Appellate Court Limits Reach of Public Records Act

Posted on Thursday, May 01, 2014 at 12:00AM

Associate Attorney
Rains Lucia Stern, PC

In a recent decision, the Sixth Appellate District addressed a pressing issue that should be of some concern to all who communicate with elected governmental representatives. This issue was addressed by our firm at our Client Labor Symposium in January 2013. The issue concerns California’s Public Records Act, Government Code Sections 6250-6270 (hereinafter “the Act”), and the extent to which a public agency is required to disclose communications stored on private electronic devices that otherwise (based upon their content) would constitute public records (City of San Jose v. Superior Court [Santa Clara County], H039498). In other words, are the private communications of elected officials and city employees discoverable under the Act?

In June 2009, Ted Smith, a private citizen, submitted a request to the City of San Jose (hereinafter “the City”) seeking 32 categories of public records involving specified persons and issues relating to downtown San Jose redevelopment. The City complied with the majority of the requests, but refused to release “any and all voicemails, emails or text messages sent or received on private electronic devices” used by the mayor, City Council members and other City employees.
The City took the position that the Act did not require disclosure of such communications, despite the fact that the communications clearly concerned the public’s business, because the City was not in “possession” of these communications due to their being sent over private devices not on the City’s server. Examples of private devices at issue in the case were private emails sent over Gmail accounts not on a City server, as well as text messages sent via cellphone. Smith took the position that it was irrelevant whether the communications were sent over private or public devices, because the persons sending those devices were agents of the City, and the City cannot function but through the persons who comprise it.
The Superior Court of Santa Clara County determined that the Act required disclosure of the communications, despite being sent on private devices, because 1) they concerned the public’s business and 2) it was irrelevant whether they were sent on private devices, because they were nonetheless controlled by the people who comprised the City. Following the ruling, the City appealed to the Sixth District.

The Public Records Act
In order to understand the Sixth District’s decision, a rudimentary understanding of the Act is required. The Act was created in order “to require that public business be conducted ‘under the hard light of full public scrutiny’ [citation], and thereby ‘to permit the public to decide for itself whether government action is proper’ [citation]” (Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d 1325, 1350). In creating the Act, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in [California]” (Government Code § 6250).
Upon request, a public agency is required to disclose applicable public records in the possession of the agency (Government Code § 6253[a]-[c]). A public record is defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency …” (Government Code § 6252[e]).

A Public Record Does Not Include Communications Sent and Received Over Private Devices
The ultimate inquiry for the Sixth District was whether private communications sent over private devices fell within the definition of a “public record” as noted in Government Code Section 6252(e). In other words, does Section 6252(e) encompass communications “prepared, owned, used or retained” by City officials and employees on their private electronic devices and accounts?
The City argued that such communications were not within the gamut of Section 6252(e) because that section defines a public record as a writing “prepared, owned, used or retained” by a local or state agency, not by the agency’s officials or employees. The City asserted that private communications were not in the possession of the City, rather they were in the private possession of employees and City officials.
Smith argued that such an interpretation of Section 6252(e) was meaningless because “the City” is obviously composed of the people who work for, and thus comprise, the City. A public agency can only act through and by the people who work for the City, and therefore claiming that communications sent over private devices were not within the possession of the City was factually inaccurate. The City and its agents were indistinguishable in the eyes of Smith.
The court found that Smith’s argument was logically infirm. “Even if we accept the first premise, that a local agency can act only through its officials, it does not follow that every act of an official is necessarily an act of the agency” (City of San Jose, H039498 at 12). The court additionally expressed concern that
“[i]f a ‘local agency’ and its officials are, as Smith portrayed them …, ‘one and the same,’ then any writing prepared, owned, used or retained by the official is deemed that of the agency itself” (Id. at 14). The court noted that the statute, while defining public agency as government entities or bodies themselves, makes no reference to individuals. The court extrapolated from that finding that if the Legislature wanted to include individuals in the definition of public agency, it easily could have so written it (Id.).
The court ultimately rejected Smith’s contention and found that the Act does not include writings that are sent and received over private communications devices, because such writings are clearly not within the possession of the public agency.

The court’s finding is good public policy. Had the Superior Court’s ruling withstood scrutiny, it undoubtedly would have had a chilling effect on public discourse and government efficacy. It is easy to imagine, should public officials believe all their writings could be discovered pursuant to a request, that dissident or unpopular points of view would not be discussed in writing. In the digital age, where much personal and professional communication — even in government — is done via email or text message, those with somewhat controversial views might remain silent. The result for democracy, which relies upon the free flow of information and ideas for its success, would be negative to say the least.

About the Author
Steven M. Betz is an associate in the firm’s Collective Bargaining Practice Group as well as the Legal Defense of Peace Officers Practice Group. Steven’s practice is focused mostly on labor issues, including unfair practices, grievances and bargaining. Additionally, Steven has experience representing peace officers in administrative, disciplinary and critical incident matters.  

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