Privacy For Personal Email And Cell Phone Records Of Public Officials

The California Court of Appeals recently issued a significant decision on whether records of communications by public officials on private email and cell phone accounts are considered to be “public records” subject to disclosure. The case involved a citizen named Ted Smith, who requested that the City of San Jose produce “any and all voicemails, emails or text messages sent or received on private electronic devices used by Mayor Chuck Reed or members of the City Council, or their staff, regarding any matters concerning the City of San Jose, including any matters concerning Tom McEnery, John McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated with Urban Markets LLC or San Pedro Square Properties.”

The Court found that the requested records did not fit within the definition of “public records,” and thus were not subject to disclosure. The Court started with the California statute’s definition of the term “public records” as any writing relating to the public’s business if it is “prepared, owned, used, or retained by any state or local agency.” The first task, said the Court, was to determine whether a written communication transmitted to or from a City official’s private electronic device using his or her private account is a “public record” within the meaning of the law.

Smith argued that because “local agencies are inanimate bodies, they can only act through their officials and employees; therefore, records ‘prepared, owned, used, or retained’ by a ‘local agency’ presumptively includes records ‘prepared, owned, used, or retained’ by City officials and employees.” Under this argument, the individual members of San Jose’s City Council and their staff would be legally indistinguishable.

The Court ruled that “close examination of Smith’s argument reveals its logical weakness. Even if we accept the first premise, that a local agency can act only through its officials, it does not follow that every act of an official is necessarily an act of the agency.

“The statute’s definition of ‘local agency,’ however, does not mention individual members or representatives of any public body; it refers to government bodies themselves, including counties and cities. The plain language of this provision thus denominates the legislative body as a whole; it does not appear to incorporate individual officials or employees of those entities. Had the Legislature intended to encompass such individuals within the scope of ‘public records,’ it could easily have done so.

“We therefore cannot agree with Smith that individual City Council members and their staff must be considered equivalent to the City for purposes of providing public access to their writings on public business. Because it is the agency – here, the City – that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition. The City cannot, for example, ‘use’ or ‘retain’ a text message sent from a council member’s smartphone that is not linked to a City server or City account. We believe that the law does not extend its disclosure mandate to writings of individual City officials and employees sent or received on their private devices and accounts.”

The Court conceded “that City Council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern.” However, the Court concluded, “such conduct is for our lawmakers to deter with appropriate legislation. We conclude that the law does not afford a construction that imposes on the City an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a request for messages relating to City business. It is within the province of the agency to devise its own rules for disclosure of communications related to public business.”

City of San Jose v. Superior Court, 169 Cal.Rptr.2d 840 (Cal. App. 2014).