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CALIFRONIA SUPREME COURT DECISION IN CITY OF SAN JOSE V. SUPERIOR COURT: ELECTRONIC COMMUNICATIONS HELD ON PRIVATE, NONGOVERNMENTAL ACCOUNTS OF PUBLIC AGENCY OFFICIALS COULD BE SUBJECT TO DISCLOSURE UNDER THE PUBLIC RECORDS ACT
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CALIFRONIA SUPREME COURT DECISION IN CITY OF SAN JOSE V. SUPERIOR COURT: ELECTRONIC COMMUNICATIONS HELD ON PRIVATE, NONGOVERNMENTAL ACCOUNTS OF PUBLIC AGENCY OFFICIALS COULD BE SUBJECT TO DISCLOSURE UNDER THE PUBLIC RECORDS ACT
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3/15/2017
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BEST BEST & KRIEGER <br />ATTORNEYS AT LAW <br />MEMORANDUM <br />To: PUBLIC AGENCY CLIENTS <br />From: BEST BEST & KRIEGER, LLP <br />Date: MARCH 15, 2017 <br />Re: CALIFORNIA SUPREME COURT DECISION IN CITY OF SAN JOSE V. <br />SUPERIOR COURT: ELECTRONIC COMMUNICATIONS HELD ON <br />PRIVATE, NONGOVERNMENTAL ACCOUNTS OF PUBLIC AGENCY <br />OFFICIALS COULD BE SUBJECT TO DISCLOSURE UNDER THE <br />PUBLIC RECORDS ACT <br />The California Supreme Court issued a decision in City of San Jose v. <br />Superior Court on March 2, holding that electronic communications stored on the <br />private, nongovernmental accounts of local agency officials could be considered "public <br />records" and subject to disclosure under the Public Records Act ("the Act"). <br />This memo will describe how the court reached this conclusion, and <br />discuss the important legal ramifications of the decision for public agencies going <br />forward, including how to achieve compliance with requests for such records and how to <br />develop policies and procedures to protect the privacy interests of agency officials and <br />employees, avoid unnecessary burdens on the agency and its officials and employees, <br />and avoid litigation under the Act. <br />SUMMARY OF THE COURT'S DECISION <br />The City of San Jose case originated with a request under the Act by a <br />private citizen, Ted Smith, seeking electronic communications on the private devices of <br />San Jose's former mayor, councilmembers and city employees regarding a real estate <br />development in the City. The City denied the request for communications on private <br />devices, asserting that since the City did not prepare, own, use or retain the <br />communications, it could not produce them pursuant to the Act. <br />Smith filed suit under Government Code section 6258 to compel the City, <br />the former officials and employees to disclose the electronic communications. Smith <br />prevailed in 2013 when a trial court judge found that communications were subject to <br />disclosure, even when located on a private device or server. The City appealed, and in <br />a 2014 opinion, the appellate court agreed with the City, finding that because the <br />This Product provided under the Public Policy & Ethics Group Program <br />93939.00208A29611257.4 <br />
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