The California Supreme Court has ruled in City of San Jose v. Superior Court that where a public employee uses a personal email account or texts to communicate about the conduct of public business, those writings may be subject to disclosure under the California Public Records Act (PRA). While resolving one long-debated question in California law, this decision also raised myriad new issues, including issues that are specifically relevant to the day-to-day operations of water districts, reclamation districts, and other public entities. [City of San Jose v. Superior Court, ___Cal.5th___, Case No. S218066 (Mar. 2, 2107).]

California law creates a presumptive right of access to public records, which under the PRA must be disclosed upon request unless otherwise exempt from disclosure under the law. Courts have long taken a broad view of “public records,” reading that term to include nearly every document, recording, or image held by a public agency. Past case law confirmed that where records pertained to public business and were held by an agency, or under the “constructive possession” of an agency (for example, in the case of consultant files that the agency had a legal right to control), those items were public records subject to disclosure, unless otherwise exempt.

The Supreme Court’s ruling in City of San Jose v. Superior Court arose out of a 2009 PRA request submitted to the City of San Jose for, among other items, the emails and text messages “sent or received on private electronic devices used by” the mayor, two city council members, and their staffs.

The Court likewise rejected the idea that such documents were out of the control of a public agency, and therefore not properly considered a “public record.” Where a public official or employee sends an email or text pertaining to agency business (even on a private device) the Court reasoned that such a communication is both prepared and possessed by a public agency, and is therefore within the scope of the PRA.

The Court went on to suggest that California agencies follow the approach endorsed by the State of Washington, in which public employees who withheld records from their employer:

• …must submit an affidavit with facts sufficient to show the information is not a ‘public record’ under the PRA.

Finally, the court recommended that agencies adopt specific policies directing public employees and officials to conduct agency business only via appropriate, agency-maintained channels.

At the most basic level, the decision confirms that the universe of documents that might be considered a “public record” is not bounded by the physical or virtual confines of a public agency, a fact which is significant not only in the context of the Public Records Act itself, but in nearly any legal challenge involving the action of a public employee or official, including contract and bidding disputes, land use or environmental review, challenges to agency enforcement actions, and nondiscrimination claims, among others. The decision is also significant in its scope, which encompasses not only high-ranking public officials, but any public employee carrying out the business of the agency.

A copy of the decision is available at: http://www.courts.ca.gov/opinions/documents/S218066.PDF

(Rebecca Smith, Meredith Nikkel)