Written correspondence to and from officials as public record
Q: Several members of the City Council are considering a policy requiring council members to make public all written correspondence including e-mail rec’d from private citizens regardless of its content, citing the Brown Act and the desire for a more “transparent” city gov’t. A number of citizens believe that this is a violation of their 1st Amend & privacy rights and is just an attempt by the Council to intimidate citizens from making complaints. Do you know of any legal or scholarly opinions to shed light on this?
A: Although I am not aware of any legal or scholarly opinions on the kind of policy you describe, correspondence to and from public officials is generally considered to be a public record under the California Public Record Act and therefore subject to disclosure. Under the PRA, “public records” include “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.” Cal. Govt. Code Section 6252. The fact that the PRA specifically exempts “[c]orrespondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s legal affair secretary, provided that public records shall not be transferred to the custody of the Governor’s Legal Affairs Secretary to evade the disclosure provisions of this chapter,” further supports the position that correspondence of and to other government agencies is subject to disclosure.
With respect to the citizen concerns you mentioned, it is not clear to me how the proposed policy would implicate the First Amendment rights of citizens. It is also unclear whether a citizen communicating with a city council could have a reasonable expectation of privacy in that communication, which would generally be necessary to make out a claim based on privacy rights. It is nevertheless possible that particular correspondence could implicate privacy or other interests of the correspondent that would make disclosure of the correspondence problematic. The policy seems to take this possibility into account in Section 11.1(d)(iii).