California Supreme Court Rules Public Officials’ and Employees’ Personal Accounts Do Not Escape Reach of Public Records Act
March 3, 2017
On March 2, 2017, the California Supreme Court ruled in City of San Jose v. Superior Court that where a public employee uses a personal email account or texts to communicate about the conduct of public business, those writings may be subject to disclosure under the California Public Records Act (“PRA”). While resolving one long-debated question in California law, this decision also raised myriad new issues.
The decision characterized the question presented to the Court as a narrow one: whether material in a public employee or official’s personal account was categorically excluded from a request for public records under the PRA. The Court first observed that a public record must not only pertain to agency business, but also be prepared, controlled, or retained by a public agency. Stressing that a document’s status as public or confidential “does not turn on the arbitrary circumstance of where the document is located,” the Court rejected the idea that materials from an employee’s personal account might be per se excluded from disclosure. Materials authored or retained by a public employee are documents prepared or retained by a public agency: insofar as those documents pertain to the conduct of agency business, they are public records within the reach of the PRA. The Court likewise rejected the idea that such documents were out of the control of a public agency, and therefore not properly considered a “public record.” Where a public official or employee sends an email or text pertaining to agency business (even on a private device) the Court reasoned that such a communication is both prepared and possessed by a public agency, and is therefore within the scope of the PRA.
The opinion has some important limitations. First, the Court clarified that to be considered a public record, emails from personal accounts must relate in some substantive way to the conduct of the public’s business. Communications that contain “no more than incidental mentions” of agency business would not generally be considered public records under this test. Second, because none of the documents from employees’ personal accounts had yet been disclosed, the Court did not consider whether the particular documents contained in those accounts might be subject to other exemptions from disclosure.
The City of San Jose never performed a search of the officials’ and employees’ personal accounts, and instead argued that the contents of personal email and other messaging accounts should be categorically excluded. As a result, the Court did not have an opportunity to weigh in on the legality of any particular kind of search, or the extent to which any particular record might be excluded. In dicta, the Court offered some general guidance to public agencies in striking a balance between privacy and disclosure. First, even within a personal account, a communication “must relate in some substantive way to the conduct of the public’s business” to be considered a public record. The Court laid out several factors to be considered in that determination, without identifying any single factor as decisive, including the content of the communication; 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. In a footnote, the Court acknowledged that its interpretation of documents pertaining to the conduct of the public’s business departs from the stricter notion that only purely personal communications totally void of reference to governmental activities are excluded from the definition of public records, as it perceived that latter test to be too broad to apply to personal accounts. This analysis, while nonbinding dicta, raises questions about the future standards that will apply to records sent through a public account versus a private one.
As to how a search should be conducted, the Court went on to suggest that when an agency receives a request for records held in personal accounts, the first step should be to communicate the nature of the request to the employees in question. The Court stated that the agency may “reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.” Employees performing the search would also be responsible for verifying through affidavits or other acknowledgements that their personal accounts contained no public records. Finally, the Court recommended that public agencies adopt specific policies to reduce the likelihood of records being held in private accounts, such as a policy directing employees and officials to conduct agency business only via appropriate, agency-maintained channels.
This case may raise more questions than it answers, as public agencies and those associated with them work to understand the implications of the Court’s decision as it relates to their existing policies and practices pertaining to official business carried out via personal accounts. At the most basic level, the decision dramatically expands the universe of documents that might be considered a “public record,” a fact which is significant not only in the context of the Public Records Act itself, but in nearly any legal challenge involving the action of a public employee or official, including contract and bidding disputes, land use or environmental review, challenges to agency enforcement actions, and nondiscrimination claims, among others. The decision is also significant in its scope, which encompasses not only high-ranking public officials, but any public employee carrying out the business of the agency.
Prior cases relied upon a “constructive possession” rule to determine whether the communications of a consultant were public records held or retained by the agency, and therefore subject to the PRA. This decision rejected that approach, ruling that regardless of the documents’ location, a communication authored by a public employee is a communication both authored and retained by the public agency that employs that individual. While not explicitly overruling that prior line of cases regarding the documents held by consultants, this shift may signal a broader view of the scope of the PRA. At a minimum, it is instructive as to the importance of clearly delineating employees from independent contractors and consultants, and providing clear document management and retention guidance to each group.
The Court’s guidance regarding searches and disclosable private account documents should be taken with a grain of salt, as it was offered with the important caveat that the Court would not hold that any particular search method is required or necessarily adequate, but merely to explain why privacy concerns do not require the categorical exclusion of documents held in an employee or official’s personal account. We expect that the breadth and depth of such searches, as well as the extent of the agency’s obligation to undertake them, will be the subject of future litigation. Finally, the decision sets the stage for future conflicts between public agencies, which can be subject to stiff fee recovery provisions under the PRA for noncompliance—and their officials and employees, who will be concerned with maintaining privacy of personal communications.
Our public agency attorneys intend to offer thoughts and guidance in future alerts as to how to best comply with this case and, together with agencies statewide, will be watching as the law on this issue evolves.