Court Holds Public Agency Must Disclose Officials’ Texts and E-Mails from Personal Accounts in Response to Public Records Act Request

March 2013

A March 19, 2013 trial court decision interpreting the definition of a “public record” ordered public officials in the City of San Jose to provide private text messages, voicemails, emails and other electronic communications on personal digital assistant device (“PDA”) from city officials about city business in response to a claim under the state’s Public Records Act (“PRA”).  (Smith v. City of San Jose, et al. (Mar. 19, 2013, 1-09-CV-150427).)  The Santa Clara County Superior Court determined that communications sent to or from city officials on their private PDA devices regarding public business are public records, regardless of their storage location or format.

An environmental activist served a PRA request for “any communications, documents, correspondence, e-mails, calendar entries or meeting notes” created or received by the City of San Jose, its Redevelopment Agency, and its city officials concerning certain individuals and entities involved in a city redevelopment project.  The request sought electronic information about public business, sent or received by the mayor and two councilmembers using their private electronic devices.  There was no dispute that the requests sought communications “relating to the conduct of the public’s business.” 

The decision notes that the City Attorney stated that communications created or maintained by the mayor, members of the city council or their staff using any type of personal digital assistant would not be disclosed.  The city argued that even if a record falls within the PRA’s definition of “writing” and is related to public business, it is not a “public record” under the PRA when it is not in the agency’s possession because it would not be “prepared, owned, used, or retained” by the agency.

The court rejected the City’s position and ordered that the records be produced, regardless of whether they were created or received on the city-owned computers or on the officials' personal electronic devices.  It noted that the PRA, with certain exceptions, establishes the right of “every person” to “inspect any public record.”  The term “public records” is defined as “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.”  The court also noted that there was no dispute that records sent from or received by city officials on private electronic devices using private accounts “would constitute “writings” within the PRA’s broad definition.” 

The court pointed out that nothing in the PRA explicitly excludes individual officials from the definition of “public agency,” adding that a “body politic” such as a city acts only through its officers and employees.  It stated that the city’s focus on where the records are stored was improper, adding that under the city’s interpretation of the PRA, a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own.

In considering the language “prepared, owned, used, or retained” in the PRA, the court concluded that because a city executes its public duties through its officers and agents, a communication relating to the conduct of the public’s business that is maintained on the private accounts of city officers reasonably falls within the definition of a record “retained” by the city.  It stated that regardless of where a record is retained, if it is drafted by a public official, it reasonably falls within the plain meaning of the term “prepared” and by itself constitutes a “public record” for purposes of the PRA.  Further, the court stated that any record that is “used” by the “agency falls within the scope of the PRA, even if it is not prepared, owned, or retained by the agency.”

The court also rejected the argument that such a broad reading of the PRA would be inconsistent with the law’s concern for the privacy of individuals in terms of personnel, medical or residential information contained in public records.  However, the court stated, “it is doubtful that city officials and agents can claim a reasonable expectation of privacy over their communications concerning the public benefit, particularly on topics currently on the city public agenda.”

As this is a ruling from a superior court, it has no precedential value.  Also, it remains uncertain whether the City of San Jose and its officials will appeal the decision to the California Court of Appeal.  However, the case serves to illustrate the thin line between job and home for public agency officials, including school board members, concerning electronic communications regarding agency business.  As long as the communication involves agency business, its source may not make a difference for purposes of complying with a PRA disclosure request. 

If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Roy Combs and John Norlin.
Roy is a partner in F3’s Oakland and Sacramento offices.
John is Special Counsel in F3’s San Diego office.

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