HomeMy WebLinkAbout03.b. Review proposed new Board Policy No. BP 033 - Public Records, and discuss "Diligent Search" portion of related draft Administrative Procedure No. AP 033Page 1 of 8
Item 3.b.
Central Contra Costa Sanitary District
September 12, 2017
TO: ADMINISTRATION COMMITTEE
FROM: KENTON L. ALM, DISTRICT COUNSEL
REVIEWED BY: ELAINE R. BOEHME, SECRETARY OF THE DISTRICT
ROGER S. BAILEY, GENERAL MANAGER
SUBJECT: REVIEW PROPOSED NEW BOARD POLI CY NO. BP 033 - PUBLIC
RECORDS, AND DISCUSS "DILIGENT SEARCH" PORTION OF RELATED
DRAFT ADMINISTRATIVE PROCEDURE NO. AP 033
Attached is a legal memo I provided to the Administration Committee at the April 11, 2017 meeting
discussing the March 2, 2017 California Supreme Court ruling in City of San Jose v. Superior Court. The
ruling dealt with the California Public Records Act (CPRA) and public agency officials' or employees' use
of personal accounts or devices to communicate about public business. Those communications may now
be subject to disclosure under the C P RA.
n part, as a consequence of that ruling, a new Board Policy No. BP 033 - Public Records has been
drafted for your review and discussion at the upcoming meeting. A copy of the draft proposed policy is
attached.
In addition to the Board Policy, staff is establishing procedures for processing requests for public records
in a manner to insure consistent compliance with the proposed policy and the C P RA. A portion of the
draft procedures dealing with potential diligent searches of personal mobile devices of Board Members
and employees is also attached. This portion of the procedures is provided to the Administration
Committee for discussion as it directly applies to Board Members as well as employees. A brief report on
other draft provisions to be included in the procedures will be provided.
ATTACHMENTS:
1. April 5, 2017 Legal memo from District Counsel to Administration Committee
2. Draft Board Policy No. BP 033 — Public Records
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 6 of 16
Page 2 of 8
3. Excerpt re "Diligent Searches" from draft Administrative Procedure No. AP 033 — Responding to
Public Records Act Requests
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 7 of 16
rneyers
DATE:
TO:
FROM:
RE:
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55512 th Street, Suite 1500
Oakland, California 94607
tel (510) 808-2000
fax (510) 444-1108
www.meyersnave.com
MEMORANDUM
Page 3of8
Kenton L. Alm
Attorney at Law
Direct Dial: (510) 808-2081
kalm@meyersnave.com
April 5, 2017
Administration Committee, Roger Bailey, Elaine Boehme, Ann Sasaki
Kenton L. Alm, District Counsel
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 Actl (CPRA). In the case, City of San Jose v. Superior Court (San
Jose),2 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.
Z City of San Jose v. Superior Court (Smith), No. 5218066 (Cal. Mar. 2, 2017), available at
http:/%www.courts.ca.gov/opinions/documents/S218066.PDF.
3 Id. at 1.
4 Gov't Code § 6252(e).
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 8 of 16
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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.s
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 oi4in 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 of San Jose, at 7.
Page 2
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 9 of 16
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attorney fees to the plaintiff if the plaintiff prevails in litigation." 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.
280 1008.2
6 Gov't Code § 6459(d).
Page 3
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 10 of 16
Number: BP 033
Authority: Board of Directors
Effective: , 2017
Revised:
Reviewed:
Initiating Dept./Div.: Secretary of the District's Office
BOARD POLICY
PUBLIC RECORDS
Pl1RPngF
Page 6 of 8
To establish a policy to maintain compliance with the California Public Records Act.
PCIiry
It is the policy of the Board of Directors to ensure that all writings determined to be
Public Records are open to inspection by any person at all times during regular
business hours, or copies are made available upon request, unless the writings are
made expressly exempt from inspection under provisions of law. (Gov. Code § 6253,
subds. (a) & (b).) Certain writings relating to District business contained on personal
mobile devices of Board Members and all categories of employees may also be Public
Records subject to public review and shall be available to the public consistent with
prevailing law.
All District personnel including Board Members, regular employees, temporary
employees, co-ops, summer students and selected long-term contractors shall be
subject to this Policy and District procedures adopted to implement the Policy. The
Secretary of the District shall be the coordinator and primarily responsible District officer
for insuring compliance with public requests for Public Records pursuant to the
California Public Records Act.
[Original retained by the Secretary of the District]
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 11 of 16
Page 7of8
Excerpt from AP 033
RESPONDING TO PUBLIC RECORDS ACT REQUESTS
5.3 Diligent Search. The Department Representative or Representatives
shall cause a diligent search for potentially responsive Writings that may
be in the possession or control of their Department.
In addition to Writings generated and stored on District -owned devices,
the search for Public Records should also include a search for potentially
responsive Writings containing substantive information relating to the
conduct of the District's business retained by a District employee or Board
Member in their personal email or social media accounts, and/or on a
personal device, such as one's personal computer or cell phone. The
Department Representative need ask only those employees or officers
who might have Writings responsive to the request (because of that
person's job duties) to engage in a reasonable effort to locate the
requested records on their personal devices. Similarly, in the case of
Board Members or other officials, the Secretary of the District need only
ask those officers that may by their duties and functions have responsive
Writings on their personal devices to undertake a search. The
Department Representative or Secretary of the District should keep a
record of the email he/she sends asking Departments, District
officials and/or employees to search their personal records.
To determine whether a Writing in the employee's or officer's possession
may be subject to disclosure under the PRA, the employee or officer
should look at the following:
a. the subject matter content of the Writing (i.e., is the content
responsive to the PRA?);
b. the context in, or purpose for which, it was written;
C. the audience to whom it was directed; and
d. whether the Writing was prepared by while working within the
scope of the employee's or officer's official duties for the District.
District officials and employees are responsible for searching their own
personal accounts and devices for potentially responsive records and
reporting the results of their search to the Department Representative or
Secretary of the District. When the official or employee completes his or
her review of personal accounts and devices, the official or employee
should send a written confirmation to the Secretary of the District or
District Counsel as follows:
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 12 of 16
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1 certify that:
1 do not conduct public business using my personal accounts
or devices and therefore have no records relating to the conduct of
the District's business in any personal accounts or devices
1 have searched my private accounts and devices and have
located no responsive records relating to the conduct of the
District's business;
1 have searched my personal accounts and devices and
have provided all potentially responsive records relating to the
conduct of the District's business located in those accounts or
devices to the Department Representative or Secretary of the
District; and/or
1 have searched my personal accounts and devices and
believe that some, or some parts of, potentially responsive records
are not public records under the CPRA. An additional writing
describing the factual basis for that determination has been, or is
being presented to the District Counsel's Office for a confidential
review.
September 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 13 of 16