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April 22, 2014  |  Written by Alexis K. Stevens

No Duty to Disclose Public Officials’ Communications via Private Devices and Accounts

On March 27, 2014, the California Sixth District Court of Appeal held that the California Public Records Act (CPRA) does not require disclosure of communications between public officials stored on personal electronic devices and accounts that are inaccessible to the public agency. City of San Jose v. Superior Court (Smith), No. H039498 (March 27, 2014).  In its opinion, the Court interpreted the definition of “public records” and explained that the specific messages in question were not “public records,” even though they concerned public agency business.

In 2009, Ted Smith submitted a request to the City of San Jose (City), seeking thirty-two categories of public records involving specific city officials and issues regarding City redevelopment.  The City complied with all but four requests, which demanded any and all voicemails, emails, and text messages sent or received on private electronic devices used by various city officials.  While the City disclosed records from private electronic devices using City e-mail accounts, they did not disclose records from private accounts.  Because the City refused to turn over these records, Mr. Smith brought an action seeking disclosure of the disputed information under the CPRA.

The trial court agreed with Mr. Smith holding that a record that is “prepared, owned, used or retained” by an official is thus “prepared, owned, used, or retained” by the City.  The court reasoned that otherwise a public agency could easily shield information from public disclosure simply by storing it on private equipment.

On appeal, the Sixth District considered the specific definition of “public records” in Government Code section 6252 (e), and whether it includes communications by city officials and employees on their private devices and accounts.  While the court acknowledged the purposes of CPRA, and explained the importance of access to information concerning the conduct of the people’s business, it recognized that it was also important to protect individual privacy.

Relying on the plain meaning of the language used in section 6252, the appellate court concluded “the CPRA does not extend its disclosure mandate to writings of individual city officials and employees sent or received on their private devices and accounts.”  Smith at 15.  Government Code section 6252 (e) refers to records prepared, owned, or used by “local agencies.”  The CPRA’s definition of “local agency” refers to government bodies themselves, it does not mention individual members or officials.  If the Legislature had wanted the term to encompass such individuals, it would have done so as it had in the statute defining “state agency.”  While the court agreed that under its interpretation, it is possible that public officials may conceal communications regarding public issues by sending and receiving messages on private accounts and devices, it noted that this concern is one more appropriately addressed by lawmakers with legislation.

For further information regarding this decision, please contact Alexis K. Stevens at 916-446-7979 or by email at

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