A recent California Appellate Court decision, City of San Jose v. Superior Court of Santa Clara County, issued March 27, 2014, held that the California Public Records Act does not require the disclosure of communications between public officials using exclusively private devices or accounts that are inaccessible to the government agency.

 

Question:  Pat, I have been hearing about a recent significant Public Records Act decision regarding the use of personal smart phones and computers. Can you tell me about this case?

Answer:   Sure. The decision you are referring to is City of San Jose v. Superior Court of Santa Clara County, and it was issued by the California Court of Appeal on March 27.

In short, the court held that the California Public Records Act does not require the disclosure of communications between public officials using exclusively private devices (such as smart phones) or accounts (like gmail accounts) that are inaccessible to the government agency.

The court’s decision is based on the specific definition of “public records” in the Public Records Act, specifically Government Code section 6252(e), which includes “any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency….” The court determined that records prepared, owned, used, or retained by “any state or local agency” does not mean records of individuals or representatives of the agency that are not on the agency’s devices or accounts.

The court’s holding mentions a few factors, including that an individual official is not the agency and an official alone cannot act for or on behalf of the agency, that the agency did not have access to the individual official’s exclusively private device or account, and that there is a need to balance the privacy interests of the official in non-agency related communications.

The court recognized the potential implications of its decision – that official, agency related communications can be shielded from disclosure by being done through exclusively private devices and accounts that the agency does not have access to. The court said that this is an issue for the law makers to address through legislation.

Note, however, that this decision only pertains to Public Records Act requests – it does not apply to discovery in litigation.

My own reaction to this decision is that it goes against the trend that has been occurring over the last decade of requiring greater access to correspondence between public officials. And I would not be surprised if this decision is appealed, or if it results in legislation that amends the Public Records Act to make agency related correspondence on private devices or accounts subject to disclosure.

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Pat Miyaki has been representing local government agencies for more than 20 years as both general counsel and special counsel. He represents water districts, transportation districts, sanitary districts, cities, and joint powers agencies.