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.