Businesses must always be aware of how their actions and communications could affect their legal rights. The media rather frequently report on internal company documents that become public, through the discovery process in litigation or by other means, which at best cause embarrassment for a company. A recent decision from the California Supreme Court, while not directly related to business litigation, offers a useful reminder of the importance of communicating with government officials and employees through “official channels.” The decision, City of San Jose v. Superior Court of Santa Clara Cty., 2 Cal.5th 608 (2017), addresses access to government communications under state law. The court held that official communications by government officials are still public record, even when the official uses a personal email account or mobile device. In other words, anything sent by or to a public official, for official reasons, could become public.
California’s Public Records Act (PRA), Cal. Gov’t Code § 6250 et seq., states that “every person has a right to inspect any public record” upon request, with some exceptions. Id. at § 6253(a). The statute defines a “public record” to include “any writing containing information relating to the conduct of the public’s business” that was “prepared, owned, used, or retained” by any government agency. Id. at § 6252(e). This includes communications written and sent by government employees, as well as those written by private parties and sent to government employees, provided that the subject matter relates to official business.
The San Jose case began in 2009 when an individual made a public records request to the city for “32 categories of public records.” San Jose, 2 Cal.5th at 614. The request was directed to the city itself, its redevelopment agency, the agency’s executive director, and various other officials and employees. The records that were responsive to the request included communications sent and received by city officials and employees. The city produced records of “communications made using City telephone numbers and e-mail accounts,” but not those made with personal phones or email accounts. Id. at 615. The individual who made the request filed suit against the city for declaratory relief.
In the trial court, the city argued that the communications made with personal devices and email accounts were not “public records,” since they were not “within the public entity’s custody or control.” Id. The trial court granted the petitioner’s motion for summary judgment and ordered the city to disclose the documents. The case made its way to the California Supreme Court.
The state Supreme Court’s ruling takes a very broad view of the PRA’s requirements. It broke the PRA’s definition of “public record” down into four elements and reviewed each one individually: (1) writing; (2) “relating to the conduct of the public’s business”; and either (3) “prepared by” a government agency or (4) “owned, used, or retained by” one. Id. at 617. It held that emails, text messages, and other electronic forms of communication meet the “writing” part of the definition. It further found that the third and fourth elements should be construed broadly to include private communications if they relate to government business.
Business litigation attorney James G. Schwartz has advocated on behalf of Bay Area businesses and business owners for over 40 years in both transactional and litigation matters. To schedule an initial confidential consultation with an experienced and knowledgeable business advocate, contact us today online or at (925) 463-1073.
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