Decision Alert: Supreme Court Rules on Scope of PRA Requests
The Supreme Court has held that communications on private/personal devices and accounts of its employees and officials are subject to the California Public Records Act (CPRA) and that documents on such devices may be subject to disclosure. The Court explained that the CPRA should not permit government agencies from avoiding requests for public documents simply by switching to a different email address or device.
The Court described a public record as “a writing [which] must relate in some substantive way to the conduct of the public’s business,” modifying the prior standard which provided that “[o]nly purely personal” communications “totally void of reference to governmental activities” may be excluded from being defined as public records. “Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.” The mere mention of the public agency or another public employee in an email will not necessarily make the email a public record. This is intended to address privacy concerns associated with purely non-governmental communications.
The Court also offered suggestions on how to ensure records on personal devices or channeled through personal accounts can be searched. The suggestions range from permitting public employees to search their own records and providing affidavits attesting to the materials found/not found within the scope of a request, or requiring that all communications/records be prepared on governmental devices and/or accounts. The Court did not prescribe a particular procedure.
The Court did not address a public agency’s liability for its employees’ and/or officials’ failure to comply. Nor did it unambiguously contend with such individuals’ responsibilities to retain records on their personal devices and accounts. The Court found that “[a] writing prepared by a public employee conducting agency business has been ‘prepared by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is prepared using the employee’s personal account.” The existence of smart phone communications apps, like Signal and Confide, which delete messages within a pre-ordained period (in some cases, as soon as the message is read by the recipient) will test the Public Records Act and this ruling. If you have any questions about how this decision may affect your agency or your personal records and/or devices, please contact the attorneys at Lounsbery, Ferguson, Altona & Peak.