Use Of Private Cell Phone Can Create Public Record

A major decision from the California Supreme Court has held that the use of a private cell phone by a public employee for work-related purposes can create a public record.

The case began in June 2009, when Ted Smith requested disclosure of 32 categories of public records from the City of San Jose, its redevelopment agency and the agency’s executive director, along with records from certain other elected officials and their staffs. The targeted documents concerned redevelopment efforts in downtown San Jose and included emails and text messages “sent or received on private electronic devices used by” the mayor, two city council members, and their staffs.

The City disclosed communications made using City telephone numbers and email accounts but did not disclose communications made using the individuals’ personal accounts. Smith protested, and the case made its way to the California Supreme Court.

The Court began its opinion with the proposition that California’s Public Records Act “establishes a basic rule requiring disclosure of public records upon request. In general, it creates 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. A section of the Act sets out a variety of exemptions, many of which are designed to protect individual privacy. The Act also includes a catchall provision exempting disclosure if the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.”

The Court then turned to the first substantive question – whether cell phone records were “writings” subject to disclosure. The Court observed that when the Act was passed in 1968, “creating a ‘writing’ could be a fairly involved process. Typically, a person would use an implement to type, or record words longhand, or would dictate to someone else who would write or type a document. Writings were generally made on paper or some other tangible medium. These writings were physically identifiable and could be retrieved by examining the physical repositories where they were stored. Writings exchanged with people outside the agency were generally sent, on paper, through the mail or by courier. In part because of the time required for their preparation, such writings were fairly formal and focused on the business at hand.

“Today, these tangible, if laborious, writing methods have been enhanced by electronic communication. Email, text messaging, and other electronic platforms, permit writings to be prepared, exchanged, and stored more quickly and easily. However, the ease and immediacy of electronic communication has encouraged a commonplace tendency to share fleeting thoughts and random bits of information, with varying degrees of import, often to broad audiences. As a result, the line between an official communication and an electronic aside is now sometimes blurred.”

To help bring clarity to the issue, the Court turned to whether cell phone records related to the conduct of the public’s business. The Court found that “to qualify as a public record under the Act, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business. This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard. However, an employee’s electronic musings about a colleague’s personal shortcomings will often fall far short of being a writing containing information relating to the conduct of the public’s business.”

The Court then turned to the City’s core argument, which focused on the final portion of the “public records” definition, which requires that writings be “prepared, owned, used, or retained by any state or local agency.” The City argued this language did not encompass communications agency employees made through their personal accounts.

The Court disagreed, finding that “a writing is commonly understood to have been prepared by the person who wrote it. If an agency employee prepares a writing that substantively relates to the conduct of public business, that writing would appear to satisfy the Act’s definition of a public record. Broadly construed, the term ‘local agency’ logically includes not just the discrete governmental entities listed but also the individual officials and staff members who conduct the agencies’ affairs. 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.”

The City also argued that the cell phone records need not be disclosed because the Act only required the disclosure of records in the “possession” of a governmental body. The Court bluntly responded: “The argument fails. Records related to public business are subject to disclosure if they are in an agency’s actual or constructive possession. An agency has constructive possession of records if it has the right to control the records, either directly or through another person. We hold that public records do not lose this status because they are located in an employee’s personal account.”

The City’s last argument was that a search for public records in employees’ accounts would itself raise privacy concerns, and that it would have to demand the surrender of employees’ electronic devices and passwords to their personal accounts. The Court was unconvinced, holding that “assuming the search for responsive documents can also constitute an unwarranted invasion of privacy, however, this concern alone does not tip the policy balance in the City’s favor. Searches can be conducted in a manner that respects individual privacy.

“The City has not attempted to search for documents located in personal accounts, so the legality of a specific kind of search is not before us. However, the City and some amici curiae do highlight concerns about employee privacy. Some guidance about how to strike the balance between privacy and disclosure may be of assistance.

“The Act does not prescribe specific methods of searching for those documents. Agencies may develop their own internal policies for conducting searches. As to requests seeking public records held in employees’ nongovernmental accounts, an agency’s first step should be to communicate the request to the employees in question. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.”

City of San Jose v. Superior Court, 2017 WL 818506 (Cal. 2017).