In the case of City of San Jose v. Superior Court, Case No. H039498 (March 27, 2014), Smith made several CPRA requests to the City of San Jose (the "City"), including all voicemails, emails or text messages sent from or received on private electronic devices used by the Mayor, City Council, and staff concerning issues related to redevelopment of the downtown area. Under the CPRA, the City disclosed responsive non-exempt records sent from or received on private electronic devices using City accounts, but not records from those persons' private electronic devices using their private accounts (e.g., a message sent from a private Gmail account using the person's own smart phone or other electronic device).

Smith brought an action for declaratory relief. The Superior Court granted relief to Smith, ruling that e-mails and text messages of public officials using their personal accounts or devices become public records if they are discussing government business.

The Court of Appeals overruled the lower court's ruling. The Court of Appeals ruled the CPRA does not require a City 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 court reached its decision under a strict interpretation of the CPRA statutes. (Gov. Code § 6250 et seq.). A public record is defined in Gov. Code section 6252, subdivision (e), 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. The court concluded, a City must prepare, own, use, or retain the writing in order for it to be a public record, and writings that are inaccessible to the City cannot be said to be a public record. For example, private text messages are inaccessible because the City cannot use or retain a text message sent from a council member's cell phone that is not linked to a City server or City account. Thus, the court concluded the CPRA does not require disclosure of writings by city officials and employees sent or received on their private devices and accounts.

However, the court noted it was not deciding whether a privately transmitted communication made during a public meeting becomes that of a public body, subject to disclosure as a public record under CPRA (e.g., text messages and e-mails sent or received on private devices between city council members during a council meeting). Thus, it is uncertain whether privately transmitted communication between city council members made during public meetings are subject to disclosure under the CPRA

The City is not required to disclose communications from private accounts of city officials and employees sent or received on their private cell phones and devices. However, it remains uncertain whether privately transmitted communications between city council members made during public meetings are subject to disclosure under the CPRA.

If you have question, please contact John W. Lam at (562) 699-5500 or email jlam@agclawfirm.com.