Personal Cell Phones Subjected to Public Records Requests
On March 2, 2017, the California Supreme Court issued S218066, in which it held that city officials were required to publicly disclose work-related electronic communications over their personal electronic accounts and devices. The case involved a private citizen who formally requested numerous records, including emails and text messages "sent or received on private electronic devices used by" the mayor, city council members, and their staff. The City disclosed only communications made using official city telephone numbers and email accounts but did not disclose communications using the individuals' personal accounts and devices.
The Supreme Court overruled the appellate court's determination that electronic communications relating to the conduct of public business on private accounts were not "prepared, owned ... or retained" by the governmental agency and hence subject to disclosure under the California Public Records Act ("CPRA"). In so doing, the Court looked at the language and intent of the CPRA and concluded ( at p. 10) that the CPRA includes not only the governmental entity, but also its individual officers and employees. Moreover, the Supreme Court found that a document is retained by the agency within the meaning of the CPRA, "even if the writing is retained in the employee's personal account:' (at p. 13.)
The Impact of the Decision on Public Employees
This decision will have a significant impact on all public employees in the State of California, and most assuredly, peace officers. Pursuant to the CPRA, the public agency now has an obligation to search, collect, and disclose material located in an employee's personal account or on a personal device ( e.g., cell phone). Although the CPRA does not prescribe specific meth-ods of searching for documents, the California Supreme Court explored several. For instance, the Court indicated that agencies could develop internal policies for conducting such searches, or could rely on employees to search their own personal files and devices for responsive materials. Alternatively, the Court also suggested that public agencies could develop policies that would reduce the likelihood of public records being held in employees' private accounts. The Court cautioned, however, that any personal information not related to the conduct of public business or falling under a statutory exemption under the Act could be redacted, (Gov. Code,§ 6253(a)) but that such privacy concerns would need to be addressed on a case-by-case basis.
This decision should cause every public employee to seriously consider when, how and whether to use their personal cell phones for work related communications. Public agencies will likely examine their policies and practices regarding electronic communications, which may impact the reasonable expectation of privacy a public employee has in a personal device that is used for official business. In turn, labor organizations and individual employees should closely monitor any new or revised policies and be vigilant to exercise all applicable meet and confer rights under collective bargaining statutes to ensure privacy rights established by the United States and California Constitutions are protected.
By Brian Ross