Decision Expected Soon from California Supreme Court

Public agencies in California should prepare for the likelihood that communications on officials’ and employees’ private devices related to the agency’s “conduct of the public’s business” will be subject to disclosure under the state’s Public Records Act. While it is impossible to predict exactly how the California Supreme Court will rule on this issue, questions and comments from the bench during oral argument on Wednesday makes it appear likely the justices will strike down a lower court’s decision. That would mean that such communications are subject to disclosure under the PRA, even if those communications are not retained by or in possession of the public agency.

This “open government” issue has simmered — if not raged — for years. A number of trial courts have found such communications are subject to the PRA. However, in 2014, the Sixth District Court of Appeal held in a published opinion that, because the City of San Jose did not have access to messages on the private accounts and devices of its officials, those records were not “public records” required to be disclosed under the PRA. The California Supreme Court soon after agreed to review that decision. City of San Jose et al. v. Superior Court (Smith) S218066. Public agencies and open government advocates have been anxiously awaiting resolution of the question.

If the discussion during oral argument reveals the thinking the justices will bring to their deliberations, and are a harbinger of their upcoming decision, it appears likely the Court will strike down the appellate court’s decision and hold that such communications are subject to disclosure under the PRA. The Court has 90 days to issue its decision, although it regularly issues opinions within 45 to 60 days of argument.

The Court’s decision will have an immediate impact, as it will be the final word on the subject, and binding on all agencies and courts throughout California. Given the recent history of this issue in the lower courts, it is anticipated that open government advocates and the media will immediately begin to make public records requests for communications on the private devices of officials and employees, if the Supreme Court holds as the tenor of the questions at oral argument seemed to indicate.

Officials and employees should be alerted now to the potential that, within the next two to three months, or less, communications on their private devices related to their agency’s “conduct of the public’s business” (a term that has been broadly construed by the courts) will be subject to disclosure under the PRA. Agency officials should give thought as to how to accommodate privacy and free speech concerns of its officials, employees and constituents; how to account for and “capture” covered communications; how to ensure compliance with the inevitable requests that will be made; how to meet the time constraints of the PRA in this new milieu; and how to address requests for communications for former officials and employees that could still exist.

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