CALIFORNIA SUPREME COURT UNANIMOUSLY HOLDS CITY EMPLOYEES’ USE OF PERSONAL EMAIL/PHONE ACCOUNTS TO COMMUNICATE ABOUT PUBLIC BUSINESS SUBJECT TO DISCLOSURE UNDER PUBLIC RECORDS ACT.
City of San Jose v. The Superior Court of Santa Clara County
(March 2, 2017, S218066)
Yesterday, a unanimous Supreme Court held in City of San Jose v. The Superior Court of Santa Clara County that communications on personal accounts used by city employees that are related to public business are subject to disclosure under the California Public Records Act (PRA). The holding will have a direct and immediate impact on public agencies that regularly receive such requests and on the employees who will now be responsible for conducting searches of their personal accounts for responsive records.
In June 2009, petitioner Ted Smith requested disclosure of public records from the City of San Jose, its redevelopment agency and certain appointed and elected officials and staff. The request identified communications sent from or received on City mobile devices and email accounts as well as those from “private electronic devices.” The City complied with the portion of the request pertaining to City telephone numbers and email accounts, but refused to disclose any communications from personal devices and accounts, arguing that those records were not within the City’s custody or control.
Smith sued for declaratory relief arguing PRA’s definition of “public records” included all communications about official business, regardless of how the records were created, communicated, or where they were stored. The trial court granted summary judgment for Smith and ordered disclosure of all of the responsive records, regardless of whether they were on public or private accounts. The City then petitioned for a writ of mandate opposing the disclosure, which the Court of Appeal granted.
The Supreme Court granted the petition in order to determine whether a city employee use of a personal account to communicate about the conduct of public business was subject to disclosure under the PRA. Presently, no documents from employees’ personal accounts have been collected or disclosed in the matter.
SUPREME COURT DECISION
The Court’s 24-page decisions analyzed what communications constitute “public records” under the PRA, discussed competing policy considerations implicated by extending the PRA into personal accounts, and concluded by providing guidance to employers for handling such requests prospectively.
The Court opened its decision by noting that the PRA was designed to “cover paper documents” but that, “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer maintained workplace.” The Court then analyzed whether communications sent from or received by private electronic devices and stored on private accounts fell within the purview of the PRA. The Court had little trouble finding that emails (and other forms of electronic communication) are “writings” within the meaning of the PRA. However, the Court held that only writings that “contain information relating to the conduct of the public’s business” must be disclosed. The Court indicated that determining whether a writing must be disclosed requires consideration of several factors, including: “the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.” The Court cautioned that writings, “that are primarily personal, containing no more than incidental mentions of agency business generally will not constitute public records.” As an example, the Court indicated that an email from a public employee to his or her spouse on a personal account complaining “my coworker is an idiot” would likely not be a public record.
The Court then considered the competing policy considerations behind the petitioner and respondent’s arguments. The Court affirmed the public’s right to access information held by the government, but held that such a right must be balanced and limited by individual privacy rights.
To demonstrate how to balance these competing interests in the context of PRA requests, the Court provided the following guidance:
- The PRA only requires the disclosure of records that can be located with “reasonable effort.” Thus, agencies do not have to undertake “extensive or intrusive searches.”
- Once an agency receives a PRA request, it must communicate the scope of the request to its custodian of records.
- If the information is held by an employee on his or her personal device or account, then the employee would be the custodian of records for that information and must be notified accordingly.
- The agency can then “reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.” However, the employee should be provided training on how to distinguish public records from personal records.
- The employee may justify withholding a potentially responsive writing by providing a declaration containing enough details for a court to determine whether the items are public versus personal records.
This case is significant as it establishes for the first time that the PRA covers certain communications on public employees’ personal devices and accounts. To the relief of public agencies, the Court makes clear that employers are not be responsible for collecting data from employees’ personal devices, but rather that the employees themselves may be relied upon to search his or her own device for any responsive records.
However, the decision does not alleviate employers from all responsibility under the PRA with respect to employees’ personal accounts. As the Court makes clear in its guidance for compliance, employers should provide training to employees on how to distinguish public records from personal records. While the decision states that employers may reasonably rely on employees to conduct searches of their personal emails and collect responsive records, it leaves open the question of employer liability should an employer become aware that an employee is unlawfully withholding responsive materials or even destroying such records.
- Employers should develop processes for notifying employees when PRA requests cover personal devices or accounts and mechanisms by which those employees should respond to such requests.
- Employers should develop standard guidance for employees on handling PRA requests, including how to distinguish public records from personal records, including analyzing the content of the communication, the context in which the communication was written, the purpose for which it was written, the audience to whom it was directed, and whether the writing was prepared within the scope of his or her employment.
- Employers should also provide instructions on conducting searches of personal accounts and phones, segregating responsive public records from personal communications, withholding potentially responsive writings, and drafting affidavits or declarations to state court so that the court may make a determination on the nature of the communications at issue.
- To minimize the burden of compliance on public employees, employers may wish to adopt policies that will reduce the likelihood of public records being held in employees’ private accounts, such as prohibiting use of personal electronic accounts for official business, requiring that employees copy their government accounts on all communications touching on public business, or requiring that employees preserve any official communications in the agency’s recordkeeping system.
Renne Sloan Holtzman Sakai LLP will be developing model instructions to provide to employees in the event a PA request is received. For more information, please contact Linda Ross (firstname.lastname@example.org,510-995-5807) or Alex Volberding (email@example.com, (510-995-5818).