Writings on Personal Devices/Personal Accounts not Categorically Exempt from the California Public Records Act

    Holding. 

            The California supreme court holds 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 California Public Records Act.”  Recognizing that, “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace,” the court rejected the City’s claim that such writings be categorically exempt from disclosure.  Instead, and considering the balance between a public employee’s right of personal privacy and the public’s right of access, public employees’ “communications about official agency business may be subject to the CPRA regardless of the type of account used in their preparation or transmission.”  “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.” 

            Public Record Act Analysis. 

            1.         Writing.  The writings in question included e-mails and text messages concerning redevelopment efforts in downtown San Jose sent or received in private electronic devices through personal accounts by the mayor, two city council members and their staffs.  Contrasting what was necessary to create, deliver and store a writing in 1968 when the CPRA was adopted with the “ease and immediacy of electronic communication” 50 years later, “it is undisputed that the items at issue here constitute writings.”  (Gov. Code 6252(g).) 

            2.         Relating to the Conduct of the Public’s Business.  In a significant portion of the opinion, and noting that determining “whether a writing is sufficiently related to public business will not always be clear,” the court set forth this test: “to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.”  This is important because older (circa 1970) language construing the CPRA had very narrowly defined personal conversations as those “totally void of reference to governmental activities.”  The court explained that “an email to a spouse complaining “my coworker is an idiot” would not likely be a public record.”  Such an email indeed would not appear to be a public record.  However, it is not “totally void” of the public entity. 

            3.         Prepared by Any State or Local Agency.  The definition of a public record requires that writings be “prepared, owned, used, or retained by any state or local agency.”  The key here is that this definition includes any writing “prepared by” any local governmental officials or staff. 

            4.         Owned, Used, or Retained by Any State or Local Agency.  The City argued that the writings in question were not within the possession of the City.  Again, the court disagreed, explaining that “a writing retained by a public employee conducting agency business has been “retained by” the agency...even if the writing is retained in the employee’s personal account.” 

            Policy Considerations. 

            As stated above, the competing interests are the public’s right of access with the individual’s privacy rights.  The City argued that the privacy rights required that the writings in question be categorically exempt from disclosure.  The Court disagreed for two reasons.  First, privacy concerns may be addressed in the “case-specific application of CRPA’s exemptions, not in defining the overall scope of a public record.” 

            Second, a categorical exemption “would allow evasion of CPRA simply by the use of a private account...and would encourage government officials to conduct the public’s business in private.” 

            Guidance for Conducting Searches. 

            While the issue as to the scope of a search of the records in question was not before it, the court offered “some guidance about how to strike the balance between privacy and disclosure.” 

            1.         Employees Conducting Searches of Their Accounts. 

            If a request for records on an employee’s personal account was made, the court indicated that “the agency may...reasonably rely of these employees to search their own personal files, accounts, and devices for responsive material...segregating public records from personal record, so long as the employees have been properly trained in how to distinguish between the two.”  

            An employee who withholds a writing identified by the employee as potentially responsive would then prepare an affidavit “with sufficient factual basis upon which to determine whether contested items were agency records or personal materials.” 

            2.         Adoption of Policies. 

            The court noted that “agencies can adopt policies that will reduce the likelihood of public records being held in personal accounts,” explaining that “agencies are in the best position to implement policies that fulfil their obligations under the public records law yet also preserve the privacy rights of their employees.”  

            “For example, agencies might require that employees use or copy their government accounts for all communications touching on public business.”  The agency may also prohibit use of personal electronic accounts for official business unless messages are copied or forwarded to an official account. 

San Jose v. Superior Court, March 2, 2017.