Communications by Public Officials Using Private Cell Phone or E-Mail Accounts are Not Public Records

The California Public Records Act (“CPRA”) requires the disclosure of “public records” on request, unless such records are exempt from disclosure.  In City of San Jose v. Superior Court (March 27, 2014, H039498) --- Cal.App.4th ---, the Court of Appeal held that the CPRA does not extend to the communications of public officials using exclusively private cell phones or e-mail accounts because such communications are not “public records” under the CPRA.

Facts

In June 2009, Ted Smith ("Smith") submitted a CPRA request to the City of San Jose (“City”) seeking 32 categories of public records relating to downtown San Jose redevelopment.  The City complied with all but four categories of requests.  These four requests were essentially for “[a]ny and all voicemails, emails or text messages sent or received on private electronic devices used by Mayor Chuck Reed or members of the City Council, or their staff[.]”  The City disclosed non-exempt records sent from or received on private electronic devices using these individuals’ City accounts, but the City did not disclose records from those persons’ private electronic devices using their private accounts (e.g., a message sent from a private Gmail account using the person’s own smartphone).  The City took the position that these items were not public records within the meaning of the CPRA.

Smith brought an action for declaratory relief, seeking judgment entitling him to disclosure of the disputed information under the CPRA.  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 CPRA.  In the City’s view, only those records “within the public entity’s custody and control” would be subject to disclosure under the CPRA.  Smith maintained that communications prepared, received, or stored on City officials’ private electronic devices are public records under the CPRA, on the theory that local agencies “can only act through their officials and employees.”

The Superior Court rejected the City’s arguments, finding there was nothing in the CPRA that specifically excludes individual officials from the definition of “public agency”.  Furthermore, the Superior Court reasoned that if the City’s argument were accepted, public agencies could “easily shield information from public disclosure simply by storing it on equipment it does not technically own.”

The City appealed, supported by the League of California Cities as amicus curiae.

Decision

In a unanimous decision, the Court of Appeal, Sixth Appellate District, (“Court”) held that the text of the CPRA does not mandate that the City disclose messages stored on personal electronic devices and accounts that are inaccessible to the agency.  Furthermore, the Court held that the CPRA does not mandate that the City search those devices and accounts of its employees or officials upon a CPRA request for messages relating to City business.  In reaching this decision, the Court focused on the plain language of the CPRA, but also discussed policy and administrative concerns.

The Court noted that the purpose of the CPRA is to “ensure public access to vital information about the government’s conduct of its business. … Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”  California voters endorsed this policy in 2004 by approving Proposition 59, which amended the state constitution to explicitly recognize the writings of public officials and agencies. (Cal. Const., art. 1, section 3.)  The amendment also requires that statutes and rules such as the CPRA be broadly construed if they further the people’s right of access, but narrowly construed if it limits the right of access.

The focus of the Court’s analysis regards the text of Government Code Section 6252, a statute within the CPRA.  The statute defines “public records” as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of form or characteristics.” (Govt. Code Section 6252(e) (emphasis added).)  Smith argued that “local agency” is “one and the same” as its officials.  The Court disagreed, finding that the plain language of the statute “denominates the legislative body as a whole; it does not appear to incorporate individual officials or employees of those entities.”

The Court supported its conclusion by reasoning that “[b]ecause it is the agency-here, the City-that must prepare, own, use or retain the writing 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.”

The Court agreed with Smith that the city council members could circumvent the intent of the CPRA and Proposition 59 by sending and receiving communications on their private devices from private accounts.  However, the Court found that this concern did not make the plain language of Section 6252 absurd or ambiguous and compel a contrary result.  Instead, the power to resolve these policy issues lies with the legislature.

What This Means To You

In this opinion, the Court of Appeal clarified that public agencies do not have the responsibility under the CPRA to disclose communications sent by public officials or employees on private devices using private accounts.  However, the case fairly invites the state legislature to amend the CPRA in response to this decision.

Topics:  Cell Phones, CPRA, Email, Mobile Devices, Public Records, Text Messages

Published In: Administrative Agency 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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