Are a Public Agency’s Private Sector Contrators’ Emails Subject to the Public Records Act?

Answer

Under the Public Records Act (“PRA”), public records—which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e)—are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

Whether or not the emails you seek can be obtained from the public agency subject to the PRA will depend on whether the agency has actual or constructive possession of the records.

If the county has actual possession of the records, i.e., if the records are in the possession of the county, even if they originated with the contractors, then presumptively they’re subject to disclosure under the PRA.

If the agency doesn’t actually have the records in its physical possession, it has constructive possession of the records if it has the right to control the records, either directly or through another person. Consolidated Irr. Dist. v. Superior Court, 205 Cal. App. 4th 697 (2012).  This is a fact specific inquiry that would require an examination of the contractor’s contract to determine whether the contractor is an independent contractor or subcontractor with the public agency, which would then help determine whether the agency has constructive possession of the records.

Even if the agency does not have either actual or constructive possession of the records, it may be possible to obtain the email correspondence nonetheless under certain circumstances. There is authority for requiring records of a private entity to be disclosed under the PRA in certain circumstances when a public agency has delegated governmental tasks to that entity.

In San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983), California’s Court of Appeal held that financial records of a private garbage disposal company with whom a city had contracted for trash collection were subject to disclosure under the PRA. Id. at 775 (“The City has a contractual relationship with the Disposal Company.

The City delegated its duty of trash collection to the Disposal Company but still retained the power and duty to monitor the Disposal Company’s performance of its delegated duties, under the express terms of the contract. There is no question that the Disposal Company is providing a service to the residents of the City, by way of a contract made between it and the City. Assurances of confidentiality by the City to the Disposal Company that the date would remain private was not sufficient to convert what was a public record into a private record. Unless one of the exemptions applies to bar disclosure then the City must yield to its statutory duty that compels disclosure of the data.”).

This is especially true when it can be proven that the agency is purposefully avoiding possessing the records so as to avoid subjecting them to public scrutiny.

If you want to obtain the emails, you may wish you submit a PRA request to the agency. Here is a sample PRA letter that you may wish to review prior to submitting a PRA request.

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.  No attorney-client relationship has been formed by way of this response.