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


            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. 


No Exception to the Coming and Going Rule

The Fourth Appellate District affirmed a judgment, holding that plaintiffs failed to show that a company that organized training exercises on remote military bases was vicariously liable for a car accident caused by a civilian temporary employee driving home from such an exercise.

Brian Lynn was killed and wife Gail Lynn seriously injured in a car accident caused by Abdul Formoli, a temporary employee of Tatitlek Support Services, Inc. (TSSI). Formoli was one of hundreds of “role players” in a military training exercise conducted by TSSI at the U.S. Marine Corps military base at Twentynine Palms. Formoli’s assignment lasted three and a half days, during which time he remained on base, worked long hours, and got little sleep. When the exercise ended, Formoli used his personal car to drive himself home to Sacramento. The car accident occurred en route. Gail and her son filed a wrongful death action against TSSI, alleging that Formoli was acting within the scope of his employment when the accident occurred.

Noting the remoteness of the jobsite, Formoli’s long hours over the three and a half day exercise, and his lengthy commute home, plaintiffs argued the extraordinary-commute incidental benefit exception, the compensated travel-time exception, and the special risk exception all barred application of the “going and coming” rule, which would otherwise preclude employer vicarious liability. The trial court disagreed and granted summary judgment in favor of TSSI. 

The court of appeal affirmed, holding that plaintiffs failed to show that any of the cited exceptions to the going and coming rule applied. As to the incidental benefit exception, the court acknowledged that Formoli had a long commute, but found no evidence that Formoli’s use of his personal vehicle was a condition of his employment. To the contrary, it was undisputed that TSSI offered round-trip bus transportation, at no charge, to participants traveling from Northern California and other locations. Participants were not required to use their own transportation, and those who opted to do so were not compensated for their time or travel expenses. On this record, neither the incidental benefit exception nor the compensated travel-time exception applied. Further, in the absence of evidence showing that Formoli was in fact exhausted and sleep-deprived when he left the base, as plaintiffs alleged, the special risk exception also did not apply.

Lynn v. Tattitlek Support Services, Inc., 4th DCA, February 23, 2017.


Question of Fact if Alleged Harassment was Severe or Pervasive

The court of appeals reversed a judgment, holding that the district court erred in concluding that hugs and kisses on the cheek were merely innocuous and common workplace behavior.

County correctional officer Victoria Zetwick sued the County of Yolo, alleging that the county sheriff’s habit of greeting her with hugs created a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

The county moved for summary judgment, arguing such conduct was merely innocuous, socially acceptable conduct. The district court granted summary judgment. 

The court of appeals reversed, holding that the district court erred in concluding that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. None of the three cases relied on by the district court states or stands for this proposition. Additionally, none of these cases identified either the number of times or the period of time over which unwelcome hugging occurred; they were thus factually distinguishable. Further, the district court misstated the standard as “severe and pervasive,” when a showing of either “severe or pervasive” conduct is sufficient. The district court’s analysis of the record was similarly flawed, Applying a simple calculation, the district court concluded that if the sheriff hugged Zetwick 100 times over a period of 12 years, as she alleged, the hugs occurred, on average, only “seven or eight times per year.” such a conclusion overlooked the as yet unresolved questions of whether the hugs occurred sporadically or during a specific, and more concentrated, time frame, and whether they represented the majority or the minority of Zetwick’s encounters with the sheriff. The court reversed the grant of summary judgment and remanded for trial on the merits of Zetwick’s federal and state sexual harassment claims and her state claim of failing to prevent sexual harassment.

Zetwick v. County of Yolo, 9th Cir., Feb. 23, 2017.


City's Agenda Item Satisfied the Brown Act

The City of Oceanside approved the sale of property to real estate developer S.D. Malkin Properties, Inc. In conjunction with the sale, the city and Malkin entered into a proposed Agreement that Malkin would develop a luxury hotel on the land, and the city would pay Malkin a subsidy of over $11 million remitted from transient occupancy tax collected from the hotel. When the city placed the Agreement and related items on its agenda for an upcoming meeting, the agenda item stated that the council would consider: Malkin’s agreement to guarantee development of the subject property as a full service resort; an agreement to provide a mechanism to share transient occupancy tax generated by the Project; and a report, required by statute, documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, and the public purpose of the subsidy. San Diegans for Open Government (SDOG) later filed suit, contending that the city violated the Brown Act because its agenda description was inadequate. The trial court entered judgment in favor of the city.

SDOG appealed, arguing the city violated the Brown Act.

The court of appeal affirmed, holding that the trial court did not err in finding the city’s agenda substantially complied with the Brown Act. The Brown Act requires that a local agency’s published meeting agenda provide a “brief general description” of items to be considered. The wording of the statute, pertinent case authority, and other authority all reflect a general principle regarding the standard necessary to satisfy that requirement: agenda drafters must give the public a fair chance to participate in matters of particular or general concern by providing more than mere clues from which the public must then guess or surmise the essential nature of the business to be considered by a local agency. That standard was met here, where the city published an agenda that was not in any sense confusing, misleading or unfairly opaque and that gave the public fair notice of the essential nature of what the council would be considering.

San Diegans for Open Government v. City of Oceanside; 4th DCA, October 25, 2016



County May Charge Overhead for Copying Documents

The Third Appellate District affirmed a judgment. The court held that a county properly took overhead and operating costs into account in setting its rates for copying official documents.

The Yolo County Recorder’s Officer charged California Public Records Research, Inc. (CPRR) $62.00 for copies of two documents, at a rate of $10.00 for each first page and $2.00 for each subsequent page. CPRR sued the county for violating its duty under Gov. Code §27366 to limit the amount of fees charged for copies of recorded documents to recoupment of direct and indirect costs actually incurred in producing copies. After the lawsuit was filed, the county reduced the first page rate from $10.00 to $7.50, purportedly as the result of staffing changes that reduced office overhead.

The trial court granted summary judgment in favor of the county, finding §27366 authorized the county to exercise discretion in setting fees, there was no showing the county abused that discretion, and the fees charged were reasonably related to the cost of producing copies.

The court of appeal affirmed, holding that §27366 authorized the county to set copy fees in an amount necessary to recover overhead and other operating cost incurred in the day-to-day operation of the recorder’s office, including staff salaries. Section 27366 provides that copy fees “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service or the cost of enforcing any regulation for which the fee or charge is levied.” Both the statutory definitions and related uses of the terms “direct costs” and “indirect costs” supported the county’s expansive interpretation of §27366, and indicated the Legislature’s intent for boards of supervisors to consider a wide range of indirect costs in setting copy fees. The term “indirect costs” has an established and generally accepted meaning in the context of governmental accounting and fee setting legislation, and includes overhead and operating costs not specifically associated with the production of copies. The county was thus not only authorized, but required to set copy rates that allowed it to recover its overhead and other operating costs. 

California Public Records Research, Inc. v. County of Yolo, Third DCA, October 17, 2016