HomeMy WebLinkAbout03. Report on recent California Supreme Court decision about public records on private devices, and impact on existing Central San Board policies 3■
55512 th Street,Suite 1500 Kenton L.Alm
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MEMORANDUM
DATE: April 5, 2017
TO: Administration Committee, Roger Bailey, Elaine Boehme, Ann Sasaki
FROM: Kenton L. Alm, District Counsel
RE: Recent Public Records Act Decision regarding Emails and Text
Messages on Personal Accounts and Devices
Background and Summary
On March 2, 2017, the California Supreme Court issued a major decision concerning the
California Public Records Acti (CPRA). In the case, City of San Jose v. Superior Court(San
Jose),the Court held that when public agency officials or employees use personal accounts
or devices to communicate about the conduct of public business, those communications may
be subject to disclosure under the CPRA.3
The Court's decision presents public agencies with new challenges in complying with the
CPRA. The_purpose of this memorandum is to briefly provide information about how the
Court's decision may affect Central San's CPRA and records retention obligations, and to
mention some steps that Central San staff may wish to investigate in response to the decision.
Court Decision
The San Jose case arose from a 2009 public records request in which an individual sought
emails, text messages, and voicemails sent or received on the personal electronic devices of
city officials and staff members. The issue in the case was whether such communications,
when located on private accounts.or devices, are "public records"under the CPRA.
Under the CPRA, a public record includes "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 of characteristics."4 The Court concluded that
communications, such as emails, text messages, and voicemails on cell phones and other
1 Government Code §§ 6250, et seq.
2 City of San Jose v. Superior Court(Smith),No. 5218066 (Cal. Mar. 2, 2017), available at
http:llwww.courts.ca.govlopinionsldocumentslS218066.PDF.
3 Id. at 1.
4 Gov't Code § 6252(e).
personal devices and email or similar accounts can qualify as public records if their contents
"relate in some substantive way"to the conduct of public business.5
The Court acknowledged that it may be difficult to draw the line between public records and
private communications on personal accounts and devices. The Court said that several
factors may determine whether a communication was public or private, including: (1)the
content of the communication; (2)the context or purpose for the communication; (3)the
person to whom the communication was directed; and (4)whether the communication was
prepared or received by an individual within the scope of his or her duties at Central San.
For example, the Court explained that, depending on the precise context, an email to a spouse
complaining about a co-worker would not be a public record. on the other hand, an email to
a supervisor about a co-worker's mishandling of a work-related project might be a public
record.
Locating Records on Personal Accounts and Devices
The Court, in its decision attempted to address how to balance public agencies' duty to locate
responsive records under the CPRA with the privacy interests of public officials and
employees. Put differently, how can Central San locate and produce records from an account
or device that contains an official's or employee's private emails or text messages?
Relying on federal and state court decisions in similar cases,the Court offered "guidance" on
how California public agencies can conduct searches reasonably calculated to locate
responsive documents, even if those documents are contained on personal accounts or
devices. Specifically,the Court suggested that public officials and employees can search
their own records if properly trained in how to distinguish public records from private
communications. The Court also suggested that, if an official or employee withholds a
potentially responsive record because he or she believes it does not"substantively relate"to
the conduct of the public's business, the official or employee may submit an affidavit
providing sufficient facts to support that determination.
In addition, the Court noted that California.public agencies may consider adopting policies to
reduce the likelihood that public records will be located on private accounts or devices. For
example, federal statutes and regulations require some federal employees to use only their
official agency accounts for communications relating to public business or to copy their
official agency accounts on all public business communications sent from their private
accounts.
Significance of Complying with the Public Records Act
If a record is withheld under the Public Records Act without proper justification, a person
may bring a cause of action to enforce his or her right to inspect the record. CPRA cases can
be particularly costly to public agencies because the court must award costs and reasonable
5 City ofSan Jose, at 7.
Page 2
attorney fees to the plaintiff if the plaintiff prevails in litigation.b Accordingly, it is necessary
to develop appropriate procedures to address retention and production of public records held
on private devices or accounts while balancing the individual's privacy interests.
Development of Appropriate Procedures
In light of the San Jose decision, there are a number of procedures and policies that staff is
evaluating to ensure compliance with the CPRA and proper retention of public records
located on personal accounts or devices. The policies and procedures being reviewed may
include: (i) establishing a protocol for obtaining records from private accounts or devices;
(ii)provision of records upon separation; (iii)the permissibility of using private accounts or
devices for Central San business; (iv) copying all texts and emails to a Central San account;
(v)record retention standards for emails and texts; and (6)training on appropriate
procedures.
Additional updates to the Administration Committee and Board will be provided as the
procedures and policies are developed and implemented.
Mr. Alm will be present to discuss further and answer questions.
2801008.2
6 Gov't Code § 6459(d).
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