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BB&K Police Chief Bulletin: Public Records

Legal Alerts

Public Records Act May Require Disclosure of Content Stored on Personal Devices of Law Enforcement Officials

APRIL 5, 2013

Overview: A Santa Clara County Superior Court judge recently ruled that the California Public Records Act (PRA) required government agencies to disclose communications relayed through the privately-owned personal devices of public officials because the messages were public records under the PRA. The court reasoned that the content—not the location—of the correspondence determined whether it was a public or private record. While the ruling is confined in application to the public entity at issue in the case, it does raise the question of whether the reasoning could be extended to law enforcement agencies, thus forcing officers to turn over work-related emails, voice and text messages transmitted through personal phones and email accounts.

Training Points: Police officers ostensibly are functioning as "public officials" when they use their personal devices for work. The stored exchanges between officers, therefore, may be subject to disclosure as public records. Law enforcement officers often conduct business using personal communications devices with the assumption that they have an expectation of privacy. This ruling calls that premise into question. Although this ruling only applies to the parties involved (City of San Jose), it does suggest that courts can interpret the PRA to cover work-related communications stored on the personal devices of police officers. Simply stated: nothing is private at work. Agencies will want to monitor this case and this issue as both continue to evolve.

Summary Analysis: In Smith v. City of San Jose, the city refused to disclose private emails, voice and text messages stored in the personal devices of city officials. Smith claimed that this hindered transparency, allowing government agents to hide official business communications by channeling them through private lines. Public agencies argued that disclosure was impractical because they had no control over messages sent and received by officials using their personal accounts. The court disagreed, finding that the PRA required disclosure of any information related to the conduct of the public’s business owned or “retained” by the agency, regardless of form. Because individual officials acted as public agents, any work-related data stored on their personal devices belonged to the agency, making the emails and text messages “public record.”

Follow-Up Contact: For questions regarding this case or its implications for your city and police department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, police attorney, or your BB&K attorney.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information contained in this communiqué.


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