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March 6, 2017  |  Written by Kristian C. Corby

California Supreme Court Rules That Communications from Public Employees’ Personal Email or Phone Can Be Subject to Disclosure Under the California Public Records Act

Last week, in a unanimous decision, the California Supreme Court (Supreme Court or Court) ruled that when a public employee uses a personal account, “to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act” (CPRA).  City of San Jose v. Superior Court of Santa Clara County, (Smith), No. S218066 (Cal.Sup.Ct. Mar. 2, 2017) (hereinafter, City of San Jose).  Petitioner and real party in interest, Ted Smith, requested public records from the City of San Jose (City) regarding the planned redevelopment of the City’s downtown.  The request included individuals’ emails and text messages “‘sent or received on private electronic devices used by’ the mayor, two city council members, and their staffs.”  Id. at 2.  In response, the City only produced communications that were sent or received made using the City’s telephone numbers and email accounts.  Mr. Smith sued, arguing that CPRA’s definition of “public records” encompasses all communications about official business, not just those within the City’s custody and control.

The CPRA was passed in 1968, prior to the widespread use of mobile and electronic communications, which is now the standard.  The Supreme Court’s opinion emphasized the broad public right to access information concerning the operation of state and local governments.  In 2004, Proposition 59 added the following language to the California Constitution:  “The people have the right of access to information concerning the conduct of the people’s business, and, therefore,…the writings of public officials and agencies shall be open to public scrutiny.”  Cal. Const., art. I, § 3(b)(1).  However, the Court also recognized that privacy is important, and public access does not “supersede or modify existing privacy rights.”  City of San Jose, at 3.  Ultimately, the Court concluded that by instituting procedural safeguards, the privacy rights of public employees could be sufficiently protected while still allowing the public access to communications made for the purpose of conducting public business, even if they were made on a private account.

The CPRA “creates ‘a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.’”  City of San Jose, at 4; quoting Sander v. State Bar of California, 58 Cal. 4th 300, 323, (2013), italics in original.  Additionally, there is strong public policy in favor of interpreting the law to increase public access to information concerning the government’s operations and decision making.

Much of the Court’s analysis focuses on the definition of a “public record” under the CPRA.  Under Government Code section 6252(e), a public record “is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.”  City of San Jose, at 5, italics in original.  With respect to the first element that the public record be a “writing,” the Supreme Court acknowledged the proliferation of electronic writings, and stated “the line between an official communication and an electronic aside is now sometimes blurred.”  Id. at 6.  However, the Court noted that the second element, that the content of the writing relate to the conduct of public business, will exclude those writings that are “purely private.”  Id.  Whether a writing relates to the conduct of public business is determined by considering multiple factors, including content, context and purpose of the writing, audience to whom the writing is directed, and whether it was prepared by an employee acting within the scope of her employment.  Id. at 7.

Most of the City’s argument that the writings sought were outside the scope of the CPRA if they were contained in private accounts hinged on the fact that those accounts were not “prepared, owned, used, or retained by any state or local agency.”  City of San Jose, at 8; quoting Cal. Gov’t. Code, § 6252(e).  However, the Court was not persuaded by this argument because it found the writings were “prepared” by City employees, and it must give effect to every word in the statute.  City of San Jose, at 8.  Furthermore, the Court held that this rule applies broadly to employees of all public agencies, both state and local.[1]  The Court also found that even though the City did not necessarily possess the records in question because they were contained on private accounts, the City was considered to be in constructive possession because it had the legal right to access all public records.  Id. at 12-13.

The Court found considerable support for its holding in public policy.  It reasoned that government entities are not allowed to conduct public business on private accounts in order to shield information from the public.  City of San Jose, at 15.  Additionally, open access and improved transparency of governmental functions is a necessary check on the government’s exercise of power.  Id. at 16.

Finally, the Court provided guidance with respect to conducting searches of private accounts for the purpose of the CPRA.  First, it found that employees may be allowed to search their own accounts for responsive records.  City of San Jose, at 19.  Second, the Court adopted the Washington Supreme Court’s rule that allows an employee to withhold records so long as the employee files “an affidavit with facts sufficient to show the information is not a ‘public record’ under the [CPRA].”  Id., quoting Nissen v. Pierce County, 357 P.3d 45, 57 (Wash. 2015).  Finally, the Court encouraged public agencies to adopt policies that discourage their employees from keeping public records solely on their private accounts.  City of San Jose, at 20.  For example, an employee should always use or copy the employee’s government account when sending emails.  Id.

The Court’s ruling is a clear signal to government employees that they should avoid using personal accounts to conduct public business, or be prepared to have their personal accounts subject to scrutiny by the CPRA.

For additional information please contact Kristian Corby at or 916-446-7979.

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[1] However, the California Legislature and Judicial branches are categorically excluded from the CPRA.  Cal. Const., arts. IV, VI.

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