On Thursday, the California Supreme Court issued its decision in
City of San Jose v. Superior Court, holding that writings that concern public business may be subject to the California Public Records Act (CPRA) even if they are sent and received using private accounts.
Recommended Best Practices
The Court highlighted how public agencies, employees, elected representatives, and other officials can manage their communications to comply with its holding while protecting privacy rights. Consistent with the decision, we recommend that agencies:
- Adopt e-communications policies that direct agency personnel to use their government accounts for the conduct of public business;
- Conduct trainings regarding what constitutes a “public business” and, by extension, a public record;
- Discourage the use of private accounts—including email, text, and social media—for the conduct of public business;
- Adopt internal policies and procedures for responding to CPRA requests; and
- Review records retention policies to ensure that they include procedures to manage e-communications on public and, if applicable, private accounts.
Agencies that take these steps should be well prepared to meet their CPRA obligations going forward. In doing so, agency officials can avoid “email problems” that have gained national media attention in recent years.
Guideposts to Differentiate Between Public Records and Private Communications
The petitioner in the
City of San Jose case requested documents pursuant to the CPRA—including emails and texts sent or received on private devices used by the mayor, two city council members, and their staffs—that related to a downtown redevelopment project.
The Court emphasized that the CPRA applies to communications that “relate in some substantive way” to public business, but not to “primarily personal” communications. To guide future, fact-specific inquiries of what qualifies as a “public record,” the Court identified several relevant factors:
- the content of the communication;
- the context in, or purpose for which, it was written;
- the audience to whom it was directed; and
- whether the author was acting or purporting to act within the scope of public employment.
Thus, using the Court’s example, an email to a spouse complaining “my coworker is an idiot” is unlikely to constitute a public record. On the other hand, an email to a superior regarding the same colleague’s handling of an agency project might well be a public record. Officials should thus be mindful of whether they are communicating in a public or private capacity and of the potential reach of the PRA.
Going forward, agencies should take the opportunity to review both communications and record retention policies in light of the Court’s decision and in anticipation of future CPRA requests.
For more information, contact SMW attorneys Sarah Sigman (sigman@smwlaw.com) or Catherine Engberg (engberg@smwlaw.com).
