A&A: Does a councilmember use of personal email address mean all messages are exempt?

Q: I was wondering if a city councilmember uses his personal email address as his primary source of contact, lists it on a city’s website as his email address, if any communication done on that email address is still exempt from the California Public Records Act? Is any legislation is coming down the line to address that?

A: First of all, there is no rule that e-mail communications regarding the public’s business that are sent to or from an official’s personal e-mail account are exempt from the PRA. That issue hasn’t been definitively decided in California, and there are strong arguments as to why e-mails to or from personal accounts should be disclosed under the PRA when the e-mails relate to the public’s business. As detailed below, there is a California court case on this issue, but it did not resolve the basic issue.

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. As far as I know, no reported decision in California has addressed the issue since.

Tracy Press does not provide an answer to the “novel and important issue” of “whether personal e-mails sent without using the [government] resources but discussing [government] business are ‘public records.'” Id.

A California court deciding the issue should be working from the general body of law applying the PRA and would not be bound in any way by the determination made by the trial court in the Tracy Press case. Moreover, although the merits of the action were not reached by the Court of Appeal, the statement that any e-mails from the elected official e-mailed from the government office, discussing government business are “undeniabl[y]” public records “that must be produced” could be useful in efforts to obtain such records under the PRA. Id.

Even if a government official uses a personal e-mail account to send or receive 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.

Moreover, to the extent certain elected officials conduct almost all business from a residence or other non-governmental location and communicate about public business through personal e-mails, the rationale for treating such communications as subject to disclosure under the PRA would seem to be even stronger, as the contrary ruling would shield all of that person’s work from the public.

In a situation like you describe, where an official holds his personal e-mail address out to the public in the context of his official capacity, the argument should be even stronger.

Although this issue comes up more and more frequently, I am not aware of any pending legislation in California that would address it.

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.