declaratory relief, arguing that PRA’s definition of “public records” encompasses all communications about official agency business, regardless of how they are created, communicated, or stored. In response, the City broadly claimed that all communications in personal accounts are beyond the reach of the PRA and that “public records” include only materials in an agency’s possession or directly accessible to the agency.
The trial court granted summary judgment for the petitioner and ordered disclosure, but the Court of Appeal for the Sixth Appellate District reversed, holding that because the City did not have access to records located on private accounts and devices, those records were not “public records” requiring disclosure under the PRA.
The issue presented to the California Supreme Court was thus a narrow one: Are writings concerning the conduct of public business beyond the PRA’s reach merely because they were sent or received using a non-governmental account or device? The Court resoundingly concluded that the answer is no, holding that the statutory language alone provides communications about official agency business may be subject to PRA regardless of the type of account used in their preparation or transmission. Moreover, in rejecting the City’s narrow, crabbed interpretation, which would allow evasion of PRA by the simple use of a personal account or device, the Court also explained that public policy supports this result. According to the Court, given that “[t]he whole purpose of PRA is to ensure transparency in government activities”:
- “If communications sent through personal accounts were categorically excluded from the PRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts.”
- “The City’s interpretation would not only put an increasing amount of information beyond the public’s grasp but also encourage government officials to conduct the public’s business in private.”
- “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”
City of San Jose is the most important Public Records Act ruling in years, and it will have substantial impacts on public agencies statewide. In recognition of that reality, the Court provided general guidance for how agencies should conduct public records searches. The Court suggested that an agency’s first step should be to communicate the request to the employees in question. The agency may then reasonably rely on employees to search their own personal files, accounts, and devices for responsive material. The Court suggested that employees who withhold personal records from their employer must submit an affidavit with facts sufficient to show the information is not a “public record” under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. In addition, the Court noted that agencies can adopt policies that will reduce the likelihood of public records being held in employees’ private accounts by, for example, requiring that employees use or copy their government accounts for all communications touching on public business.