Communications Between Public Officials Using Private Cell Phones And Email Accounts Are Not Public Records Under The California Public Records Act

The California Court of Appeal recently held that the California Public Records Act (“Act”) does not require access to communications between public officials using exclusively private cell phones or e-mail accounts. These private communications sent or received by public officials and employees on their private electronic devices using their private accounts, i.e., communications that are not stored on City servers and are not directly accessible by the City, are not “public records” within the meaning of the Act.

In City of San Jose v. Superior Court of Santa Clara County (Smith), Smith sought to inspect specified written communications (including e-mail and text messages) sent or received by public officials and employees on their private electronic devices using their private accounts. The City refused to produce those records on the grounds that the records sought were not stored on City servers and not directly accessible by the City; thus they were not public records within the meaning of the Act.

Smith argued that communications prepared, received, or stored on City officials’ private electronic devices are public records under the Act because local agencies can only act through their officials and employees. Thus, those officials and employees are acting on behalf of the City and therefore their disclosure obligations are indistinguishable from those of the City.

The City had disclosed responsive non-exempt records sent from or received on private electronic devices using the individuals’ City accounts, but not records from those persons’ private electronic devices using their private accounts (e.g., a message sent from a private Gmail account using the person’s own smartphone or other electronic device). The City argued that messages sent from or to private accounts using private electronic devices are not “public records” under the Act, and that individual officials and employees are not included within the definition of “public agency” under the Act.

The Court of Appeal agreed with the City. The court looked to the exact language of the Act and noted that its definition of “public records” is “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.” (Section § 6252(e).)

If a local agency and its officials are, as Smith argued, one and the same, then any writing prepared, owned, used, or retained by the official is deemed that of the agency itself. However, the court found that the Act’s definition of “local agency” does not mention individual members or representatives of any public body. “Had the Legislature intended to encompass such individuals within the scope of ‘public records,’ it could easily have done so,” the court said.

Thus, the court found that individual city council members and their staff are not 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,” the court found. Accordingly, the court held that the writings sought by Smith were not “prepared, owned, used, or retained” by a “local agency” as required by the Act.

Additionally, the court acknowledged the possibility that government employees could circumvent the disclosure requirements of the Act by simply using their own private cell phones and computers, over their own private accounts, to communicate City business. However, the court stated that it was the role of the Legislature and not the court to prevent this.

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