CA Supreme Court: Personal Emails may be Subject to CPRA

CA Supreme Court: Personal Emails may be Subject to CPRA

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https://www.manatt.com/Insights/Newsletters/California-State-Government/California-Supreme-Court-Private-Emails-Potential

City of San Jose v. Superior Court, 2017 Cal. LEXIS 1607, Docket No. S218066

By Jordan E.A. Ferguson | Editor: Randall W. Keen

Why It Matters: The California Supreme Court unanimously held that government officials may be required to release communications made about official business on private devices and personal email accounts pursuant to California Public Record Act (“CPRA”) requests. The Court determined that, when a City employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the CPRA.

This will effectively broaden the scope of CPRA requests to include personal email accounts, text messages and other forms of writing that might previously have been considered beyond the scope of the Act, creating a greater burden not only on public agencies but also on elected officials and employees, while closing what some have seen as a potential loophole in records requests.

Facts: In June 2009, petitioner Ted Smith requested disclosure of public records concerning redevelopment efforts in downtown San Jose and included a request for emails or text messages “sent or received on private electronic devices used by” the mayor, two city council members, and their staffs. The City declined to disclose communications made using the individuals’ personal accounts. Smith sued, arguing the CPRA’s definition of “public records” encompasses all communications about official business, regardless of how they are created, communicated or stored. The City argued that messages communicated through personal accounts are not public records because they are not within the public entity’s custody or control.

The trial court granted summary judgment of Smith and ordered disclosure. The Court of Appeal issued a writ of mandate halting disclosure pending appeal. The Supreme Court weighed in to determine whether the records were, in fact, subject to disclosure.

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