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California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

The Truth News — Mon, 29 May 2023 12:19:16 +0000

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

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Public Records Practices After the San Jose Decision

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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.

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

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California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

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.

source

How Your Texts Can Be Used As Evidence?

The Truth News — Fri, 15 Jul 2022 08:58:21 +0000

Yes, If They Have Verified Proof You Not Only Typed the Message and But You Sent it,
Then Your Text Messages Can Be Used In Court

Sometimes the so-called victim can perpetrate a fraud, so the prosecutor is required to verify they came from your handset and that you also typed them.
There are also instances where a work or community phone or borrowed phone can be manipulatd to make you look guilty
That is why Due Process regarding secondary evindence requires that the prosecutor verify. Especially in circumstances of Bias or Hostile Witnesses

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Will My Text Messages and Social Media Posts Be Admissible Evidence

Text messages and social media posts present a unique problem for the law. When the rules of evidence were first written, text messaging and social media had not yet been invented, let alone swept the globe as a major form of communication and interaction. In today’s world, text messages and social media posts can have great evidentiary value, but there are no rules specifically aimed at their admissibility into evidence in a court of law.

Courts must interpret old rules in relation to new forms of communication

Courts, then, are left to interpret and apply the old rules to new forms of communication. Most courts have found a way to use the rules to allow text messages and social media posts to be introduced into court. The first hurdle that must be cleared to admit the evidence is to “authenticate” it. This means the party trying to admit the message into evidence must prove it is what they say it is (i.e. a text message sent by the person they say sent it). If the prosecutor is trying to prove you committed a crime by showing a text you sent, the prosecutor must show that you actually sent it. They can try to do this by showing it is from a number or account associated with your name.

Some courts, however, have ruled this is not enough to prove the message was sent from you, as different people may have access to your phone or Facebook page, and of course, it is possible to create fake Facebook pages, or to be hacked. As a result, some courts require extra proof that the message was from you. For example, they may look to information included in the text that only you could have known.

Once the prosecutor sufficiently authenticates the messages, they will have to prove the text message is relevant, not overly prejudicial, and does not violate any other rules of evidence. Probably the biggest burden to getting a text message introduced into evidence (other than authentication), will be the hearsay objection. Many text will be classified as hearsay, as they are all statements that were made outside of court. However, many texts will be admitted anyway, because the party introducing them will argue that they are not being offered for the truth of the matter asserted in the text, but rather that the text message is being offered to prove something else (i.e. that the defendant and the victim were communicating just prior to the assault). Further, even if the text message is hearsay, courts have found that multiple different exceptions will apply, and admit the text anyway.

Texts or social media posts will almost certainly be allowed as evidence in court.

Finally, and most importantly for criminal defendants, any texts or social media posts created by the defendant will almost certainly come into evidence once authenticated, if the prosecutor wants to admit them, because their admission into evidence is being sought not by the defendant, but by the State. See Wyoming Rule of Evidence 801(d)(2). Under the rule, if the prosecutor wants to introduce the text message of the defendant, the prosecutor can do that. Oddly enough, if the Defendant wants to introduce a text message he sent, it would be considered hearsay. Defendant’s only other choice to show he sent the text would be to take the stand.

The bottom line is that texts you send and posts you create on social media will most likely be used against you at a trial in your, if the prosecutor obtains them, can prove it was you who sent them, and thinks it will help prove the government’s case.

source

Can text messages be used as legal evidence?

With the world sending 18.7 billion texts every day, it’s no surprise that SMS messages play such a key role in many modern cases.

Many assume their text messages are private and can reveal anything without repercussion, but this isn’t always the case. Police authorities can request warrants to search messages on a phone and legal professionals can present relevant texts as legal evidence in court.

However, text messages aren’t always useable in the courtroom. This blog post will look into when messages can be used as evidence, alongside famous examples of texts swaying a courtroom decision.

The ever-growing landscape of digital evidence

Text messages have been around for a while, with the World’s First Text Message sent on 3rd December 1992. At first, texts had a 160-character limit, but they can now include emojis, videos, pictures, GIFs and more.

Due to the popularity of SMS messaging, many cases have been decided on texts provided in the courtroom. Once a text message has been sent, it can swing a case. Text messages can often show motives to commit a crime or a person’s state of mind during the time of an alleged offence.

However, although text messages can be used in court as legal evidence, they aren’t automatically admissible.

And it isn’t just text messages lawyers have to deal with. Social media posts and other forms of digital communication can be used as evidence in court to decide the fate of a trial.

When can text messages be used in court?

Text messages — among other forms of electronically stored information (ESI) — must be legally obtained and properly preserved as evidence, or a court won’t pass them as authentic.

Texts must be presented in a format that shows more than just the sender or receiver’s name, with information proving their relevance. For example, the phone number that has sent the messages. A court order can be obtained if a person doesn’t voluntarily provide their phone.

There are also instances when text messages may have been deleted to cover up evidence. In these circumstances, texts can still be obtained from the receiver’s phone or from the phone’s service provider for a limited time.

Many famous cases involving celebrities have included text messages used as legal evidence in a court of law.

Examples of text messages being used in court

Text messages have been used as legal evidence in many prominent cases, just as they are in ordinary cases around the world on a daily basis.

Depp v Heard

In the trial between Johnny Depp and Amber Heard, Heard’s lawyers presented a series of graphic texts as they cross-examined Depp. They showed the court several graphic text messages between Depp and British actor Paul Bettany, in which they spoke of ‘burning’ and ‘drowning’ Heard.

In a statement, Depp said the texts were about a Monty Python scene, which he claimed to have testified to be one of his favourite films.

After the texts were shown, Sky News reported that there was a ‘definite shift in mood’ compared to the previous day.

‘Deflategate’ in the NFL

Texts have also been used in professional sports amid allegations of cheating in the NFL. A series of texts were revealed between staff of the NFL’s New England Patriots, which suggested the team may be cheating to win games.

An article from Sports Illustrated said, “New England Patriots personnel likely manipulated the air pressure of the footballs in their game against the Indianapolis Colts” to win the game.

Information about this scandal came to fruition from a series of text messages in which Jim McNally, the Patriots locker room attendant, named himself as ‘the deflator.’

The texts were used as crucial forms of evidence in the investigation against the Patriots. Quarterback Tom Brady claimed he had destroyed the phone that was allegedly part of the scandal and, as a result, was suspended for four games by the NFL.

The Michelle Carter case

The case against Michelle Carter in the United States drew national attention after she sent text messages to her boyfriend, convincing him to commit suicide.

Her boyfriend, Conrad Roy III, tragically took his own life in 2014.

Carter repeatedly sent texts to Roy, which were later used as evidence in the case. She was sentenced to 15 months in prison and five years of probation in 2017 after being convicted of manslaughter.

Handling digital evidence

The modern litigation professional must understand and use digital evidence — sometimes on a large scale.

Plus, digital evidence can go further than just what’s on the surface. Legitimacy and credibility of evidence can be proved by metadata, which describes the data behind the data of files and documents. Metadata attaches itself to all electronic files, leaving information about the who, what, when and where of documents, which can be cross-referenced with digital evidence during review.

Therefore, knowing how to obtain and preserve ESI to use as evidence is crucial.

Our comprehensive guide — The Evolution of Legal Data — explores new data types, how eDiscovery software can accelerate your litigation processes and how to handle large volumes of data.

To start learning about the importance of data in modern litigation, access your free copy of our guide below. source

How Your Texts Can Be Used As Evidence?

Many people assume text messages are private, but that’s not necessarily the case—as recent momentous events have shown. Text messages have played a pivotal role in the Jan. 6 hearings, and could be a foundation for legal action against those under scrutiny. Last week, a watchdog disclosed that the U.S. Secret Service deleted important text messages related to the attack, showing just how significant text message evidence can be.

Texts have also famously figured in high-profile court proceedings like the Michelle Carter “texting suicide” trial, the Anthony Weiner sexting trial, and, most recently, the Amber Heard-Johnny Depp defamation trial.

Like social media posts and other forms of digital communication, text messages can be used as evidence in court and can be instrumental in the outcome of both criminal and civil cases.

“People say things in texts that they then regret,” says Larry Buckfire, president of Michigan law firm Buckfire Law. “It’s so easy to say things you shouldn’t say or say things impulsively that you can’t take back once they’re documented.”

Here’s what to know about how text messages can be used as evidence.

How can text messages be used as evidence?

Text messages can be used to prove wrongdoing or support a defense position in a wide variety of court cases, ranging from family law matters like divorce and child custody to personal injury lawsuits to criminal trials.

Once a text message is admitted into court, it’s fair game—and can potentially make or break a case. “In a court proceeding, text messages are essentially a recorded conversation or, at least, a written expression of your intent to say something or do something,” Buckfire says. “They’re documentation of your thoughts, ideas, and expressions.”

In criminal cases, Buckfire says text messages are often used to show a person’s motive, intent to commit an alleged crime, or state of mind ahead of time. “You generally have to show that a person intended to commit a crime. So if they argue it was unintentional or inadvertent, text messages may show they intended to do something,” he says. “If they’re texting threatening messages to somebody or explaining a plan to commit a crime or to cover something up, that’s preserved.”

In the wake of the Supreme Court ruling in June to overturn Roe v. Wade, concerns are on the rise about the potential use of text messages, location data, and other digital information to punish people who discuss or search for information about access to abortion services. In the past, text messages have been used as evidence on a number of occasions against women facing criminal charges related to the end of their pregnancies.

As demonstrated by the Jan. 6 hearings, text messages can also be used as evidence in congressional hearings, which can ultimately lead to litigation. The House Jan. 6 committee has obtained thousands of text messages relating to top White House officials’ actions in the weeks leading up to the 2021 attack on the Capitol. During Tuesday’s hearing, the committee revealed text messages between former Trump campaign manager Brad Parscale and former Trump spokeswoman Katrina Pierson in which Parscale stated that Trump’s Jan. 6 rally speech was “asking for Civil War.”

Text messages have also been used to indict some of the individuals who participated or attempted to participate in the insurrection. One man, who arrived in Washington that day with 2,500 rounds of ammunition, sent text messages threatening to kill Washington Mayor Muriel Bowser as well as House Speaker Nancy Pelosi and said in a text that he was, “Ready to remove several craniums from shoulders.” Another texted a friend bragging he was “one of 700 inside” the Capitol.

As Darrell M. West, vice president and director of governance studies at the Brookings Institution, wrote in the weeks following the attack, “Taken together, the information gathered before, during, and after the riot demonstrates how technology enables both insurrection and legal accountability.”

When can text messages be used in court?

Before text messages can be introduced into a case, they have to be legally obtained as evidence. Buckfire says that if a person doesn’t voluntarily provide their cell phone, an attorney can obtain a court order or subpoena to gain access to relevant messages. Even if the owner of a phone has deleted certain messages from their own device,those texts can still be accessed from the phone of the person who received the messages. Most of the major cellular service providers also keep a record of the content of text messages sent and received by their account holders for a short period of time.

If a person has yet to be charged with a crime, Buckfire says law enforcement can seek a warrant from a judge or magistrate to search a phone. “You have to show good cause as to why the police need the phone and why it’s necessary for the investigation,” he says. “Once there’s a warrant, the police can go confiscate the phone, have it examined, and download [its data].”

It’s more difficult for law enforcement to get a hold of encrypted messages sent via secure messaging services like iMessage and WhatsApp. But if you use a cloud-based backup for these messagings apps, the content can still be accessed using special “cloud extraction” technologies, according to Privacy International.

Text messages must also be authenticated to be properly admitted into evidence. That means that an attorney must prove that a text was actually written and sent by who they say it was. According to the American Bar Association, text messages can be authenticated by witness testimony or by circumstantial evidence like “the author’s screen name or monikers, customary use of emoji or emoticons, the author’s known phone number, the reference to facts that are specific to the author, or reference to facts that only the author and a small number of other individuals may know.”

There’s a lot of scrutiny on admissible evidence in court, Buckfire says. “You can’t just bring in a phone and say, ‘Here’s this phone and this message,’” he says. “You have to show that a text is reliable, that it has useful value in a case, and that it’s not unfairly prejudiced.”

One of the most valuable lessons Buckfire says he’s learned from practicing law is to be careful about how you communicate things. “What you put in writing will come back to haunt you,” he says. source

World’s First Text Message

Can I Use Text Messages in My California Divorce ?

The Truth News — Mon, 29 Nov 2021 11:26:31 +0000

Can I Use Text Messages in My California Divorce ?

If you are going through a divorce, you may be wondering what types of evidence you can use that may include text messages, DMs (direct messages through social media), and emails which can potentially provide evidence in court.

These days, communication often happens through text messages which is generally an easy way to talk with anyone, no matter their location, including your spouse.

Text messages are commonly used as evidence during California divorce proceedings, although not all text messages are considered equal. This article will discuss when and what types of text messages can be utilized as evidence in a California divorce.

Relevant Text Messages Between Spouses

California is a no-fault divorce state, so neither side is required to prove that the other person is the one responsible for the ending of the marriage. However, text messages between spouses can be submitted as evidence in a California divorce case. Remember, however, that your spouse has an equal weight to produce all your text messages.

Text messages can sometimes show the ugly side of a marital relationship, especially when the conversation becomes argumentative and when one or both parties send threatening text messages. Text messages can also prove that your spouse is engaged in an extramarital relationship or criminal activity.

Your divorce attorney can help determine whether or not your text messages are relevant, as you don’t want to waste the time of the court just because you are angry. Here are some valid reasons to submit text messages during a divorce and provide evidence that your spouse:

Is committing domestic violence, which includes verbal, emotional, mental, or physical abuse
Is neglecting childcare
Has a substance or alcohol abuse problem
Is harassing or threatening you
Is abusing or neglecting the children
Has chosen social engagements, work, or other personal pursuit pursuits over the responsibility of their child-rearing responsibilities
Is trying to hide marital assets

These issues and more can influence child custody, restraining orders, and the separation of assets. Your family law expert in Kern County, California, can help you decide if the content of the text messages is relevant to your case.

Relevant Text Messages Between Your Spouse and Third Parties

Should you have any reason to believe that your spouse has been sending messages to a third party that may be relevant to your divorce, you may also be able to obtain copies of these text messages through the formal discovery process.

For example, suppose your spouse is sending messages to a business partner that show incriminating evidence or having an extramarital affair. In that case, you may need to subpoena the person who is sending or receiving the text messages from your spouse to use them in the divorce proceedings.

However, make sure you avoid trying to access text messages by logging into your spouse’s phone or using any other snooping methods, as you could harm your divorce case. Make sure you discuss your legal options with an experienced family law attorney in Bakersfield, California.

Authentication Of Text Messages

All text messages, DMs, emails, and other electronic messages used as evidence in a California divorce court will be required to be authenticated, and you must prove that your spouse sent them.

The California Evidence Code also determines ways you can authenticate electronic communications. For a text message to be authenticated, it means that:

The other person must admit to sending the message
A witness must testify that they saw the message being created
A reply authentication must be shown, which happens when a reply message is sent in response to the original message
If a message references something that only the other person would know about or understand

Authentication is necessary to determine if you can utilize text messages in a California divorce if it verifies them as legitimate evidence. Your divorce attorney will be able to tell you how and if you can authenticate the text messages to use them in a California divorce. source

Can Text Messages Be Used in California Divorce Court?

What You Need to Know About Using Text Messages in California Divorce Court

Texting is one of the most common and convenient mediums of communication between many people, including spouses. Here’s what you need to know about how text messages can be used in California Divorce Court.

An increased amount of divorce cases have been using text messages as evidence to be considered in court. Generally, text messages are considered evidence and can be considered in a court hearing if it fits a hearsay exception and is authenticated.

What is Considered Evidence in California Divorce Court?

The California courts consider two types of evidence: people and things. People can serve as evidence in the form of witness testimony, and can provide information on the case.

The California courts consider things as forms of evidence as well, including photographs, records (police, medical, bills, school, etc.) and other documents, including texts.

Getting Authentication of Text Messages

For a text message to be used as evidence in California Divorce Court, it must be authenticated, meaning that the other party must admit to sending the message, a witness must testify that they have seen the message being created or reply authentication must be demonstrated. Reply authentication is demonstrated when a reply message is clearly sent in response to the original message.

The California Evidence Code also dictates ways in which electronic communications can be authenticated, such as if the message references something only the other party would know about or understand.

Authentication is important and necessary in the process of utilizing text messages in California Divorce Court because it verifies that the messages are legitimate evidence and not hearsay.

Can a Divorce Lawyer Subpoena Text Messages in California?

A subpoena refers to one requiring the presentation of certain evidence to a court of law. A divorce lawyer can subpoena text messages in California.

However, it is important to consider that it is rare for cell phone companies to retain the content of text messages for long periods of time. Most companies keep logs of the dates and times at which messages were sent, but the content is kept for a short period of time, if it is kept at all.

It is recommended for those who wish to present text messages in court to download and keep screenshot copies of the messages.

FAQs About Using Text Messages in California Divorce Court

What kinds of messages should I present to the California Divorce Court?

Presenting relevant messages can help your argument in a divorce case. If your spouse sent you text messages related to child abuse or neglect, domestic violence, alcohol or substance abuse or harassment and threatening, these messages can help you in your divorce case, as they also contribute to consideration in things like child custody disputes, restraining orders, and division of assets.

How far back can text messages presented in California Divorce Court go?

As long as the text messages can be authenticated and fit a hearsay exception, the message can generally be considered as evidence in California Divorce Court.

Can I present messages sent from someone else that isn’t my spouse or domestic partner?

Yes, although the process of authenticating these messages may be more complicated and difficult. Generally, you may need to subpoena the third party or call them as a witness to use these messages as evidence.

Why is it so difficult to subpoena text messages?

It’s difficult to subpoena text messages because cell phone companies generally do not keep records of the content of text messages for very long, if at all. While the dates and times that text messages were sent are usually saved, finding the actual content of the messages is much more difficult, and can make subpoenaing them nearly impossible. source

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Can Text Messages Be Used In Divorce Court?

These days, most people use text messages as one of their primary modes of communication. While this makes communication easy in a lot of ways, it can also provide evidence in courts of all kinds. Increasingly, Los Angeles family law attorneys see that people want to use text messages as evidence in their divorce proceedings.

Most families enjoy the convenience of communicating with their spouse or children instantly with technology. Regardless of location, you can easily send text or direct messages from your social media accounts.

However, these text messages can also reveal an ugly side in a marital relationship. For example, spouses might become engaged in a bitter argument and start sending threatening text messages. Also, these messages might prove a spouse is engaged in an extramarital relationship or even criminal activity.

If the relationship ends, these text messages could show up in divorce proceedings as incriminating evidence against the spouse in order for the other spouse to be awarded martial or to win a bitter child custody battle.

Text messages have become a common form of evidence during California divorce proceedings. However, when using text messages as evidence in a divorce court, not all messages are considered equal.

This means spouses who are getting divorced need to understand what type of messages could be used to their advantage during the divorce process.

Generally, text messages can be admissible as evidence in family court. However, you must determine the answers to a few important questions before presenting text messages in a family court.

To give readers a better understanding about the use of text messages or emails in a California divorce, our Los Angeles family law attorneys are providing an overview below.

Are The Texts Relevant?

California is a no-fault divorce state. As such, neither party has to prove that the other is responsible for the deterioration of the marriage. If the reason you want to submit the text messages is that you want to show your spouse is responsible for the divorce, it’s better to ditch the texts.

The court does not care about fault or why the relationship ended. The last thing you want to do is appear to waste the court’s time out of spite. However, there are many valid reasons for submitting text messages during divorce proceedings. You may want to provide evidence that your spouse:

Is attempting to hide marital assets
Commits abuse or neglect against children
Commits domestic violence
Neglected child care or support in favor of socializing
Has an alcohol or substance abuse issue
Harasses or threatens you

All of these issues and more can affect child custody, restraining orders, and even the separation of assets. Your Los Angeles family law attorney can help you determine if the content of the messages are relevant to the overall case.

Were The Messages Obtained Legally?

Any electronic messages used as evidence in a California divorce court must be authenticated. This means it must be proven their spouse sent the text messages.

Receiving authentication could come in the form of getting your spouse to admit they created and sent the messages, but the court might allow a third-party eyewitness.

If your spouse sent the text messages to your phone, the messages are fair game for divorce proceedings. Furthermore, if the evidence exists on a shared device, you can typically use them as well. In some cases, you may go through a legal process to obtain messages on your spouse’s personal devices.

However, you should never hack into your spouse’s device or steal passwords in order to collect this evidence. Not only will the messages be inadmissible, but attempting to submit stolen messages may reflect poorly on you.

Were The Texts Sent From Your Spouse?

If the text messages came from your spouse to you, nobody else needs to take the stand in order to present the evidence. However, you could also get incriminating texts from other people in your lives.

For example, if your ex-spouse’s new partner sends incriminating messages, you may need to subpoena the person who sent the messages. Generally, if you have text messages from your spouse, they can be used as evidence during your divorce.

Some common examples why text messages between spouses can be relevant to divorce proceedings include proving one spouse is having an affair or attempting to hide assets. They are also commonly used to prove your spouse has not been honest with the court on a variety of issues during the divorce process.

Are The Messages Authenticated?

Even when a message comes from a person’s phone, you cannot be sure that the phone’s owner sent the message. Anyone with access to the person’s phone could, in theory, send text messages while pretending to be the phone’s owner.

As such, California law requires text messages to be authenticated before being admitted to court.

Several California laws dictate how electronic communications can be authenticated. Below are the evidence code numbers and examples of when they may apply:

Evidence Code § 1410 – the evidence code does not limit the means by which communication may be authenticated
Evidence Code § 1413 – a witness saw the person send the message and attests to witnessing this action
Evidence Code § 1420 – the context of the message shows the message was a reply from the person in question
Evidence Code § 1421 – in the message itself, the person says something that only they would know

By looking at your texts, your attorney can let you know how you can authenticate the messages.

How Do You Come Across In The Texts?

There are at least two sides to every divorce. When reading the text messages in question, it may be clear to you that the other person is in the wrong.

However, it’s important to take a step back and consider what others may think of the messages you sent during the conversation.

The truth is that all people can get heated sometimes, especially in the middle of a contentious divorce. While it may be understandable if you lost your temper, presenting those texts in court may hurt your case more than help it.

This is another case in which the help of an expert attorney can help, as they see these judges often and may have seen similar cases before.

Hire A Los Angeles Family Law Attorney For Help

California divorce proceedings are typically stressful and time-consuming, especially if they involve child custody hearings or a large amount of marital assets to divide between the spouses.

You should always seek the advice of an experienced attorney who handles family law matters in the state of California. Our Los Angeles divorce and family law attorneys help spouses throughout Southern California with their legal issues.

If you need more information about using your spouse’s text messages during your divorce, call our office to review the details and legal options. If you are unsure about any part of the divorce process in California, be sure to hire experienced Los Angeles family law attorneys. source

Text Messages Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Subjects Private Electronic Accounts to the Public Records Act

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Rules Public Records Act Covers Government Communications on Private Email and Personal Devices

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Holds Public Records Sent Through Private Email Accounts and Devices May Be Subject to Disclosure

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Federal Records Act in 2014

H.R.1233 – Presidential and Federal Records Act Amendments of 2014

Public Law No: 113-187 (11/26/2014)

How Your Texts Can Be Used As Evidence?

Yes, If They Have Verified Proof You Not Only Typed the Message and But You Sent it, Then Your Text Messages Can Be Used In Court

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Will My Text Messages and Social Media Posts Be Admissible Evidence

Courts must interpret old rules in relation to new forms of communication

Texts or social media posts will almost certainly be allowed as evidence in court.

Can text messages be used as legal evidence?

The ever-growing landscape of digital evidence

When can text messages be used in court?

Examples of text messages being used in court

Depp v Heard

‘Deflategate’ in the NFL

The Michelle Carter case

Handling digital evidence

How Your Texts Can Be Used As Evidence?

How can text messages be used as evidence?

When can text messages be used in court?

Can I Use Text Messages in My California Divorce ?

Can I Use Text Messages in My California Divorce ?

Relevant Text Messages Between Spouses

Relevant Text Messages Between Your Spouse and Third Parties

Authentication Of Text Messages

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Can Text Messages Be Used in California Divorce Court?

What You Need to Know About Using Text Messages in California Divorce Court

What is Considered Evidence in California Divorce Court?

Getting Authentication of Text Messages

Can a Divorce Lawyer Subpoena Text Messages in California?

FAQs About Using Text Messages in California Divorce Court

What kinds of messages should I present to the California Divorce Court?

How far back can text messages presented in California Divorce Court go?

Can I present messages sent from someone else that isn’t my spouse or domestic partner?

Why is it so difficult to subpoena text messages?

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

Yes, If They Have Verified Proof You Not Only Typed the Message and But You Sent it,
Then Your Text Messages Can Be Used In Court