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Wednesday, April 9, 2014

Ca Court Says Texts Sent from Private Device Not Subject to Release

A California court recently held that the state's public records law requiring release of public records does not apply to communications transmitted on privately owned devices.  City of San Jose v. Superior Court (Cal. Ct. App. Mar. 27, 2014), 

In this case, a requester filed a public records request with the City asking for "voicemails, emails or text messages sent or received on private electronic devices" used by the Mayor and City Council members.  The City denied the request, and the requester filed a lawsuit. The trial court ordered the Mayor and City Council members to turn over the electronic communications.  

On appeal to the California Court of Appeals, the City argued that the electronic communications were not "public records" under the definition of California's public record law because the messages and devices are not "prepared, owned, used, or retained" by the City.  The appellate court agreed, finding that because the City cannot access or control messages on private devices, the messages are not public records under the law.  The court acknowledged that its ruling could result in public officials using private devices to conduct public business, but left the issue to the legislature to address.  The court also acknowledged the privacy concerns, as well as practicality, of requiring the disclosure of communications sent and received on privately owned devices.

You may recall that we reported on an Illinois case on this very same issue last year - in fact, the California court cites this case in its opinion.  In City of Champaign v. Madigan, the Second District Illinois appellate court ordered the City of Champaign to turn over text messages sent and received during a City Council meeting by City Council members on their private devices.  However, the court's ruling was limited to messages sent and received during the City Council meeting, when the council members were acting as a "public body."  The court did not extend this interpretation and analysis to all messages on private devices, however, stating that messages “pertaining to the transaction of public business received at home by an individual city council member on his personal electronic device would not be subject to FOIA."

Both the California and Illinois court rulings distinguish between the "public body" that is subject to public records disclosure laws and an individual member of that public body, holding that individual council members are not subject to these laws.  However, when an individual member is communicating as part of the public body (i.e., attending a meeting, communicating with the requisite number of public body members to constitute a meeting), then the individual member's communications could be subject to disclosure as a public record.  

Post Authored by Julie Tappendorf, Ancel Glink


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