California Supreme Court Rules that Personal Emails and Texts Could be Public Records

March 10, 2017

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On March 2, 2017, the California Supreme Court unanimously held that public officers' and employees' communications on personal devices and accounts concerning "the conduct of public business" may be subject to disclosure under the California Public Records Act ("PRA"). (City of San Jose v. Superior Court of Santa Clara County (Mar. 2, 2017, S218066).) This is a significant decision impacting entities subject to the Public Records Act, which may include charter schools.

Are California charter schools subject to the Public Records Act?

While the California Public Records Act ("PRA") does not apply to California charter schools, most charter schools have agreed to comply with its requirements in their charter petitions, MOUs, or school policies. Whether the PRA applies to your charter school will largely depend on your governance structure and documents. You should review your charter petitions, MOUs and school policies to determine what your school has agreed to in relation to the PRA. In addition, we strongly suggest that you consult your own legal advisor, as charter organizations vary significantly. If you determine that your charter school has agreed to comply with the PRA, CCSA has developed general guidance for responding to PRA requests.

Which documents are now considered public records?

In the City of San Jose v. Superior Court of Santa Clara County case, the state's high court considered whether records concerning the conduct of public business were beyond reach of the PRA merely because they were sent or received using a nongovernmental account. The case arose when an individual sought records from the city of San Jose's redevelopment agency, its executive director and certain elected officials, and city produced the documents from official phone numbers and email accounts, but did not provide information stored on the officials' personal accounts. Considering the statute's language and the public policy interests it serves, the Court concluded that communications about public business may be subject to the PRA regardless of the account used in their preparation or transmission.

In reaching its conclusion, the Court analyzed the four elements of a public record. The PRA defines a public record as (1) a writing, (2) with content relating to the conduct of the public's business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.

The Court first confirmed that emails, text messages, and other electronic platforms are "writings" under the PRA. As to the second element, the Court concluded that "a writing must relate in some substantive way to the conduct of the public's business."

In evaluating the third and fourth elements, which require that a writing be "prepared, owned, used, or retained by any state or local agency," the Court focused on the term "or." The Court noted that agencies operate through officers and employees who "prepare" records relating to official business. As such, records prepared by officers and employees are public if they are in the "agency's actual or constructive possession."

For charter schools responding to PRA requests, the focus should be on whether a document was produced by employees or officials who are conducting business on behalf of the school, not whether the document was prepared, sent or stored on a school device or account.

What should charter schools do in response to this decision?

If you determine that the PRA applies to your charter school, there are certain steps you may take to ensure compliance with the PRA in light of this decision.

Recognizing the need to balance transparency with individual privacy, the California Supreme Court offered some practical guidance on how to search for records on private devices. First, when responding to a PRA request seeking records believed to be in an employee's personal account or device, the school should communicate the request to that employee. The school may "reasonably rely" on the employee to search his or her own personal files, accounts, and devices for responsive material. However, employees must be trained in distinguishing public records from private records for this procedure to be adequate under the PRA.

Second, the Court suggested that public agencies develop policies that reduce the incidence of public records being maintained solely in private accounts and devices. For example, a charter school could require that emails involving school business sent by an employee through a private account be copied to the employee's school email account.

For additional guidance on responding to PRA requests, click here.