A&A: Can I access emails of city employees using personal emails for city business?

Q: Our newspaper made an public records request for ”all emails to and from city employees” regarding a new parking meter system the city is using.  Our intention is to see whether employees have written emails stating that the system is not working properly.

In response, the city attorney exempted an unspecified number of emails citing a ’deliberative process’ exemption in CCC 6252(d), 6254(a) and (k) and 6255. He cited cases including Rogers v. Superior Court 19 Cal. App. 4th 469 (1993).

I’m contacting you to see if he is citing a valid exemption, and whether we would have any other approach under the CPRA that might yield the emails.

A: Given that the city attorney has cited the Rogers decision, it may be that he is claiming an exemption for those emails that were sent to and from personal email accounts.

The issue of public officials using private email accounts and mobile phones to conduct the public’s business seems to be becoming a pervasive problem. It would seem that if a government official uses a personal email account to send messages relating to the conduct of the public’s business, a strong argument could be made 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 requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain emails, it did not produce e-mails between a city councilwoman from her personal email 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). The Court of Appeal said that:

“[i]f [the councilwoman] had emailed 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.

Note, however, that in the context of legislators, the Court of Appeal in Rogers v. Superior Court, 19 Cal. App. 4th 469, 479-81 (1993), held that records of telephone calls made by city council members from city-owned cell phones and home offices were exempt from disclosure pursuant to the deliberative process privilege, which may allow nondisclosure of records relating the deliberations of agency officials. This particular privilege is found in the Act’s “catch all” exemption, Gov’t Code § 6255.

In coming to this conclusion, the court in Rogers stated:

“Disclosing the telephone numbers of persons with whom a city council member has spoken discloses the identity of such persons and is ‘the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the city council member. … [R]outine public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.”

It is not entirely clear that the Rogers case would apply to the facts that you describe. For one thing, you are not seeking records of telephone calls, but rather written records relating to a specific subject that were sent to and from city staff members. Second, it is not clear that the city attorney has identified those particular records that would be exempted pursuant to Rogers, and thus it may be that he is applying the deliberative process privilege very broadly, and is not providing adequate justification for why the privilege applies here, as required by statute.

Under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009). The key question is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991) (request for calendars of governor exempt from disclosure).

As stated in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172-73:

“[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the Governor to establish the conditions for creation of the privilege.”

Since the deliberative process privilege is an extension of the “catch-all” exemption contained in Goverment Code § 6255, the agency has a statutory duty to “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.” Gov’t Code § 6255(a).

Likewise, the city attorney cited the Act’s “preliminary drafts” exemption, which also requires that the “public interest in withholding those records” should clearly outweigh “the public interest in disclosure.” Gov’t Code § 6254(a). Again, the city attorney has a statutory duty to justify why those particular records should be withheld.

Finally, the city attorney has cited Government Code § 6254(k), which exempts “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

This particular provisions is typically cited where there are records that may be encompassed by the attorney-client or attorney work-product privileges. Under Evidence Code sections 954 and 955, confidential communications between lawyer and client are privileged and do not have to be disclosed. Also, materials created by an attorney in the course of representing a client, known as “work product,” are generally protected from disclosure. Code of Civil Procedure § 2018.030.

The attorney-client exemption not only covers communications that are made pursuant to pending litigation, but also legal advice even where no litigation is threatened. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993). This exemption, however, should not be construed broadly, but rather interpreted narrowly in the interest of disclosure. For example, the mere presence of legal counsel at a closed session meeting does not render discussions that take place during that meeting “confidential.” Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 907-08 (1984).

Whether or not the communication is truly protected will likely turn on whether there are emails from the city attorney to city staff where he was dispensing legal advice regarding the parking meters. In other words, if there was no actual legal issue for which the city attorney was dispensing guidance to staff, then the city may not be able to refuse disclosure of the email under the attorney-client privilege exception.

Another Evidence Code section that is incorporated into the Public Records Act’s exemptions is section 1040, which grants a privilege for “official information,” which “means information acquired in confidence by a public employee int he course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”

For this privilege to apply, two conditions must be met:

First, the information must have been truly “acquired in confidence” and not previously shared with the public. If the supplier of the information did not convey it in confidence or the agency did not then treat it as confidential, the privilege does not arise.

Second, “(A)ssurances of confidentiality are insufficient in themselves to justify withholding pertinent public information from the public” San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 776 (1983). To complete the privilege, disclosure must either be prohibited by federal or state law (which would make it exempt under Section 6254 (k) in any event), or “against the public interest” under a balancing of factors essentially the same as in Section 6255.

As with the exemptions cited above, the city attorney should be specific in both identifying the specific exemption that applies, as well as the reason that it applies to specific records that are being withheld.

You may want to write to the city, restating your request for the withheld emails, and stating why you think the records should be disclosed. You might want to add that if the city believes the records are not subject to disclosure, it should state the reasons for this determination, including the specific exemption that applies.

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.