Supreme Court Case Regarding Disclosure of Records Contained in Private Accounts
On March 2, 2017, the California Supreme Court, in City of San Jose v. Superior Court of Santa Clara County (Smith),[1] held that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act (CPRA or Act).” This decision provides a definitive determination on this issue that will significantly impact public agencies.
Factual Background
In 2009, Ted Smith made a CPRA request to the City of San Jose (“City”), seeking 32 categories of public records involving specified persons and issues related to redevelopment efforts in downtown San Jose. Included in the request were requests for voicemails, emails, and text messages sent or received on private electronic devices used by the mayor, members of the city council, and their staffs. The City disclosed communications made using City telephone numbers and email accounts, but did not disclose communications made using the individuals’ personal accounts, taking the position that such items were not “public records” subject to the CPRA.
Smith filed a lawsuit for declaratory relief, arguing that the CPRA’s definition of “public records” encompasses all communications about official business, regardless of how they are created, communicated or stored. The City argued that messages communicated through personal accounts are not public records because they are not within the public entity’s custody or control.
The trial court granted summary judgment in favor of Smith, ordering disclosure of the records sought. The Court of Appeal issued a writ of mandate overturning the trial court’s order, and the Supreme Court granted review.
The Supreme Court’s Decision
After noting that the CPRA and California Constitution strike a careful balance between public access and personal privacy, the Court stated that the issue was narrow: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” The Court concluded the answer is no — employees’ communications relating to official agency business may be subject to the CPRA regardless of the account utilized in their preparation or transmission. Of course, applicable exemptions (e.g. privacy, the deliberative process privilege, and the statutory exemptions in Government Code §§ 6254 and 6255) continue to apply.
The Court explained that the CPRA’s definition of “public record,”[2] has four aspects: (1) it is “a writing, (2) with content relating to the conduct of the people’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.”
- Writing
After setting forth the CPRA’s definition of “writing”[3] and noting that, at the time the CPRA was enacted writings were generally made on paper or another tangible medium, the Court explained that, today, electronic communication, such as email, text messaging, and other electronic platforms, permit writings to be prepared, exchanged and stored more quickly and easily.
- Relating to the Conduct of the People’s Business
Next, the Court explained that the second aspect of the definition of “public records” establishes a framework for distinguishing between work-related and purely private communications. Pursuant to the CPRA, the Court noted, to qualify as a public record, a writing must “contain [] information relating to the conduct of the people’s business.” Since the question of whether a writing is sufficiently related to public business is not always clear, the Court explained that resolution of the question, especially when writings are kept in personal accounts, would involve an examination of several factors, such as the content itself, the context in or the purpose for which it was written, the audience to whom the writing was directed, and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.
Although the content of specific records was not before the Court, it clarified that, “to qualify as a public record under the CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the people’s business” noting that, although the standard is broad, it “is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”
- Prepared by Any State or Local Agency
Third, the Court held that a writing is “prepared by” the agency even if the writing is prepared using the employee’s personal account. In other words, a document can be a public record, even if it is solely on the employee’s own computer or phone.
- Owned, Use, or Retained by Any State or Local Agency
Fourth, citing section 6253(c) of the Government Code, the Court explained that an agency’s actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose material requested. Nonetheless, the Court explained, “[i]t is a separate and more fundamental question whether a document located outside an agency’s walls, or servers, is sufficiently ‘owned, used, or retained’ by the agency so as to constitute a public record.” The Court concluded that “documents otherwise meeting CPRA’s definition of ‘public records’ do not lose this status because they are located in an employee’s personal account.”[4] A writing retained by a public employee conducting agency business has been ‘retained by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.”
The Court thus concluded that “a city employee’s communications related to the conduct of the public business do not cease to be public records just because they were sent or received using a personal account. Sound public policy supports this result.”
The Court did not wish to allow government officials to evade the CPRA by merely using a personal account. The Court noted that the “whole purpose” of the CPRA is to “ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”
Court’s Guidance for Conducting Searches
Although the legality of a specific kind of search was not before the Court, the Court provided guidance on how to strike the balance between privacy and disclosure. The Court, noting that agencies are required to disclose records they can locate “with reasonable effort,” first explained that “[r]easonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches.” Next, the Court explained that agencies can adopt their own procedures. Citing general principles that have emerged, the Court stated that, once an agency receives a CPRA request, it must communicate the scope of the information to the custodian of records. Where a request seeks records held in employees’ nongovernmental accounts, the Court explained that “an agency’s first step should be to communicate the request to the employees in question. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.”
The Court noted that federal courts applying FOIA have approved of employees conducting their own searches and segregating public records, as long as those employees have been properly trained on how to distinguish between the two. The Washington Supreme Court recently adopted a similar procedure under its public records law, requiring employees who withhold personal records from their employer to submit an affidavit with facts sufficient to demonstrate that the information sought is not a public record under the state’s public records act. The Court agreed with Washington’s Supreme Court that the procedure, “when followed in good faith, strikes an appropriate balance, allowing a public agency to ‘fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.’”
The Court also noted that “agencies can adopt policies that will reduce the likelihood of public records being held in employees’ private accounts,” such as requiring employees to use or copy their government accounts for all communications relating to public business, citing procedures that federal employees are required to follow to ensure compliance with analogous FOIA requests. Despite its suggestions, the Court expressly noted that it was not holding that any particular search method is required or adequate, but that it was offering suggestions to provide guidance on remand and to explain why privacy concerns do not require categorical exclusion of documents in personal accounts from the CPRA’s “public records” definition.
In conclusion, noting consistency with the legislative purpose of the CPRA and the constitutional requirement to interpret the CPRA broadly in favor of public access, the Court held that “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”
HOW THIS AFFECTS YOUR AGENCY
The Supreme Court’s decision makes clear that writings relating to public business may be subject to disclosure under the CPRA, irrespective of whether such writings have been sent, received, or stored in an official’s or employee’s personal account. The Supreme Court provided agencies with some guidance as to how they could comply with requests for writings that may exist on an employee or elected official’s personal communication device or personal communication account. It is imperative that you contact your agency’s legal advisor to ensure that you have proper policies and procedures in place to comply with the inevitable barrage of CPRA requests that are sure to follow the Supreme Court’s decision on this issue
[1] Available at http://www.courts.ca.gov/opinions/documents/S218066.PDF.
[2] Section 6252(e) of the California Government Code defines “public records” to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
[3] The CPRA defines a “writing” as “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Cal. Gov’t Code § 6252(g).
[4] The Court cited the D.C. Circuit’s construction of the Freedom of Information Act (“FOIA”) in Competitive Enterprise Institute v. Office of Science and Technology Policy, 827 F.3d 145 (D.C. Cir. 2016). For a more detailed summary relating to this case, please see Client Alert Vol. 31, No. 13, authored by Martin J. Mayer and available at www.jones-mayer.com.
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California Supreme Court Subjects Private Electronic Accounts to the Public Records Act
On March 2, the California Supreme Court issued its decision in City of San Jose v. Superior Court (2017) S218066, in which it held that City officials were required to publicly disclose work-related electronic communications from their personal electronic accounts and devices. The case involved a private citizen who formally requested numerous records, including emails and text messages “sent or received on private electronic devices used by” the mayor, City Council members and their staff. The City disclosed communications made using official City telephone numbers and email accounts, but did not disclose communications using the individuals’ personal accounts and devices.
The Supreme Court overruled the lower court’s determination that electronic communications relating to the conduct of public business on private accounts were not “prepared, owned … or retained” by the governmental agency and hence subject to disclosure under the California Public Records Act (CPRA). This decision is significant because it concerns how laws originally enacted to cover paper documents apply to evolving methods of electronic communications, while recognizing that, in today’s environment, much employment-related activity occurs outside the conventional workday and the employer-maintained work environment. It establishes for the first time a legal standard of disclosure of work-related communications on personally owned devices or over personal email accounts that will have a significant and far-reaching impact on every public employee in the state of California. The mere act of communicating with other public employees and elected officials via personal electronic devices will need to be considered in the context of this decision.
The Public Records Act
The CPRA (Government Code Section 6250, et seq.) was created in order “to require that public business be conducted ‘under the hard light of full public scrutiny’ and thereby ‘to permit the public to decide for itself whether government action is proper’” (Times Mirror Co. v. Superior Court [1991] 53 Cal.3d 1325, 1350). In creating this act, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state” (Gov. Code, § 6250). Indeed, in 2004, voters codified this principle in the California Constitution by adopting Proposition 59, which stated that “the writings of public officers and agencies shall be open to public scrutiny.” The California Supreme Court subsequently determined that the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency” (Sander v. State Bar of California [2013] 58 Cal.4th 300, 323).
The California Supreme Court’s Decision
The California Supreme Court framed the legal issue as a narrow one: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” In answering this question in the negative, the court looked at the language of the CPRA and its intent. It rejected the City’s arguments that personal communications were not “prepared” by the local agency, were not “owned, used, or retained by the local agency” and, thus, were not a “public record” under the CPRA. The Supreme Court concluded (at p. 10) that the CPRA includes not only the governmental entity, but also its individual officers and employees. Moreover, the Supreme Court found that a document is retained by the agency within the meaning of the CPRA, “even if the writing is retained in the employee’s personal account” (Decision, p. 13).
To be subject to disclosure under the CPRA, the records must relate in some substantive manner to the conduct of the public’s business. However, the Supreme Court cautioned (at p. 7) that “This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”
The Impact of the Decision on Public Employees
This decision will have a significant impact on all public employees in the state of California — and most assuredly, peace officers. Pursuant to the CPRA, the public agency has an obligation to search, collect and disclose material requested in a Public Records Act request. Such records would include information in the actual or constructive possession of the agency, and according to this recent decision, public records do not lose their status merely because they are located in an employee’s personal account or on a personal device (e.g., cell phone). Therefore, the decision recognizes the right of the agency to undertake a “reasonable effort” to locate responsive documents to the Public Records Act request, including through the search of an employee’s personal account.
Although the CPRA does not prescribe specific methods of searching for documents, the California Supreme Court explored potential methods to accomplish the search for documents. For instance, the court indicated that agencies could develop internal policies for conducting such searches, or could rely on employees to search their own personal files and devices for responsive materials. Alternatively, the court also suggested that public agencies could develop policies that would reduce the likelihood of public records being held in employees’ private accounts.
The court cautioned, however, that any personal information not related to the conduct of public business or falling under a statutory exemption under the act could be redacted (Gov. Code, § 6253[a]), but that such privacy concerns would need to be addressed on a case-by-case basis. The court also noted the catchall exemption under the CPRA that allows agencies to withhold any record if the public interest served by withholding it clearly outweighs the public’s interest in disclosure (Gov. Code, § 6255[a]). Such an exemption permits a balance between a public’s interest in disclosure and an individual’s privacy interest.
Conclusion
his decision will certainly cause public agencies to examine their policies and practices regarding electronic communications. It may impact the reasonable expectation of privacy a public employee has in a personal device if he or she uses that personal device for official business. Any expectation of privacy must be reasonable (see Hernandez v. Hillsides, Inc. [2009] 47 Cal.4th 272, 287-88), and the United States Supreme Court has held that “Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation” (O’Connor v. Ortega [1987] 480 U.S. 709, 717). Thus, we may see an employer argue that an employee who conducts official business on a personal device or account after this decision should know that such records will be subject to disclosure through the CPRA and, therefore, the employee has a reduced expectation of privacy in the device and the private account in general.
In the wake of this decision, labor organizations and individual employees should anticipate that agencies will likely be adopting policies and procedures respecting searches of private devices and regulating electronic communications. Employee organizations should be vigilant to exercise all applicable meet and confer rights under collective bargaining statutes to ensure that any such agency procedures are consistent with privacy rights established by the United States and California constitutions.
Moreover, the court’s decision should cause every public employee to seriously consider when, how and whether to use their personal communication devices for anything related to the business of the agency they work for. Peace officers in particular should be especially reluctant to use their personal devices and accounts for law enforcement business, as the nature of their work places them at even greater risk of having their cell phones accessed.
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California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests
With the unanimous Supreme Court ruling, California joins other states, including Washington and Florida, and the Federal government in issuing a clear statement that all records regarding government business, even private email or text message accounts, are subject to open records laws.
The ruling may have monetary implications for the City of San Jose; the City may be required to pay the plaintiff’s costs and attorneys’ fees. Also, some states have statutes that include personal fines or criminal penalties for egregious violations of public records laws.
In the City of San Jose v. Superior Court of Santa Clara County, the City of San Jose argued that the City should not be required to disclose communications on the personal phones lines or email accounts of government employees or officials. The City also argued that privacy law protected their employees’ personal text messages and email messages from public disclosure.
Consistent with other states rulings, the California Supreme Court ruled that emails and text message communications are not excluded from disclosure under the California Public Records Act when they are on a personal account or device. Rather, the court ruled that it is the content, not the location of a communication, that determines whether an email or text message is a public record. Like San Jose, many other state and local agencies also assume that privacy law protects communications on employee personal phones or accounts. However, the California Supreme Court specifically held that individual privacy rights are not subservient to public records disclosure.
The rule is clear: all agency communications are subject to open records requests (with limited statutory exceptions) regardless of the channel of communication. The ruling is also consistent with California’s very strong public policy favoring the public’s fundamental right of access to information regarding public matters, as set forth in the CPRA.
3 Tips for Compliant Records Requests Programs after The City of San Jose
Without prescribing a specific policy or procedural framework, the Supreme Court in The City of San Jose discussed how agencies may implement policies to ensure all public records can be produced. So, what policies and procedures should an agency use?
- Make Sure Your Record Request Policy is Clear.
Many states, along with California, have held that a record is a public record if it is about public business, no matter where it’s located. Agencies need to review and update the definition of ‘public record’ in their policies and procedure documents. The definition should be stated clearly so government employees and officials understand the agency’s disclosure obligations.
In addition, policy and procedure documents need to make it clear that when there is a request for records which may be located within an employee’s or government official’s private account, the individual must perform a good faith search of their accounts or devices for all public records and sign an affidavit attesting to such search. Here’s sample text for California:
Records Subject to Disclosure. Every record made or received by the Department is presumed to be a public record that members of the public may inspect or obtain a copy upon request.
Records made by Department officials or personnel about Department business, whether within the possession of the Department or not, are presumed to be public records.
Only records that are exempt from public disclosure under federal, state and/or local law may be withheld. Examples of records the Department is prohibited from disclosing or may decline to disclose include: [Department to list statutory exemptions].
- Train, Communicate, Repeat.
The League of California Cities provides a resource on the CPRA that public entities may use to train employees and officials. To ensure employees and officials understand the CPRA, it is essential that public entities provide initial, in person training for each employee or official and continue to provide training on an annual basis thereafter. Further, cities, states, and agencies must ensure training includes information about which channels of communication are approved for agency business and which are prohibited. Employees and officials must understand that if they choose to use unapproved channels, such as personal text messages or email accounts, then those accounts may become searchable. In the extreme scenario, personal information may be subject to judicial review to determine whether a record is a public or personal record.
A good training program must be supported by an ongoing communication plan. Agencies must build awareness through repeated intra-agency communications. Agencies may send email updates, newsletter articles, create awareness campaigns, or find other venues to make announcements. Repeated reminders will help build a culture of compliance.
Using the records request process is another way to generate awareness and educate employees and officials. With each record request received by the public entity there is an opportunity to educate employees and officials on the CPRA and an individual’s obligations with respect to the CPRA. Agencies should consider including educational statements with records requests notices. Such statements might say:
The purpose of the California Public Records Act is to ensure transparency in government activities. Records under the California Public Records Act include any record about the business of the [Department]. As a public entity, we are required to produce all records which are responsive to the request and which are not excluded under [applicable statute].
This includes records that may be sent through personal accounts or devices. Government personnel are required to perform a good faith search of their personal accounts or devices for communication related to public business.
- Require a Good Faith Search + Employee Affidavit.
The California Supreme Court made it clear that the onus is on the city, state, or agency to ensure production of all responsive records. California is not alone. Many other courts have concluded the same. Cities, states, and agencies need to either ensure their employees are not using unapproved communication channels for public business or they need to update their policies to require a good faith search by employees where appropriate. An employee’s good-faith search for public records on his or her personal device can satisfy an agency’s disclosure obligations under the statute in some states (See Nissen v. Pierce County).
After an employee performs a good faith search, the agency should require the employee to submit an affidavit stating they performed a good faith search of all communication channels and provided all records related to public business. It’s important to note the employee should not determine which records are or are not responsive to the public records request. The employee should produce all records that involve the public entity’s business.
Smarsh Can Help
Public records requests can require a great deal of effort on the part of a public agency, especially if the agency doesn’t have technology in place to help dramatically streamline the process. Agencies are usually required to locate, search, redact, and produce responsive records with limited personnel and budget devoted to handling requests.
The Archiving Platform from Smarsh gives government agencies a centralized platform to manage record requests across the entire range of digital communications, including email, social media, websites, instant messaging and mobile messaging. Agencies can easily search across all communication channels for responsive content and export the content at the click of a button – making the process faster and more efficient for the agency and ultimately the tax payer.
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California Supreme Court Rules Public Records Act Covers Government Communications on Private Email and Personal Devices
In a major victory for transparency, the California Supreme Court ruled today that when government officials conduct public business using private email or personal devices, those communications may be subject to disclosure under the California Public Record Acts (CPRA).
In the unanimous opinion, the court overturned an appellate court ruling, writing:
CPRA and the [California] Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account? Considering the statute’s language and the important policy interests it serves, the answer is no. Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.
EFF has long been concerned with the potential for officials to hide public records by using private online accounts or personal phones and computers to conduct business. In this case, activist Ted Smith was seeking records from the City of San Jose that may have been stored in personal devices or accounts. These issues have come up, not only on the local level, but federal as well—all the way up to former Secretary of State Hillary Clinton, who was embroiled in a high-profile scandal over her use of a private email server based out of her home.
EFF joined the ACLU in filing an amicus brief in this case, asking the Supreme Court to overturn an appellate court ruling in favor of the City of San Jose. As we wrote in our opening:
[The court of appeal’s] holding violates both the letter and spirit of the California Public Records Act and Article I, section 3 of the California Constitution by holding that emails related to official business are outside the PRA merely because they are sent and receiving using non-governmental accounts. And the court’s reasoning would allow government officials and employees to circumvent the PRA simply by opening a new browser window and logging into a personal web-based email account as they sit at their government-owned computers. The result would be to curtail if not eliminate public access to informal emails between individual officials and employees and with industry and special interests that provide critical insight into the government operations beyond the often sanitized contents of formal memoranda and bulletins: not just what the government is doing but why it is doing it and at whose behest.
The California Supreme Court pointed out in its ruling that agencies aren’t just disembodied entities, but rather rely on human beings to prepare, retain, or use records: “When employees are conducting agency business, they are working for the agency and on its behalf.”
The court added: “The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”
While government officials should not be able to use private devices to evade public scrutiny, at the same time, government employees shouldn’t have to forfeit all rights to privacy by holding public office, and their personal communications shouldn’t be subject to search every time someone files a public records request. The court seemed to take this issue into account and provided some guidance on what records on private devices would be subject to disclosure. As the Court wrote in the opinion:
We clarify, however, that to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business. This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard. However, an employee’s electronic musings about a colleague’s personal shortcomings will often fall far short of being a “writing containing information relating to the conduct of the public’s business.”
Ultimately, the Court’s message was clear: if you’re a government official conducting the public’s business, those are public records, no matter where those records are stored. Today’s decision will have wide-ranging impact on how public records are treated throughout the state, whether that’s elected officials communicating with lobbyists through Twitter direct messages or law enforcement officers exchanging controversial text messages on their personal smartphones. The case doesn’t end the discussion, though. We hope it will also trigger policy reforms within agencies to ensure that employees and officials do not use personal communications tools to conduct public business: this requirement would ultimately be the best way to ensure transparency and privacy.
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The Supreme Court’s Decision
The Court described the single “narrow issue” in the case: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?”
Noting the competing interests of openness in government and protecting personal privacy, the Court concluded, “Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.” The Court made no distinction between the terms employee and official for purposes of the CPRA requirements.
The Court focused primarily on the definition of a “public record” under the CPRA: “(1) a writing; (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” The Court did not address whether any exemptions under the CPRA could apply because the City had not invoked any CPRA exemptions.
With regard to the second element of a public record, its content, the Court clarified that “at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.” This standard, the Court specified, should not be “so elastic as to include every piece of information the public may find interesting.” If a communication is primarily personal in nature, it should not be considered a public record. As an example, a public employee casually discussing a colleague’s “personal shortcoming” through email “will often fall far short” of becoming a public record.
As to the third element, noting that an agency can act only through its individual officers and employees, the Court concluded that if a writing is prepared by an employee, regarding agency business, it is “prepared by” the agency regardless of whether a personal account was used.
The Court interpreted the fourth element to mean that records in the entity’s actual or constructive possession are subject to a CPRA request. An agency has constructive possession of records if it has the right to control them, either directly or through another person. Therefore, the Court held, writings prepared by a public employee regarding agency business are public records, regardless of where they are located.
The Court concluded the Legislature never intended for public officials to have the ability to “shield communications about official business simply by directing them through personal accounts.” Any other interpretation would mean that “sensitive information could routinely evade public scrutiny.”
Practical Effect on Public Agencies
Recognizing that the CPRA does not prescribe specific methods of searching for records, the Court offered agencies limited guidance for complying with the duty to disclose records from private employee accounts or devices. Though the Court did not indicate that following its guidance would guarantee compliance, it noted the two suggestions offered are already being used by federal agencies to respond to requests under the Freedom of Information Act.
First, when faced with a CPRA request seeking records believed to be in an employee’s personal account or device, the agency should communicate the request to that employee. The agency may “reasonably rely” on the employee to search his or her own personal files, accounts, and devices for responsive material. For this procedure to be adequate under the CPRA, the employee must be trained in distinguishing public records from private records. An “employee who withholds a document identified as potentially responsive may submit an affidavit providing the agency, and a reviewing court, ‘with a sufficient factual basis upon which to determine whether contested items were “agency records” or personal materials.’” When an employee makes a good faith effort to comply with the request, the agency fulfills its responsibility to conduct a reasonable search under the CPRA.
Second, the Court suggested that agencies develop policies that reduce the incidence of public records being maintained solely in private accounts and devices. For example, the agency could require that all emails involving agency business, sent by an employee through a private account, be copied to the employee’s agency email account. (See, e.g., 44 U.S.C. § 2911(a) [prohibiting use of personal electronic accounts for official federal agency business unless messages are copied or forwarded to an official account]; 36 C.F.R. § 1236.22(b) [requiring federal agencies to ensure official email messages in employees’ personal accounts are preserved in the agencies’ recordkeeping system].)
This decision is likely to result in many more requests for records that reside on officials’ and employees’ personal devices. To be prepared for these requests, public agencies are advised to promptly adopt the measures suggested by the Supreme Court: (1) training all employees and officials in identifying public records, (2) developing an appropriate affidavit for employees to use, and (3) adopting policies to discourage the use of personal accounts and devices for the conduct of public business. Our team of attorneys can assist any public agency in implementing these measures.
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Federal Records Act in 2014
The amendments made in the Federal Records Act in 2014 have made the public records request response for government agencies more complex and challenging.
Under the amended law, the scope of “records” now constitutes messages transmitted through electronic communications, such as mobile SMS. With that regard, it has become imperative for public offices to know how to archive text messages. It is imperative not only to meet the retention requirements of FOIA and Sunshine policies but also to instill transparency and trust to the public by being able to respond to public records requests promptly.
Most states also consider text messages and other electronic communications as official business records and, therefore, must be archived and open for the public’s perusal. Just last year, the Texas government passed the Senate Bill 944 into law, declaring that public information held on private devices or in a private account of a public employee or official must be released.
With federal and state mobile text message retention laws, the public has all the rights to request records of government officials’ and employees’ business communications. Failure to ensure timely public records request the response will not only lead to severe backlash from the public, but also compromised critical government data, and even expensive FOIA lawsuits.
Read on as we detail in this infographic the cases where public agencies and offices were requested to produce records of mobile SMS of their employees and officials and the outcome of these requests.
H.R.1233 – Presidential and Federal Records Act Amendments of 2014
Public Law No: 113-187 (11/26/2014)
(This measure has not been amended since it was reported to the Senate on July 23, 2014. The summary of that version is repeated here.)
Presidential and Federal Records Act Amendments of 2014 – (Sec. 2) Amends the Presidential Records Act to require the Archivist of the United States, upon determining to make publicly available any presidential record not previously made available, to: (1) promptly provide written notice of such determination to the former President during whose term of office the record was created, to the incumbent President, and to the public; and (2) make such record available to the public within 60 days, except any record with respect to which the Archivist receives notification from a former or incumbent President of a claim of constitutionally-based privilege against disclosure. Prohibits the Archivist from making a record that is subject to such a claim publicly available unless: (1) the incumbent President withdraws a decision upholding the claim, or (2) the Archivist is otherwise directed to do so by a final court order that is not subject to appeal.
Prohibits the Archivist from making available any original presidential records to anyone claiming access to them as a designated representative of a President or former President if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of the records of the Archives.
Prohibits the President, the Vice President, or a covered employee (i.e., the immediate staff of the President and Vice President or office advising and assisting the President or Vice President) from creating or sending a presidential or vice presidential record using a non-official electronic messaging account unless the President, Vice President, or covered employee: (1) copies an official electronic messaging account of the President, Vice President, or covered employee in the original creation or transmission of the presidential or vice presidential record; or (2) forwards a complete copy of the presidential record to an official electronic messaging account of the President, Vice President, or covered employee not later than 20 days after the original creation or transmission of the presidential or vice presidential record.
(Sec. 3) Provides that the transfer to the Archivist of records by a federal agency that have historical significance shall take place as soon as practicable but not later than 30 years after the creation or receipt of such records by an agency. Expands the authority of the Archivist with respect to the creation and preservation of audio and visual records.
(Sec. 5) Revises the definition of “records” for purposes of this Act to include all recorded information, regardless of form or characteristics. Makes the Archivist’s determination of whether recorded information is a record binding on all federal agencies.
(Sec. 6) Directs the Archivist to prescribe internal procedures to prevent the unauthorized removal of classified records from the National Archives and Records Administration (NARA) or the destruction or damage of such records, including when such records are accessed electronically. Requires such procedures to: (1) prohibit any person, other than personnel with appropriate security clearances (covered personnel), from viewing classified records in any room that is not secure, except in the presence of NARA personnel or under video surveillance, from being left alone with classified records unless under video surveillance, or from conducting any review of classified records while in the possession of any personal communication device; (2) require all persons seeking access to classified records to consent to a search of their belongings upon conclusion of their records review; and (3) require all writings prepared by persons, other than covered personnel, during the course of a review of classified records to be retained by NARA in a secure facility until such writings are determined to be unclassified, are declassified, or are securely transferred to another secure facility.
(Sec. 7) Repeals provisions authorizing the National Study Commission on Records and Documents of Federal Officials.
(Sec. 9) Transfers responsibility for records management from the Administrator of the General Services Administration (GSA) to the Archivist. Requires the transfer of records from federal agencies to the National Archives in digital or electronic form to the greatest extent possible.
(Sec. 10) Prohibits an officer or employee of an executive agency from creating or sending a record using a non-official electronic messaging account unless such officer or employee: (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record, or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record. Provides for disciplinary action against an agency officer or employee for an intentional violation of such prohibition.