We reported previously on a California court of appeals case that held that a government officials' emails on private accounts were not subject to public inspection or release. It appears that this case is now going to the California supreme court, which will decide the requester's appeal of the court of appeals' decision.
In the California case, a requester filed a public records request with the City of San Jose 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.
We have discussed the issue of government communications on private devices in Illinois in a number of previous blog postings in this post, this post, and this post. The PAC had issued an opinion that all electronic communications are releasable to the public, regardless of the device. The Illinois appellate court limited that opinion so that only those communications sent on private devices that meet certain criteria will be subject to public release: (1) the communications were sent to a majority of a public body; (2) the communications were sent during a meeting of the public body; (3) the communications were forwarded to/from an official government account.
The rulings by the Illinois appellate court and California court of appeals were based on two different definitions in the state records law. In Illinois, the Illinois appellate court looked at the definition of "public body" in determining whether or when FOIA might apply to individual public officials. Only when individual public body members are acting as a public body in sending a communication, would those communications be subject to release. In the California case, the City is relying on the definition of "public record" to argue that communications sent and received on private devices do not meet the state's definition of public record. The City argues that it would be nearly impossible to track the electronic communications on the private devices of 5,000 city employees.
It will be interesting to see how California's high court addresses this issue.
Post Authored by Julie Tappendorf, Ancel Glink