The communications of City of San Jose public officials, sent from and received on their personal electronic devices using private accounts, are not public records subject to disclosure, according to a ruling by the Sixth Circuit Court of Appeal.

The California Public Records Act (“CPRA”) defines “public records” to include any writing relating to the public’s business if it is “prepared, owned, used, or retained by any state or local agency.”  In 2009, activist Ted Smith submitted a CPRA request to the City of San Jose seeking 32 categories of public records associated with a downtown redevelopment project, four of which requested “all voicemails, emails or text messages sent or received on private electronic devices” used by the mayor, members of the city council, or their staff.  The city disclosed non-exempt records sent or received on private electronic devices using these public officials’ city accounts, but refused Smith’s request for communications sent or received on these public officials’ personal electronic devices using their private accounts (e.g., a message sent from a private Gmail account using the person’s own smartphone or other electronic device).  Smith brought an action under the CPRA for declaratory relief seeking these disputed communications.

The superior court granted declaratory relief to Smith, finding the CPRA extends to any official communication, regardless of where the record originated or how it is stored. The City of San Jose – supported by the League of California Cities as amicus curiae – appealed the ruling to the Sixth District Court of Appeal.

In a unanimous decision, the Court of Appeal found in favor of the City of San Jose. Taking issue with the “logical weakness” of Smith’s argument, and the underpinning of the superior court decision, the Court of Appeal found communications “prepared, owned, used, or retained” by individual city officials on their personal electronic devices using private accounts were not equivalent to communications “prepared, used, owned, or retained” by the City of San Jose, and, therefore, were not public records subject to disclosure within the meaning of the CPRA.  The Court acknowledged the “serious concern” created by the potential for city council members to conceal their communications on public issues by sending and receiving them on their private devices from private accounts, but declined to reconstruct or rewrite the plain language of the CPRA. Instead, the Court of Appeal found this concern, as well as the “legal and practical impediments attendant to the extra task of policing private devices and accounts,” best addressed by the Legislature and local agencies, not the courts.

Smith, thorough his counsel, has already vowed to seek review from the California Supreme Court.  Watch for updates should the California Supreme Court grant review, or should the Legislature choose to address the issues raised in this case.
 

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[1] City of San Jose v. Super. Ct. (Smith), 6th Circuit Case No. H039498 (3/27/14).