...the opinion is also notable for what it doesn’t address. The court did not answer the question of whether public officials’ and employees’ communications sent on private devices during a public meeting becomes a public record.
The California Public Records Act opens government records to the public. But what if a public official sends a text about the agency’s business from his or her personal phone on an account for which he or she foots the bill? Is the text a public record? Does the official have to hand over his or her private iPhone messages to the public? More importantly, do public agencies have a legal obligation to force the public official to turn over the phone? The proliferation of personal devices makes communicating easier and quicker than ever, but has complicated compliance with the Public Records Act, which was enacted in the 1960s.
Now, for the first time, a California court has ruled that communications on a private device — even if they may be about public business — are not disclosable to the public. (City of San Jose v. Superior Court.) In reaching its decision, the court keyed in on the plain language of Government Code section 6252, which 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 physical form or characteristics.” (Emphasis added.)
Based on that language, the court concluded that it’s the agency, not individual members of a public agency, that is subject to the Public Records Act. Moreover, a city (or any other public agency), cannot be responsible for communication records to which it has no access. The opinion underscores the issue: “The City [of San Jose] cannot…‘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 decision is an important case for public agencies across California. Had the court ruled the other way, public agencies would have potentially been forced to pry into public officials’ and employees’ private devices and accounts to respond to Public Records Act requests.
However, without direct access or control of those private devices and accounts, it is unclear how public agencies could have done so. And in the event that a public official or employee did not disclose a record from his or her private device or account, the agency — not the individual — would have been on the hook for any violations of the Act.
But the opinion is also notable for what it doesn’t address. The court did not answer the question of whether public officials’ and employees’ communications sent on private devices during a public meeting becomes a public record. Further, more and more, public agencies are subsidizing public officials’ and employees’ electronic devices. Does any amount of public contribution toward a device or service account transform those communications into public records? Only more litigation or legislation will resolve these questions. The San Jose case may be the first word on this issue, but it likely won’t be the last.
[Part of our JD Supra Perspectives series in which we asked our contributors, experts in their fields, to write about examples in which technological innovation has outpaced the law.
HongDao Nguyen assists public clients in transactional and litigation matters concerning municipal government and land use law. She is an attorney in the Municipal Law practice group of Best Best & Krieger LLP.]