Authored Articles & Publications Mar 27, 2017

San Jose PRA Decision: Q&A

By Gary W. Schons and HongDao Nguyen

Recently, Best Best & Krieger presented a webinar on the California Supreme Court’s City of San Jose decision regarding the Public Records Act. Such an interesting topic yielded many questions — some of which we have selected to answer below*, including those not addressed due to time.

1. Are Native American Councils and its employees exempt from the Public Records Act as a sovereign nation?

A Native American Tribal Council is not a “public agency”/”local” agency under the Public Records Act. (Gov. Code § 6254 (a), (d).)

2. Isn’t the affidavit procedure suggested by the court in the City of San Jose decision tantamount to a privilege log — a log which the court in Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1072-73, expressly held to be not required under the CPRA?

Not necessarily. The privilege log that the court in Haynie held the Act did not require is a compilation and identification of all records located by the agency that responds to the request, but for which the agency is claiming an exemption from disclosure under Section 6254. Of note, however, when an agency is claiming an exemption from disclosure, it is required to specify the exemption(s) it is relying on in refusing disclosure. (Gov. Code § 6255.)

The affidavit procedure suggested by the Court in City of San Jose did not specify that all records located by the official/employee had to be identified and tied to an exemption (the privilege log described in Haynie). The opinion stated only that the affidavit should provide “a sufficient factual basis” upon which the agency or a reviewing court could “determine whether the contested items were ‘agency records’ or ‘personal materials.’”

3. Where does an employee’s Fourth Amendment rights end, and PRA compliance begin?

When it comes to a government search of personal electronic devices like a cellphone, or presumably, a private email account, the U.S. Supreme Court has held that the Fourth Amendment requires a search warrant because of the intrusion on the privacy interests of the individual. (Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473; see also, Penal Code § 1546 et seq. (California Electronic Communications Privacy Act, requiring a search warrant or court order to search electronic communications, information or services.))

However, in City of Ontario v. Quon (2010) 560 U.S. 746, the Supreme Court held that the Fourth Amendment permitted the search of text messages on an alphanumeric pager assigned by a government agency to an employee under the “special needs” doctrine. The Court held that, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “justified at its inception” and if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search.” (Ibid, at p. 762.)

It would seem that a public agency could not demand an employee turnover a private device to search its contents or require access to search a private account absent a court order. And, there does not appear to be any existing jurisdiction (procedural jurisdiction) for a court to issue such an order to a government agency outside the confines of a criminal investigation.

The Court in City of San Jose made it fairly clear that the obligation of the agency is to convey the request for records to the “employees in question,” and could then rely upon those employees to conduct a reasonable search of their private devices/accounts and locate and disclose records that are subject to disclosure under the Act. The affidavit procedure suggested by the Court was meant to serve to document and permit review of the employee’s actions.

4. Do you think that public agencies have a property interest in its business records, even if created on private accounts?

If a communication on a private device or account qualifies as a “public record” under the four-part test in City of San Jose, then it is a record of the agency and the agency has an interest in its access to the record, its retention of it, and possible disclosure of that record under the Act. Whether this technically qualifies as a “property” right or interest is not relevant for Public Records Act purposes. But, since it is a “public” record that is accessible to the public and can be used for any purpose subsequent to disclosure, the traditional notion of a “property right” would not seem to apply. Copyright protection does not apply and “end user restrictions are incompatible with the purposes and operation of the CPRA.” (County of Santa Clara v. California First Amendment Coalition (2009) 170 Cal.App.4th 1301, 1334.)

5. Would an employee be able to redact the documents they have turned over to the agency?

Yes, a public employee should have the ability, working with his or her agency prior to disclosure, to redact those portions of otherwise disclosable communications not “relating to the conduct of the public’s business.”

6. Do you have a copy of the declaration/affidavit that is used in Washington (referenced in the decision)?

It does not appear that there is one, standard declaration used in the State of Washington for PRA responses. Since the San Jose decision was issued, BB&K has developed a declaration template for clients.

7. Can unsolicited texts or emails sent to an employee or official on a private email account or private phone be a “public record.” Often, controversial issues cause officials to get flooded with messages, pro or con, regarding an issue. Is it reasonable to require an official to resend texts to an agency before a PRA request is made?

These types of communications sent to an agency official or employee are “public records.” (Whether they are subject to disclosure or exempt as, for example, under the deliberative process exception, is another matter.) First, agency officials and employees who would expect to receive these kinds of emails should make efforts to receive them only on government accounts. Second, it is not unreasonable to require that those received on a private account be forwarded to the agency account or server. That is a “best practice” that should be consistently followed.

8. Is the City of San Jose decision retroactive to cover communications on private devices before [March 1]?

Absolutely. The decision did nothing to change what constitutes a “public record” under the Act. It merely held that it does not matter where the record is located, or whether it is or was prepared or retained on a private account. It is a “public record” if it meets the test as a writing relating to the conduct of the public’s business. Therefore, such records prepared before the decision was issued (March 1) may be “public records” subject to disclosure, no matter when the communication was prepared or retained or where it is now located.

9. Since the Court has recognized that there is a continuum of what could constitute a public record under the Act, but you had also opined that the records retention policies probably apply to public records, how do these two items interact and impact an employee’s right to delete records that only marginally discuss “public business?”

A knowledgeable judgement call will have to be made by the agency as to whether or not a communication on this continuum is a “public record” or not. It is a binary choice. However, it may be that part of a communication qualifies and another part does not. In that case, the private aspects should be redacted and those parts “relating to the conduct of the public’s business” should be retained as a “public record.”

10. What about former employees who simply do not reply to the request? Will this be interpreted as a refusal?

It is reasonable to consider a lack of a response as a refusal. In that case, the agency could report to the requester that a request to search, locate and disclose had been made to the former employee or official, and no response was received. That would then leave it to the requester to seek judicial relief.

11. What are the mechanics of searching private emails in response to a public records request? Is an affidavit from the account holder that they’ve searched and found nothing sufficient or must a third party be given access to conduct the search?

The Court made it clear that agency searches of private devices was not required to discharge the agency’s duty to search for and locate records under the Act. The Court stated that all the agency need to do is communicate the request to the “employees in question.” An affidavit or declaration by an employee that he or she has searched their account(s) and located no responding communications should be sufficient. At that juncture, it would be up to the requester to seek judicial relief. It is possible a court could require an employee named in an enforcement suit to produce what’s called a “Vaughn index” (under FOIA practice) of relevant communications, or even to disclose private account communications in camera for inspection by the court.

12. If you have a text or email message on your phone between you and an employee, can you save the image on your business computer or send the email message to the agency server, and then delete your text message?

Yes, so long as the communication is preserved on the agency server and available for disclosure, it is not necessary to retain it on the private account. In fact, best practice would suggest that transferring the communication to the agency server and deleting from the private account is preferred.

13. Do the requirements of the City of San Jose decision also apply to appointed officials (such as members of local agency boards and commissions) who are not employed or paid by the local agency?

Yes. Again, the Court’s decision did nothing to change what qualifies as a “public record” under the Act. If an unpaid member of a board or commission is communicating about the “conduct of the public’s business,” even on a private device or account, that could be a “public record” and subject to disclosure.

14. The City of San Jose Court spoke of affidavits in terms of an employee withholding otherwise responsive documents. Are you suggesting using affidavits even to state that the employee searched their device, even if nothing is being withheld?

Yes, the affidavit or declaration could be used for that purpose.

15. Are we required to add the exact email address searched on the affidavit? For example I searched my personal email address: JohnSmith12@gmail?

We suggest that is a best practice. The employee or official should identify all accounts held and searched.

*Some questions were edited for grammar, spelling and length.

Additional Resources


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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