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Lid on Texts & Emails of Public Officials Restored

(CN) - The San Jose City Council need not turn over its officials' emails and text messages under California's public records law, an appeals court ruled Thursday.

Activist Ted Smith sued San Jose, its council members and Mayor Chuck Reed - who ran as a champion for open government - in 2009 after the city refused Smith's request for emails, texts and voice messages sent or received by officials regarding a downtown redevelopment project. The city had claimed it lacked authority to access records from personal devices or private accounts.

Santa Clara County Superior Court Judge James Kleinberg granted Smith summary judgment against San Jose in March, finding that the California Public Records Act (PRA) extends to any official communication - regardless of where the record originated or how it is stored.

The ruling emphasized how San Jose officials had adopted Mayor Reed's recommendation in 2010 for a Sunshine Reform Task Force to make digital communications about city business available to the public.

"Defendants have made no showing regarding the burden of collecting records from the private accounts of the individuals listed in plaintiff's request," Kleinberg wrote.

The San Jose City Council made the Sunshine reforms permanent in 2012, but Mayor Reed reportedly warned that Kleinberg's order could potentially involve the arduous task of applying disclosure rules to the city's 5,500 employees.

A three-judge panel with the Sixth Appellate District overturned the summary-judgment order Thursday, however, finding that private communications not stored on city servers and not directly accessible by the city are not "public records."

"We conclude that the Act does not require public access to communications between public officials using exclusively private cell phones or e-mail accounts," Justice Franklin Elia wrote for the court.

The 26-page decision emphasizes that "the right of access declared in article I, section 3(b)(1), of the California Constitution is qualified by the assurance that this right of access does not supersede an individual's right of privacy."

Elia also cited an amicus brief from the League of California Cities that noted the importance in letting local officials discuss public issues privately and confidentially, allowing "dissident members of a legislative body to air 'unpopular views' and develop 'strategies for challenging the status quo or the powers that be.'"

"The superior court's ruling, by contrast, would destroy 'this carefully crafted private space' and 'could have a chilling effect on citizens who wish to exercise their constitutional rights to instruct their representatives and petition government for redress of grievances,'" Elia wrote.

It is illogical to credit Smith's argument that a city and its councilmen and staff are indistinguishable since inanimate local agencies can only act through their agents.

"Even if we accept the first premise, that a local agency can act only through its officials, it does not follow that every act of an official is necessarily an act of the agency," Elia wrote.

It is also worth noting that the Legislature had ample opportunity to encompass individual officials or their employees within the scope of "public records."

"Because it is the agency - here, the city - that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the city cannot be said to fall within the statutory definition," Elia wrote. "The city cannot, for example, 'use' or 'retain' a text message sent from a council member's smartphone that is not linked to a city server or city account."

It is a serious allegation that "city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts ... but such conduct is for our lawmakers to deter with appropriate legislation."

It is for the Legislature, not the courts, to decide whether the California Public Records Act should impose "on the city an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a CPRA request for messages relating to city business," the ruling concludes.

As the law stands now, it simply does not, Elia found.

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