State Supreme Court Says California Officials Can No Longer Hide Documents In Personal Email Accounts And Devices
from the an-obvious-conclusion,-nearly-a-decade-in-arriving dept
Public servants discussing public business. Should be public records, right? California politicians don't think so. The city of San Jose has spent eight years litigating the issue, hoping for the state's courts to find it permissible for public officials to hide official communications in personal email accounts and personal devices.
In 2009, activist Ted Smith requested records from the city of San Jose, triggering a long-running lawsuit which has only now reached its conclusion. A state appeals court previously ruled for the city, finding records stored in personal accounts/devices to be beyond the reach of the state's public records laws.
Fortunately, as the EFF reports, the state's supreme court has overturned that decision, making it much more difficult for public officials to stay out of the public eye. The decision [PDF] deals with the many arguments the city made -- several of which attempted to rewrite public records laws on the fly by taking certain phrases out of their context -- but the bottom line is this: public records still belong to the public, no matter where they're stored.
CPRA and the Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA‟s reach merely because they were sent or received using a nongovernmental account? Considering the statute's language and the important policy interests it serves, the answer is no. Employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.
The city tried to argue its agencies didn't need to comply with the state's public record law because the statutory language didn't specify records created by employees at local agencies. The court points out this limited interpretation is, at best, deliberately obtuse.
The City draws its conclusion by comparing the Act‟s definitions of “local” and “state” agency. Under CPRA, “ „Local agency‟ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” (§ 6252, subd. (a), italics added.) The City points out that this definition does not specifically include individual government officials or staff members, whereas individuals are specifically mentioned in CPRA‟s definition of “state agency.”
[...]
The City contends this difference shows the Legislature intended to exclude individuals from the local agency definition. If a local agency does not encompass individual officers and employees, it argues, only writings accessible to the agency as a whole are public records. This interpretation is flawed for a number of reasons.
A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf… A writing prepared by a public employee conducting agency business has been “prepared by” the agency within the meaning of section 6252, subdivision (e), even if the writing is prepared using the employee's personal account.
The city also tried to claim documents stored in personal email accounts/devices were "inaccessible" to the responding agency -- and therefore inaccessible to public records requesters. Again, the court points out the obvious:
As to retention, the City argues "public records" include only materials in an agency's possession or directly accessible to the agency. Citing statutory arguments and cases limiting the duty to obtain and disclose documents possessed by others, the City contends writings held in an employee's personal account are beyond an agency's reach and fall outside CPRA. The argument fails.
[...]
An agency's actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested. It is a separate and more fundamental question whether a document located outside an agency's walls, or servers, is sufficiently "owned, used, or retained" by the agency so as to constitute a public record. In construing FOIA, federal courts have remarked that an agency's public records "do not lose their agency character just because the official who possesses them takes them out the door." (Competitive Enterprise Institute v. Office of Science and Technology Policy, supra, 827 F.3d at p. 149.) We likewise hold that documents otherwise meeting CPRA's definition of "public records" do not lose this status because they are located in an employee's personal account. A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account.
This ruling affects the entire state. It isn't just San Jose being made to comply with the spirit of the state's public records law by having the letter of the law explained to it by the state's highest court. It never was acceptable for public officials to hide public records in private accounts, but this ruling makes it officially wrong. Those looking to keep public discussions away from the public will have to be a bit more creative from now on, like the Sacramento legislators who have turned to self-destructing instant messages to play public records keepaway with their constituents.
Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing.
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Filed Under: california, emails, foia, public records
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Slow, slow dawning
In order to determine if a particular record is public or not, it will need to be viewed. Such viewing, whether germane to the intent of the search or not, may just make someones peccadilloes...public. Then they will stop using their private hardware for public purposes.
It might be a hard way to learn the lesson, but the lesson will be learned.
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Re: Slow, slow dawning
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Re: Slow, slow dawning
Sorry if I seem pessimistic but my comment to Anonymous Coward is, no lesson has been learned. Jerry Brown supports this unlawful behavior and as long as you have a corrupt politician in government you will continue to see this errant , make that arrogant behavior - because No One Went To Jail and the foolish public paid all the legal expenses.
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Re: Slow, slow dawning
> government workers that if they use their private phones
> and computers for work, those phones and computers might
> become eligible for a search for public records.
Using it or not isn't the issue. Seems like merely having a private phone makes it eligible for search, because the government doesn't know if you have responsive records in your personal email account until they look. So even if you never use your personal phone/email for government business, when a FOIA request comes in, they're going to need to look to be sure.
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Discussion cannot proceed further without a discourse about the intelligence, morals, social habits, and table manners of people in Iowa. Or Ohio. Or maybe it was Hawaii. (I'm not sure which is which, but it doesn't matter anyway.)
All their votes are pure evil.
And they're bigots, too.
Thank you all for agreeing, whether or not you understand. You may now discuss those evil Mexican officials and politically-motivated courts in full assurance that the obligatory insane rant has been registered.
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If only it were that easy...
Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing.
Unfortunately, so long as there's no actual penalty for conducting official business/communications through private channels the cost/benefit analysis will still end up on the 'Hide it all' side.
At this point, where the issue has been the focus of multiple lawsuits/investigation , some of them quite public, any official attempting to dodge public accountability like this is doing so deliberately, having decided that keeping official business secret is of more worth than the risk of a lawsuit that might, if the one issuing it has the funds and ability to sustain a lawsuit long enough, force them to divulge the details pertaining to a specific topic.
So long as the perceived benefit to keeping the public in the dark by hiding official business like this is seen as bigger than any perceived penalty, and right now there isn't one, there will continue to be people that ignore the law and conduct official business through personal methods.
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Great in principle but....
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But:
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Use of private email for government business
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Re: Use of private email for government business
Hmm. How far does that reach?
For example, a state university is considered to be a state actor - i.e., an arm of government - for e.g. First Amendment purposes; are the university-provided E-mail accounts of staff and faculty considered government accounts for this purpose?
The ruling discussed in the article is about whether government employees' non-government-provided E-mail accounts are subject to the rules of government-transparency law; would that extend to staff and faculty of such universities?
I'd expect the answer to be "no" in both cases, but it might be interesting to see the legal reasoning for why.
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It is not that simple
This is especially true for campaign stuff. Joe we can make the the rally for Bob better by doing ... would be a big no no on government email.
The real problem is that we generally mix thought in our conversations. It is difficult to decide whether what you want to talk about is going to be only work related or not.
In general what this will lead to is me calling Joe. That way there is no public record and my thoughts can meander from work to play without to much of an issue.
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