The case, City of San Jose v. Superior Court (Smith), stemmed from a public records act request made by San Jose citizen Ted Smith, who requested information about the activities of the city’s redevelopment agency, including emails and text messages “sent or received on private electronic devices used by” the mayor, two city council members and their staffs, which the city refused to provide.
In its unanimous decision, the court made an analogy to the treatment of public records under the federal Freedom of Information Act. “In construing FOIA, federal courts have remarked that an agency’s public records ‘do not lose their agency character just because the official who possesses them takes them out the door,’” it asserted, quoting from the D.C. Circuit court’s Competitive Enterprise Institute v. Office of Science and Technology Policy ruling in July. “We likewise hold that documents otherwise meeting CPRA’s definition of ‘public records’ do not lose this status because they are located in an employee’s personal account.” In other words, it is the content of the message, not the location, that matters.
To decide otherwise would be to open the door wide to the evasion and flouting of the Public Records Act. “The city’s interpretation would allow evasion of CPRA simply by the use of a personal account,” the court observed. “If communications sent through personal accounts were categorically excluded from CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts.” Citing a 2014 Communication Law and Policy journal article, the court noted that “The city’s interpretation ‘would not only put an increasing amount of information beyond the public’s grasp but also encourage government officials to conduct the public’s business in private.’”
“The whole purpose of CPRA is to ensure transparency in government activities,” the court added. “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.”
The tricky part, of course, is knowing whether public records exist on employees’ private accounts in the first place. The court offered some guidance in this area, however, by pointing to the practices of federal agencies, which may require employees to use or copy their government accounts for all communications related to public business, though scofflaws could always ignore such rules, forcing us to rely on whistleblowers to uncover misdeeds.
While technological innovations have, in many ways, made our lives easier and allowed us to work outside the confines of a traditional office and traditional business hours, they have also made things more complicated. The public records case is just the latest example of this. It is encouraging, however, that the California Supreme Court recognized the importance of preserving transparency with regard to government activities, regardless of the technology used to store and transmit this information.
©2017 The Orange County Register (Santa Ana, Calif.) Distributed by Tribune Content Agency, LLC.
