Communications Between Public Officials Using Private Cell Phones or Email Accounts Are Not Public Records Requiring Public Access

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City of San Jose v. Superior Court of Santa Clara County (Ted Smith, Real Party)

Sixth District Court of Appeal, Action # H039498 (Filed Mar. 27, 2014) 2014 WL 1254821 ____Cal.App.4th____

The California Public Records Act, Government Code section 6250 and following (“CPRA”); has as its general purpose to require that public business be conducted under the hard light of full public scrutiny to permit the public to decide for itself whether government action is proper. To that end, disclosure, not secrecy, is the dominant objective. That general policy is also enshrined in the State Constitution, which provides at Art. 1, section 3, subd. (b)(1): “the writings of public officials and agencies shall be open to public scrutiny.” However, both the CPRA and the Constitution are also mindful of the right of individuals to privacy. This case required the Court to decide between the goal of publicity and the right of privacy in the context of a request for documents which asked the City of San Jose to produce “all voicemails, emails or text messages” sent or received on private electronic devices used by specified public officials or their staff “regarding any matters concerning the City of San Jose.” The Court concluded that the CPRA does not require public access to communications between public officials using exclusively private cell phones or email accounts.

Ted Smith brought an action for declaratory relief seeking a judgment entitling him to disclosure of the disputed information under the CPRA. The CPRA defines “public records” to include any writing relating to the public’s business if it is “prepared, owned, used, or retained by any state or local agency.” Smith maintained that communications prepared, received or stored on City officials’ private electronic devices were “public records” under the CPRA since local agencies can only act through their officials and employees. Smith argued that, since those officials and employees act on behalf of the City, their disclosure obligations are indistinguishable from those of the City. The City argued that messages sent from or to private accounts using private electronic devices are not “public records” under the CPRA and that individual officials and employees are not included within the definition of “public agency” under the Act. In their view, only those records “within the public entity’s custody and control” would be subject to disclosure under the Act.

The trial court agreed with Smith, noting that there is nothing in the CPRA that explicitly excludes individual officials from the definition of “public agency” and that a city is an artificial person that can only act through its officers and employees. Thus, a record that is “prepared, owned, used, or retained” by an official is “prepared, owned, used, or retained” by the City. The court further reasoned that, if petitioners’ interpretation were accepted, a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own.

The Court of Appeal began by noting that judicial decisions interpreting the CPRA seek to balance the public’s right of access to information, the government’s need or lack of need to preserve confidentiality, and the individual’s right to privacy. The City argued that the Legislature has not expanded the reach of the Act to personal devices and accounts because it recognizes the privacy rights of this state’s citizens. Smith countered that officials lose any expectation of privacy when they choose to send and receive messages regarding public business from their personal electronic devices and accounts. The League of California Cities, as a friend of the court, acknowledged that public officials and employees have a diminished expectation of privacy, as illustrated by statutory duties to report certain personal financial information and the Brown Act requirement that legislative meetings be open and public. The League noted, however, that the Brown Act —which serves the same democratic purposes as the CPRA—permits private conversations about the public’s business by fewer than a majority of its members outside of a public meeting,and it does not apply to individual contacts or conversations between a member of a legislative body and any other person that do not violate the Act. Additionally, the League reasoned that the ability to discuss public issues privately and confidentially allows dissident members of a legislative body to air unpopular views and develop strategies for challenging the status quo or the powers that be. The superior court’s ruling, by contrast, would destroy “this carefully crafted private space” and “could have a chilling effect on citizens who wish to exercise their constitutional rights to instruct their representatives and petition government for redress of grievances.” The League also suggested that the trial court’s ruling is potentially incongruous with the Brown Act. For example, a meeting between a public official and a constituent that would not be directly subject to public review under the Brown Act could be indirectly subject to public review under the Public Records Act, if the public official made notes of the meeting. The League argued that the twin pillars of open government law in California, the Public Records Act and the Brown Act, must be interpreted so as to be reasonably consistent with one another. Finally, addressing the superior court’s concern that a city “could easily shield information from public disclosure simply by storing it on equipment it does not technically own,” the League contended that the Court must presume under Evidence Code section 664 that the public officials are conducting City business in the public’s best interest, and not willfully dodging applicable laws and regulations.

Both the City and the League supplemented their privacy concerns with practical considerations. The City suggested that if local agencies were required to search the personal electronic accounts of their employees, the burden and cost would be overwhelming. The City further suggested that, without the requisite custody or control of such records, it is difficult to imagine how the City would be able to implement such searches if employees declined to cooperate. The League likewise emphasized that, without access to and control over private messaging accounts and electronic devices, a public agency has no viable, legal means of searching for and producing private documents of its employees and officials. The superior court’s interpretation is unworkable, the League argued, because a records request would require the City to conduct an active search not only of devices and accounts stored in its system or under its control, but also of all private computers, phones, tablets, and other electronic devices of its employees and officials. And those searches, the League pointed out, would intrude into private conversations with family members or friends that happen to include some discussion of a public issue. As the League put it, “[n]either the Legislature nor the electorate has demonstrated an intent that the Act reach those purely private communications.”

In defending the lower court’s ruling, Smith and the various media friends of the court also relied on policy objectives. They emphasized that the CPRA must be construed broadly “if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” The media suggested that petitioners’ interpretation of “public records” is unreasonable and arbitrary because it would allow officials to “conceal evidence of error or malfeasance on a whim by storing information relating to the public’s business on their personal accounts or devices. They could also distort the truth by storing only records that tell a favorable tale on accounts or devices owned by a state or local agency.” Smith added: “If petitioners’ interpretation were to hold sway, an email, text or other communication concerning the public’s business that was stored solely on a City Council member’s cell phone would be exempt from disclosure. And yet, if the same email, text, or communication were stored on a City computer server, it would be a public record. Smith argued that the City’s attempt to make the ‘public’ nature of a record dependent upon its storage location, rather than its content, was completely arbitrary and patently unreasonable.

The Court found none of the parties’ policy-based arguments helpful since it deemed itself bound to interpret statutory language as written and to avoid any encroachment on the province of the Legislature to declare public policy. The Court stated that the question whether personal accounts and devices of an individual are accessible for purposes of a CPRA request must be determined, if possible, by reading the language of the statute itself. After reviewing the respective arguments of the parties as to the language of the CPRA, the Court noted that close examination of Smith’s argument revealed its logical weakness. Even if the court accepted the first premise, that a local agency can act only through its officials, it does not follow that every act of an official is necessarily an act of the agency. Smith further asserted that any record required by law to be kept by an officer, or which he keeps as necessary or convenient to the discharge of his official duty, is a public record. The Court felt that this point merely begs the question of whether the information sought is a public record.

Determining the scope of “public records” is required in light of the constitutional mandate of article I, section 3, and the intent expressed by the Legislature in the statutory scheme, particularly section 6250. “When we interpret a statute, ‘[o]ur fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. We remain mindful, however, of the ” ‘strong public policy of the people’s right to information concerning the people’s business and the constitutional mandate to construe statutes limiting the right of access narrowly.” Accordingly, if there is ambiguity in the meaning or intent of the statutory language, “the California Constitution requires us to broadly construe the CPRA to the extent it furthers the people’s right of access and to narrowly construe the CPRA to the extent it limits the right of access.”

Guided by these principles, the Court examined the language of section 6252. If a “local agency” and its officials are, as Smith portrayed them below, “one and the same,” then any writing prepared, owned, used, or retained by the official is deemed that of the agency itself. The statute’s definition of “local agency,” however, does not mention individual members or representatives of any public body; it refers to government bodies themselves, including counties, cities, any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952. The plain language of this provision thus denominates the legislative body as a whole; it does not appear to incorporate individual officials or employees of those entities. Had the Legislature intended to encompass such individuals within the scope of “public records,” it could easily have done so. And, in fact, it did so in defining “state agency” to include “officer.” (§ 6252, subd. (f)).

The Court, therefore, did not agree with Smith that individual city council members and their staff must be considered equivalent to the City for purposes of providing public access to their writings on public business. Because it is the agency—here, the City— that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition. The City cannot, for example, “use” or “retain” a text message sent from a council member’s smartphone that is not linked to a City server or City account. Thus, relying on the plain meaning of the language used in section 6252, subdivisions (a) and (e), the Court found that the CPRA does not extend its disclosure mandate to writings of individual city officials and employees sent or received on their private devices and accounts.

While the fact that city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern, the Court reasoned that such conduct is for the Legislature to deter with appropriate legislation. It does not make a literal interpretation necessarily “arbitrary, unreasonable, and absurd,” as Smith and the media contended.

The Court also rejected Smith’s argument that the City has control over its employees simply “by virtue of the parties’ relationship.” Section 6252 contains no description of public records that includes the element of control. Any control the City has over its employees’ behavior is not equivalent to control over, or even access to, the text messages and e-mail sent to and from its employees’ private devices and accounts.

The Court observed that the question of when a privately transmitted communication made during a public meeting becomes that of a “public body”—or in this case, a public “local agency”— is not presented in this writ proceeding. Smith did not confine his request to writings exchanged during city council meetings, but sought all communications transmitted during an unspecified period regarding “any matters concerning the City of San Jose,” particularly those pertaining to the development of downtown San Pedro Square.

The Court found no reason to reject the plain language of section 6252 under the rules of statutory construction or parallel authority from other states. The writings sought by Smith were not “prepared, owned, used, or retained” by a “local agency” as called for by section 6252.

The First District, Division Two, reached the same conclusion recently in Regents of University of California v. Superior Court, (2013) 222 Cal.App.4th 383. The issue in that case was whether Reuters America LLC was entitled to confidential information regarding investments made by the Regents. The superior court recognized that the information was not directly owned, retained, or used by the Regents, but it nonetheless granted the petition of Reuters for fund-specific information because the Regents had not ” ‘demonstrated that the Fund Level Information does not relate to the conduct of the people’s business or that it does not have constructive possession of that information.’ ” The superior court ordered the Regents to make a reasonable effort to obtain the requested information.

The appellate court granted writ relief to the Regents, holding that a literal interpretation of section 6252, subdivision (e), is consistent with the purpose of the Act as a whole but also with the Freedom of Information Act (“FOIA”), on which the CPRA was modeled. Just as in the FOIA, the court concluded, “no language in the CPRA creates an obligation to create or obtain a particular record when the document is not prepared, owned, used, or retained by the public agency.” Once the superior court decided that the Regents had not directly “prepared, owned, used, or retained” the requested information, it should not have gone further to require the Regents to produce records in its constructive possession.

The Court agreed with amici curiae from the media that Regents is not entirely comparable to the facts before it; the records sought in that case were held by private companies rather than parties to the case. But the reviewing court’s emphasis on avoiding judicial additions to the statutory language is one we endorse as well. And just as the superior court in Regents improperly bypassed the definition of “public record” by relying on the agency’s “constructive possession,” here too the Court rejected Smith’s argument that the CPRA permits disclosure of the requested communications on the theory that the City has “constructive control” over the records of its employees and officials. Moreover, there is no evidence in either party’s separate statement of undisputed facts that the City has actual or constructive control over the privately stored communications of its officials.

Smith also attempted to rebut a position not taken by petitioners, that their personal accounts and devices are protected from disclosure by one or more exemptions listed in section 6254. Petitioners did not invoke any of these statutory grounds. Consequently, the Court did not need to address Smith’s assertion that petitioners waived the issue of whether any section 6254 exemption applied, nor his contention that petitioners failed to meet their burden to demonstrate the applicability of a statutory exemption.

COMMENT AND EVALUATION: While the Court answered the immediate question before it, the opinion gives little guidance for factual situations other than the specific one addressed in the opinion. The immediate unanswered questions involve the “hybrid” cases: ones in which the account used was a local agency account, but the device was a privately owned phone; or where the phone was an agency-owned phone, but the account used was a personal account. The Court also explicitly avoided the question of the status of a privately transmitted communication made by a public official during a public meeting. It is likely that the result would be different in these hybrid cases because of the broad purposes of the CPRA and the extra element of control by the local agency in those instances.

 

Topics:  Cell Phones, Mobile Devices, Public Officials, Public Records

Published In: Administrative Agency Updates, Constitutional Law Updates, Privacy Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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