It has become a regrettably common practice. . . . Local government officials, when sending emails about government business, use their private email accounts–rather than their dot-gov accounts–to assure that the messages will never see the light of day.
In a case involving the city of San Jose, a Superior Court judge recently ruled that this legal subterfuge will not suffice to
transform public records into the private, personal property of government officials. If an email sent by a public official is about government business, that’s enough to bring it under the Public Records Act, the judge held.
The city of San Jose has appealed this decision, arguing that messages in email accounts not actually owned by the city are the exclusive
private property of the government officials, regardless of content. The city points to the language of the Public Records Act, which applies to records that are “prepared, owned, used, or retained” by an agency or local government. A message sitting in a San Jose official’s personal gmail account is “prepared, owned, used, or retained” by the official only, claims the city.
San Jose, pouring good money after bad in defense of officials’ bypassing of the Public Records Act, will lose this appeal. The reason
is that local governments act through the people who work for them. Cities, like corporations and other entities, can’t do anything except through employees (and sometimes consultants too); and those employees, when they are doing government business, do so as “agents” for the city. The city, whether it wants to or not, bears responsibility for their actions.
When it comes to email, city officials who conduct government business using a private email account may think the city has no claim on those messages, but they are mistaken. The city official who sends (or receives) email about government business using a private gmail or yahoo account is doing so as an agent of the city. The city, through the official, “prepares, owns, uses, or retains” those emails. (Not the employee’s personal emails to friends and family; just the messages about city business.) They are public records of the city, not private emails of city officials.
Both the location of the messages and the medium of communication are irrelevant. By way of example, assume a public records request is made, not for emails, but for a paper document: an employment agreement between a city and the city’s lawyer. Assume further that the signed agreement is delivered personally to the mayor at his home and that he puts it in a desk drawer for safekeeping.
There can be no doubt that the city in this scenario must turn over a copy of the employment contract to the citizen requesting it. Although the contract is not physically located at City Hall, the city nonetheless possesses it through the mayor. The mayor is its agent for this purpose. And although the contract resides in the mayor’s private residence, that fact doesn’t transform a quintessentially public document into a private one. Wherever located, it is indisputably a public record because its content is about “the people’s business.”
San Jose’s decision to appeal the Superior Court ruling is a welcome development for California (although costly to San Jose taxpayers). While the San Jose ruling, by itself, is binding only in Santa Clara County, it almost certainly will be affirmed in published appellate opinions that will be influential across the state.
Public officials beware: The appellate courts’ affirmance is likely to apply to all government emails, not just to emails written after the courts’ decision. That means the emails you write today, using a private account to discuss government business, will have to be disclosed in the future.
All city council members, mayors, school board members, county supervisors, city managers and other local officials, therefore, would be well advised to adjust their emailing habits accordingly, and without delay. Waiting for the appellate courts to clarify these issues is not a politically smart strategy. –PETER SCHEER
One Comment
The city’s argument has been rejected in other states. Courts and attorneys general, as did the trial judge in this case, say the content of the message, not ownership of the device/email account/etc., determines if the message is a public document.
This topic will be discussed at the NFOIC 2013 FOI Summit in New Orleans, May 17-18.
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