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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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7/19/2019 1:36:26 PM
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City Clerk
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3/15/2017
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LAIR <br />BEST BEST & KRIEGER <br />ATTORNEYS AT LAW <br />communications were not accessible to the City, it had no obligation to produce them. <br />The City appealed to the California Supreme. <br />In a unanimous decision, the court stated: "This case concerns how laws, <br />originally designed to cover paper documents, apply to evolving methods of electronic <br />communication. It requires recognition that, in today's environment, not all employment - <br />related activity occurs during a conventional workday, or in an employer -maintained <br />workplace." The opinion observed that the court was deciding a "narrow question," <br />namely, whether writings concerning the conduct of public business are beyond the <br />reach of the Act merely because they were sent or received using a nongovernmental <br />account. The court's answer was no, such communications are not beyond the reach of <br />the law; they can be "public records" subject to disclosure under the Act. <br />According to the Public Records Act and the State Constitution: "Access to <br />information concerning the conduct of the people's business is a fundamental and <br />necessary right of every person in this state. The court made it clear it would not permit <br />public officials to conduct the public's business on private devices and place those <br />communications beyond the reach of the Act. The court bluntly stated that to allow this <br />would encourage public officials to conduct the public's business in private. <br />A 4-Part Test <br />The court announced a straightforward 4-part test to determine whether a <br />communication on a private device could qualify as a "public record" subject to the Act. <br />The court held a "public record has four aspects: <br />"It is (1) a writing, (2) with content relating to the conduct of the public's <br />business, which is (3) prepared by, or (4) owned, used, or retained by any <br />state or local agency." <br />r <br />Determining whether an electronic communication is a "writing" under the <br />Act is clear. It is, even if more "fleeting," "random," and "with varying degrees of import" <br />than the Legislature had in mind when it enacted the law in 1968. <br />-2— <br />This Product provided under the Public Policy & Ethics Group Program <br />93939.0020029611257.4 <br />
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