Authored Articles & Publications Mar 06, 2017

Is a Private Email a Public Record? Context Matters!

By Gary W. Schons

In deciding last week that communications on public agency employees’ private devices may be subject to disclosure under the Public Records Act, the California Supreme Court included some direction to help make the determination.

The four-part test provided in the City of San Jose v. The Superior Court of Santa Clara decision includes straightforward analysis: Determine that it is a “writing.” Decide if the writing was prepared by a local agency official or employee. Find that the writing is owned, used or retained by the agency when the official or employee writes or receives it.

The more difficult — and critical — part of the test is determining if the content of the communication relates to “the conduct of the public’s business.” Recognizing that such a determination isn’t always clear, the Court provided some practical examples and suggestions to assist. Notably, in addition to the content, the context matters.

For example, an email from a public employee to a spouse complaining about a co-worker’s competence is likely not a public record, the opinion noted, while an employee’s email to an agency superior about a co-worker’s mismanagement of an agency project might be.

In addition to content and context, the Court suggested looking at the communication’s purpose, the intended audience and whether the employee was acting within the scope of employment to determine if the writing is a public record. The “scope of employment” factor is an important consideration. The Court stated: “When employees are conducting agency business, they are working for the agency and on its behalf.” Thus, if an employee is not acting within the “scope of employment” in authoring a communication on a private device, that should strongly weigh against a determination that it is a “public record.”

There will be much discussion in the wake of City of San Jose, and it will be up to public agency officials and employees, and ultimately the courts, to make informed judgment calls. However, the Court made it clear that the writing “must relate in some substantive way to the conduct of public’s business” to be considered a public record.

Click here to register for a free BB&K webinar on Wednesday, March 8: “Do You Know the Way from San Jose: The Public Records Act and Private Emails”

Read more in a BB&K Legal Alert: “E-Communications on Private Accounts May Be Subject to Disclosure Under the California Public Records Act”

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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