Member Article

On March 2, 2017, the California Supreme Court issued its much anticipated decision in the City of San Jose v. Superior Court of Santa Clara County case.

In short, the Court determined that when a public official or employee uses a personal account to communicate about the conduct of public business, the writings are subject to disclosure under the California Public Records Act, if those writings are not otherwise exempt from the disclosure requirements.

The Court's decision is based on the definition of "public records" and the legislative mandate to construe the Public Records Act broadly if it furthers access to public information. The Court broke the definition down into four elements, evaluated each element, and concluded that communications by public employees about public business do not cease to be public records just because they are sent or received using a personal account.

The Court also considered public policy factors in making its decision, including the privacy interests of public employees and the complexities of compiling records from personal accounts. The Court said that the purpose of the Public Records Act could be evaded by communicating through personal accounts. And privacy interests would be protected when communications fall under an exemption from disclosure. The Court even offered some guidance for how public agencies may go about obtaining records held in personal accounts.

This decision did not expressly address communications through private devices, but the rationale of the holding is applicable to communications through personal accounts as well as through private devices. This case will have widespread impacts, and one way for public agencies to minimize these impacts is to caution officials and employees to use agency accounts and devices for agency business, and keep personal accounts and private devices for personal communications.