Q: One of my reporters put in a PRA request with a law enforcement agency. It has asked to see the documents we have obtained so that it can know what key words to search. I don’t think we should do that, but the office is saying we won’t get the documents we need unless we honor their request.
Another reporter filed a PRA with the same law enforcement agency. She received some documents, but there are some that are missing, and they are on the personal accounts of public officials.
I would like some guidance on how to handle this.
A: It remains an open question whether information saved on personal devices are subject to disclosure under the PRA. One case, City of San Jose v. Sup. Ct., is still pending before the California Supreme Court, granted review of the appellate court decision on June 25, 2014. See 326 P.3d 976. The specific question in this case is whether messages contained on personal devices such as smartphones are subject to disclosure under the Act.
The issue was litigated in 2013, and in a trial court victory for government transparency, the judge ruled that the Act applies to government officials’ emails and texts about government business, even if such messages were sent or received using the officials’ private email or text accounts, rather than accounts belonging to the government.
Unfortunately, an appellate court overturned the lower court’s ruling, finding that messages sent from private electronic devices are not subject to disclosure under the Public Records Act. According to the California Supreme Court’s website, the case has now been fully briefed (as of September 2015); it does not yet look like oral argument has been held.
Through the Supreme Court’s website, you can sign up for email notifications on this (or any other) case, if you are interested. I look forward to a decision (hopefully for disclosure of the records) from the Supreme Court to help clarify this important issue.
Regarding your other PRA request, you should remind the agency of its duty to assist you in making a focused and effective requests that reasonably describe identifiable records. Gov’t Code § 6253.1.
You have no obligation, however, to provide them with the documents that you already have, if you do not want to. A better approach would be to continue working with the agency to formulate key word searches. Additionally, remember that if the agency decides to claim an exemption, it must let you know specifically what exemption it is relying on and how that exemption applies. Gov’t Code § 6253(c),
Bryan Cave 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.