CA Supreme Court rules private emails, text messages of public officials can be public records

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On Thursday, the California State Supreme Court unanimously ruled that emails and text messages from the personal accounts of public officials in California can be subject to public review if they are conducting public business on those private accounts.

The court ruled that the personal accounts of San Jose city officials used to conduct public business were subject to disclosure under California Public Records Act, or CPRA.

According to professor James Wheaton, founder of the First Amendment Project and visiting instructor at the UC Berkeley Graduate School of Journalism, the ruling is a “ ‘huge victory’ for California” because it will release more information into the public sphere.

“(The CPRA has) been a tremendous engine for keeping citizens informed and for keeping public officials accountable,” Wheaton said. “Without the CPRA, the Daily Cal would not have been able to get the last three years of complaints (regarding sexual misconduct). The university would have buried it.”

According to the court opinion, 32 requests for public records were filed with the city of San Jose by petitioner Ted Smith in 2009 related to city redevelopment efforts in Downtown San Jose. Issues came up in relation to retrieving records from the private electronic devices of city officials; the city did initially disclose records from city-owned accounts, but did not disclose the same emails and text messages from the personal accounts of the mayor, city council and their respective staff.

In the lawsuit filed by Smith, the Santa Clara County Court ordered disclosure of these private records of San Jose city officials. The city appealed to the California Court of Appeals, which reversed the county’s decision, and the records under private accounts were deemed private records as these private accounts were paid for by private citizens. The appeals court ruled that accounts not owned, used or controlled by a public agency did not fall under the purview of the CPRA.

The California State Supreme Court’s opinion, authored by Justice Carol Corrigan, an associate justice on the state Supreme Court, reversed the appeals court ruling, sending the case back to the Santa Clara County Court, which will issue an order to the city of San Jose to search for and release all records that fall under disclosure.

“We conclude a city employee’s 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,” Corrigan wrote in her opinion.

The court offered policy suggestions for agencies to follow, to reduce the likelihood of public records held in private accounts, citing the example of federal agency employees being prohibited from using personal electronic accounts for official business unless messages are copied or forwarded to an official government account.

The court’s ruling impacts not only public state officials but also university officials, according to Wheaton. UC spokesperson Ricardo Vazquez said in an email that the university’s Electronic Communications Policy is congruent with San Jose’s decision and that university employees should comply with requests for their public records regardless of whether these records are on university-owned or public accounts.

Wheaton said he believed the impact of the court ruling for Berkeley city officials and UC officials could be swift.

“I think … members of Berkeley City Council, or UC officials, are going to stop using personal email or other electronic accounts for business immediately,” Wheaton said. “If you’ve been mixing your personal with your professional, cut it out. It just got pulled into the (C)PRA by this ruling.”

Contact Bobby Lee at [email protected] and follow him on Twitter at @bobbylee_dc.

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  • it_must_be_dunning-kuger . . .

    FOI regulations provide the public with a means to obtain public records. To say that documents would be or have been “buried” because absent a request they weren’t disclosed is asinine. How could any public entity operate if it were to spend what would amount to a considerable amount of time evaluating every document, email, communication, record, etc. on every matter regardless of significance in anticipation that it MIGHT be requested? If there is a pervasive need by the public for a document, then mandate that it be provided rather than subject to request. On the other hand, be aware that all services by public entities require taxpayer funds to operate and while the public has an absolute right to information, the purpose of FOI regs is not to enhance a reporter’s career.