Private Emails, Texts, Not Immune From Disclosure

March 17, 2017

Sacramento Business Journal

As published in the Sacramento Business Journal

Attorneys have long admonished their clients to refrain from doing, or saying, anything that they wouldn’t want their mother to read on the front page of the paper.

A March 2 decision by the California Supreme Court gives that warning new weight, ruling that communications held in the private email accounts and texts messages of public employees and officials are not immune from disclosure under the California Public Records Act.

California law creates a presumptive right of access to public records, which must be disclosed upon request unless subject to a statutory exemption. Courts have long taken a broad view of “public records,” reading that term to include nearly every document, recording, or image held by a public agency. In City of San Jose v. Superior Court, that universe was broadened to include records held within the personal accounts of employees and officials, provided those records sufficiently pertained to the conduct of agency business. 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 held that records in those individuals’ personal accounts were not exempt from disclosure merely because they were not on the agency’s devices, or within the agency’s physical walls. If the record pertained to agency business, even if held in the employee’s or official’s personal account, it was at least theoretically subject to disclosure under the Public Records Act.

The issue is more complicated, of course, than the question of misguided texts or emails. In the past, the question of whether an agency held a public record focused on the agency’s “constructive possession” of a document, considering the degree of the agency’s control over documents, including their practical location and ownership. The City of San Jose analysis departed from this approach, reasoning that if a document was both authored by a public employee or held in that employee’s account, and pertained to agency business, that document was authored and held by the public agency and could be considered a public record.

The Court’s analysis leaves many unanswered questions. For example, because no documents were ever provided, the Court did not have the opportunity to opine on whether certain documents met the standard, or might be excluded for other reasons, and what kind of search for such documents might be appropriate on the part of the agency.

The Court also did not address whether its reasoning might apply to consultants or independent contractors, and so the decision is particularly instructive as to the importance of clearly identifying employment status at the outset of a relationship with a public entity, and identifying clear parameters about how, when and in what manner materials will be shared, distributed and controlled.

Those interacting with a public agency need to understand the obligations and limitations that the Public Records Act places on public entities, which weigh heavily in favor of disclosure. At the most basic level, the decision dramatically expands the universe of documents that might be considered a “public record” subject to disclosure. That is significant, not only in the context of the Public Records Act, 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 highlights the importance of understanding exactly how, and where, materials submitted to a public agency may be used, and has significant privacy implications for those who provide documents to an agency and to the employees and officials who serve it. Legal scholars and the business community alike will be watching as this rule evolves.