Case Summary and Outcome
The California Supreme Court, reversing the Court of Appeal, held that email communications on private accounts by public officials are public records and thus subject to disclosure under the California Public Records Act (CPRA) if related to the conduct of public business. The privacy of the city employees did not outweigh the interest in transparency of public business as stated in the California state constitution. Ted Smith sued the city of San Jose, California under CPRA for the production of emails and text messages concerning redevelopment efforts in downtown San Jose from city employees’ personal accounts. The Court was concerned that if public officials could circumvent the law simply by using a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny. The Court ruled that transparency in government activities was essential and while it was important to be sensitive to the privacy of public officials, this did not justify a categorical exclusion of all communications on personal accounts especially when personal communications unrelated to the conduct of public business could be redacted and excluded from public disclosure.
Ted Smith (“Smith”) requested a variety of communications from the City of San Jose (“the city” or “San Jose”), the city’s redevelopment agency, and several city employees and elected officials under CPRA. The requested communications concerned redevelopment efforts in downtown San Jose and included emails and text messages on private electronic devices belonging to the mayor, two city council members, and their staffs. San Jose disclosed communications from city email accounts and telephone numbers, but not emails or texts from the personal accounts and devices of the public officials, claiming they were not public records under CPRA.
Smith sued for declaratory relief in Santa Clara County court for a ruling that the communications on the private devices were subject to disclosure under CPRA. The Santa Clara county court ruled in Smith’s favor and ordered disclosure of the requested communications. The California Court of Appeal reversed the county court’s decision by way of a writ of mandate. Smith appealed the case to the California Supreme Court seeking a ruling that the requested communications were covered by CPRA.
Corrigan, J., delivered the opinion of the Court, with the six other justices concurring.
The California legislature enacted CPRA in 1968, modeling it on the U.S. federal Freedom of Information Act (FOIA). CPRA states that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
In 2004, voters made this principle part of the state constitution. A provision added by Proposition 59 states: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, . . . the writings of public officials and agencies shall be open to public scrutiny.” The Court stated that “Public access laws serve a crucial function,” and “Openness in government is essential to the functioning of a democracy.” It said that public access laws help enforce governmental accountability and the right to such information serves as a check on the arbitrary and secretive exercise of political power. Prop. 59 also mandated that courts broadly interpret statutes in favor of the people’s right to access, and narrowly interpret laws that limit access.
Competing with the need for transparency and access is the right to privacy, also enshrined in the California Constitution. Public access does not supersede the right to privacy, and the California legislature was mindful to include exemptions in the CPRA to protect individuals’ privacy. Included in the exemptions was a catchall provision preventing disclosure if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.” Accordingly, the Court had to balance the right to personal privacy with the right to public access.
The CPRA’s general power created “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,” and records must be disclosed unless there is a valid exception in the statute. (quoting Sander v. State Bar of California.) The CPRA defines a “public record” to include “1. any writing; 2. containing information relating to the conduct of the public’s business; 3. prepared, owned, used, or retained 4. by any state or local agency regardless of physical form or characteristics.”
The desired emails and text messages were clearly writings, as the broad CPRA definition of “writing” includes typed and handwritten notes as well as emails. However, the Court observed that the immediacy and ease of modern electronic communication have in some instances blurred the line between an official communication and an electronic aside as people (including public officials) share information constantly and indiscriminately.
The next prong of the public records definition involved discussion as to whether the sought emails and text messages were related to public business. To be considered a public record, the writing must “contain information relating to the conduct of the public’s business.” The Court observed that it wasn’t always clear whether something is sufficiently related to public business, such as when a public employee privately insults a superior or impugns the management of an agency project. It said that resolution of the question, particularly when writings are kept in personal accounts, will often involve an examination of several factors, but because the city had categorically declined to disclose all the requested communications, the relevance of any specific communication was not currently at issue. The Court said that the connection to public business can be contested for specific (or all) communications upon disclosure, but the city could not categorically conclude that the communications were not public records based solely on the mode of communication. The texts and emails that were sufficiently related to public business were covered by CPRA and thus subject to disclosure, regardless of their presence on a personal account.
San Jose concentrated its objection on the prong requiring that the writing be “prepared, owned, used, or retained by any state or local agency.” The city claimed that communications on private devices owned by public officials are not “prepared by” the state. The city focused on the omission of individual government officials from the CPRA’s definition of “local agency,” an argument the Court found unconvincing because “a governmental entity, like a corporation, can act only through its individual officers and employees. … It said that a disembodied governmental agency cannot prepare, own, use, or retain any record, only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf.” Therefore, a writing created or prepared by a public employee conducting public business is “prepared by” the governmental entity, regardless of whether that employee is using a personal account.
San Jose also argued that the last prong of the public records definition was not satisfied because the city and agency coworkers don’t have access or control to an employee’s personal account. The Court said that records were “retained by” an agency if the agency actually or constructively possesses the records, which includes indirect control of a record through another person or party. The Court said that it had been stated in similar FOIA cases, that public records “do not lose their agency character just because the official who possesses them takes them out the door,” and public records were no less public just because a public employee had them stored on a personal account (Competitive Enterprise Inst.) Finally, it would go against the presumptive right of public access to allow public employees to shield communications from disclosure by storing them on private accounts. The Court said that to rule otherwise would only encourage the use of private channels to conduct public business as a way of circumventing public access and “gut the public’s presumptive right of access and the constitutional imperative to broadly construe this right”.
Having considered and applied all four prongs of the definition of “public disclosure,” the Court reviewed the policy implications to ensure that disclosure of the emails and texts from private accounts was desirable. Absent a law requiring public officials to use public channels to conduct official business, “government officials could hide their most sensitive, and potentially damning, discussions” on private accounts to avoid disclosure if the Court did not mandate disclosure of communications on those private accounts. “Open access to government records is essential to verify that government officials are acting responsibly and held accountable to the public they serve…. The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.” The Court said that while it was important to be sensitive to the privacy of public officials, personal communications unrelated to the conduct of public business could in any event be redacted from public disclosure. The privacy interest of public officials does not justify a categorical exclusion of all communications on personal accounts, and privacy concerns can be adequately handled on a case-by-case basis.
The Court also issued guidance for obtaining employees’ information on private accounts to reasonably protect their privacy, such as limiting the intrusiveness of any search, limiting the scope of the search to produce relevant documents, relying on employees to search their own materials for responsive records, adopting policies to limit the existence of public records in personal accounts, and training employees to segregate public and private information and swearing to compliance of an order for records via an affidavit.
In conclusion, the California Supreme Court overturned the lower court by finding that the emails and text messages Smith sought on public officials’ private accounts met the definition of public records in a general sense, and policy considerations in favor of public access and transparency mandated their disclosure despite privacy concerns. It remanded the case for further proceedings consistent with the judgment.