Earlier this month, the California Supreme Court issued an important ruling regarding the California Public Records Act (“CPRA”) (Govt. Code §6250 et seq.) and held that writings of a public employee may be subject to the CPRA even if they are sent using a personal account. City of San Jose v. Superior Court (March 2, 2017, No. S218066) __ Cal.5th __. In so doing, the Supreme Court overturned a 2014 appeals court opinion that had supported the City of San José’s refusal, in response to a broad CPRA request regarding the City’s redevelopment efforts, to provide communications made by City officials using the individuals’ personal accounts. The Supreme Court agreed with the original trial court opinion and held that electronic communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account.
In reaching its decision, the Court relied upon and emphasized numerous important considerations related to the availability of public records under the CPRA that should be kept in mind, especially in the context of development and environmental review under CEQA. The Court’s opinion does, however, leave open some fairly important issues regarding the means of providing access to such privately held public records.
Under the CPRA, originally enacted in 1968 and reinforced through a constitutional amendment adopted in 2004, California public agencies are required to disclose public records upon request, unless the specific record is exempted from disclosure by statute. The CPRA, in turn, defines “public records” 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 its 2014 opinion, the Sixth District Court of Appeal focused on the City’s assertion that it did not have access to records located on private accounts and devices, holding that such records were not “public records” under the CPRA.
The Supreme Court rejected this position and held that documents did not lose their status as public records simply because they are located in an employee’s personal account. “A writing retained by a public employee conducting agency business has been ‘retained by’ the agency within the meaning of Section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.” The Court relied on earlier decisions, such has one holding that an “agency has constructive possession of records if it has the right to control the records, either directly or through another person.” Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 710. Under the logic of Consolidated Irrigation and related opinions, a jurisdiction would be deemed to have “constructive possession” of documents held by its consultants or subconsultants if the jurisdiction retained a contractual right to control the consultants/subconsultants or their files. This “constructive possession” logic could apply to, among other materials, reports and other materials related to environmental evaluations under the California Environmental Quality Act (CEQA).
The Court also provided general guidance as to how agencies should respond to this new holding, including means to address the intermingling of private communications, which can be withheld from disclosure, and public records that must be disclosed upon request. Due to the unique posture of the case, however, the opinion left many items open – which the Court suggests may result in further litigation. (“If the City maintains the burden of obtaining records from personal accounts is too onerous, it will have an opportunity to so establish in future proceedings.”) The Court noted that a public agency could require that its employees use or copy their government accounts for all communications touching on public business. Notably, however, this is one of the many statements in the opinion that reference agency “employees” rather than officials, and the Court did not address whether a local jurisdiction could apply this requirement to its elected officials.
The Court did not provide or mandate any definitive procedures to follow if a request for public records seeks items in personal accounts or on personal devices. The Court did say that an “agency’s first step should be to communicate the request to the employees in question,” and the agency could in turn “reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material” (emphasis in original). The Court also noted that federal courts applying the Freedom of Information Act (FOIA) have approved individual employees conducting their own searches and segregating personal and public records if those employees have received appropriate training. The Court also cited with approval a procedure available under FOIA and Washington State’s public records law under which an employee who withholds a potentially responsive record could submit an affidavit that documented the individual’s basis for asserting that the requested item was personal in nature and did not constitute a public record. The Court noted that the Washington Supreme Court has held that an agency would be deemed to have performed an adequate search under the applicable law if such an affidavit provides the agency (and any reviewing court) a sufficient “factual basis” to determine the that employee properly withheld the material.
Among the other issues that were not addressed in this case was its application to text messages sent on employees’ or elected officials’ personal devices. The Court did not specify the means for retrieving or providing these materials, nor did it provide any guidance on the application of document retention provisions to text messages, which are often deleted fairly rapidly and are not as easily retrieved or forwarded. Additionally, the Court did not address situations where a public official serves on multiple agencies, such as a city councilperson that is also an appointed representative to a multi-jurisdictional agency, and the official uses the email account provided by the city to address issues of one or more other agencies. Under the logic of this case, the emails on the city account would be deemed to be “retained” by the other agency, but the procedure for requesting those emails is unclear. Prior to this decision, it would have been obviously appropriate to require that a CPRA request be submitted directly to the agency hosting the account, but that may no longer be a legally-justified position.
The implications of this new California Supreme Court opinion need to be carefully considered by public agencies and their employees and officials, as well as by those who communicate with public agencies. As a starting point, we believe that it would be appropriate for agencies to follow the Court’s suggestion and require that their employees use – or at least copy – their government email accounts for all communications touching on public business. Agencies may also want to consider instructing employees and public officials to use email rather than text messages for public business. Taking these steps will help agencies ensure that they are complying with the CPRA, and will also avoid the need for agencies to monitor and verify their employees’ and public officials’ searches through their private email and text records for documents related to agency business.
As further cases are reported regarding this matter, we will provide further updates.