California Supreme Court: Private Emails Potentially Subject to CPRA

City of San Jose v. Superior Court, 2017 Cal. LEXIS 1607, Docket No. S218066

By Jordan E.A. Ferguson | Editor: Randall W. Keen

Why It Matters: The California Supreme Court unanimously held that government officials may be required to release communications made about official business on private devices and personal email accounts pursuant to California Public Record Act ("CPRA") requests. The Court determined that, when a City employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the CPRA.

This will effectively broaden the scope of CPRA requests to include personal email accounts, text messages and other forms of writing that might previously have been considered beyond the scope of the Act, creating a greater burden not only on public agencies but also on elected officials and employees, while closing what some have seen as a potential loophole in records requests.

Facts: In June 2009, petitioner Ted Smith requested disclosure of public records concerning redevelopment efforts in downtown San Jose and included a request for emails or text messages "sent or received on private electronic devices used by" the mayor, two city council members, and their staffs. The City declined to disclose communications made using the individuals' personal accounts. Smith sued, arguing the CPRA's definition of "public records" encompasses all communications about official business, regardless of how they are created, communicated or stored. The City argued that messages communicated through personal accounts are not public records because they are not within the public entity's custody or control.

The trial court granted summary judgment of Smith and ordered disclosure. The Court of Appeal issued a writ of mandate halting disclosure pending appeal. The Supreme Court weighed in to determine whether the records were, in fact, subject to disclosure.

The Decision: The Supreme Court recognized that, in the modern workplace, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace. However, the court indicated that public access to information must on occasion yield to personal privacy interests. The Court determined that, because of the important policy interests underpinning the CPRA, the balance in this instance weighed in favor of mandating disclosure. Because the CPRA creates a presumptive right of access to any record "created or maintained" by a public agency, the court found that emails or text messages written by public officials or employees and concerning official business are within the ambit of the Act.

The Court analyzed the term "public record," breaking it down into four parts: 1) a writing; 2) with content relating to the conduct of the public's business; 3) prepared by, or; 4) owned, used, or retained by any state or local agency. The Court found that email, text messaging and other electronic communications may blur the line between official communication and electronic aside, but that the relation to the conduct of the public's business allows a distinction to be created between work-related and purely private communications. If a writing relates in a substantive way to the conduct of the public's business, it may be subject to disclosure.

Considering the policy behind the CPRA, the Court found that the City's interpretation would allow public officials and employees to evade disclosure simply by using a personal account. Applying that interpretation could, in fact, incentivize government officials to conduct the public's business in private, especially in the event of particularly sensitive or controversial discussions. Further, the Court emphasized that privacy concerns should be addressed on a case-by-case basis, and that personal information unrelated to public business can be redacted from any records produced. This will likely lead to increased litigation over the balance between the public interest in particular records requests and the privacy of public officials whose personal accounts may be the subject of a given request.

Finally, the Court offered guidance for conducting searches while respecting privacy, including allowing employees to conduct their own searches so long as they fill out an affidavit on any material that is withheld.

Practice Pointers:

• This case reflects the tendency of courts to interpret the CPRA broadly in favor of disclosure. For those seeking records, care should be taken to draft CPRA requests broadly enough to encompass all records being sought, including records that may be found in private accounts. Yet requesters should also enumerate, where possible, the officials and employees involved in the request to narrow the scope of the search.
• Public officials will no longer be able to use private devices and accounts to shield communications about public business from CPRA requests.
• Deciding whether individual writings are public records will require an examination of content, and privacy determinations will be made case-by-case, but if the writing in question is substantively about the conduct of public business, disclosure is likely to be mandated.
• Individual officials and employees will be allowed to conduct their own searches of private accounts, creating an additional layer of privacy protection.
• Agencies should consider adopting policies requiring public business to be conducted using agency accounts rather than private accounts, to reduce the likelihood of responsive records being located within private accounts.