Emails as public records
Q: To what extent is email correspondence a public record? Is the correspondence between two School District Directors on a particular subject recoverable even when the equivalent conversation via telephone would not be?
A: E-mails are “public records” as defined by the California Public Records Act. Government Code section 6252(e) defines “public records” as follows:”Public records” includes 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. “Public records” in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975.There are several exemptions under the Public Records Act that may apply to e-mails.
For example, they may be exempt from disclosure under the Public Records Act because they are from an attorney for the agency and/or relate to pending litigation. (See Government Code §§ 6254(b) and 6254(k).)However, your inquiry suggests that a different potential exemption might be invoked. Public agencies frequently refuse to disclose e-mails, asserting a “deliberative process privilege,” pursuant to Government Code section 6255. The California Courts have recognized that this “deliberative process privilege” may justify non-disclosure in some circumstances, for instance in response to a request for all calendars of the Governor of California. (See Times Mirror v. Superior Court, 53 Cal. App. 3d 1535 (1991).
However, they have also recognized that a narrower, more specific request might justify disclosure of such records. Proposition 59, which added Article I, section 3(b) to the California Constitution, was intended to do away with the deliberative process privilege. The ballot argument in support of Proposition 59, which was passed by more than 83 percent of the vote, states in part as follows: “What will proposition 59 do? . . . It will allow the public to see and understand the deliberative process through which decisions are made.”In short, you are probably entitled to the e-mails, but you may get a fight from the agency.