Government Emails on Personal Devices Are Public Records, State's Top Court Decides

By William Vogeler, Esq. on March 02, 2017 | Last updated on March 21, 2019

The California Supreme Court has ruled that government communications about public matters through personal email, phones, or other devices are public records.

The decision extends the California Public Records Act, enacted in 1968, which says that government records must be made available for public scrutiny. The court adapted the law to include personal electronic communications that are related to government business.

"We clarify, however, that to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public's business," Justice Carol Ann Corrigan wrote for the unanimous court.

"This standard, though broad, is not so elastic as to include every piece of information the public may find interesting," she added. "Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records."

City Refused Request

The case came to the high court after the City of San Jose refused a request to produce email and texts from city workers about a $6 million loan. Ted Smith suspected that city officials were using personal phones and email accounts to hide dealings with former mayor Tom McEnery, who received a $6 million loan from the city's Redevelopment Agency.

Smith, a former lawyer and community advocate, sued for declaratory relief and won a ruling from a trial judge. An appeals court issued a writ to undo it, but the supreme court agreed with Smith.

The city argued that the personal communications were not public records because they were not government communications. The high court, however, said the line between personal and government communications is sometimes blurred.

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

Not So Private

The city also argued that government workers have privacy rights, and that disclosure of their personal communications could violate those rights. The court said that privacy rights, in the balance, must sometimes yield to public access.

In responding to requests for public records, the court said, a city may redact personal information under the Public Records Act. A city may also establish policies to guard against workers' using personal accounts and devices for government-related communications.

News organizations, including the Los Angeles Times, also submitted briefs in the case. They argued that the intent of the Public Records Act was to make government business public, even though the law was written before the advent of the internet and cellphones.

"This is huge, this is a great thing for the public," said Peter Scheer, former executive director of the First Amendment Coalition. "It means the people we elect to represent us won't be able to avoid public scrutiny by using personal email accounts -- rather than government ones."

Related Resources:

Copied to clipboard