This blog post was authored by Heather Coffman

The California Court of Appeal recently issued a decision that may give some relief to public agencies responding to requests under the California Public Records Act (“PRA”).  The Court found that the PRA does not require public agencies to produce communications sent or received by public officials and employees on their exclusively private electronic devices using their private accounts.  (City of San Jose v. Superior Court (March 27, 2014) — Cal.Rptr.3d —-.)

In 2009, Ted Smith presented the City of San Jose with a PRA request for communications regarding a development project for the City.  Specifically, Smith sought voicemails, emails or texts sent or received on personal electronic devices used by the mayor, city council members and staff.  The City agreed to produce records stored on its servers and those transmitted to or from private devices using City accounts, but did not produce communications from the individuals’ personal electronic accounts that were stored solely on personal devices or servers.

Smith filed a successful action for declaratory relief in Superior Court which found that the City was required to produce the requested communications notwithstanding the fact that the communications were not directly accessible by the City having been sent from and received on private devices using private accounts.  The City appealed.

On appeal, the Court of Appeal addressed the issue whether private communications, which were not stored on City servers and not directly accessible by the City, are public records under the PRA (Government Code section 6250 et seq.).

The Court of Appeal held that the requested records were not public records, agreeing with the City and the League of Cities that the PRA’s reach is limited to records that are “prepared, owned, used, or retained” by the public agencies that are the subject of the Act.  While the Court acknowledged concerns voiced by Smith and the news media that City employees and officials could conduct business out of public review by using personal accounts and personal devices, the Court said that was a concern to be addressed by the Legislature.

How does this decision affect your agency? 

First, Smith may seek review of this decision by the state Supreme Court, so this may not be the last word on the matter.  If the Supreme Court were to overturn or amend this Court of Appeal’s decision, public agencies would be subject to that higher court’s ruling.

Second, the Court of Appeal reaffirmed that the PRA only applies to writings that are “prepared, owned, used, or retained by any state or local agency.”  The Court held that communications sent to/ received by public employees and officials on exclusively private devices using private accounts are not public records.  However, the public meeting requirements of the Brown Act can still apply and private records may still be discoverable in civil or criminal litigation or as the result of other court action.

Third, it cannot be overlooked that the City of San Jose did produce records sent from/ received on private devices that were stored on the City’s servers.  Thus, it remains possible that some seemingly “private” communications may still be subject to disclosure.  For instance, if a councilmember uses a personal laptop to log into a city network to send/receive emails, then a private email sent from the council member’s Gmail account and stored on city servers would potentially be subject to disclosure under the Act.

Finally, PRA requests continue to raise complicated legal questions regarding whether records are public records and/or exempt from disclosure.  A failure to timely comply with the PRA can result in an order to disclose records as well as an order to pay attorney’s fees.  We therefore recommend that agencies designate one or more individuals to receive in-depth training and to regularly respond to PRA requests to minimize the risks associated with non-compliance.