California Supreme Court Expands the Public Records Act to Include Emails Sent Between the Private Accounts of Public Officials, If the Emails Concern Public Business

By:  Robert Bryson

City of San Jose vs. Superior Court (Smith) 2017 2 Cal.5th 608

The Public Records Act (“PRA”) is the California equivalent of the federal Freedom of Information Act (“FOIA”) which mandates that government communications and records (aside from a few exceptions) are public property and disclosable to any member of the public who requests copies. The PRA imposes the same obligation FOIA does on California governmental entities. The PRA is a powerful tool in the hands of reporters, attorneys, governmental watchdogs, and others to check the power of the government.

Public Records Act: Background

The PRA was passed in 1968 declaring “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Gov. Code § 6250. California voters reaffirmed this position in 2004 when they passed Proposition 54: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, … the writings of public officials and agencies shall be open to public scrutiny.” Cal. Const., Art. I § 3(b)(1). In short, California is committed the disclosing records whenever, and wherever possible, and it is a fundamental right.

The Facts: Emails and Texts from Personal Accounts

Petitioner, Ted Smith, requested the City of San Jose disclose 32 categories of public records from its redevelopment agency, the executive director, certain elected officials, and their staffs. The requested documents involved the redevelopment of 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 records made using City email accounts and telephone numbers but refrained from disclosing records sent from personal numbers and accounts.

The Court’s Analysis

There are roughly four factors which determine if a record or communication is properly disclosable:

  • A writing
  • That is related to the conduct of the public’s business
  • Which is prepared by or
  • Owned, used, or retained by any state or local agency.

A “writing” is any form of communication or representation… regardless of the manner in which the record has been stored. Gov. Code § 6252(g). The Court noted “the ease and immediacy of electronic communication has encouraged a commonplace tendency to share fleeting thoughts and random bits of information, with varying degrees of import, often to broad audiences. As a result, the line between an official communication and an electronic aside is now sometimes blurred.” The analysis to determine if a record is disclosable must consider the context of the communication, the audience, and whether it was prepared by an employee acting within the scope of his employment. While the standard is elastic, it is not so broad as to include every piece of information. Simply because information is interesting, does not mean it is a public record.

The Court rejected the argument that records, which otherwise meet the factors above, are shielded from disclosure simply because they are sent from a personal account or number. The Court pointed out that allowing public officials to shield their communications by using personal accounts would lead to them “hid[ing] their most sensitive, and potentially damning, discussions in such accounts.”

Finally, the Court established a new rule hold that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”

Implication for the Public

The impact of this decision cannot be understated. The California Supreme Court now made any email, text message, or other communication that concerns the public business disclosable under the Public Records Act if it was sent from a government employee.

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