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I.1. <br />BEST BEST & KRIEGER <br />ATTORNEYS AT LAW <br />Content Related to the Public's Business <br />The truly critical question whether a communication qualifies as a "public <br />record" is: Does the content relate to "the conduct of the public's business?" The court <br />recognized that whether a writing is sufficiently related to public business will not always <br />be clear. The opinion provided some practical examples, suggesting that in addition to <br />content, context matters. Thus, an email from a public employee to a spouse <br />complaining about a co -worker's in competence is likely not a public record, the opinion <br />noted, while an employee's e-mail to an agency superior about a co -worker's <br />mismanagement of an agency project might be. <br />The opinion suggested looking to the following factors: <br />content <br />context <br />purpose <br />audience <br />• whether the employee was acting within the scope of employment. <br />"Scope of employment" appears to be a particularly important <br />consideration under the court's analysis, and can serve as a significant limiting factor in <br />what constitutes a "public record." Notably, later in the opinion the court held that the <br />"public agency" is considered to have "prepared" such communications on the theory <br />that its officials and employees act as agents of the public entity. The court held: "When <br />employees are conducting agency business, they are working for the agency and on its <br />behalf." Thus, if an employee is not acting within the "scope of employment" in <br />preparing, i.e., authoring, a communication on a private device, that fact should strongly <br />weigh against its being considered a "public record." <br />There will be a continuum with respect to such communications, ranging <br />from the purely private to the clearly public. This will require public agency officials and <br />employees, and ultimately the courts, to make informed judgment calls. However, the <br />court made it clear that the writing "must relate in some substantive way to the conduct <br />of public's business" in order to be considered a "public record." <br />-3— <br />This Product provided under the Public Policy & Ethics Group Program <br />93939.0020E\29611257.4 <br />