April 1, 2014
On March 27, 2014, the California Court of Appeal in City of San Jose v. Superior Court of Santa Clara County (No. 1-09-150427) ruled that communications stored in the private electronic devices or email accounts of public officials and employees are not public records under the California Public Records Act (CPRA). (Gov. Code § 6250 et seq.). The court noted that the CPRA gives the public access to all records relating to the public’s business if “prepared, owned, used or retained by any state or local agency.” The court concluded, however, the statutory definition of “local agency” requires that for a writing to be a public record, the agency — not individual agency officials — must prepare, own, use or retain the writing.
In June 2009, Ted Smith, an environmental activist, requested from the City of San Jose, among other records, voicemails, emails, and text messages sent or received on private electronic devices used by the mayor, the ten members of the city council, and their staff. The City disclosed responsive records, but did not disclose records from private electronic devices or private email accounts, such as private email accounts or personal cell phones. The City took the position these items were not public records under the CPRA, because private phone records and emails were not under the control of the City and because individual officials and employees are not included in the CPRA’s definition of “public agency.”
In August 2009, Smith sought declaratory relief for the disclosure of the disputed information. In March 2013, the superior court ruled in favor of Smith. The City appealed.
The Court of Appeal’s Decision
The court of appeal reversed the lower court’s decision. The court held whether public officials’ personal devices and email accounts were “public records” within the meaning of the CPRA must be determined by the language of the statute. The term “public records” is defined in section 6252, subdivision (e), to include any writing relating to the public’s business if it is "prepared, owned, used, or retained by any state or local agency.” The court also examined the CPRA’s definition of “local agency,” which includes:
a county, city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952. (Gov. Code § 6252(a).)
The court of appeal determined the statutory definition of “local agency” referred to government bodies, not to individual members or representatives of government bodies. Consequently, for a writing to be a public record, the agency — not individual agency officials — must prepare, own, use or retain the writing. The court rejected the lower court’s expanded definition of “public agency” to include records of individual City council members rather than the records of the City itself. The court noted that even if a local agency “can act only through its officials, it does not follow that every act of an official is necessarily an act of the agency.” Thus, the CPRA does not extend its disclosure mandate to writings of individual City officials and employees sent or received on their private devices and email accounts.
Notably, the court declined to engage in judicial policy-making, declaring it was bound to interpret statutory language as written. Thus, while recognizing concerns that an agency could shield information from public disclosure simply by storing it on equipment it does not technically own, the court deferred to the Legislature to address that issue.
Guided by these principles, the court concluded the plain language of the CPRA did not afford a construction that imposed on the City an affirmative duty to produce messages stored on personal electronic devices and email accounts of City officials and employees, or to search those devices and accounts.
Significance to Public Employers
By refusing to expand the definition of “public agency” to include individual agency officials and employees, the court’s decision potentially provides public employers with immediate relief from having to address the logistical difficulties of producing communications stored on personal devices and email accounts. However, public employers’ own local policies, rules, regulations, or charter provisions may nevertheless expand the scope of a “public record” to encompass such writings.
Moreover, public agency officials and employees should remain sensitive about the contents of communications on their personal devices and email accounts. If the California Supreme Court grants review of the court of appeal’s decision, the Supreme Court could issue a contrary ruling that may ultimately render such communications subject to production by public agencies.