Ethics Advisor

It’s All About the Content – Communications on Private Devices May be Subject to Disclosure Under the Public Records Act

By: Ruben Duran

Open government and transparency have long been the standard in California. Laws like the Brown Act, the Political Reform Act and the Public Records Act grant the public rights to attend meetings, know about government officials’ financial interests and review and obtain copies of documents containing information relating to the business of the public, respectively, and help promote public trust and confidence in our local governments.

Last month, in the long-awaited case City of San Jose v. Superior Court (Smith), the California Supreme Court decided unequivocally and unanimously that electronic communications about public business on public employees’ and officials’ private devices and accounts are indeed public records subject to disclosure under the Public Records Act (PRA). The question had been unsettled under previous cases, and governmental officials and employees were unsure whether they would have to provide copies of communications like emails and text messages on their private devices like cell phones and private accounts like AOL, Hotmail and Gmail in response to records requests made to their public agencies.

Answering that question in the affirmative, the court laid out a four-part test to determine if any communication, even one on a private device, is a public record that must be disclosed in response to a records request:

(1) Is it a “writing?” The law has already established that emails and other electronic records are writings for PRA purposes.

(2) Does it contain content relating to the conduct of the public’s business? This is where the court spent most of its time and analysis, suggesting that context matters. For example, an email from a public employee to a spouse complaining “my coworker is an idiot” is likely not a public record. However, an employee’s email to a manager about a co-worker’s mismanagement of an agency project might be.

(3) Is it prepared by a state or local agency? The Court found that if the communication was prepared by a local official or employee, then this prong of the test was met. The fact that it was prepared on a private device or using a private account did not make it purely private if the subject of the communication was about public business.

(4) Is it owned, used, or retained by a state or local agency? The Court held that an agency is considered to own, use or retain such communications because it has constructive possession of them through its control over its own employees. “A writing retained by a public employee conducting agency business has been ‘retained by’ the agency…even if the writing is retained in the employee’s personal account.”

Although the court’s opinion essentially expanded the definition of what constitutes a public record subject to disclosure under the PRA, it still acknowledged the important public interest in maintaining personal privacy even when complying with records requests, noting that privacy concerns could and should be addressed on a case-by-case basis, starting with the statutory exemptions from disclosure contained in the PRA (Government Code section 6254). Those exemptions include many familiar to readers of the Ethics Advisor: Personal and medical information, employee records, litigation records, for example.

Finally, the court touched on important practical and policy considerations for local agencies in complying with its ruling in the San Jose case. For example, how a public agency should search for agency-related communications on private devices while protecting officials’ and employees’ privacy. The Court stated that agencies should make a “reasonable effort” to locate records, but they are not required to launch “extraordinarily extensive or intrusive searches.” The Court suggested that public agencies should adopt internal policies for conducting such searches. When the request is for records in employees’ nongovernmental accounts, “an agency’s first step should be to communicate the request to the employees in question.” The Court concluded that the agency could then “reasonably rely on employees to search their own personal devices and accounts for responsive material.”

Thus, depending on the contours of any policy established by your local agency, it will be up to individual officials and/or employees to search for and provide to the agency records responsive to requests, even if those documents are stored on private devices or accounts. Finally, public agencies should consider adopting a policy that requires all officials and employees to use agency-owned accounts or devices when conducting public business to simplify the process of responding to records request after San Jose.

Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger, LLP. He serves as the Southern California Latino Policy Center’s Ethics Advisor and represents cities, school districts and special districts throughout California.
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