A&A: Are emails sent to elected officials private or public?

Q: Are e-mails sent by residents to the council or other government entities (GE) concerning a hot button issue considered public records? Or are they somehow protected by the ”right to privacy” and beyond public scrutiny?

In this case, the GE itself asked residents to send the e-mails and is making policy decisions based on the e-mails. I guess it would seem there could be potential for abuse of the “system” if there were a “faction” of people who could anonymously send biased e-mails attempting to sway the council one way or the other, sign their e-mails ‘Concerned Citizen’, say things that aren’t true and completely un-verifiable in any way.

What do you think?

A: The short answer (which won’t really answer your question) is that written communications to government officials concerning public business should be considered public records under California’s Public Records Act. However, it is possible that the records — or some portion of them — would be considered exempt from disclosure.

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,” Gov’t Code § 6252(e), is presumed to be open to the public and must be disclosed unless a specific provision of the PRA or other law exempts it from disclosure.

As you suggest, it is possible that an agency might argue that e-mails from residents about a controversial public issue are exempt based on the residents’ right to privacy (or under the so-called catch-all or balancing exemption of the PRA). But under the circumstances that might be quite a weak argument.

There are a few cases that discuss this whether the identities of members of the public who have interacted with the government in particular ways can be disclosed under the PRA.

In one, the Court of Appeal held that the public interest in not disclosing the names and contact information of individuals who had complained about airport noise clearly outweighed the public’s interest in the disclosure of that information. City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1023 (1999); Govt. Code § 6255  (“The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”).

There would seem to be an argument that permitting citizens to complain anonymously to the government is important in a way that keeping the contents of communications to government officials about the substance of controversial issues is not (and, conversely, that there is little to be gained from identifying the complainers while there is quite a lot to be gained from knowing what residents wrote to their councilmembers).

In another case, the California Supreme Court held that a television station was entitled to obtain applications to carry concealed weapons. CBS v. Block, 42 Cal. 3d 646, 658 (1986). Any interest the applicants had in preventing the disclosure of their personal information was outweighed by the public’s interest in examining the bases on which the licenses were issued. Id.

Similarly, the Court of Appeal ruled that a newspaper could obtain the names of individuals who had exceeded their allotment of rationed water. New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 1585 (1990).

In the situation you outline, the interest in disclosing the communications would seem to be quite high, even implicating basic democratic principles. In contrast, it seems difficult to articulate a basis for keeping the contents of the communications secret. And to the extent the communications were sent without any reasonable expectation that they would be kept private, there would not seem to be a strong argument even for redacting information from the communications that would identify the senders.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.