Personal SmartphonePublic officials may sometimes use personal devices such as smartphones and personal e-mail or other accounts to communicate concerning their agency’s business.  Are these e-mails, texts, or other communications “public records” that must be disclosed in response to a demand under the California Public Records Act?  The California Supreme Court will soon decide.

The Court of Appeal in City of San Jose v. Superior Court held on March 27, 2014 that communications between public officials using exclusively private smartphones and e-mail accounts did not have to be disclosed under the Public Records Act.  On June 25, 2014, however, the California Supreme Court granted review.  Until that Court decides the case, the question will remain an open one.

Public records laws like the California Public Records Act provide for transparency in government decision making.  In enacting the Public Records Act, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”  (Cal. Gov. Code section 6250.)   The California Supreme Court has previously explained: “Openness in government is essential to the functioning of a democracy.”  The California Public Records Act effectuates these policies by providing that “public records” are available to anyone upon request.  The Act defines public records as “any writing[s] 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.”  (Id., section 6252(e).)  The procedural requirements of the Act are fairly straightforward.  When a member of the public requests records, the agency must respond within a short time, usually 10 days, advising the requestor whether the agency will produce the document.  It must then make the records available for inspection, and under certain circumstances provide exact copies of the records.  (Records need not be produced, however, if they come under certain statutory exemptions, for example if they are documents regarding pending litigation, documents that are attorney-client privilege or subject to other privileges, specified peace officer records, or certain personnel records.)

The City of San Jose case arose from the following facts.  In June 2009, a man named Ted Smith submitted a request to the City, seeking 32 categories of public records relating to redevelopment of San Jose’s downtown area.  The City complied with most of the requests, but declined in part to produce in response to requests for “[a]ny and all voicemails, emails or text messages sent or received on private electronic devices used by Mayor Chuck Reed or members of the City Council, or their staff, regarding any matters concerning the City of San Jose, including any matters concerning [certain persons] or anyone associated with Urban Markets LLC or San Pedro Square Properties.”   The City allowed inspection of responsive non-exempt records that were sent from or received on private electronic devices of the individuals using City accounts.  But it would not make available records from those individuals’ private electronic devices that used the individual’s private accounts.  An example of a record not produced would be a message sent from a private Gmail account using the person’s own personal electronic device.  The City reasoned that these were not “public records,” even if they did relate to the City’s business as specified in the requests.

Smith brought an action for declaratory relief challenging the City’s refusal to produce the records.  The Trial Court found in favor of Smith, holding that that “there is nothing in the [Public Records Act] that explicitly excludes individual officials from the definition of ‘public agency,’” and that a city is an “artificial person” that can “only act through its officers and employees.”  The Trial Court reasoned that, accordingly, a record that is “prepared, owned, used, or retained” by an official is “prepared, owned, used, or retained” by the City.  The Trial Court explained that a contrary ruling, which treated these records as outside the scope of the Act, would allow a public agency to “shield information from public disclosure simply by storing it on equipment it does not technically own.”

The Court of Appeal on March 27, 2014, reversed, holding that the records in question fell outside the scope of the Act.  The Court started with the Act’s plain language.  It reiterated that, in Government Code section 6252(e), the Act defines “public records” as those “prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”  (Emphasis added.)  The Court reasoned that the term “local agency” is not synonymous with the individual officials or employees of that agency, so that the plain language of the Act did not encompass their strictly personal records and communications to which the City has no access.  The Court reasoned: “Had the Legislature intended to encompass such individuals within the scope of ‘public records,’ it could easily have done so.”  The Court summarized:

We . . . cannot agree with Smith that individual city council members and their staff must be considered equivalent to the City for purposes of providing public access to their writings on public business.  Because it is the agency—here, the City—that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition.  The City cannot, for example, “use” or “retain” a text message sent from a council member’s smartphone that is not linked to a City server or City account.  Thus, relying on the plain meaning of the language used in section 6252, subdivisions (a) and (e), we believe that the [Public Records Act] does not extend its disclosure mandate to writings of individual city officials and employees sent or received on their private devices and accounts.

The Court of Appeal acknowledged the argument made by Smith and on which the Trial Court relied: that accepting the City’s interpretation of the Act meant that officials could theoretically try to circumvent the Act by relaying some agency-related communications through personal devices using personal accounts.  The Court of Appeal concluded, however, that this concern was for the Legislature to address, by amending the statute.  It was not the Court’s role to re-write the statute to address the concern.

On June 25, 2014, the California Supreme Court granted review of the case.  Its order granting review supersedes the Court of Appeal’s decision, so that the decision does not serve as precedent to other courts.

Briefing in the California Supreme Court will start November 2014.  The Court can sometimes take a number of months to set the case for oral argument, but it will likely do so at some point in 2015.  After argument, the Court has 90 days to issue a decision.

Our firm has posted previously on the Court of Appeal decision from earlier this year, and provided a number of thoughts on the decision.  We pointed out as well that it was possible the California Supreme Court would take an interest in the case.

We will continue to report on developments in the San Jose case.