Q: Can email sent by a California Special District elected official to other directors or the district office concerning district business be subject to examination using the Public Records Act? Would it make a difference if he used his personal computer to send an email to another elected official?
A: Under California’s Public Records Act, “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” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Gov’t Code Section 6252-6253.
The term “writing” includes e-mail. Gov’t Code Section 6252(g) (defining “public records” to include emails). A special district would be considered a “local agency.” Therefore, emails sent from one district official to officials in other districts, that concern the public’s business, and that are retained in electronic or paper form, must be disclosed (unless some exemption applies).
If the elected official here was using his personal computer to send emails on his government-issued email account, it probably would not matter on which computer the email was actually generated, since he is still using his government-issued email account to discuss the public’s business.
Even if he were using his personal email account on his home computer, and was sending messages relating to the conduct of the public’s business, there would seem to be a strong argument that those messages should be public. Otherwise, important government business could be conducted in secret.
How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.
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 the substantive issue.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.