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by Tim Cushing


Filed Under:
california, emails, foia, public records



State Supreme Court Says California Officials Can No Longer Hide Documents In Personal Email Accounts And Devices

from the an-obvious-conclusion,-nearly-a-decade-in-arriving dept

Public servants discussing public business. Should be public records, right? California politicians don't think so. The city of San Jose has spent eight years litigating the issue, hoping for the state's courts to find it permissible for public officials to hide official communications in personal email accounts and personal devices.

In 2009, activist Ted Smith requested records from the city of San Jose, triggering a long-running lawsuit which has only now reached its conclusion. A state appeals court previously ruled for the city, finding records stored in personal accounts/devices to be beyond the reach of the state's public records laws.

Fortunately, as the EFF reports, the state's supreme court has overturned that decision, making it much more difficult for public officials to stay out of the public eye. The decision [PDF] deals with the many arguments the city made -- several of which attempted to rewrite public records laws on the fly by taking certain phrases out of their context -- but the bottom line is this: public records still belong to the public, no matter where they're stored.

CPRA and the Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA‟s reach merely because they were sent or received using a nongovernmental account? Considering the statute's language and the important policy interests it serves, the answer is no. Employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.

The city tried to argue its agencies didn't need to comply with the state's public record law because the statutory language didn't specify records created by employees at local agencies. The court points out this limited interpretation is, at best, deliberately obtuse.

The City draws its conclusion by comparing the Act‟s definitions of “local” and “state” agency. Under CPRA, “ „Local agency‟ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” (§ 6252, subd. (a), italics added.) The City points out that this definition does not specifically include individual government officials or staff members, whereas individuals are specifically mentioned in CPRA‟s definition of “state agency.”

[...]

The City contends this difference shows the Legislature intended to exclude individuals from the local agency definition. If a local agency does not encompass individual officers and employees, it argues, only writings accessible to the agency as a whole are public records. This interpretation is flawed for a number of reasons.

A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf… 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 city also tried to claim documents stored in personal email accounts/devices were "inaccessible" to the responding agency -- and therefore inaccessible to public records requesters. Again, the court points out the obvious:

As to retention, the City argues "public records" include only materials in an agency's possession or directly accessible to the agency. Citing statutory arguments and cases limiting the duty to obtain and disclose documents possessed by others, the City contends writings held in an employee's personal account are beyond an agency's reach and fall outside CPRA. The argument fails.

[...]

An agency's actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested. It is a separate and more fundamental question whether a document located outside an agency's walls, or servers, is sufficiently "owned, used, or retained" by the agency so as to constitute a public record. In construing FOIA, federal courts have remarked that an agency's public records "do not lose their agency character just because the official who possesses them takes them out the door." (Competitive Enterprise Institute v. Office of Science and Technology Policy, supra, 827 F.3d at p. 149.) We likewise hold that documents otherwise meeting CPRA's definition of "public records" do not lose this status because they are located in an employee's personal account. A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account.

This ruling affects the entire state. It isn't just San Jose being made to comply with the spirit of the state's public records law by having the letter of the law explained to it by the state's highest court. It never was acceptable for public officials to hide public records in private accounts, but this ruling makes it officially wrong. Those looking to keep public discussions away from the public will have to be a bit more creative from now on, like the Sacramento legislators who have turned to self-destructing instant messages to play public records keepaway with their constituents.

Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing.


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  • identicon
    Anonymous Coward, 3 Mar 2017 @ 3:29pm

    So they will go back to smoke filled rooms and underground parking garages.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 3 Mar 2017 @ 3:46pm

    Slow, slow dawning

    Soon it will creep into the collective conscience of government workers that if they use their private phones and computers for work, those phones and computers might become eligible for a search for public records.

    In order to determine if a particular record is public or not, it will need to be viewed. Such viewing, whether germane to the intent of the search or not, may just make someones peccadilloes...public. Then they will stop using their private hardware for public purposes.

    It might be a hard way to learn the lesson, but the lesson will be learned.

    reply to this | link to this | view in chronology ]

    • identicon
      Another Anonymous Coward, 3 Mar 2017 @ 4:27pm

      Re: Slow, slow dawning

      Why just make it eligible for a search for public records? If the employee used his personal accounts for government work, make all the contents of those accounts public records, and thus all of it subject to public scrutiny as a matter of law.

      reply to this | link to this | view in chronology ]

    • identicon
      Jay, 4 Mar 2017 @ 9:55am

      Re: Slow, slow dawning

      Unfortunately the lesson will never be learned because NO one goes to jail. This is an example of corrupt government putting the screws to the citizens who pay their salary. Even more egregious, their legal fees are paid by the people they are screwin'.

      Sorry if I seem pessimistic but my comment to Anonymous Coward is, no lesson has been learned. Jerry Brown supports this unlawful behavior and as long as you have a corrupt politician in government you will continue to see this errant , make that arrogant behavior - because No One Went To Jail and the foolish public paid all the legal expenses.

      reply to this | link to this | view in chronology ]

    • identicon
      btr1701, 7 Mar 2017 @ 1:51pm

      Re: Slow, slow dawning

      > Soon it will creep into the collective conscience of
      > government workers that if they use their private phones
      > and computers for work, those phones and computers might
      > become eligible for a search for public records.

      Using it or not isn't the issue. Seems like merely having a private phone makes it eligible for search, because the government doesn't know if you have responsive records in your personal email account until they look. So even if you never use your personal phone/email for government business, when a FOIA request comes in, they're going to need to look to be sure.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 3 Mar 2017 @ 3:50pm

    Aha! A thread mentioning something about politics!

    Discussion cannot proceed further without a discourse about the intelligence, morals, social habits, and table manners of people in Iowa. Or Ohio. Or maybe it was Hawaii. (I'm not sure which is which, but it doesn't matter anyway.)

    All their votes are pure evil.

    And they're bigots, too.

    Thank you all for agreeing, whether or not you understand. You may now discuss those evil Mexican officials and politically-motivated courts in full assurance that the obligatory insane rant has been registered.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Mar 2017 @ 8:02pm

    If only it were that easy...

    Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing.

    Unfortunately, so long as there's no actual penalty for conducting official business/communications through private channels the cost/benefit analysis will still end up on the 'Hide it all' side.

    At this point, where the issue has been the focus of multiple lawsuits/investigation , some of them quite public, any official attempting to dodge public accountability like this is doing so deliberately, having decided that keeping official business secret is of more worth than the risk of a lawsuit that might, if the one issuing it has the funds and ability to sustain a lawsuit long enough, force them to divulge the details pertaining to a specific topic.

    So long as the perceived benefit to keeping the public in the dark by hiding official business like this is seen as bigger than any perceived penalty, and right now there isn't one, there will continue to be people that ignore the law and conduct official business through personal methods.

    reply to this | link to this | view in chronology ]

  • icon
    SMobius (profile), 4 Mar 2017 @ 1:42am

    Great in principle but....

    I think we can all agree that we don't want this sort of communication hidden. Essentially we want public officials to stop using private devices for this sort of communication at all. However unless one of the communications comes to light how can you tell (bear with me). more importantly how do they prove they are NOT doing so without granting access to all of their private messages. If they are using good encryption then it may well be very difficult to access their own devices without their consent. Techdirt itself has covered this. It also raises questions bout their privacy. does public office strip those rights? now I'm not defending hiding official messages but I can see that enforcing this is not going to be easy

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2017 @ 6:59am

    The wall just got ten feet higher, and now runs up the eastern side of the San Andreas Fault. But seriously, you can hide it on the mail server I have set up in my basement, this way we don't have to leak anything to the Russians, they will already have access.

    reply to this | link to this | view in chronology ]

  • identicon
    Jim, 4 Mar 2017 @ 7:08am

    But:

    It is not illegal to have more then one email address. But if you are a Democrat doing it, it is problematic. Yup.

    reply to this | link to this | view in chronology ]

  • identicon
    Dimitri Kissov, 5 Mar 2017 @ 6:59pm

    Use of private email for government business

    I know a little about this topic as I've had to explain to people the sad news that whatever they sent or received via a gov't account was public record, no matter what it was about (you wouldn't believe it if I told you). This was the 90's and soon anyone with a brain knew to keep private info off the public network. If you think that it's no big deal that government business is done on 3rd party systems, I wan't you to imagine a gov't agency violating the rights of people they don't agree with and hiding it. It's OK as long as "your" people aren't being targeted, but a much different story when the "right-thinking" are targeted by the "fascists", right comrade

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 6 Mar 2017 @ 3:33am

      Re: Use of private email for government business

      I know a little about this topic as I've had to explain to people the sad news that whatever they sent or received via a gov't account was public record, no matter what it was about (you wouldn't believe it if I told you). This was the 90's and soon anyone with a brain knew to keep private info off the public network.

      Hmm. How far does that reach?

      For example, a state university is considered to be a state actor - i.e., an arm of government - for e.g. First Amendment purposes; are the university-provided E-mail accounts of staff and faculty considered government accounts for this purpose?

      The ruling discussed in the article is about whether government employees' non-government-provided E-mail accounts are subject to the rules of government-transparency law; would that extend to staff and faculty of such universities?

      I'd expect the answer to be "no" in both cases, but it might be interesting to see the legal reasoning for why.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 6 Mar 2017 @ 4:12am

    Nothing is going to change if the ones that 'evaded' accountability aren't properly punished.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2017 @ 8:17am

    It is not that simple

    If you are government official you can not use your government email for non-official business. If you are going to ask Joe down the hall about something work related and if he wants to go for drinks after work that could be a violation to send on your government email. You have to send two emails one on personal (go for drinks) and on on government email (work related).

    This is especially true for campaign stuff. Joe we can make the the rally for Bob better by doing ... would be a big no no on government email.

    The real problem is that we generally mix thought in our conversations. It is difficult to decide whether what you want to talk about is going to be only work related or not.

    In general what this will lead to is me calling Joe. That way there is no public record and my thoughts can meander from work to play without to much of an issue.

    reply to this | link to this | view in chronology ]


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