Private E-mail and Similar Electronic Communications Held Subject to the Public Records Act (K-12) - School & College Legal Services of California

On March 2, 2017, the California Supreme Court held that electronic communications made by public officials using private accounts or on private devices are “public records” if they discuss business of the agency by which the official is employed. The Supreme Court overturned the contrary 2014 decision of the court of appeal in City of San Jose v. Superior Court (Smith).

LEGAL UPDATE

March 6, 2017

To: Superintendents, Member School Districts (K-12)

From: Frank Zotter, Jr., Senior Associate General Counsel

Subject: Private E-mail and Similar Electronic Communications Held Subject to the Public Records Act

Memo No. 07-2017

The case involved a public records request by a citizen seeking several categories of e-mails and text messages sent by the City’s mayor and city council members on their private e-mail accounts. The court of appeal had concluded that communications by City officials using private devices or on private accounts were not “prepared, owned, used, or retained” by the public agency under the language of the Public Records Act, and that therefore they were not “public records.”

The Supreme Court has now reversed that decision. It concluded that under the language and the history of the Public Records Act, where a “public record” is created or by whom it is retained does not change its character as “public.” Thus, such communications now are public records that may have to be disclosed in response to a records request.

Implications for Districts

Until this decision, it had not been clear whether communications on a public official’s private account that discussed public business were covered by the Act. Districts will now have to take various steps to ensure that such accounts are included among the places for which public records are searched, to determine whether such communications exist on private devices or if any public officials have used private accounts.

The City had argued that it will be difficult to conduct such searches because it

does not have access to such accounts in the same way that it does to its own servers and e-mail accounts. In response, the Supreme Court made several suggestions about how such searches could be conducted in a way that did not require, e.g., that a public official simply turn over the password to a private account:

• Public agencies should train employees how to conduct searches on private accounts so that the employees can distinguish public records from personal records.

• When a records request is received, the agency should notify employees of the request. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for any responsive material.

• An employee who can find no such records, or who withholds a document that might be potentially responsive, may submit an affidavit setting forth a factual basis upon which it can be determined whether the contested items were, in fact agency records or personal records.

• Districts may want to consider adopting policies requiring all employees and officials to limit all communications about district business to public accounts and devices so that all such communications will always be in the custody of the district’s information technology staff, or that they copy any communications on a private device to a public account. (This would not, however, necessarily excuse employees from conducting a search of a private account.)

It is also important to recognize, however, that the new decision only means that private accounts are not automatically off-limits to a public records request as the court of appeal had concluded. Public officials and public entities can also object to releasing particular records based on exceptions within the Public Records Act. For example, if such a communication influenced a higher-level district official’s decision-making (e.g., a communication to or from the superintendent or an individual trustee), then such a record could potentially be withheld on the ground that it is exempt from disclosure under what is known as the “deliberative process privilege” under Government Code § 6255, which is also part of the Public Records Act.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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