On March 27, 2014, the California Court of Appeal held the
California Public Records Act (CPRA) does not require public agencies to
disclose officials’ communications about public business on personal email and
cell phone accounts. The Court held communications
stored solely on private accounts are outside the reach of public records
requests under the CPRA. It is becoming increasingly common for public
officials to conduct public business using private accounts. While members of the public may seek
disclosure of officials’ voicemails, text messages, and emails stored on public
agencies’ accounts, communications on private accounts are protected from CPRA
requests.
In June of
2009, Ted Smith requested, “voicemails, emails or text messages” on personal
electronic devices about “matters concerning the City of San Jose” on private
electronic devices owned by Mayor Chuck Reed, members of the City Council, and
their staff. The City agreed to produce
records stored on its servers and those to or from private devices using City
accounts, but refused to provide communications stored solely on personal accounts. Smith responded by filing a lawsuit in Santa
Clara County Superior Court. The
Superior Court sided with Smith and granted his request.
The Court
of Appeal overruled the Superior Court in favor of the City. The Court found officials’ communications
stored solely on personal devices don’t fall within reach of CPRA requests
because they are not “owned, used, or retained” by the public agency. The Court acknowledged public policy concerns
of the public’s right to know versus the burden on the agency to provide the
information. However, the Court determined
the Legislature is better suited to make such public policy decisions.
The Court
acknowledged public agencies have the right to create its own rules for
disclosure of communications related to public business. In fact, the City of San Jose adopted a
resolution addressing this very issue after Smith filed his lawsuit. Resolution No. 75293 was adopted on March 2,
2010. The resolution revises City
Council Policy 0-33 and allows public access to all communications of the
mayor, City Council members, or their staff, regarding public business on
private devices. Mayor Chuck Reed
himself signed the resolution. However,
the Court stated that the resolution was not relevant to the Court’s
interpretation of the CPRA.
The full court opinion is posted here.
The full court opinion is posted here.
