QUESTION: Suppose a public official advises certain persons to communicate with him at home — either by email or letter — in order to avoid having to disclose any of those communications as public records under the California Public Records Act? Would those records, in fact, be exempt from the PRA?
ANSWER: I am not aware of any law that would prohibit a public official from using his home address or personal e-mail account to conduct public business. Under the PRA, there would be a strong argument that such correspondence would be subject to disclosure, unless an exemption applies.
Under the PRA, “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,” must be disclosed to the public unless a provision of the PRA exempts it from disclosure. Govt. Code Section 6252-6253. The term “writing” includes e-mail. Govt. Code Section 6252(g). A letter or e-mail sent to a public official about government business would seem to fall within this definition even if it were sent to his home address or personal e-mail account.
Note, however, that in January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman from her personal e-mail account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).
The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.'” Id. at 1300. Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached this key issue.
Not surprisingly, this issue is being raised all over the place. In Colorado a newspaper sued for access to the Governor’s personal phone records, as he was said to often conduct government business using a personal cell phone. A Colorado court rejected the newspaper’s suit in October. See http://www.rcfp.org/newsitems/index.php?i=7103; http://www.denverpost.com/ci_10720721 . For a similar issue related to Governor Palin’s “personal” e-mail account, see http://www.adn.com/sarah-palin/story/526281.html . For treatment by the Obama administration of personal e-mail accounts used to conduct government business, see http://politicalticker.blogs.cnn.com/2009/02/19/republican-wants-white-house-e-mail-plan/ .
You raise an additional issue with respect to the use of personal e-mail or a home address expressly to avoid communications’ being disclosable under the PRA. To the extent there was evidence of such intent, a court might factor that into the analysis of whether the PRA applied to such communications.
If there are particular records you seek and have not already requested them, I would suggest that you submit a PRA request to the agency where the public official works. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). A sample PRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html .
Holme Roberts & Owen LLP is general counsel for the California First Amendment Coalition and responds to CFAC Hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
I hope you find this information useful.
Holme Roberts & Owen LLP