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AdvocacyPublic, legislative and legal advocacy

PUBLISHED March 2017

This legal analysis was produced specifically for the California School Boards Association courtesy of its partner, Dannis Woliver Kelley.

In the City of San Jose case decided last week, the California Supreme Court clarified that electronic communications sent or received by public officials through private accounts are subject to disclosure under the California Public Records Act. Board members’ emails sent and stored in gmail, yahoo or other private email services or text messages sent and stored on private phones are within the scope of the CPRA if they relate to school district business. This decision reinforces the longstanding adage – do not write anything in an email you would not want to read in the paper.

This Legal Alert discusses the impact of this ruling, the implications for school districts responding to CPRA requests in the future, and practices school districts and board members may implement to address the ruling.

Electronic Records under the CPRA

The CPRA requires school district to provide members of the public with access to writings related to school district business which are prepared, owned, used, or retained by the school district. (Gov. Code, § 6250 et seq.) Proposition 59, adopted in 2004, placed this requirement in the California Constitution along with the dictate that rules implementing it be “broadly construed if [they] further the people’s right of access.” (Cal. Const, art. I, § 3, subd. (b)(2).)

Enacted in 1968, the CPRA came into existence long before today’s prolific use of electronic communication. It nonetheless has been held to apply to such communications. Where requested, school districts receiving CPRA requests search for, review, and disclose email communications sent and maintained on school district accounts/servers. Less clear has been the CPRA’s application to electronic communications related to school district business transmitted and maintained only through other electronic means – generally a private email service or text message. The use of non-governmental email services by many high-profile officials has only highlighted this issue in California and across the country.

The City of San Jose Ruling

In 2009, Ted Smith made a CPRA request to the City of San Jose for records including electronic communications sent or received on “private electronic devices.” After the City refused to provide these records, Mr. Smith filed suit. The trial court ordered the release of the records, only to be reversed by the Court of Appeal which found that such records were outside the statutory requirements of the CPRA.

The California Supreme Court took review of the case and ultimately held: “a [government] employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.” (City of San Jose v. Superior Court (2017) __ Cal.5th __ [2017 WL 818506].) In other words, electronic communications sent or received through a private email service or by text message on a private phone are not treated any differently for purposes of the CPRA than electronic communications sent or received through a school district email system. If these communications are maintained or stored, they are subject to disclosure under the CPRA.

Key to the case is the holding that while any public record may be exempt from disclosure if it falls under one of the statutory exemptions – for example attorney-client privileged communications or personnel records – the fact that a communication was not sent through a school district email system, does not in and of itself, exempt that communication from disclosure to the public under the CPRA. A board member’s electronic communications with other board members, members of the community, or school district employees may be subject to disclosure under the CPRA no matter their means of transmission or storage.

In City of San Jose, the Court explained that this conclusion was not only supported by the language of the law, but also by policy considerations. A contrary result, the Court said, “would not only put an increasing amount of information beyond the public’s grasp but also encourage government officials to conduct the public’s business in private.”

Acknowledging the privacy concerns raised by several friend of the court briefs (including a brief by the CSBA’s Education Legal Alliance), however, the Court explained that the CPRA does not require “extraordinarily extensive or intrusive searches.” The law only requires a school district expend “reasonable effort” in locating then-existing records in response to a request. Further, the Court offered some suggestions for conducting searches of private electronic communications, discussed below, which generally put the onus for locating and providing records on an agency official or employee.

Because the case was before the Court on this threshold legal question, the Court did not have the opportunity to opine on whether specific records were subject to disclosure and/or if a particular search method was sufficient to satisfy the CPRA’s requirement. School districts will need to await future opinions to answer many of the important questions left open by City of San Jose.

Responding to CPRA Requests Following City of San Jose

The holding of City of San Jose raises a number of practical questions about responding to CPRA requests. Searching for communications stored on a school district’s server can be a relatively straightforward task centralized with administration – seeking records from multiple employees and board members creates different challenges.

Without setting out required procedures, the Court offered some guidance on how a school district could conduct these searches. It suggested that after receiving a request implicating private accounts/devices, an agency should communicate the request to the board members or employees involved. The board members or employees may then search their own stored communications to identify responsive records. If the board members or employees locate disclosable records, those could then be provided to the school district for disclosure (in combination with other records) to the requester.

The Court also indicated that a declaration by a board member or employee indicating that they do not have any responsive records and/or those records are exempt from disclosure under the CPRA may be sufficient to respond to the request. The Court suggested that training employees and officials on what communications constitute “public records” would further support an individual’s statement that they did not have disclosable records responsive to the request.

Finally, while City of San Jose expands the universe of records which may be responsive to a CPRA request, it does not alter many of the methods that a school district can use to minimize the burden of responding to a request. For example, school districts should still work with a requester to focus the scope of a request where possible, even if the request seeks electronic communications on a private email service.

Policies and Practices for Electronic Communications

School district governing boards can also address the new challenges posed by the decision in City of San Jose by reviewing and potentially amending their policies surrounding use of school district communication channels and record retention. In light of this ruling, CSBA is currently reviewing its suggested policies regarding communications and records and expects to provide potential amendments in the near future. Amending these policies, and altering the associated practices, can ultimately minimize the number of public records which need to be reviewed and potentially disclosed in response to a request.

Although noting that there is no state law which requires officials and employees to conduct public business through government email services, the Court in City of San Jose suggested agencies consider adopting policies “that will reduce the likelihood of public records being held in employees’ private accounts.” It suggested policies which would require government employees to use or copy their government email account for all communications relating to public business.

The Court disclaimed that this suggestion was not “required” or “necessarily adequate,” however, governing boards may want to consider implementing such policies in their school districts with the goal of centralizing all stored communications regarding school district business on school district servers. At the same time, it may be advisable for governing boards to review their record retention policies and determine if adjustments to the length of the retention for emails should be made given the potential increase in the number of stored emails.