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By PORAC | April 1, 2017 | Posted in PORAC LDF News

Public Officials’ Private Emails Subject to Public Records Act

JEFFREY R.A. EDWARDS, ESQ.
Senior Associate
Mastagni Holstedt, APC

In a win for public safety labor associations, the California Supreme Court ruled that public officials cannot hide communications about public business in their personal accounts. The court also took care to shield public employees from unwarranted intrusion in their personal privacy. In City of San Jose v. Superior Court (2017) S218066, the court ruled that public records include documents made by public employees doing public business, even if they are stored in personal email accounts or on personal phones.

The ruling puts an end to a practice by city managers, county executives and other agency leaders to obscure select emails and documents from scrutiny by using personal accounts. The court decided that the Public Records Act should apply to all writings used by the agency, unless one of the specific exemptions in the law applies. The court reasoned that if a public official uses a document in conducting public business, then that document is retained by the agency under the meaning of the law and subject to disclosure.

The ruling is good news for public safety labor associations. Mastagni Holstedt attorneys David E. Mastagni, Isaac S. Stevens and Jeffrey R.A. Edwards filed an amicus brief on behalf of several public safety labor associations to help the court understand how the ruling could affect labor groups and public employees. The brief emphasized how some high-ranking government officials use their personal accounts to evade discovery under the Public Records Act, especially when it comes to contract bargaining and labor relations. The court’s ruling puts an end to this practice and vindicates public safety labor associations’ right to access information necessary to represent their members.

The court also took care to provide guidance to protect peace officers’ and public employees’ privacy. The court stressed that its decision preserved the broad law enforcement exception to the Public Records Act and the confidentiality of peace officer and correctional officer personnel files. The court made clear that peace officer privacy under Penal Code Section 832.7 still applies. It also expressly reaffirmed its 2006 decision, Copley Press, Inc. v. Superior Court, which held that peace officer personnel records cannot be released to the public without officers waiving their right to privacy. The court noted that Government Code Section 6254(f) expressly exempts law enforcement investigations from disclosure; the exemption is very broad and even applies to dormant cases. The court also emphasized that certain types of records, such as personal financial data and medical records, are not public records.

The court laid out guidance to agencies to help them protect employee privacy when responding to public records requests. The court recommended best practices, such as segregating personal and work accounts and devices and copying any work-related emails to a work account so that records can be searched, thereby taking personal equipment out of the picture. It also stressed that public agencies do not need to search individual employees’ phones and devices. Instead, agencies can follow the law by communicating public records requests to affected employees and “then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.”

The court’s guidance provides critical protection to peace officers who face more significant risks to their privacy through civil and criminal discovery than under the Public Records Act. The court’s extensive guidance goes a long way toward directing agencies to develop best practices and policies that maximally protect officer privacy, and stopping agencies from using Public Records Act requests or discovery requests as pretext to invade officers’ privacy on their personal devices.

About the Author

Jeffrey R.A. Edwards is a senior associate in the Labor Department at Mastagni Holstedt, APC, where his practice focuses on complex civil, class-action and collective-action litigation concerning the Fair Labor Standards Act, Meyers-Milias-Brown Act, Public Safety Officers’ Procedural Bill of Rights, California Labor Code, and other statutes providing labor and employment rights to employees.