Government Employee Communications on Personal Devices May Be Discoverable

By lfsuser on April 21, 2017

On March 2, 2017, the California Supreme Court held in City of San Jose v. Superior Court 2017 DJDAR 1896, that when a city employee uses a personal account to communicate about “the conduct of public business”, the writing may be subject to disclosure under the California Public Records Act.

This case arises out of Public Records Act Request filed by Ted Smith in 2009, seeking communications regarding a development project for the City of San Jose. Specifically, Mr. Smith requested documents concerning redevelopment efforts in downtown San Jose. He included a request for emails and text messages “sent or received on private electronic devices” used by various City officials. In response to the request, the City disclosed communications made using City telephone numbers and emails accounts, but did not disclose communications made using personal accounts.

Mr. Smith sued for declaratory relief, requesting that the communications made using personal accounts be included in the response to his California Public Records Act (“CPRA”) request. In opposition, the City argued that communications made by agency employees through their personal account did not fall under the CPRA’s definition of writings “prepared, owned, used, or retained by any state of local agency” because these records were not easily accessible to the agency as a whole. Moreover, the City argued that such an extension of the Public Records Act would constitute an invasion of privacy as to the individual employees’ personal accounts.

The California Supreme Court began its examination into the language of the CPRA by noting that the CPRA supports public access to records. Specifically, it creates a presumption of a right of access to any records created or maintained by a public agency that related in any way to the business of the public agency. The Supreme Court also recognized that the CPRA does not take into account the rise of smartphones, the ways employees communicate, and the ease and immediacy of electronic communication.

The Supreme Court specifically focused on the wording of the CRPA. Although a public employee’s personal email account is not “owned, used, or retained by” a public entity, the writing is still “prepared by” that entity’s employee. This is because when public employees are conducting agency business through their personal accounts, they are working for the agency on its behalf. Moreover, there is no law in California that requires public officials or employees to use only government accounts to conduct public business. The Supreme Court also dismissed the City’s lack of accessibility argument by pointing out that CPRA indicates that public records can be held by individual officials and need not belong to an agency as a whole.

Even if the writing is retained in the employee’s personal account, the agency still maintains constructive possession over the email because the agency has the right to control the records through this public employee. The Court found the location of the document to be an arbitrary circumstance and one that, on its own, does not render it inaccessible to the CPRA.

Because the City of San Jose had not attempted to search for documents located in personal accounts, the Court did not address specific search methods for private accounts. However, the Supreme Court did acknowledge the concern for employee privacy when conducting these searches. It was the Court’s recommendation that, upon receiving a CPRA request, an agency’s first step should be to communicate the request to the employees in question. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive materials.

The decision in City of San Jose v. Superior Court increases the scope of documents subject to CPRA requests. Now, communications by public employees on personal devices and accounts that relate to public business are subject to search and potential disclosure. Public entities should be proactive in determining how to account for and retain these communications prior to receiving a CPRA request for the document. Creating such policies and procedures would avoid having to request employees to search through their own accounts for responsive materials. Finally, public entities should educate their employees regarding the extent of CPRA requests and caution employees against using their personal accounts to conduct public business.

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Christina Forst at (415) 697-2000 or cforst@aghwlaw.com.