In a case that seems sure to jump-start legislative activity in Sacramento and throughout the state, the court in City of San Jose v. Superior Court (6th App. Dist., Mar. 27, 2014), held that communications regarding City business sent or received by a City of San Jose official (here, the mayor, council members, and their respective staff) using a private electronic device and a private account were not subject to disclosure under the California Public Records Act (PRA) because they did not constitute a “public record.”
The PRA defines a “public record” as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency . . . .” (Gov. Code § 6252(e) [emphasis added].)
In 2009, the City received a PRA request for voicemails, emails, or text messages sent or received by the Mayor, City council members, or their staff, on their private electronic devices that concerned City matters. The City produced communications sent from or received on private electronic devices using City electronic accounts, but took the position that communications using private accounts and private devices were not public records under the PRA. The requesting party sued to obtain the disputed communications. The superior court agreed that such communications qualified as public records under the PRA, and the City appealed.
Focusing on the plain language of the PRA, the appellate court observed that the Act’s definition of “local agency” does not include individual members or representatives of the agency, but rather, refers only to the governmental body itself, including cities, counties, school districts, districts, etc. (Slip. Op. at 14 [quoting Gov. Code § 6252(a)].) Accordingly, the appellate court reversed, finding that communications sent or received by City officials on a private device using a private account cannot be “public records” because such communications are not “prepared, owned, used, or retained by any . . . local agency.” (Gov. Code § 6252(e).)
Interestingly, the appellate court compared and contrasted the definition of “local agency” with the Act’s definition of “state agency”, which does include individual state actors. (Gov. Code § 6252(f) [“‘State agency’ means every state office, officer, . . . .” (emphasis added)].) Although the court stopped short of offering any opinions about this distinction, the logic it employed suggests that had the case been about a PRA request for communications sent or received by a State official using a private device and a private account, the result may well have been different.
How Sacramento may react to City of San Jose is an open question. State officials may face an increase in PRA requests for communications sent or received by State officials on private devices and private accounts that they may be loath to produce. And some legislators may be troubled by the different standard the case appears to set for state and local agencies. Furthermore, despite the protections afforded by the City of San Jose decision, local agencies may also move to create their own rules for how to address communications using a private device and account. The City of San Jose is a case in point. On March 2, 2010, the City passed Resolution No. 75293, which requires the Mayor, city council members, and their staff to disclose communications sent by or received on their personal electronic devices unless otherwise subject to a PRA exemption.