Private device cannot hide public messages: Supreme Court rules public messages on private devices are open to public

Earlier this month, the California Supreme Court unanimously affirmed what many believed. If a public employee or officer who uses a private device, for example, cell phone or computer, to conduct public business, those messages (texts or emails) have to be disclosed if requested, pursuant to the California Public Records Act.

The ruling arose from a case in San Jose, when a citizen requested all communications regarding a city council action. The San Jose City Council refused to invade “the privacy” of its employees and officers.

The superior court sided with the citizen-plaintiffs but the appellate court reversed the decision, and on March 2, the state Supreme Court unanimously concurred with the superior court (City of San Jose v. Superior Court (March 2, 2017) S218066.).

“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,” wrote Justice Carol Corrigan. “Sound public policy supports this result.” She noted that not all public work ceases at 5 p.m. or is conducted solely in the confines of a governmental structure.

The court did not ignore the privacy issues, but stressed these should be addressed on a case-by-case basis and the use of a private device does not change the definition of a public record.

The court even offered guidance for conducting searches for public records on private devices: “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches.” And it recommended that agencies develop their own policies for conducting searches.

The court even noted that potentially private matters in the public message could be redacted to protect the employee.

The Idyllwild Water District plans to give each director a public email address to use for exchanges between directors or the public. The Pine Cove Water District already offers its directors email accounts.

Corrigan later stressed, “The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

At the beginning of her opinion, Corrigan described the issue to be decided as a balance, but one already acknowledged. “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.”