SAN FRANCISCO (CN) – Text messages and emails about government business sent from officials’ private phones are public records that the people have the right to see, the California Supreme Court ruled Thursday.
Writing for the unanimous seven-member court, Justice Carol Corrigan said such communications should be disclosed under the California Public Records Act, otherwise public employees or politicians might be encouraged to hide important or possibly incriminating discussions behind a private phone or email account.
“We are aware of no California law requiring that public officials or employees use only government accounts to conduct public business. If communications sent through personal accounts were categorically excluded from CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts,” Corrigan wrote in the 24-page ruling.
The ruling stems from environmental activist Ted Smith’s lawsuit against the city of San Jose in 2009.
Smith requested 32 types of public records – including emails, text messages and voicemails – sent or received on private devices by then-mayor Chuck Reed, San Jose City Council members and their staff regarding the use of public money for the former mayor’s real estate project.
A Santa Clara Superior Court judge sided with Smith and ordered disclosure, a ruling later reversed by the Sixth Appellate District.
Smith was then joined by McClatchy Newspapers, the California Broadcasters Association, Los Angeles Times Communications, and other news outlets in his appeal to the California Supreme Court.
Thursday’s ruling reversed the appellate court’s ruling and remanded the case to state court.
In a phone interview, Smith’s attorney James McManis hailed the decision’s importance for reporters, unions and the public.
“It was a very strong statement that the Constitution and the statute mean what they say and that records – be they emails, tweets, postings to Facebook – if they concern the public’s business they have to be produced,” he said. “And this idea that if they’re on somebody’s device we don’t have to produce, the court has laid that to rest.”
But the court’s clarification of the law also places a new burden on public agencies and employees that could lead to a whole host of legal questions.
“Clearly there was a strong direction to public agencies to adopt some sort of policy on how to handle records on private devices, and public officials and employees need to figure out how they are going to comply with these policies,” said Ruthann Ziegler, a principal with Meyers Nave in Sacramento who specializes in public law and the Public Records Act.
“The good news is that for employees and officials, the court does not say you must turn over your device for a public agency to review, but the public agency has to make as clear as possible what the records are that are being sought and what the breadth of information the employee or official must look for. The challenge is under the Public Records Act, if a requesting party sues and wins, it is mandatory award of attorney’s fees against the public agency in favor of the requesting party.”
This could have serious implications for records that are requested and withheld unintentionally, for instance if a public employee or official leaves out one record out of a thousand.
“I think it would be unfair, but that doesn’t mean that’s not covered under the Public Records Act. It’s an open question and I could see it as being a situation that could get litigated,” Ziegler said.
The California Public Records Act draws a narrow balance between personal privacy and the public’s right to access information, and there are dozens of exemptions to disclosure. But Ziegler said public agencies are also going to have to grapple with how far the court’s decision will go.
“You could say how far does this reach? Does it go to a former employee?” she said. “Let’s say you have a controversial development project and the planning director who frequently used her private cellphone retired last week. What is the obligation of the agency to reach out to the former planning director and what is her obligation to comply?”
At a hearing in December, the city argued that a ruling in favor of disclosure wouldn’t necessarily ensure transparency, but could instead have a chilling effect on public employees’ speech and privacy.
“Of course, public employees do not forfeit all rights to privacy by working for the government,” the high court countered in its ruling. “Even so, the city essentially argues that the contents of personal email and other messaging accounts should be categorically excluded from public review because these materials have traditionally been considered private.”
The court said any personal information could be redacted from public records.
“I expected the court was going to see through all those arguments and I’m glad they did,” McManis said. “If someone is concerned about their privacy, don’t use your private device, that’s the easiest answer. And if you do conduct public business on your personal device you’re going to have to upon request procure those records. I don’t think it’s that complicated. The city, in my opinion, didn’t have much of a case. So they were trying to say, sort of, ‘The floodgates are open, it’s all gloom and doom, the sky is falling.’ I didn’t get the sense the justices were too impressed with that and in the ruling they clearly weren’t distracted by it.”
The court’s ruling also slammed the appellate court’s assumption that our bureaucrats and politicians always act on behalf of the public good.
“It is no answer to say, as did the Court of Appeal, that we must presume public officials conduct official business in the public’s best interest. The Constitution neither creates nor requires such an optimistic presumption,” Justice Corrigan wrote. “Indeed, the rationale behind the act is that it is for the public to make that determination, based on information to which it is entitled under the law. Open access to government records is essential to verify that government officials are acting responsibly and held accountable to the public they serve.”
Ziegler said she’d never encountered a public official or employee who tried to evade public scrutiny through the use of private communication. “I’ve never encountered that hide-the-ball mentality,” she said.
McManis said that although he thinks pretty highly of most public officials, the court’s decision ensures they’ll be answerable to the public.
“I’d like to think that most public officials are honest, honorable people who want to do the right thing,” he said. “And now they know that if they’re using private devices to conduct public business then that’s subject to production upon request. So I don’t think it should be that big a deal. But these government entities, they’re always wringing their hands.”