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Posted by Dan Herbert Uncategorized

In a landmark decision the California Supreme court held that the use of a private cellphone by a public employee can create a public record if the phone was used for work purposes. The case was brought to the California Supreme Court after a citizen requested disclosure of records, including text messages and emails, from the City of San Jose through the California Public Records Act (“the Act”), equivalent to the Illinois Freedom of Information Act. The City disclosed communications but limited those disclosures to communications on City telephones and email accounts, not personal accounts.

The California Supreme Court analyzed the issue under the Act, noting that while the citizens have a presumptive right of access to public records, there is a competing interest in the individual privacy of public employees. The Court stated that clearly text messages and emails fall under the term “writings” under the Act. Even though the Act was written in 1968, emails and texts have replaced the more formalized memos, and therefore the line between official communication and a personal electronic message has been blurred.

The Court continued that in order “to qualify as a public record under the Act, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.” Communications that are primarily personal, containing no more than incidental references to work, will not constitute public records.

The City argued that under the Act, a writing need only be disclosed if it was prepared, owned, used, or retained by the state or local agency, and here personal cell phone use did not apply. However, the Court disagreed, stating that a governmental agency cannot prepare writings, it is the employees that are conducting agency business and working on behalf of the agency that are preparing writings. The state or local agency has control over these communications through their employees. An agency does not lose control of communications because they are located on an employee’s personal account.

Lastly, the City raised concerns that such disclosures would raise privacy concerns for public employees. But the Court was not convinced, stating searches of personal accounts and disclosure of communications on personal accounts can be done in such a way that strikes a balance between the public’s right to access public record and the privacy of public employees.

City of San Jose v. Superior Court, 2017 WL 818506 (Cal. 2017).

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