“What do you mean public record, it’s in my private e-mail account?” If you work in an office subject to the California Public Records Act (CPRA), be prepared to hear this sentence uttered repeatedly in the coming years. The California Supreme Court recently determined that public business conducted by a public employee through that employee’s personal (and private) account is subject to CPRA requests. The CPRA allows the people of California to request public records (with some limitations) from public agencies. While often used to increase transparency as required by a functioning democracy, this process is often used by Plaintiffs as a means of obtaining documents before filing a lawsuit.
In San Jose v. Superior Court (full opinion in the link) the Plaintiff requested documents from the City concerning redevelopment plans for its downtown; specifically, e-mails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. In response, the City released communications made using public telephone numbers and e-mail accounts but did not release communications to or from employees’ personal accounts. The Court determined that it doesn’t matter how public business is conducted, using a private account doesn’t limit the scope of the CPRA. Therefore the City was ordered to produce the documents (if any existed) from the employees’ personal accounts. The Court went on to note that while the information must be produced, that does not grant a public entity or the public at large unlimited access to public employees’ private accounts. Rather, the employee (when properly trained) may conduct their own search of their personal accounts.
Ok, I definitely want to comply with the law but I don’t know the definition of “public record”?
Why thanks for asking hypothetical Public Entity Supervisor! Generally any record kept by an officer because it is necessary or convenient to the discharge of his official duty is a public record. Unfortunately, whether a writing is sufficiently related to public business will not always be clear. The San Jose Court used the following example:
“Depending on the context, an e-mail to a spouse complaining “my coworker is an idiot” would likely not be a public record. Conversely, an e-mail to a superior reporting the coworker’s mismanagement of an agency project might well be.”
The Court identified several factors to be used in identifying whether a record is public including: (1) the content itself; (2) the context in, or purpose for which, it was written; (3) the audience to whom it was directed; and (4) whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.
Alright I get it, it’s complicated… how do I stay on the right side of the law?
First things first, eliminate the risk. A public entity should have policies and procedures in place (and enforced) that require employees to only use their entity-provided accounts to conduct public business. In a pinch, a real dire emergency, a public employee can CC their entity account on any business conducted from a private account. Then when it comes to answering the CPRA request itself, you can have your employees confirm that they knew of the public business policy and have conducted all business according to it. Now is a great time to go forth and revise your employee handbook.
Ok I’m really trying to get around to revising my employee handbook, but don’t have the time (and sometimes my employees don’t follow my current handbook anyway), how do I make sure my employee’s conduct a proper search?
Unfortunately the Court did not lay out a failsafe method but it did make some helpful suggestions on compliance.
So you have a CPRA request and have reason to believe that documents within the scope of the request may be stored in an employee’s private account, what to do. First, as discussed above, your employees must be trained on how to distinguish between a public record and their private documents. Second, each employee must search their personal accounts and separate the public records from their private documents. Third, if they find a document that may be potentially responsive but they believe to be private they must lay out sufficient information in an affidavit (a written statement under oath) such that a reviewing court can make a final determination. Finally, they should turn over unaltered copies of all of the public records. Phew, that wasn’t too bad.
If you have concerns about whether your office’s procedures comply with this new clarification of the CPRA or wish to receive training on how to conduct a proper search for public records, please contact our helpful employment attorneys.