Public Officials’ Personal Email
Q: Does a city council member’s use of his/her personal e-mail account to discuss city business make that account subject to Public Records Act Requests?
If so, is there a threshold between a single or several incidental uses and the systematic use of the personal e-mail for city business that would trigger the account’s exposure to such requests?
A: Under Public Records Act (“PRA”), public records (which 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,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure. Although purely personal emails may be exempt under the PRA, e-mail correspondence relating to the business of the city council — whether sent to a city council member’s work e-mail address or personal e-mail address — would likely be subject to disclosure under the PRA, unless, as stated above, a PRA exemption applies. The exemption that might apply to exempt the e-mails might be the PRA’s “deliberative process privilege” (codified in Gov’t Code 6255). The deliberative process privilege is designed to protect materials reflecting deliberative or decision-making processes. Wilson v. Superior Court, 59 Cal. Rptr. 2d 537 (1996). The city might argue that e-mails to and from the mayor regarding the proposed sale of the property to the city are instrumental to the city’s decision-making process in determining whether to purchase the property and, therefore, are exempt from disclosure. Note, however, where an agency invokes the deliberative process privilege, courts have held that the key question is whether disclosure of the materials would expose the agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to do its job. Wilson, 59 Cal. Rptr. 2d 537. It is important to note, also, that the deliberative process privilege is intended to protect only documents reflecting a deliberative or policy-making process. Rogers v. Superior Court, 23 Cal. Rptr. 2d 412 (1993). Finally, in order to invoke the deliberate process privilege, an agency must be able to justify its withholding by demonstrating that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. Govt. Code s. 6255(a).
I would suggest that you submit a PRA request for the records you seek. As you know, 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