The California Public Records Act does not require local agencies to search officials’ or employees’ private electronic devices for “public records” responsive to public records requests
The California Public Records Act (CPRA) generally requires public agencies to provide “public records” —i.e., writings prepared, owned, used, or retained by a public agency—upon request.
In City of San Jose v. Superior Court, a California Court of Appeal recently decided that CPRA does not encompass communications sent or received by a city’s officials and employees on their privately-owned electronic devices.
In the City of San Jose case, the media argued that a public agency acts through its officials and employees, and a public agency should not be allowed to hide information about public business simply by storing it on equipment that it does not own. On the other hand, the public agencies (including the League of California Cities) countered that to require public agencies to search their officials and employees’ private computers and other devices would invade the officials’ and employees’ privacy, and to locate and produce such records would be an impracticable burden and expense.
The court declined to decide the case based upon the public policy concerns raised by either side, reserving such policy considerations for the Legislature. Instead, the court ruled that based upon the language of the statute—that the “public records” of local public entities does not include their officials’ and employees’ messages sent or received on their private electronic devices.
The court made no mention in the decision of whether the city reimbursed its officials and employees for expenses associated with their privately-owned electronic devices, or whether the city had a electronic devices policy which allowed the city to search privately-owned electronic devices that are used for city business.
For information about the application of the CPRA, please contact your labor law counsel.
Author: Anne Yen
