CALPELRA Alert/CA Supreme Court: Public Employee Communications Subject To Disclosure

CALPELRA Alert/CA Supreme Court/Public Employee Communications Subject To Disclosure

Today the California Supreme Court issued the long-awaited decision in the City of San Jose Public Records Act case. Petitioner Ted Smith had requested 32 categories of documents, including e-mail and text messages, from the City of San Jose and various city officials.

The city responded to the Public Records Act request by providing any communications made from city telephone numbers and e-mail accounts. The city refused to provide communications sent or received via personal accounts, arguing that those communications were not public records as defined by the Public Records Act.

The California Supreme Court settled the dispute today when it decided, “[W]e hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.” [1]

Court's Rationale

The Supreme Court found that: (1) The public’s right to access should not be undermined by either intentional evasion of disclosure by transferring custody of records to private holders, nor retention in an employee’s personal account; (2) adopting the city’s view would result in an increase in the amount of public information that would be “beyond the public’s grasp” and “encourage government officials to conduct the public’s business in private"; and (3) searches for public records prepared, transmitted, or maintained on personal accounts can be done consistent with respect for personal privacy.

Court's Decision

Reciting various sections of the California Public Records Act (PRA), the California Constitution, and prior court decisions, the California Supreme Court grounded its decision squarely on the declarations of the California Legislature and the voters of California, concluding that the public has a fundamental right of access to information concerning the conduct of the people’s business, and this right should be broadly construed. The Court also concluded, however, that this right is subject to the exemptions of the PRA. And the Court found that in some situations, the public’s right of access to information concerning public business must yield to personal privacy interests. On the facts before the Court, the balance was weighed in favor of disclosure of documents concerning official city business prepared by city employees and officials even if stored on, or created outside the workplace or by using personal accounts.

City’s Arguments
Although the Court rejected the argument, the City of San Jose had argued that the PRA’s focus is limited to the ownership, use, and retention of the public record, and that disclosure is only required if the information is retained by the public agency. The city argued that use of personal accounts means the materials will not be retained by the public agency. The city also argued that the privacy interests of government employees outweigh disclosure of records prepared and/or transmitted using personal accounts. The Court agreed with the city that, in some situations, the public’s right of access to information concerning public business must yield to personal privacy interests.

Practitioner Tips

Public entities subject to the PRA should develop policies designed to strike a balance between privacy and disclosure, and establish reasonable efforts to conduct searches to locate documents responsive the public’s requests.

Public entities should conduct formal training of employees to ensure employees understand the definition of “public record”; and to educate them about segregating public records from personal records.

Public entities should also draft policies that reasonably rely on employees’ searches of their personal files, accounts, and devices to locate public records responsive to PRA requests.

[1] City of San Jose v. The Superior Court of Santa Clara County (March 2, 2017, S218066).

2017 CALPELRA President: Anil Comelo, Santa Clara County Water District

Alert No. 17-03 Author: Marguerite M. Malloy, ACERA Associate Counsel and CALPELRAClips Contributor

This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information. The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.

The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.

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