Urgent: State Supreme Court Holds Emails or Text Messages Sent on Personal Accounts are Disclosable Public Records
by Derek P. Cole on March 2, 2017
The California Supreme Court has issued its long-awaited decision on whether public employee emails or text messages, sent and stored on the employees’ personal accounts, are public records. A unanimous Court held that such emails and text messages are disclosable records under the California Public Records Act. (City of San Jose v. Superior Court, decided March 2, 2017)
The Court’s decision was not unexpected. But as with any groundbreaking ruling, the decision raises new and challenging questions that agencies will now need to address.
The Stated Reasons for the Court’s Decision
The Court reasoned as follows in reaching its decision.
- Emails and text messages are just as much records under the CPRA as are paper documents. The Court examined the Act’s definition of “writings” and found that it clearly include all types of electronic communications.
- Emails or text messages on personal accounts that relate to public agency business are effectively “prepared by” that agency. Examining the text of the CPRA, the Court applied technical rules for interpreting statutes to reach this conclusion.
- Emails or text messages sent on private accounts also effectively belong to an agency when such communications relate to agency business. Even though the agency may not store or keep the communications itself, the agency has the right to control records that belong to its employees. Such “constructive” possession, the Court reasoned, was enough to make the communications ones that belonged to the agency.
The Real Reason for the Decision
In this author’s opinion, the latter two conclusions are debatable. In a separate section of its opinion, the Court announced the “policy considerations” that informed its decision. Summarizing what this author believes to be the Court’s true reason for its decision, the court observed:
“If communications sent through personal accounts were categorically excluded from [the] CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts.”
Ultimately, the Court was concerned about opening up avenues for off-line discussions that allow public officials to evade the transparency of open government. In this author’s opinion, the court found a way to stretch the rules of statutory interpretation to reach its desired holding.
New Questions Arise
Agencies now must consider how to implement the Supreme Court’s ruling. They will face some challenging questions in doing so.
A vexing question will be how to determine when an email or text message on a personal account is in fact an agency record. The Court attempted to shed light on this subject by making clear that a personal email or text message must “relate in some substantive way to the conduct of the public’s business” to be a disclosable record. It elaborated that “incidental mentions of agency business” do not meet this standard. As examples, the Court stated that an employee’s email to a spouse stating “my coworker is an idiot” would not be a public record, but that an email to a superior reporting a fellow employee’s mismanagement of a project “might well be.”
Another challenging question is how agencies should determine whether an employee has disclosable records on a personal email account or cell phone. The Court did not mandate any specific procedures agencies must follow, but it did state that agencies may rely on the employees themselves to conduct the necessary searches. The Court appeared to condition this authorization, however, on the fact that the employees would first be trained to distinguish between disclosable and non-disclosable records, and that they would submit an affidavit providing sufficient factual information to support their assertion that communications are not subject to disclosure.
The Court noted that agencies may develop their own internal guidelines for responding to public records requests and many agencies have done so. In light of this new decision—and the fact that requests for emails for personal emails and text messages, especially of elected officials, should now be regularly expected—agencies may wish to revisit their internal guidelines, if adopted, or develop such guidelines if they have not yet done so.
At a minimum, local agencies should consult with their counsels about how best to implement the Supreme Court’s ruling.