At Kingsley Bogard, we are committed to providing our clients with current legal updates on a wide variety of topics and challenges pertaining to public sector employers. We invite you to explore our blog and welcome your feedback.

These articles are designed for general informational purposes. These articles should not be construed as, or substituted for, formal legal advice. Additionally, these articles are not intended to create an attorney-client relationship where none had already existed, or alter the scope of any existing attorney-client relationship.

California Supreme Court to Review Court of Appeal’s Decision Exempting Private Electronic Communications from Disclosure Under California Public Records Act

The California Public Records Act (“PRA”) was passed “to ensure public access to vital information about the government’s conduct of its business.”  Pursuant to the PRA, members of the general public, including media, can inspect or obtain copies of public records.  A “public record” for purposes of the PRA includes a writing that relates to the public’s business and is “prepared, owned, used, or retained by any state or local agency.”  “Public records” subject to disclosure pursuant to the PRA can also include emails, text messages, or other forms of communications prepared, received, or stored on electronic devices of a public entity.

In City of San Jose v. Superior Court (Smith), California’s Sixth District Court of Appeal recently held that written communications, such as emails and text messages, “sent or received by public officials on their private electronic devices using their private accounts are not public records subject to disclosure in response to a PRA request.”  In 2009, Ted Smith submitted a PRA request to the City of San Jose requesting disclosure of voicemails, emails, and texts sent or received on personal electronic devices used by the major members of the city council and staff.  Copies of records stored on the City’s servers, and communications sent to or from private electronic devices using public accounts were produced.  Communications sent from an individual’s personal electronic accounts, however, that were only stored on an individual’s personal device or server were not provided.  Smith subsequently filed a lawsuit with the superior court requesting declaratory relief and production of the records at issue.  The superior court ultimately ordered the City to produce copies of responsive communications sent or received by public officials and employees on their private electronic devices using their private accounts.  This ruling was issued despite the fact the City lacked direct access to the private accounts.  The City appealed the matter to the Sixth District Court of Appeal, which issued the subject opinion.

A petition for review of the Sixth District Court of Appeal was subsequently submitted to the California Supreme Court.  The Court granted the petition on June 25, 2014.  Public agencies will be required to comply with the Supreme Court’s decision once issued.  Furthermore, public agencies should be aware that the Sixth District Court of Appeal’s opinion in City of San Jose v. Superior Court is hereby superseded by the Supreme Court’s decision to review the ruling.  Information regarding the status of this case will be provided as it becomes available.

This is not intended to substitute as legal advice.  If you have specific questions about City of San Jose v. Superior Court (Smith), please contact our office.

Kingsley Bogard LLP  |  600 Coolidge Drive, Suite 160  |  Folsom, CA 95630
(916) 932-2500 phone  |  (916) 932-2510 fax  |  admin@kblegal.us