By: Brian Ross
On March 2, 2017, the California Supreme Court issued its decision in City of San Jose v. Superior Court (2017) S218066, in which it held that city officials were required to publicly disclose work-related electronic communications over their personal electronic accounts and devices. The case involved a private citizen who formally requested numerous records, including emails and text messages “sent or received on private electronic devices used by” the mayor, city council members, and their staff. The City disclosed communications made using official city telephone numbers and email accounts but did not disclose communications using the individuals’ personal accounts and devices.
The Supreme Court overruled the lower court’s determination that electronic communications relating to the conduct of public business on private accounts were not “prepared, owned…or retained” by the governmental agency and hence subject to disclosure under the California Public Records Act (“CPRA”). This decision is significant because it concerns how laws, originally enacted to cover paper documents, apply to evolving methods of electronic communications while recognizing that, in today’s environment, much employment-related activity occurs outside the conventional workday and outside the employer-maintained work environment. It establishes for the first time a legal standard of disclosure of work-related communications on personally owned devices or over personal email accounts that will have a significant and far-reaching impact on every public employee in the State of California. The mere act of communicating with other public employees and elected officials via personal electronic devices will need to be considered in the context of this decision.
The Public Records Act
The CPRA (Government Code Section 6250, et seq.) was created in order “to require that public business be conducted ‘under the hard light of full public scrutiny’ and thereby ‘to permit the public to decide for itself whether government action is proper.’” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1350.) In creating this 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.” (Gov. Code, § 6250.) Indeed, in 2004, voters codified this principle in the California Constitution by adopting Proposition 59, which stated that “the writings of public officers and agencies shall be open to public scrutiny.” The California Supreme Court had subsequently determined that the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” (Sander v. State Bar of California (2013) 58 Cal.4th 300, 323.)
The California Supreme Court’s Decision
The California Supreme Court framed the legal issue as a narrow one: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” In answering this question in the negative, the Court looked at the language of the CPRA and its intent. It rejected the City’s arguments that personal communications were not “prepared” by the local agency and were not “owned, used, or retained by the local agency” and, thus, were not a “public record” under the CPRA. The Supreme Court concluded (at p. 10) that the CPRA includes not only the governmental entity, but also its individual officers and employees. Moreover, the Supreme Court found that a document is retained by the agency within the meaning of the CPRA, “even if the writing is retained in the employee’s personal account.” (Decision, p. 13.)
To be subject to disclosure under the CPRA, the records must relate in some substantive manner to the conduct of the public’s business. However, the Supreme Court cautioned (at p. 7) that, “This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”
The Impact of the Decision on Public Employees
This decision will have a significant impact on all public employees in the State of California, and most assuredly, peace officers. Pursuant to the CPRA, the public agency has an obligation to search, collect, and disclose material requested in a Public Records Act request. Such records would include information in the actual or constructive possession of the agency, and according to this recent decision, public records do not lose their status merely because they are located in an employee’s personal account or on a personal device (e.g., cell phone). Therefore, the decision recognizes the right of the agency to undertake a “reasonable effort” to locate responsive documents to the Public Records Act request, including through the search of an employee’s personal account.
Although the CPRA does not prescribe specific methods of searching for documents, the California Supreme Court explored potential methods to accomplish the search for documents. For instance, the Court indicated that agencies could develop internal policies for conducting such searches, or could rely on employees to search their own personal files and devices for responsive materials. Alternatively, the Court also suggested that public agencies could develop policies that would reduce the likelihood of public records being held in employees’ private accounts.
The Court cautioned, however, that any personal information not related to the conduct of public business or falling under a statutory exemption under the Act could be redacted, (Gov. Code, § 6253(a)) but that such privacy concerns would need to be addressed on a case-by-case basis. The Court also noted the catchall exemption under the CPRA which allows agencies to withhold any record if the public interest served by withholding it clearly outweighs the public’s interest in disclosure. (Gov. Code, § 6255(a).) Such an exemption permits a balance between a public’s interest in disclosure and an individual’s privacy interest.
This decision will certainly cause public agencies to examine their policies and practices regarding electronic communications. It may impact the reasonable expectation of privacy a public employee has in a personal device if he or she uses that personal device for official business. Any expectation of privacy must be reasonable (see Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287-88) and the United States Supreme Court has held that “. . . Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” (O’Connor v. Ortega (1987) 480 U.S. 709, 717). Thus, we may see an employer argue that an employee who conducts official business on a personal device or account after this decision should know that such records will be subject to disclosure through the CPRA and, therefore, the employee has a reduced expectation of privacy in the device and the private account in general.
In the wake of this decision, labor organizations and individual employees should anticipate that agencies will likely be adopting policies and procedures respecting searches of private devices and regulating electronic communications. Employee organizations should be vigilant to exercise all applicable meet and confer rights under collective bargaining statutes to ensure that any such agency procedures are consistent with privacy rights established by the United States and California Constitutions.
Moreover, the Court’s decision should cause every public employee to seriously consider when, how, and whether to use their personal cell phones for anything related to the business of the agency they work for. Peace officers in particular should be especially reluctant to use their personal communication devices and accounts for law enforcement business as the nature of their work places them at even greater risk of having their personal cell phones accessed.
Brian Ross, the author, is an attorney in the Litigation and Collective Bargaining practice groups of the Santa Monica office of Rains Lucia Stern St. Phalle & Silver, PC. Editing contributions were made by firm partners Rockne Lucia (Pleasant Hill), Robert Wexler (Santa Monica) & Richard Levine (Santa Monica).