CA Supreme Court: Public Records Act Applies to Public Business Conducted on Personal Accounts

The California Supreme Court ruled today that public officials' communications about public business is a public record, even if officials use personal accounts.  In City of San Jose v. Ted Smith, a local activist sought communications about a redevelopment project in downtown San Jose.  He made a request under the California Public Records Act (CPRA).  The request included any voicemails or emails from the Mayor of San Jose, the members of the City Council, and any staff regarding matters concerning the City of San Jose.  Initially, the trial court determined the requests to be valid.  The City appealed.

Then, the Court of Appeal reviewed the language of the CPRA.  The court ruled information held on private devices is not subject to CPRA.  The court reasoned the CPRA defines public records as writings owned, used, or retained by any state or local agency, not individual. The court believed this means individuals are not covered by the CPRA.

The California Supreme Court did not find this reasoning persuasive.  The legislative intent of the CPRA was to create a right of access to public information.  If the public document does not fall into a narrow exception the standard should be disclosure.  One notable exception is a law enforcement officer’s personnel file.

The Court reasoned the CPRA should be read broadly and construed to further the people’s right to access public documents.  If a document is used by a city official in conducting city business the document is retained by the city.  This is true regardless of where the document is stored.

The City's argued it should not have to look through personal email accounts for public records because it was too hard and would cost money.  The Court was unconvinced by this argument and held he government agency is required to disclose all records they can locate “with reasonable effort.”  However, it cannot avoid disclosure by declaring a request to be too burdensome.

Mastagni Holstedt filed an Amicus Curiae brief in the case representing more than a dozen public safety labor associations.  The brief emphasized how some high ranking public officials use their personal accounts to evade the requirements of the CPRA, especially in the context of collective bargaining and labor relations.  For example, during the Stockton bankruptcy, city officials communicated with purportedly independent outside consultants about modifying to their findings and recommendations using personal emails.  Prior to today’s ruling, government agencies could shield such information from disclosure under the CPRA.  Today’s decision puts an end to these practices.  Moreover, the Court's interpretation of the CPRA will likely be extended to information requests under public sector bargaining laws, such as the MMBA.  

From a labor perspective, permitting public officials, such as City managers, to bypass open records laws by using personal electronic devices would have adversely affected union access to information necessary to represent their members.  

The Court also provided guidance to public agencies for complying with these obligations while protecting privacy rights.  Notably, the Court recommended agencies require that employees use or copy their government accounts for all communications touching on public business.  In terms of searches, the agencies can comply by communicating the request to the employees and "then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material."  Attorneys David E. Mastagni, Isaac S. Stevens, and Jeffrey R. A. Edwards represented these amici.

Dash Camera Video Not Part of Officer’s Personnel Record, Court Rules

A California appeals court ruled this week that dash camera footage is not part of an officer’s confidential personnel record, even though it was used in an internal affairs investigation against the officer. The Court of Appeal ruled in City of Eureka v. Superior Court (Thadeus Greenson) (1st Dist., July 19, 2016) that Pitchess statutes do not protect this kind of video footage from being released to the public.

Eureka Police Sergeant Adam Laird and other officers arrested a juvenile suspected of gang activity. After the incident, the Eureka Police Department opened an internal affairs investigation into Sergeant Laird’s conduct, eventually deciding to fire him. And the Humboldt County District Attorney’s Office charged Laird with misdemeanor assault by a police officer without lawful authority and making a false police report. Both investigations alleged that Laird used excessive force against the suspect, including pushing him to the ground and then kicking or stomping on him repeatedly.

A key piece of evidence in both of these investigations was the video recorded by the dash camera in another officer’s vehicle. This video apparently recorded the whole interaction between Sergeant Laird and the juvenile suspect. Experts hired by both the prosecution and Laird’s defense attorney determined Laird’s use of force was justified under the circumstances. The prosecution dropped the charges and the Department halted its termination of Laird.

However, a local newspaper reporter then filed requests for the video footage. The reporter claimed the video was a public record. A trial judge in Humboldt County agreed and ordered the City of Eureka to release the video. The City appealed the judge’s order, arguing the video was part of Laird’s confidential personnel file and could only be released through the procedures required by the Pitchess statutes.

The Court of Appeal rejected the City’s argument and affirmed the order to release the video. The Court ruled that because the video was recorded before any investigation had begun, it was an independent record and was not part of Laird’s personnel file. Because the video was merely considered during the investigation and was not generated by it, the video was not a record related to “employee advancement, appraisal, or discipline.”

The Court relied on the major decision by the California Supreme Court two years ago in Long Beach Police Officers Association v. City of Long Beach (2014). In that case, the Supreme Court ruled that Long Beach could not withhold the identity of a police officer who had been involved in a shooting, but must disclose it to requesting newspapers. Here, the Court of Appeal ruled that dash camera footage is similar to an officer’s identity and must be released to the public.

The Court of Appeal’s decision is a serious setback to the privacy interests of peace officers across the state. Under the ruling, potentially all dash camera and body camera footage could be subject to public release.

CPRA May Grant Access to Personnel Records When There is a Strong Public Interest in Disclosure

In Caldecott v. Superior Court of Orange County, the Fourth Appellate District found records associated with a personnel complaint were subject to disclosure under the California Public Records Act ("CPRA"). The court also found an employee's motivation for requesting the documents was irrelevant. Also, whether or not the employee already had the documents was irrelevant.

Caldecott involved a former Newport-Mesa Unified School District employee's request for documents associated with a personnel complaint. John Caldecott worked as an Executive Director of Human Resources. He filed a personnel complaint against District superintendent Fred Navarro. Caldecott alleged Navarro created a hostile work environment and committed misconduct in regards to employee salaries. The District did not take any official action against Navarro, finding Caldecott's allegations unsubstantiated. Subsequently, the District fired Caldecott without cause. Caldecott alleged he was fired in retaliation for filing a complaint against Navarro.

Caldecott requested documents under the CPRA that were associated with his complaint against Navarro. Caldecott requested copies of the District's response to his complaint, and an e-mail Caldecott sent to the District's board regarding the response. Caldecott already had the documents, but he wanted the freedom to publicly disclose the documents without fear of liability. The District denied Caldecott's request claiming disclosure would cause an invasion of personal privacy. The District also denied his request because of "the potential impact of an unjustified accusation on the reputation of an innocent public employee."

The Court of Appeal ruled the documents were subject to disclosure under the CPRA. Caldecott's motivation behind his request and the fact that he already had the documents were irrelevant. Rather, the court weighed the potential harm to Navarro's privacy interests against the public's interest in disclosure. The court found a strong public interest in judging how Navarro responded to Caldecott's claims, especially in light of Caldecott's termination without cause. The court also found a strong public interest in assessing how the District's elected board treated the serious misconduct allegations against its highest ranking administrator. The court awarded Caldecott attorneys fees and costs for successfully challenging the denial of a CPRA request.

This case did not concern the confidentiality of peace officer personnel records. Penal Code section 832.7 creates additional protections for peace officer and correctional officer records.

Assembly Committee on Public Safety Holds Hearings on Police Body Worn Cameras

On March 3, 2015, the Assembly Committee on Public Safety held a hearing titled “Law Enforcement Use of Body Cameras: Policies and Pitfalls”, on a variety of issues relating to Police Use of Body Worn Cameras and proposed legislation.

Two prominent advocates for the rights of public safety officers testified before the Committee, David Mastagni, Managing Partner of Mastagni Holstedt, APC, and Edward Fishman, the Legal Administrator of the PORAC Legal Defense Fund.

Mastagni’s testimony provided insight into the collateral impacts of the Body Camera footage in a variety of litigation contexts.  Fishman testified regarding the balancing transparency and privacy, and the need for local control over the specifics of each Department’s camera policy.

Both Fishman and Mastagni expressed support on behalf of law enforcement for responsible use of body worn cameras, which must include policies protecting the rights of victims, witnesses, officers and the public.  Both witnesses pointed out the need to protect against mass disclosure of sensitive recordings and protecting the privacy rights of victims and witnesses.

PORAC is supporting important legislation providing a balanced framework for implementation of body worn camera policies and protecting against unwarranted disclosures.

New Jersey Superior Court Rules Police Dashboard Video Recordings are Public Records

A New Jersey Superior Court judge ruled in two separate cases police dashboard video recordings are public records subject to disclosure under New Jersey's Open Public Records Act. In his most recent decision, the judge ordered the Ocean County Prosecutor's Office to disclose a police dash-camera video depicting a police officer's use of a police dog during an arrest. The court found the video was not an exempt "criminal investigatory record," and disclosure did not violate the motorist's privacy rights.

The video shows an officer's use of a police dog during a vehicle stop arrest. The officer has been charged with aggravated assault and official misconduct. Plaintiff John Paff requested a copy of the video from the Prosecutor's Office on May 20, 2014. The Prosecutor's Office denied Paff's request arguing the videos were exempt from disclosure because they were criminal investigatory records.

The court ruled the Prosecutor's Office must disclose the video. He found the "ongoing investigation exception" does not apply because the video was made before the investigation began. This exception does not retroactively render public documents confidential once an investigation starts. Also, since police agencies require regular recording of law enforcement activities, the video constitutes a government record rather than a "criminal investigatory record." And disclosure does not harm the motorist's privacy rights because the incident occurred in a public place, and her face cannot be seen in the video.

The Ocean County Prosecutor's office plans to appeal the rulings. Releasing such videos may taint the jury pool preventing defendants from receiving a fair trial. In addition, the outcome of these cases may spur litigation under public records laws in other states.

BART POA Wins Injunction Protecting Identity of BART Officer Involved in Critical Incident

In BART Police Officers Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident.

The Department sought to release the name of an officer identifying the officer as the subject of a disciplinary investigation following a use of force incident that gained widespread notoriety.

Following a use of force incident, a citizen made a complaint against the officer, and the department made statements to the media that the incident was under investigation. The Department informed the officer that they intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident. The Department informed BART POA it intended to release the officer’s name to the press.

BART POA President Keith Garcia immediately moved to protect the officer’s privacy. BART POA sent a cease and desist letter to the Department and prepared an application for a temporary restraining order. Then the POA secured an agreement from the District to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.

Then, on April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction protecting officer privacy until at least 30 days after the California Supreme Court decides two closely related cases.

The California Supreme Court is considering two important cases about peace officers’ privacy rights. In Federated University Police Officers Association v. Superior Court, the Court will decide whether or not the California Public Records Act can be used to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011.

In Long Beach Police Officers Association v. City of Long Beach, the Court will decide whether the California Public Records Act requires agencies to release the names of officers involved in officer-involved shootings. Together, these cases will establish the legal foundation for how these information requests must be treated in the future. In the meantime, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

Mastagni Law attorneys Kevin A. Flautt, David E. Mastagni, Jeffrey R. A. Edwards, and Brendon P. Parenti represented BART POA in the matter.

Court of Appeal Rules CPRA Does Not Require Public Agencies to Disclose Officials’ Communications on Personal Accounts

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.

AB 76 Guts Local Labor Associations' Access to Public Records

AB 76 makes key provisions of the California Public Records Act optional for local governments.  Among the provisions that would be optional under the new law are the requirements local agencies respond to public records requests within 10 days and provide requestor’s with electronic versions of public records.  These provisions are critical to labor associations who need prompt responses to public records requests, especially during contract negotiations.  The Assembly and Senate passed the bill, which contains other provisions related to the budget.  It is currently on the Governor’s desk awaiting signature. 

Since the provisions received significant attention earlier this week, Assembly Speaker John Perez promised to pass a replacement bill that leave the Public Records Act intact.  However, it looks like the State Senate will not act on his replacement bill.  Senate President Pro Tem Darryl Steinberg announced today the Senate won’t take up Perez’s bill, noting the changes to the Public Records Act are designed to save money, not stifle access to records.  That’s because if the provisions are mandatory, the State has to reimburse local governments for compliance, but if its optional, the State doesn’t have to reimburse them.  While local labor associations have other access to records under the MMBA and state labor laws, unlike the MMBA, the CPRA has a powerful enforcement mechanism giving associations teeth when they have to force an employer to turn over public records.

Bill Introduced to Create "Union Agent-Represented Employee Privilege"

Assemblymember Roger Hernández introduced a new bill, AB 729, to create a new privilege, giving union representatives the right to refuse to disclose their communication with union members.  The law would create a new evidentiary privilege in California, like attorney-client, priest-penitent, and doctor-patient privilege.

The proposed law would give union representatives the "privilege to refuse to disclose any confidential information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while acting in his or her representative capacity" with some exceptions.  In discipline cases, the employee would have the right to insist the union representative not disclose communications.  In all other cases, the union is the sole holder of the privilege.

Court of Appeal: Names of Police Officers Involved in Critical Incidents Not Always Confidential

In Long Beach Police Officers' Association v. City of Long Beach, (February 7, 2012) the Second District Court of Appeal ruled the city must release the names of police officers involved in officer-involved shootings.  In reaching its decision, the Court disagreed with the arguments of the POA and the city against disclosure, but declined to issue a blanket rule, noting public agencies have to consider disclosure on a case-by-case basis.

The case arose after the Los Angeles Times sent a public records request to the city requesting the names of all police officers involved in officer-involved shootings for a five-year time period.  After the city initially agreed to comply, the POA sued the city and the city backed down.  Then the LA times sued the city.  After initially blocking the release, the superior court ordered the city to release the names and the city and POA appealed.

The Court held the names of officers were not confidential personnel records protected from disclosure by the Penal Code.  The Court also decided not to apply the so-called "catch-all" exception to the public records act.  The catch-all exception applies whenever "the public interest served by withholding the records clearly outweighs the public interest served by disclosure."  The POA argued the exception applied because of threats to officer safety.  The Court, however, held "generalized safety concerns" are not enough to trigger the exception, but noted  "in certain circumstances protecting the anonymity of a peace officer may outweigh the public interest in disclosure."