(CN) – California’s high court grappled Wednesday with just how much privacy a public employee can expect when using a personal phone or email account to discuss work matters, in the city of San Jose’s challenge of whether the California Public Records Act should apply to unofficial texts and emails that pertain to the people’s business.
“The critical question is always whether the information relates to the conduct of the public’s business. I think it is a fair rule to say that when you’re talking about public business, conducting pubic business, or doing something related to public business, that is probably going to be subject to disclosure,” said Karl Olson, a lawyer for the California Newspaper Publishers Association, an intervening party in a lawsuit.
Exactly what kind of communications fall under the act is tricky, especially when public business can be conducted at all hours of the day across multiple digital platforms.
Environmental activist Ted Smith sued the city back in 2009, requesting 32 types of public records – including emails, text messages and voicemails – sent or received on private devices by then-mayor Chuck Reed, San Jose City Council members and their staff regarding the use of public money for the former mayor’s real estate project.
A Santa Clara Superior Court judge sided with Smith and ordered disclosure, a ruling reversed by the Sixth Appellate District. Smith was then joined by McClatchy Newspapers, the California Broadcasters Association, Los Angeles Times Communications, and other news outlets in his appeal to the California Supreme Court.
At a hearing before the state’s high court on Wednesday, Olson slammed the city for taking an all-or-nothing approach to the records.
“They’re saying everything on the private device is off-limits,” he said. “We are not taking the everything approach. They’re still going to be able to argue exemptions.”
He added, “We’re not saying we get everything. But in accordance with the law it’s always been that there’s a strong presumption of access and the burden is on them to justify nondisclosure.”
San Jose Assistant City Attorney Nora Frimann told the high court that a ruling in favor of disclosure wouldn’t necessarily ensure transparency, but could instead have a chilling effect on public employees’ private speech.
“I would ask that the court consider the privacy rights of public employees,” Frimann said.
Enacted by the California Legislature in 1968, California Public Records Act defines a public record as “any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
In 2014, voters enshrined the act in the state Constitution.
Chief Justice Tani Cantil-Sakauye said she was concerned with balancing the court’s duty to uphold the will of the voters with protecting unintended communications from being made public. And she asked Frimann to consider whether government employees and officials might use their personal email accounts to hide their dealings from public scrutiny.
“What about the situation where a personal account is intentionally used to conduct public business in a way that is intentionally meant to preclude other eyes or public records release?” she asked.
Frimann said the hypothetical person would simply seek out more antiquated methods of getting around the statute, like making a personal unrecorded phone call.