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To Send or Not to Send: Personal Accounts May Succumb to the CPRA

   Published on:  03 Mar, 2017

The California Supreme Court, in yesterday’s ruling in City of San Jose et al. v. Superior Court of Santa Clara County, held that communication about public business on a personal account may be subject to the disclosure requirements under the California Public Records Act (“CPRA”). ¬†Any public employee’s personal records can become the target of a CPRA request and, therefore, be affected by this ruling.

In response to a CPRA request by Petitioner, the City of San Jose disclosed communications made using City phone numbers and email accounts, but not emails from individuals’ personal accounts or texts from personal phone numbers. The City argued that personal accounts do not fall within the purview of the CPRA.

On appeal, the high court had to decide whether writings (including emails, text messages, and other electronic platforms) that concerned public business were within CPRA’s reach even though they were sent or received on a non-governmental account. The Court rationalized that the CPRA’s policy implications and statutory language answer this question in the affirmative. The Court recognized that not all employment-related activity occurs from 9-5 in the confines of an office. The type of account used to prepare or transmit messages is not determinative of whether or not the writing must be disclosed.

Whether a writing is related to public business, however, will be up for debate. The Courts will look at several factors, such as the content, the context or purpose for which it was written, the intended audience, and whether the writing was prepared by an employee acting or purporting to act within the scope of his/her employment. “For example, depending on the context, an email to a spouse complaining ‘my co-worker is an idiot’ would likely not be a public record;” further, “primarily personal [communications] containing no more than incidental mentions of agency business, generally [also] will not” qualify for disclosure.

Overall, public employees must be cognizant of business-related messages sent from personal cell phones and or email accounts, as they could be subject to disclosure.

If you have any questions about this alert, please contact Jill Menning at 415.266.1806 or jill@majlabor.com.