Supreme Court: Personal Cell Phones Subject to PRA Requests

City of San Jose v. Superior Court of Santa Clara County (California Supreme Court Case No. S218066) (Issued on March 2, 2017)

Are communications about government matters sent through a public official’s personal email account subject to disclosure under the Public Records Act (PRA)? The City of San Jose (City) argued that such communications are not “public records” because they are not within the City’s custody or control. The Supreme Court disagreed.

The Court opened its decision by noting that the PRA was designed to “cover paper documents” but that, “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer maintained workplace.” The Court then analyzed whether the electronic communications at issue fell within the purview of the PRA. The Court had little trouble finding that emails (and other forms of electronic communication) are “writings” within the meaning of the PRA. But to be disclosable under the PRA, a writing must “contain information relating to the conduct of the public’s business.” Determining whether a writing is disclosable requires consider of several factors: “the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.” The Court cautioned that writings, “that are primarily personal, containing no more than incidental mentions of agency business generally will not constitute public records.” As an example, the Court said that an email from a public employee to his or her spouse complaining “my coworker is an idiot” would likely not be a public record.

In holding that the PRA covers communications on an employee’s personal device or account, the Court affirmed that under the California Constitution, people have a right to access information held by the government. But, the Court held, such a right to information must be balanced against individual privacy rights. As an example of how to balance the right to information under the PRA versus the right to privacy, the Court provided the following guidance:

  • The PRA only requires the disclosure of records that can be located with “reasonable effort.” Thus, agencies do not have to undertake “extensive or intrusive searches.”
  • Once an agency receives a PRA request, it must communicate the scope of the request to its custodian of records.
  • If the information is held by an employee on his or her personal device or account, then the employee would be the custodian of records for that information and must be notified accordingly.
  • The agency can then “reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.” However, the employee should be provided training on how to distinguish public records from personal records.
  • The employee may justify withholding a potentially responsive writing by providing a declaration containing enough details for a court to determine whether the items are public versus personal records.

Comments

  1. The fear among public agencies was that the agency would be responsible for collecting personal devices and conducting searches on them. The Supreme Court makes clear that this is not the case, at least not the “normal” case.  In the normal case, you can rely on the employee to search his or her own device.  That should ease a lot of the worries of public agencies.
  2. Another interesting aspect of this case is the idea that an agency has “constructive” possession of communications on an employee’s personal device. Does this concept apply outside of the PRA? For example, PERB allows for the issuance of a subpoena duces tecum. Can a party in the PERB case seek writings contained on an individual’s personal cell phone by directing a subpoena to the employer? Would the employer be deemed to have constructive possession of such communications?  That’s going to be an interesting issue….
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