Public Employee Communications on Private Accounts are Subject to the California Public Records Act
The California Public Records Act (CPRA) gives the public broad rights to access all public records of any California state or local agency, except those that are exempt for specific reasons listed in the law. The CPRA is similar to the Freedom of Information Act (FOIA), which applies only to federal agencies. Under the California law, the term “public record” is broadly defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
In City of San Jose v. Superior Court, the California Supreme Court recently decided that communications made by public agency employees on a personal account, such as a personal email account, are subject to public disclosure under CPRA.
In this case, a member of the public requested access under CPRA to various San Jose Redevelopment Agency records, including emails and text messages on private electronic devices used by the mayor, city councilmembers, and staff. The City refused to disclose any records from the private devices, arguing they are not “public records.” The Court found that the location where the writing is stored does not determine by itself whether the writing is subject to public disclosure under CPRA. So long as the “writing” relates to the “conduct of the public’s business,” a public employee’s email message on a private account may be considered a public record.
This ruling will cause any public employee some concern. However, only writings that are sufficiently relevant to agency business are embraced by the CPRA. As the Court described, if a public employee sends a message stating “my coworker is an idiot,” this probably would not be considered a public record. By contrast, an email reporting a coworker’s mismanagement of an agency project to a superior very well could be subject to CPRA. In response to concerns about Constitutional privacy rights, the Court suggested that agencies can ask their employees to search their personal accounts themselves, when the agencies receive CPRA requests pertaining to personal accounts.
The Supreme Court’s decision preserves the public’s right to records needed to ensure accountability of our public agencies and officers in California. It would have been a troubling outcome to allow public officers to shield records from public disclosure merely by using a private account. Indeed, the Trump administration has clearly demonstrated how important it is for the public to preserve these rights to full and accurate information about the conduct of our public agencies and officials. Although the CPRA pertains only to state agencies, the principle holds true in California as well: a functioning democracy depends on the public’s right to information.
For more information, contact your labor law counsel.
By Xochitl Lopez | March 28, 2017