Appellate Court Public Records Act Decision Leaves Questions Unanswered

by Best Best & Krieger LLP

When the decision in City of San Jose v. Superior Court was announced, many public agency employees and officials were relieved to read that the Court of Appeal agreed with the city: communications on public officials’ private devices — even communications relating to public business — were not disclosable under the Public Records Act. 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 PRA requests.

Stepping back, however, the case’s limitations are becoming more clear. Further, the case is still unresolved; Ted Smith, the real party in interest, petitioned the California Supreme Court this month, asking the court to review the appellate decision.

The San Jose case stems from Smith’s PRA request to the City asking for “voicemails, emails or text messages sent or received on private devices” of the mayor, various councilmembers and their staff “regarding any matters concerning the City of San Jose.” In response to the request, the City produced some documents, but not communications from private devices where the individuals used private accounts. Smith filed suit for the latter records.

Smith won at the lower court level, where the trial court ordered the City to disclose records relating to public business from private devices and accounts. The court reasoned, “There is nothing in the PRA that explicitly excludes individual officials from the definition of ‘public agency.’” The lower court cited to case law that provides, “A ‘body politic’ such as a city ‘can only act through its officers and employees.’” As such, those public agency members and officers were not protected from the PRA’s reach.

The Appellate Court reversed the lower court by keying in on the plain language of Government Code section 6252. That section 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 appellate 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.”

For public agencies, the appellate decision makes sense. It was unclear how public agencies could have obtained communications from private devices and accounts without direct access to or control of those devices and accounts. However, critics assert that the Appellate Court opinion created a PRA loophole. For example, Smith’s petition for review to the California Supreme Court asserts, “If the Court of Appeal’s decision in this case is allowed to stand, public employees can easily avoid accountability and subvert the intent of the [PRA] by hiding any communications that suggest corruption or the appearance of corruption in private accounts.”

Further, the Appellate Court itself was clear that the opinion did not cover every facet of this issue. For example, the Appellate Court explicitly did not answer the question of whether public officials’ and employees’ communications sent on private devices during a public meeting become public records. The appellate opinion also did not address the issue of public agencies subsidies of public officials’ and employees’ electronic devices. Does any amount of public contribution toward a device or service account transform those communications into public records?

Based on the San Jose decision’s limited reach and unresolved questions, public agencies should conservatively approach the issue. Public employees and officials should not use private devices and accounts to conduct public business. If a public agency pays for or provides a subsidy for employees’ and/or officials’ phones, laptops or tablets, the agency should have a policy addressing whether records on those devices will be made available to the public. Finally, public agencies should expect that only more litigation or legislation will resolve outstanding PRA issues.






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