Councilman asks intern on date via city issued cell

Answer

Assuming that a record of the message still exists, the question becomes whether this particular message related to “the conduct of the public’s business.” Under the Public Records Act, 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 section 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.

“Writing” includes not only writings in the traditional sense, but “every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Gov’t Code section 6252(g). Information retained in an electronic format must be made available in any electronic form in which the agency keeps the information. Gov’t Code section 6253.9(a). Thus, it appears that text messages would be covered by the Act.

The requirement that a record relate to the “conduct of the public’s business” is broadly construed, and “is intended to cover every conceivable kind of record that is involved in the governmental process. … Only purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.” Assembly Comm. on Statewide Information Policy, Appendix 1 to Journal of Assembly (1970 Reg. Sess) Final Report p. 9. Arguably, the city council member’s actions could be construed as related to the “conduct of the public’s business” insofar as he was using city resources to make (possibly unwelcome) contact with other city employees, thereby disrupting the day-to-day conduct of business and potentially violating the city’s sexual harassment policy.

As you can imagine, the city might come up with a range of arguments as to why it should not have to release the council member’s text messages. Or it may attempt to invoke the “catch-all” exemption to the Public Records Act:
The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

Gov’t Code section 6255(a).
However, the use of this section by the government requires a “case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Sup. Ct., 38 Cal. 4th 1065, 1071 (2006). It could be argued that the public interest in preventing the misuse of city-issued devices, such as Blackberries, particularly in situations that could expose the city to liability — such as here for sexual harassment — outweighs any privacy interest that the city council member might cite.

The above arguments are made assuming that the text message still exists in the city’s records or on the device itself. Nothing in the Act addresses a local agency’s obligation to retain records. See 64 Op. Atty Gen. Cal. 317 (1981) (“Nothing in the Public Records Act purports to govern destruction of records … Its sole function is to provide for disclosure.”). Unfortunately, it is not always clear what destruction of records is permissible under California law. Generally, the destruction of public records is a crime unless otherwise authorized by law. California Government Code § 6200 provides, in relevant part:
“Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:

(a) Steal, remove, or secrete.

(b) Destroy, mutilate, or deface.

(c) Alter or falsify.”

The text message here likely would not fall under the definition of a “record … filed or deposited in any public office.” A “public record” is any document or record that may properly be kept by an officer in connection with discharge of his official duties. People v. Pearson, 111 Cal. App. 2d 9, 19 (1952).

Thus, in an odd catch-22, it could be that the record that you seek under the Public Records Act is disclosable, but has been destroyed, and under Gov’t Code section 6200, would not be construed as a “public record” for purposes of enforcing that statute.