California Supreme Court Rules on Public’s Access to Public Employees’ Personal Email and Text Messaging Accounts

The Supreme Court of California has handed down a long-awaited ruling on the applicability of the state’s public records law to work related emails and text messages sent over a public employee’s personal devices and accounts. At issue in the case is whether governmental employers, such as fire departments, invade employee privacy by requiring employees to provide public access to personally owned email accounts and devices in an effort to comply with public records requirements.

While the case, Ted Smith v. City of San Jose, does not involve a fire department per se, the ruling has inevitable consequences for fire departments in California and perhaps beyond. It will serve as important guidance for courts in other jurisdictions as they wrestle with the balance between the privacy rights of public employees and the public’s right to know in the digital age.

The case was decided today, coming down in favor of the public’s right to access public employees’ personal email accounts and text messages sent via personally owned devices when the communications in question relates to the business of the public agency. The court does a good job of explaining the case. We will approach it from two perspectives, with a brief overview and a more in depth analysis for those who choose to go a bit deeper.

For the brief overview:

  • This case concerns how laws originally designed to cover paper documents apply to evolving methods of electronic communication. It requires recognition that, in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.
  • In June 2009, petitioner Ted Smith requested disclosure of 32 categories of public records from the City of San Jose [under the California Public Records Act or CPRA].
  • 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 sued for declaratory relief, arguing CPRA’s definition of “public records” encompasses all communications about official business, regardless of how they are created, communicated, or stored.
  • The City responded that messages communicated through personal accounts are not public records because they are not within the public entity’s custody or control.
  • The trial court granted summary judgment for Smith and ordered disclosure, but the Court of Appeal issued a writ of mandate. At present, no documents from employees‟ personal accounts have been collected or disclosed.
  • Enacted in 1968, CPRA declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
  • In 2004, voters made this principle part of our Constitution. A provision added by Proposition 59 states: “The people have the right of access to information concerning the conduct of the people‟s business, and, therefore, . . . the writings of public officials and agencies shall be open to public scrutiny.”
  • Public access laws serve a crucial function. “Openness in government is essential to the functioning of a democracy. Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”
  • However, public access to information must sometimes yield to personal privacy interests.
  • CPRA and the Constitution strike a careful balance between public access and personal privacy.
  • This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace.
  • The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?
  • Considering the statute‟s language and the important policy interests it serves, the answer is no. Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.

For those interested in a more in depth analysis:

  • CPRA 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.”
  • Every such record “must be disclosed unless a statutory exception is shown.”
  • Section 6254 [of the CPRA] 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.”
  • We begin with the term “public record,” which CPRA defines to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
  • Under this definition, a public record has four aspects. It is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.
  • Whether a writing is sufficiently related to public business will not always be clear.
  • For example, depending on the context, an email to a spouse complaining, “my coworker is an idiot” would likely not be a public record. Conversely, an email to a superior reporting the coworker’s mismanagement of an agency project might well be.
  • Resolution of the question, particularly when writings are kept in personal accounts, will often involve an examination of several factors, including 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.
  • Here, the City claimed all communications in personal accounts are beyond the reach of CPRA. As a result, the content of specific records is not before us. Any disputes over this aspect of the “public records” definition await resolution in future proceedings.
  • We clarify, however, that to qualify as a public record under CPRA, 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 City focuses its challenge 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 argues this language does not encompass communications agency employees make through their personal accounts. However, the broad construction mandated by the Constitution supports disclosure.
  • 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.
  • The City urges a contrary conclusion when the writing is transmitted through a personal account. In focusing its attention on the “owned, used, or retained by” aspect of the “public records” definition, however, it ignores the “prepared by” aspect.
  • This approach fails to give “significance to every word, phrase, sentence, and part” of the Act.
  • The City’s narrow reading of CPRA’s local agency definition is inconsistent with the constitutional directive of broad interpretation.
  • 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.
  • An agency’s actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested.
  • It is a separate and more fundamental question whether a document located outside an agency’s walls, or servers, is sufficiently “owned, used, or retained” by the agency so as to constitute a public record.
  • In construing FOIA, federal courts have remarked that an agency’s public records “do not lose their agency character just because the official who possesses them takes them out the door.”
  • We likewise hold that documents otherwise meeting CPRA’s definition of “public records” do not lose this status because they are located in an employee’s personal account.
  • A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.
  • In light of these principles, and considering section 6252, subdivision (e) in the context of the Act as a whole … we conclude 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.
  • Sound public policy supports this result.
  • The City counters that the privacy interests of government employees weigh against interpreting “public records” to include material in personal accounts.
  • Of course, public employees do not forfeit all rights to privacy by working for the government.
  • Even so, the City essentially argues that the contents of personal email and other messaging accounts should be categorically excluded from public review because these materials have traditionally been considered private.
  • However, compliance with CPRA is not necessarily inconsistent with the privacy rights of public employees.
  • Any personal information not related to the conduct of public business, or material falling under statutory exemption, can be redacted from public records that are produced or presented for review.
  • Furthermore, a crabbed and categorical interpretation of the “public records” definition is unnecessary to protect employee privacy. Privacy concerns can and should be addressed on a case-by-case basis.
  • The City … contends the search for public records in employees‟ accounts would itself raise privacy concerns. In order to search for responsive documents, the City claims agencies would have to demand the surrender of employees “electronic devices and passwords to their personal accounts. Such a search would be tantamount to invading employees” homes and rifling through their filing cabinets, the City argues. It urges no case has extended CPRA so far.
  • Arguments that privacy interests outweigh the need for disclosure in CPRA cases have typically focused on the sensitive content of the documents involved, rather than the intrusiveness involved in searching for them.
  • 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.
  • CPRA requests invariably impose some burden on public agencies.
  • Unless a records request is overbroad or unduly burdensome, agencies are obliged to disclose all records they can locate “with reasonable effort.”
  • Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however.
  • In general, the scope of an agency’s search for public records “need only be reasonably calculated to locate responsive documents.”
  • A federal employee who withholds a document identified as potentially responsive may submit an affidavit providing the agency, and a reviewing court, “with a sufficient factual basis upon which to determine whether contested items were agency records‟ or personal materials.”
  • The Washington Supreme Court recently adopted this procedure under its state public records law, holding that employees who withhold personal records from their employer “must submit an affidavit with facts sufficient to show the information is not a „public record‟ under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA.”
  • We agree with Washington’s high court that this procedure, when followed in good faith, strikes an appropriate balance, allowing a public agency “to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

Here is a copy of the decision: Smith v San Jose

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • mr618

    How would this affect folks like volunteer FF/EMTs who do not have employer-supplied emails? Our department uses personal email accounts exclusively.

    • CurtVarone

      Essentially what the court is saying is – it does not matter whether the email or text message is sent via personal accounts/devices or city-owned accounts/devices – if it is work-related (ie a public record) it is subject to the public records law.

      The ruling is not so much of a game changer (most attorneys knew this to be the case) as it is a very clear statement that privacy rights of public employees take a back seat to the public’s right to transparency in government.

      • mr618

        So if, for instance, the East Upper Cupcake VFD were to be sued, the personal email accounts of the members would be subject to discovery? And would that be only emails relating to the VFD, or all emails in the account?

        • CurtVarone

          If emails are relevant to a lawsuit they are always fair game, whether public records or not. The public records law goes beyond the scope of discovery in a lawsuit. Discoverability in a litigation context is totally separate from public records and is based on relevance. The scope of discovery would be up to the trial judge – if the parties themselves cannot agree. If the emails are relevant or may lead to relevant evidence they are fair game. If the judge says the person has to produce his/her entire email account… so be it. Highly unlikely IMHO… would have to be an unusual situation but its not out of the question. For public records purposes, it would only be emails related to the public business of the VFD. The case discusses how Washington State has addressed the issue.

          • steveo

            But it would probably be the plaintiffs attorney(s) reviewing all the email to determine so?

          • CurtVarone

            In a lawsuit context typically one side will request the documents from the other side. In a public records case the citizen would request the documents. If the requested documents are NOT provided then the party seeking the documents will apply to a court and if appropriate the judge will either order the production of the documents or… if there is an issue about whether the documents are subject to being released… will review them first. We call that an in camera review. So to answer your question – in a disputed case it would be the judge who reviews all the emails to determine what must be disclosed.

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