Q: Our new sheriff is using his personal cell phone and personal e-mail for conducting county business. He rarely uses his county-issued phone or his official county e-mail address to respond to citizens, instead public inquiries will be answered via his private e-mail. I believe there is some other activity going on as well, including leaking personnel file details about deputies and staff who disagree with him to a guy running a character assassination blog in support of the sheriff. Are his e-mail and phone records subject to Public Records Act law? Am I able to request those from the county, along with information on his Internet browser cache?
A: Indeed, 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) (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 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 to 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.”
If the sheriff is using his personal email and cell phone as his de facto accounts for county business, there would seem to be a strong argument that those records are subject to disclosure under the Public Records Act. With respect to email, he is probably using his account while at county offices, and while using county computers, which would further support any argument that his personal email account has become his business account. The same could be said of his cell phone, given he probably uses during times when he’s officially on duty.
The danger of protecting such records related to personal cell phones and email accounts from disclosure is that it could create a mechanism to keep important government activity secret. But the question is still a live one in California and in many other states. However, as you note, the recent release of Sarah Palin’s emails from her personal account supports the notion that government officials cannot escape public records laws by conducting business through private modes of communication. The issue has certainly caught the attention for various media organizations around the country: http://www.signonsandiego.com/news/2011/jun/17/gray-area-public-officials-on-private-emails/ (article from San Diego Union-Tribune).
You might want to write to submit a written request for the records to the county, and specify that you seek not only records sent from the sheriff’s official email account, but also those sent from his personal email account that relate to official business. It is possible that the county might push back and claim the records are not subject to disclosure, to which you might respond with the arguments above in favor of disclosure.
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/.
Finally, although it’s been a while since I’ve been in a newsroom (I was also a cops reporter in my previous career), it seems that the fact that the sheriff is using personal email and cell phone for official communications may, in itself, be a story worth reporting, as it may be something that his constituents would want to know.
It may be that other Lake County officials, too, are using personal accounts for official business. I have heard from another FAC inquirer that the article from the Union-Tribune in San Diego prompted officials there to instruct elected officials there that only the county’s email system should be used when discussing public business.Bryan Cave 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.