Court Of Appeal Chooses Not To Keep Up With The Times In Refusing To Extend Public Records Act To Private Email And Text Accounts
Posted by Greg Woodard on April 24, 2014
The assault on the Public Records Act (“PRA”) has garnered a lot of attention recently. Last year, the legislature attempted to make compliance with the PRA voluntary, rather than mandatory as it currently is. The swift outcry led to a hasty, and wise, retreat and the bill died as it should have. However, the Court of Appeal has again stepped in the PRA fray, and I believe it missed an opportunity to close a dangerous loophole created by technology outpacing the law.
In City of San Jose v. Superior Court, decided last month, the 6th Circuit Court of Appeal was faced with the question of whether emails and text messages sent to or from public officials’ and public employees’ private electronic devices, using their private accounts, were required to be disclosed pursuant to a proper PRA request. The trial court had held that communications on private devices were “public records” under the PRA and were required to be produced. Unfortunately, the Court of Appeal disagreed and reversed the trial court.
With the Court of Appeal now holding that communications using private devices are not subject to disclosure under the PRA, the potential for abuse is obvious. In fact, the City of San Jose Court specifically stated “[t]hat city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern. . .” However, the Court left it to the legislature to deter such behavior with appropriate legislation. I will note the irony given that the Democrats in the legislature recently wanted to gut the PRA by making it voluntary.
This trend towards making government less transparent is troubling. We already have seen that Obama’s EPA officials have used their private email accounts to aid environmentalists, with the head of the EPA creating fake email names to hide her actions. It is likely that a large number of public officials and employees are using their private accounts for public business, whether it is to hide those communications from public view or not.
Given how slowly the state legislature reacts to decisions like these (and its own efforts to undermine the PRA), I believe that the best way to curb these abuses is for local cities, counties, and other agencies to implement their own policies prohibiting officials and employees from using their private devices or accounts to conduct public business. These policies will only be effective if violations are dealt with severely. This also could increase costs for local agencies should they choose to purchase electronic devices for each public official and employee, but the resulting transparency should be worth the cost.
OC Political 
Allen Wilson said
Greg: Thank you for sharing your thoughts regarding the issue.
Too many local Councilmembers are using private emails as a method to skirt the PRA.
We need to beef up the transparency issue.
Craig P. Alexander said
Thank you Greg for your post – this is a very important decision and a very bad one indeed. I hope the Plaintiff takes this up to the CA Supreme Court and it is over turned – or the CA Supreme Court justices order the case de-published (meaning it cannot be cited as authority in Court on this subject).
Chad Morgan said
I’m generally very cynical about the intent of Legislative Democrats, but I’m not entirely certain their objective was to gut it. It doesn’t seem like it was that long ago that a Democratic controlled Legislature actually expanded the scope of the PRA though I’m sure few members remain from that session.
The most recent attack on the PRA seems like it more related to cost. By making it optional, they removed the unfunded state mandate and would eliminate the state’s obligation to reimburse local government for the costs of compliance.
The solution was Prop 42. The Legislature reinstated the requirement (and is continuing to fund) but put Prop 42 on the ballot to put compliance with the PRA in the constitution. If Prop 42 passes, and I think it will, the constitutional mandate for the PRA will be increased. Which over the long term is a good thing.
As for a legislative fix to this decision. I don’t think it’s entirely out of the question. The Legislature is exempt from the PRA and is generally will probably be more than happy to increase transparency if it doesn’t apply to them. But it will probably take several legislative sessions and some really bad cases of abuse to get it passed.