Messages Stored on Personal Electronic Devices in Personal Accounts Are Not Public Records


The disagreement between the trial court and 6th District Court of Appeal in Smith v. City of San Jose illuminates a growing concern over how to treat electronic communications that the Public Records Act never contemplated. The Appellate Court found that “public records” do not include messages stored on personal electronic devices and accounts that are inaccessible to a public agency.

In 2009, the City of San Jose received a request for all voicemail, email or text messages sent or received on private electronic devices used by the mayor of San Jose, members of the City Council or staff regarding any matter concerning the City. In response, the City provided non-exempt records sent to or from private electronic devices using City accounts, but not records from personal devices using personal accounts. The trial court agreed with the requestor, ruling that such records are public records. The Court of Appeal, however, reversed the trial court’s decision, holding that the definition of “public records” under Government Code section 6252 does not incorporate individual officials or employees. As a result, messages sent to and from private accounts on private devices are not public records.

The petitioner has sought rehearing on the matter and has indicated an intent to seek review from the California Supreme Court. The conversation surrounding how the Public Records Act should treat electronic communications on private accounts and devices is not yet over, and may end up before the Legislature.



Written by:

Published In:

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.

© Best Best & Krieger LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.