Question
I read in the SF Examiner that Mayor Newsom has refused to turn over Hawaii-based communications related to his conversations re: the Busan oil spill. He claims that the phone records and text messages are not public record because he used his personal iPhone and has not submitted a request for reimbursement from the City. I have checked the Sunshine Law, Brown Act and CA Public Records Act and can find no authority for the Mayor’s position. At the same time, I can find no authority for the position taken by Peter Scheer of CFAC who is quoted as saying,”Whether the message comes by text message to a personal iPhone or by Pony Express is irrelevant. What matters is the content of the message…If it’s about public business, then its public record.” So, those are my questions: what is the legal authority for the Mayor’s position (if any), and what is the legal authority for Mr. Scheer’s position?
Answer
As you may know, under the Public Records Act (“PRA”), the term “‘public records’ includes 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.” Govt. Code Section 6252(e) (emphasis added). Also, a “‘[w]riting’ means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and 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.” Govt. Code Section 6252(g). “This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. 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.” California State Univ., Fresno Ass’n, Inc. v. Superior Court, 90 Cal. App. 4th 810, 824-25 (2001). California courts have thus made clear that this definition is meant to be very broad, so forms of communication such as text messages created, maintained, or retained by government agencies would generally be public records.
Public Records are open to the public unless a specific provision of the PRA or other law exempts them from disclosure. As noted above, the fact that the text messages at issue exists on a private phone does not exempt them from disclosure since “[o]nly purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt” from the PRA, and I am not aware of any other exemption that would apply. Next, Mayor Newsom apparently mentioned that he was not seeking reimbursement of his phone or text bills from the city, seemingly as a basis for not making the text messages public. Again, this would not appear to be a basis for withholding public records.
In your inquiry, you also mention the Brown Act and the Sunshine Law. The Brown Act applies to public meetings, so it would not be applicable to this issue. The San Francisco Sunshine Ordinance is an overlay to the PRA, and may providegreater rights of access to public records than the PRA. I find nothing in the Sunshine Ordinance that would limit the public’s access to the text messages at issue. Here is a link to the text of the Sunshine Ordinance: http://www.sfgov.org/site/sunshine_page.asp?id=31022#67_27.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.