Local Agency Officials and Employees – Your Private Electronic Devices Are Not So Private Anymore!

By Kane Thuyen

California Supreme Court Holds That Local Agency Employee and Official Emails Or Text Messages About Local Agency Business, Sent, Stored Or Received In A Personal Account Or Private Electronic Device, Are Not Exempt From Disclosure Under The California Public Records Act.

In the wake of this recent California Supreme Court decision, local agencies will want to consider refining their public records and records retention policies and adopt new policies for conducting searches of the emails, and private phones and data devices of local agency officials and employees.

On March 2, 2017, the California Supreme Court issued its expansive opinion in City of San Jose et al. v. The Superior Court of Santa Clara County (Smith), which involved a public records request seeking emails and text messages sent or received on private electronic devices used by officials and employees of the City of San Jose. The Court addressed head on whether such emails or text messages were “public records” subject to disclosure under the California Public Records Act (CPRA). The Court concluded, even though emails and texts were sent, received, or stored on the official or employee’s private electronic devices, that because they related to the City’s business, the emails and texts constituted public records subject to disclosure under the CPRA. The Court further held that the local agency had an obligation to direct their officials and employees to search for and produce responsive records.

In reaching its conclusion, the Court largely rejected the privacy-based policy arguments of local agencies and collective bargaining groups, holding that records that would otherwise be considered public records did not become exempt from production simply because they were not in a local agency’s physical possession or held on an official or employee’s private electronic device. However the Court did describe a series of factors for local agencies to consider in determining whether a writing held on a private device was sufficiently related to the local agency’s business to constitute a public record, including: content; context; purpose of the message; the audience to whom it was directed; and whether it was prepared by the official or employee acting or purporting to act within the scope of their duties.

The Court suggested that local agencies develop their own internal policies to address the disclosure requirements of the CPRA in light of the privacy concerns, including crafting agency-specific internal policies for conducting searches for relevant “public records” that may be found in private email accounts or devices.

Burke, Williams & Sorensen will be assisting clients with updating their policies to address this decision.

For more information or assistance, please feel free to contact the author, Kane Thuyen or Eric S. Vail, Chair of Burke’s Public Law Practice Group at 800.333.4297 or complete the form below.

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