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California Supreme Court Finds City Employee Communications on Personal Electronic Devices and Accounts May be Subject to Disclosure under California Public Records Act where Communications Pertain to Public Business

Court Further Clarifies that Cities May Reasonably Rely on City Employees to Search Personal Accounts and Devices for Communications Regarding Public Business

March 3, 2017
The California Supreme Court issued a unanimous decision Thursday, March 2 in City of San Jose v. Superior Court (Smith), holding that city employee communications pertaining to public business may be subject to disclosure under the California Public Records Act (CPRA) even if stored on a personal electronic device or in a personal account inaccessible by the city.
 
The case arose from a CPRA request local resident Ted Smith filed with the city of San Jose. Smith sought various records, including voicemails, emails, or text messages regarding city business, sent or received on private electronic devices by the mayor, certain members of the San Jose City Council, and their staff. The city disclosed responsive records accessible through city equipment or servers (i.e. a city email account), but did not disclose records accessible only through a private account (i.e. a personal email account).
 
San Jose took the position that records accessible only through a private account did not meet the definition of public records under the CPRA because they were not “prepared, owned, used, or retained” by the city. The California Supreme Court disagreed. The Court held “that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.” 
 
Nonetheless, the Court noted that an agency’s search for public records “need only be reasonably calculated to locate responsive documents” and affirmed that agencies “may develop their own internal policies for conducting searches.” 
 
The Court also addressed employee privacy concerns raised by local government associations, including the League, in friend-of-the-court briefs, by clarifying that cities may reasonably rely on city employees to search their own personal accounts and devices for communications regarding public business.
 
The Court offered guidance to cities on how to administer such searches, noting that other state and federal courts have approved of allowing public employees to conduct their own searches and segregate public records from personal records, so long as they had been trained to distinguish between the two.
 
The League will be working with its Public Records Act committee to provide additional guidance to our members in light of this decision.
 
The League wishes to thank Shawn Haggerty and HongDao Nguyen of Best, Best & Krieger for drafting the League’s friend-of-the-court brief in this case. 


 
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