Officials’ private e-communiqué not subject to open records act
(Calif.) Reversing a prior decision, an appeals court ruled this week that private communications sent on personal electronic devices and saved on private data systems are not subject to disclosure under the California Public Records Act.
At issue was a request to the city of San Jose made in 2009 by a Silicon Valley environmental activist looking for e-mails, text messages and other electronic communication between city council members and the mayor related to a popular downtown shopping and entertainment development.
Even though the council had recently adopted a resolution specifically including communications sent between city officials on personal devices as subject to the Public Records Act, the city only provided communications sent and received from city-owned accounts and refused to provide anything from private accounts.
City attorneys had argued that communications sent on private devices is not a public record, as defined by state law, even if the content relates to public business, because the communications are not in the possession of the city.
City officials also warned that any other interpretation would create enormous problems surrounding privacy rights of city officials. And there is the issue of the new burden it would place on public agencies to seek out which communications are and which are not subject to disclosure.
A superior court judge rejected those arguments last spring, ruling that communications sent to or received by city officials even on their private electronic devices regarding public business are public records regardless of their format or storage location.
Now, however, the appellate court has reversed that decision.
According to a news brief issued Tuesday by the Sacramento-based Lozano Smith law firm, the
