Court: Officials' private emails considered public records | March 17, 2017 | Mountain View Voice | Mountain View Online |

Mountain View Voice

News - March 17, 2017

Court: Officials' private emails considered public records

Ruling says public officials cannot 'evade the law' by using private accounts

by Elena Kadvany and Gennady Sheyner

In a victory for public access to government records, the California Supreme Court last Thursday unanimously ruled that local officials' communication about public business on private accounts and devices is subject to the California Public Records Act.

The ruling stemmed from a lawsuit against the City of San Jose, which in 2009 refused to release messages from officials' personal accounts in response to a citizen's Public Records Act request, arguing their release was beyond the scope of the law and overly burdensome. Only a document created, sent or otherwise stored on an agency's public accounts, and retrievable by the agency, should be considered a public record, the city argued.

The California Supreme Court offers a straightforward counter-argument: the medium by which officials communicate about public business is irrelevant when disclosure of records are in the public's interest.

The "whole purpose" of the Public Records Act, the court wrote, "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."

Using private accounts to evade release and keep communications secret would, in effect, the court wrote, "gut the public's presumptive right of access" guaranteed by the Public Records Act, which was enacted in 1968 and added to the state constitution by voters in 2004.

Any writing prepared by a public official or employee that "substantively relates to the conduct of public business," regardless whether it's written on a personal or public account, is considered a public record, the ruling states.

The March 9 ruling overturned a 2014 Court of Appeals decision in the city's favor and against Ted Smith, who under the Public Records Act requested documents related to a major redevelopment in downtown San Jose, including emails and text messages sent or received on private devices by the mayor, two San Jose City Council members and their staffs. A trial court initially ruled in Smith's favor, a decision the city of San Jose then appealed.

Karl Olson, a San Francisco attorney who represented a group of news media organizations who filed an amicus brief urging the court to rule in Smith's favor, called the opinion a "strong victory for public access."

"It respects the public's strong right to know what is going on with public business, and it should defeat efforts to evade public scrutiny by conducting public business on so-called 'private' electronic devices," he wrote in a statement. "As the court said, open access to government records is essential to verify that government officials are acting responsibly and held accountable to the public they serve."

In discussing the case in December and making its ruling, the court recognized that times — and the ways in which government operates — have changed since the law was enacted nearly 50 years ago.

"This case concerns how laws, originally designed to cover paper documents, apply to evolving methods of electronic communication," states the court opinion, authored by Associate Justice Carol Corrigan with the concurrence of the other six judges. "In today's environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace."

In arguing in favor of a narrow interpretation of the Public Records Act, the city of San Jose raised numerous issues, among them intrusion of privacy, the "onerous" burden of retrieving emails on private accounts and devices, and its belief that the Act was intended to apply to agencies as a whole and not individuals.

The state Supreme Court rejected most of these interpretations and concerns.

Noting the balance between the public disclosure and personal privacy interests, the court made clear that an employee's email to his or her spouse complaining "my coworker is an idiot," for example, would not likely be considered a public record. However, an email to a superior reporting the coworker's mismanagement of a public project could be, the court wrote.

A public record "must relate in some substantive way to the conduct of the public's business," the ruling states. "Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records."

Compliance with the Public Records Act is not necessarily at odds with the privacy rights of public employees, the court wrote. Personal information or documents that fall under a legal exemption can be redacted before their release. Under the law, agencies already are allowed to withhold records if doing so "clearly outweighs" the public interest in disclosure.

The city's argument that a public agency can only disclose information accessible to the agency as a whole, rather than documents that individual officials or employees have sent or received, is "flawed," the court wrote. The court also rejected San Jose's contention that individual officers or employees should effectively be excluded from the definition of "local agency."

"A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things," the ruling states. "When employees are conducting agency business, they are working for the agency and on its behalf."

And the city's argument that communication in an employee's personal account is beyond their reach and beyond the scope of the Public Records Act request "fails," the state Supreme Court wrote. The location of communications do not negate the agency's responsibility to disclose those that are considered public records, the court ruled.

The state court also called the Court of Appeals' argument that public officials conduct official business in the public's best interest an "optimistic presumption."

"Indeed, the rationale behind the Act is that it is for the public to make that determination, based on information to which it is entitled under the law. Open access to government records is essential to verify that government officials are acting responsibly and held accountable to the public they serve," the court wrote.

The court ruling, for the most part, affirms the city of Mountain View's established practice for public records. City employees and elected officials are already notified that all of their correspondence about city business can be publicly disclosed, even if it is on a private device or email account, said City Manager Dan Rich in an email.

After receiving public-records requests last year from the Voice, the city's information-technology staff searched through council members' official city email accounts. The City Clerk's office then contacted individual council members and asked them to independently search through their own personal email accounts for any valid messages.

This policy relies on good faith, and it would not necessarily prevent public officials from hiding messages in their private accounts if they were so inclined. Since the court ruling was issued, Rich said his team was considering revising Mountain View's city policies to reflect the guidelines laid out in the court judgment.

Mark Noack contributed to this report.

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