Private Communications Not Subject to Cal. Public Records Act - California Case Law
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Private Communications Not Subject to Cal. Public Records Act

A mayor sends an email to a state senator through his official government email account. The California Public Records Act applies, and this email is subject to public disclosure.

A mayor sends an email via a free webmail service, such as Gmail, to that same senator, and per this court decision, it is not subject to public disclosure.

Note to Leland Yee: sign up for Gmail.

A Problem Without a Solution?

Is there a good solution here?

On the one hand, should all personal accounts, emails, texts, etc., of public officials be subject to disclosure? It’s not exactly fair to make the intimate messages from a public official’s private life available for public consumption, just because that person holds some public office in municipal government.

Then again, there’s the take of a Santa Clara County Superior Court judge, who noted that “a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own.”

The San Jose Mercury News notes that even where cities try to make private communications subject to disclosure, it’s far from perfect. The City of San Jose itself has a law that requires disclosure of communications made on private devices about public business, but it’s tough to enforce because it runs on the honor system.

Legislate It?

The Sixth Appellate District’s opinion repeatedly noted that it, if the state wants private accounts to be subject to public disclosure requirements, that it would be up to the legislature to change the law.

“Because it is the agency — here, the city — that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the city cannot be said to fall within the statutory definition,” the court held.

Essentially, the holding is that the statute requires the city to disclose what it has in its possession, and employees’ private phones and email accounts are not within their possession. And while the trial court’s concern about cloaking public communications on private devices is valid, that’s an issue for the legislature to sort out.

Speaking of Legislation: Prop. 42?

This is an interesting proposition (pun intended). On the June 3, 2014 ballot, voters will be asked to decide on Prop. 42, which requires compliance with the California Public Records Act, regardless of state funding. According to Ballotpedia, it would require local agencies to comply with the PRA, and would exempt the state from the requirement to fund the collection, retention, and production of such records.

Why is a proposition reaffirming an existing law necessary? According to an editorial in the Sacramento Bee, last year, during the budget crisis, Gov. Jerry Brown proposed eliminating state funding, and at the same time, suspending the law’s requirements for local government.

Prop. 42 requires local compliance no matter what. This would obviously put a strain on local budgets, but would also ensure access to local records, an essential tool in fighting corruption.

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