City Employees' Personal Email Can Sometimes Be Public Records, Calif. High Court Says

The California Supreme Court ruled last week that city employees' personal emails and text messages related to public business can be subject to disclosure under the state Public Records Act. The seven-member court ruled unanimously in San Francisco in a lawsuit filed against the city of San Jose by Ted Smith, a citizen who sought records of city officials' communications about a downtown development project in 2009.

Smith sued after the city gave Smith copies of emails and texts from official city accounts, but declined to search employees' personal accounts. The state high court said personal emails and texts by state and local government employees that are "related in some substantive way to the conduct of the public's business" are also subject to disclosure.

"We conclude a city employee's communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account," wrote Justice Carol
Corrigan. "Sound public policy supports this result," Corrigan wrote.

"If communications sent through personal accounts were categorically excluded from the California Public Records Act, government officials could hide their most sensitive, and potentially damning, discussions in such accounts," Corrigan wrote.

In lower court proceedings, a Santa Clara County Superior Court judge ruled in favor of Smith, but a state appeals court reversed that decision. Smith then appealed to the California Supreme Court.

The Public Records Act was enacted by the Legislature as a state law in 1968 and made part of the state Constitution by a voter initiative in 2004. It states that "access to information concerning the conduct of
the people's business is a fundamental and necessary right of every person in this state."

The court said that primarily personal communications with only an incidental reference to a public agency would generally not be considered public records subject to disclosure.

"For example, depending on the context, an email to a spouse complaining 'my coworker is an idiot' would likely not be a public record," Corrigan wrote for the court. "Conversely, an email to a superior reporting the coworker's mismanagement of an agency project might well be," the court said.

The panel said that whether a personal email is a public record would depend on the content, context and purpose of the message and whether the writer was acting or purporting to act within the scope of his or her
government employment.

By Bay City News

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