(CN) – California’s high court grappled Wednesday with just how much privacy a public employee can expect when using a personal phone or email account to discuss work matters, in the city of San Jose’s challenge of whether the California Public Records Act should apply to unofficial texts and emails that pertain to the people’s business.
“The critical question is always whether the information relates to the conduct of the public’s business. I think it is a fair rule to say that when you’re talking about public business, conducting pubic business, or doing something related to public business, that is probably going to be subject to disclosure,” said Karl Olson, a lawyer for the California Newspaper Publishers Association, an intervening party in a lawsuit.
Exactly what kind of communications fall under the act is tricky, especially when public business can be conducted at all hours of the day across multiple digital platforms.
Environmental activist Ted Smith sued the city back in 2009, requesting 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 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.
At a hearing before the state’s high court on Wednesday, Olson slammed the city for taking an all-or-nothing approach to the records.
“They’re saying everything on the private device is off-limits,” he said. “We are not taking the everything approach. They’re still going to be able to argue exemptions.”
He added, “We’re not saying we get everything. But in accordance with the law it’s always been that there’s a strong presumption of access and the burden is on them to justify nondisclosure.”
San Jose Assistant City Attorney Nora Frimann told the high court that a ruling in favor of disclosure wouldn’t necessarily ensure transparency, but could instead have a chilling effect on public employees’ private speech.
“I would ask that the court consider the privacy rights of public employees,” Frimann said.
Enacted by the California Legislature in 1968, California Public Records Act defines a public record as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
In 2014, voters enshrined the act in the state Constitution.
Chief Justice Tani Cantil-Sakauye said she was concerned with balancing the court’s duty to uphold the will of the voters with protecting unintended communications from being made public. And she asked Frimann to consider whether government employees and officials might use their personal email accounts to hide their dealings from public scrutiny.
“What about the situation where a personal account is intentionally used to conduct public business in a way that is intentionally meant to preclude other eyes or public records release?” she asked.
Frimann said the hypothetical person would simply seek out more antiquated methods of getting around the statute, like making a personal unrecorded phone call.
“There may be a time where that communication is going to be captured, but that person will go back to the phone,” she said.
That answer didn’t hold water for Justice Carol Corrigan.
“I don’t think the good old telephone argument isn’t going to get you all the way home,” Corrigan said.
Revisiting the real estate example, Corrigan said she couldn’t fathom how a public employee should be allowed to skirt disclosure just by using a private account.
“So if I’m involved in the sale of city property and I want to shield that from public review, I just use my own cellphone and my own account and no one ever needs to know. And when I sell the lot for $1.50, well lucky for me I’ve used my own Apple device – or my own Samsung before it blew up in my pocket,” she said. “Under any fair reading of the statue, that is clearly the kind of communication that is contemplated as being subject to disclosure. Your position is, ‘If I’m smart enough or crafty enough to use my cellphone, then the public is just out of luck.’ That just can’t be the answer.”
But the justices also seemed dissatisfied with the idea of public employees rifling through all of their personal emails and text messages just to comply with records requests, especially when a lot of that kind of communication could include the airing of work grievances.
“How about, ‘I hate my boss?’ I think that’s the problem here,” Justice Goodwin Liu said. “It gestures toward not much the reading of the statute, but how do you implement this practically down the road.”
He continued, “It’s fairly straightforward to say ‘Well, if you’re going to conduct public business, do it on the government email account.’ The problem is we all have personal accounts as well. People are now going to wonder, what can I write on my personal account? Because without some clear definition of what relates to public conduct, I’m really afraid to write on my personal account ‘I really don’t like my boss.’ They’re stymied in their personal communications as well.”
Smith’s attorney James McManis said employees should be able to tell what communications are actually in the public interest, versus ones that are merely blowing off steam.
“Is the fact that he doesn’t like his boss something we’re going to be concerned with in terms of the public’s business? In this particular case, we’re talking about emails to do with the expenditure of public funds on the former mayor’s real estate development. That’s pretty far afield from ‘I don’t like my boss,’” he said. “I don’t think it’s that complicated to figure out what emails really do relate to the public’s business and what don’t.”
McManis said the justices were getting bogged down with hypothetical, albeit legitimate complications, but ones that can be adequately decided by the trial courts as they unfold.
“These other problems about how do you do it, what’s the best procedure that has to await other cases where there can be showings made, trial courts can make determinations and see whether or not there are practical problems which need to be addressed,” the McManis Faulkner partner said.
But Liu seemed reluctant to rule on the case without a clearer definition of public conduct.
“The first step seems to be an easy one. But in taking that first step we are walking into a big unknown. That is the big problem here. The facts of this case and the nature of the request and the basic principle are easy to discern, but having taken that first step we are crossing into an area where we are talking about peoples’ private devices or accounts,” he said.
“Having peeked into that, the camel’s nose is under the tent, legitimately perhaps. There’s a whole lot of things under that tent. The minute we write the rule you want, those issues immediately come into being.”