Page 3 - TIPJar Summer 2017

Now What?

PRIVATE EMAILS DISCUSSING PUBLIC
BUSINESS ARE PUBLIC RECORDS.

BY
HAROLD M.
FREIMAN

s public agency the business of public record to rest: An email thus pulled back from
officials and agencies even if they or text sent to or from prior cases holding
Aemployees have were created, received a private device or that the mere mention
increasingly turned by or stored in a private account can indeed be a of public business
to text messages and device or account. “If public record. in a communication
email to facilitate public officials could could make that
communication anytime evade the law simply by While providing communication subject
and anywhere, they clicking into a different certainty on this issue, to the CPRA.
lost touch with a basic email account, or however, the case
truth: Electronic communicating through also raises many new The Court also
communications are a personal device,” the questions. Public recognized the practical
writings. As such, they Court wrote, “sensitive officials will need to challenges of retrieving
may fall within the information could tighten their seat belts: records from personal
reach of the California routinely evade public The road ahead is likely accounts while
Public Records Act scrutiny.” to be bumpy. respecting the privacy
(CPRA). Now that the of account holders and
California Supreme This case had its origins The Supreme Court did their correspondents.
Court has opened the in a 2009 lawsuit against give helpful guidance on Although the Court did
door to disclosure of the City of San Jose, what is now considered not establish a specific
public agency-related its redevelopment a public record, process, it did point to
communications made agency and several city concluding that only procedures adopted
or stored on private officials. The plaintiff records that “relate in by federal courts
devices and in private claimed that the city’s some substantive way applying the Freedom
accounts, California’s failure to provide to the conduct of the of Information Act and
local agencies will need voicemails, emails and public’s business” will by the Washington
to develop policies and text messages that were be public record. The Supreme Court that
procedures to address sent and received by Court narrowed the applied that state’s
these practices. city officials on personal scope of records subject public records law. The
devices using personal to disclosure, specifying Court favorably noted
In City of San Jose v. accounts violated the that communications that individuals can
Superior Court, the CPRA. The Supreme that are primarily be allowed to search
California Supreme Court’s March 2, 2017 personal, containing their own devices and
Court held that the ruling finally (and for the only incidental mentions accounts for responsive
CPRA grants the first time in California) of agency business, records when a request
public a right to access put the issue of whether generally will not be is received, and to
texts, emails and other such communications considered public submit an affidavit
records relating to can constitute a public records. The Court regarding potentially

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