Q: A member of the staff of a state college used his work email address for over two years to conduct a political campaign. County Counsel is both refusing to act on this matter, and claims there was no inappropriate use of a public email. He talks about door hangers, calling up talk shows, and the county counsel claims as long as he is advocating a position, just talking about campaigning it is ok. I also asked for the emails of his coworker who is publishing a blog on company time and this guy is refusing to acknowledge that CPRA request.
A: It sounds like you have requested emails sent by these two individuals from their college email accounts, but have not been given the emails per your request.
As you probably know, under the Public Records Act, 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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
It would seem that the activities of these two individuals — using college resources for their personal endeavors, and possibly using those resources on company time — would constitute activities that the public should be concerned about, and thus, the emails should be disclosed.
If the county counsel believes that the emails are not subject to disclosure, then he or she must cite the specific exemptions justifying nondisclosure, and how those exemptions apply to the specific situation. See Gov’t Code § 6253(c):
–each agency, “upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of hteh agency and shall promptly notify the person making the request of the determination and the reasons therfor”.
It is conceivable that the county counsel may put forth the Act’s exemption for “personnel” records, which public agencies routinely invoke when they believe a request seeks information pertaining to identifiable public officials or employees that is private or controversial. Gov’t Code § 6254(c).
However, this exemption — which was developed to protect intimate details of personal and family life, not official business judgments and relationships, Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004) — applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6245(c) (emphasis added).
On the one hand, it seems that by using public resources, these employees are on notice that their activities may be open to public scrutiny, particularly if they are developing their endeavors on the taxpayers’ dime. Thus, it doesn’t seem that disclosing these emails would constitute an unwarranted invasion of personal privacy.
On the other hand, there may be facts that would change the analysis, for example, if the employees are only sending their emails during their lunch hour and after work, and the emails are of a sufficiently private nature to weigh in favor of nondisclosure. As you can see, the analysis is highly fact specific.
The county counsel may also cite the Act’s “catch-all” provision, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “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.” Gov’t Code § 6255(a).
This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but it often does not justify non-disclosure. Again, it is difficult to imagine how the public’s interest in knowing how college employees are using public resources would be outweighed by nondisclosure of the emails.
You may want to write to the agency, restating your request for the emails, and stating why you think the records should be disclosed. You might want to add that if the agency believes the records are not subject to disclosure, it should state the reasons for this determination, including the specific exemption that applies.
If the college claims an exemption under § 6254(c), it will need to explain why the public interest in knowing about the use of the college email system for political purposes outweighs any asserted privacy interests.
(To that end, you might also want to look into whether the employee’s use of the school’s email and equpiment violates the Fair Political Practices Act, http://www.fppc.ca.gov/, which, if it does, would seem to weigh in favor of disclosure of the emails.)
Finally, you may want to point out that, should the college continue to maintain that the emails are exempt from disclosure, and you decide to file a writ of petition in the Superior Court to compel disclosure of the records, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. Gov’t Code § 6259(d).
You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.
I hope that you find this information helpful, and wish you the best of luck in your endeavors.
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.