Public officials can’t shield government business by using personal email, state Supreme Court rules – Los Angeles Times
California’s highest court decided unanimously Thursday that government officials may be required to make public what they said about official business on their private telephones and personal computers.
In a decision written by Justice Carol A. Corrigan, the California Supreme Court said the state’s Public Records Act requires public officials to disclose emails, texts and voicemails from private devices if the communications involved government affairs.
“A city employee’s communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account,” Corrigan wrote. “Sound public policy supports this result.”
Advocates for public access have long complained that government officials were deliberately using private devices to shield their communications from public records requests. Thursday’s decision is expected to end or at least stem the practice.
The court ruled in a case brought by Ted Smith, a community activist who filed a public records request eight years ago for the communications of San Jose city council members and staff about a proposed downtown development.
San Jose supplied some records in response to the request but said communications on private devices were not covered by the public records act. Smith sued, winning in a trial court but losing in a court of appeal.
Cities, counties and other local governments in California urged the court to side with San Jose, arguing they lacked the funds to ensure communications on private devices were disclosed and feared liability if some information on personal devices was not found and produced.
Lawyers for government agencies also complained that their workers’ privacy would be threatened if they had to disclose what they said on their personal devices.
The court’s decision gave cities some guidance about what must be disclosed but said specific rules were not required at this time.
“Whether a writing is sufficiently related to public business will not always be clear,” the court acknowledged.
An email to a spouse complaining that a co-worker was an “idiot” would likely not be a public record, Corrigan wrote, but an email to a supervisor reporting a co-worker’s mismanagement of a project probably would have to be disclosed.
Deciding whether a writing in a personal account is public record will require an examination of the content, the purpose for which it was sent, the person to whom it was sent and whether the communication was prepared within the scope of the worker’s job.
At the least, a communication must “relate in some substantive way to the conduct of the public’s business” to be covered by the public records act, the court said.
“This standard, though broad, is not so elastic as to include every piece of information the public may find interesting,” Corrigan wrote.
If the communication is primarily personal and contains only an incidental mention of an agency, it is not covered, she said.
Karl Olson, who represented the news media, including The Times, in the case, called the decision “a resounding victory for the public.”
He said the ruling sent “a strong message that public officials and employees should not try to evade public scrutiny by using personal accounts.”
“Crooked public employees who slip in their attempts to evade public scrutiny and who engage in shenanigans are going to get caught now,” Olson said.
The ruling does not require government to search the private devices of employees. But it said employees could be required to write declarations explaining how they searched their accounts, what they found and why they decided certain communications were not public records.
Olson argued in the case that the intent of the state public records act to was to make government business public, even though the law was written before the advent of the Internet and cellphones.
He cited a host of cases involving public officials who used private email accounts for government business in Los Angeles, San Diego, San Francisco and Sacramento.
11:10 a.m.: This article was updated with reaction.
10:40 a.m.: This article was updated with additional details from the decision.
This article was originally posted at 10:10 a.m.