Cbm Public Sector Labor Group Eblast: Officials Not Required to Disclose Personal Texts and Emails because they are Not “Records” Under the Cpra

A Court of Appeal determined yesterday that the California Public Records Act (“CPRA”) does not require public access to communications among public officials using private cell phones or personal e-mail accounts. In the City of San Jose v. The Superior Court of Santa Clara County (Smith, Real Party in Interest), the court reversed the trial court’s decision holding that the CPRA provides for disclosure of such communications.

The appellate court emphasized that the legislature could have stated in the CPRA that “public records” include public officials’ private communications, but it did not. Rather, Section 6252 of the Government Code defines a public record as any item that an agency owns, prepares, uses, or retains in writing. Moreover, the Court of Appeal drew a distinction between agency-owned documents and officials’ individual communications, because “it does not follow that every act of an official is necessarily an act of the agency.” It then concluded that such communications are not subject to disclosure requirements.

That analysis, as well as the particular records, a request made by Smith, limited the issues the appellate court addressed. Because Smith had sought all communications transmitted during an unspecified time period regarding any matter concerning the City of San Jose, the Court declined to address the point at which a privately transmitted communication made during a public meeting becomes a communication of a “public body” or agency. The Court similarly sidestepped any determination of the impact of the Brown Act requirement that legislative meetings must be open and public. Also, the Court did not find salient arguments based on various states’ Freedom of Information legislation as well as federal electronic privacy restrictions. In addition, the Court did not address the issue of what law, if any, empowers an agency to search the private devices of its employees, or how privacy laws might interact with such a law.

In reversing the trial court’s ruling, the Court of Appeal acknowledged that this reversal leaves open a loophole in which agency officials can evade CPRA requirements by maintaining certain communications solely in their private accounts. This loophole is a consequence of the Court’s literal interpretation of Section 6252, but it did not consider such a result arbitrary, unreasonable, or absurd. In particular, the Court was unconvinced by arguments that the loophole was an “unreasonable” result. Therefore, the Court concluded, the rules of statutory interpretation dictate that the literal interpretation must stand. The task of determining whether and how to empower an agency to access private information in the course of responding to a CPRA request raises privacy concerns of third parties, as well as the officials themselves, and such matters are in the ambit of the legislature, not the courts.

Please contact Amber Griffiths at 415-743-2228 with any questions.