Q: We believe that one of our city council members has been using her personal emails, text messages and Facebook to discuss city-related business and spread rumors, false information to local residents in order to sway public opinion and silence public record requests. It is our belief that she is specifically choosing to use her personal email when having these discussions in order to circumvent the ability to have these discussions of city business with a sitting city council member fall into the public domain. How do we successfully, if we can submit a PRA to access these emails and messages?
A: In 2017, the California Supreme Court held that messages sent or received from personal email accounts by public officials and employees that relate to the public’s business are considered “records” under the California Public Records Act. City of San Jose v. Superior Court, 2 Cal. 5th 608, 629 (2017) (“[W]ritings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account”). As such, any messages concerning the conduct of public business in the city council member’s personal accounts are fair game for a CPRA request. Note that the CPRA encompasses not only writings prepared by an agency, but also any writings it owns, uses, or retains. Cal. Gov. Code § 6252(e). That this city council member has chosen to retain public records in her personal accounts is thus irrelevant for CPRA purposes.
However, note that only messages that substantially relate to the conduct of city business need be disclosed. As the San Jose court noted, “to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business. This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.” City of San Jose, 2 Cal. 5th at 618–19. The court further noted that the usual exemptions to the CPRA still apply to information contained in personal accounts, such as the exemptions for certain personal financial data, personnel and medical files, and the “catch-all” exemption of Cal. Gov. Code § 6255(a).
In any event, any messages in the city council member’s accounts that substantively pertain to the public’s business (and are not exempt under some exception in the CPRA) should be disclosed to you after a CPRA request. A sample letter for drafting your request can be found at the First Amendment Coalition’s website here. You may wish to cite City of San Jose v. Superior Court, 2 Cal. 5th 608, 629 (2017) in your letter to make your entitlement to these messages clear.
Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.