14 1190845.1
parties have seen the content.56 If the receiving party does not open the chat, the content of the message is deleted from their servers 30 days after initially sent. 57 Snapchat is currently at the forefront of social media evolution and enables users to communicate more like they communicate in real life, with specific people and for specific periods times. Thus, violations of the Brown Act occurring via Snapchat are more akin to speaking directly to a majority of a local governing body in person or over the phone.
iv. Twitter
Twitter is a service for friends, family, and coworkers to communicate and stay connected through the exchange of quick, frequent messages.58 Users post tweets, which may contain photos, videos, links and up to 140 characters of text.59 These messages are posted to the user’s profile, sent to their followers, and are searchable on twitter search.60 A tweet is any message posted to Twitter.61 The user can select whether tweets are public or private. If tweets are public, anyone who runs a search for a keyword in those tweets may be able to see that message.62 If a message begins with @username, it is a reply to another user.63 Direct Messages are private messages sent from one Twitter user to another Twitter user or a group of users; and does not appear in public for anyone else to read.64 A retweet is a tweet that is forwarded to a user’s followers.65 Basically, a re-posting of another’s tweet. Twitter's Retweet feature allows users to quickly share messages with groups.
For example, Council Member A, of a five member city council, tweets a comment about an upcoming agenda item. Council Members B and C, who follow Council Member A on twitter, retweet the first comment in an effort to encourage the public to attend the meeting. Depending on the content of the original tweet, once the tweets were posted, has a majority of the council “met” about the item without proper notice to the public? Arguably they have, even though the messages themselves are public and the public may immediately respond.
v. Instagram
According to Instagram, the picture sharing app “is a fun and quirky way to share your life with friends through a series of pictures. Snap a photo with your mobile phone,
56 Id.
57 Id.
58 “Getting Started with Twitter.” Twitter. https://support.twitter.com/articles/215585# 59 Id. 60 Id. 61 “New User FAQs.” Twitter. https://support.twitter.com/articles/13920# 62 Id. 63 Id. 64 Id. 65 Id.
PGCC 1-18-2023
15 1190845.1
then choose a filter to transform the image into a memory to keep around forever.”66 Users capture photos and post them online and have the option to include a message. All photos are public by default, which means they are visible to anyone using Instagram.
Users can opt to make their profiles private which allows only user selected followers to see their photos.67 Similar to the Facebook button, users can tap to “like” or comment on other user’s photos.68
Since Instagram is all about visual sharing, are these pictures sufficient to be considered protected speech or speech at all? The adage that a picture is worth a thousand words is certainly correct here. A unanimous Supreme Court specifically extended the First Amendment to written, visual and spoken expression posted on the Internet in 1996.69 Instagram holds the ability to deliver visual expression to many recipients quickly and conveniently and creates a platform for the sharing visual cues with people all over the world. Instagram is currently used for social and political reform efforts.70 Photos documenting social issues, such as famine in South Sudan, are frequently used to communicate issues and shape social opinions.71 And, politicians already use Instagram to spread politics to a variety of demographics and communicate with potential voters.72 Within the Brown Act context, a picture of a project site or a simulation of a project with a brief note conveying support or opposition, liked by a majority of a legislative body considering the project could certainly violate the Brown Act and may also raise ex parte due process concerns.
c. Social Media Legal Issues Relating to the Brown Act
The speed at which a comment or post on a blog, Facebook, Snapchat, Instagram or other online forum or platform can travel, the number of people the content can reach, and the interactivity among users creates potential danger when considering the application of the Brown Act. Online discussion of city business by a quorum of the legislative body arguably becomes a meeting with the mere click of a button. Should a council member post a blog entry about an upcoming agenda item, which is then commented on or retweeted, liked, photographed and posted by other council members, a discussion among the elected officials ensues electronically on the Internet.
Whether this constitutes a Brown Act violation remains to be determined. The fact that the forums described above are public and allow the public to also comment on statements by the councilmembers seems to suggest the council was not holding “secret” meetings. But the discussion of city issues also did not occur pursuant to a noticed
66 “FAQ.” Instagram. https://www.instagram.com/about/faq/ 67 Id. 68 Moreau, Elise. “What is Instagram.” About Tech. (March 28, 2016). http://webtrends.about.com/od/prof4/a/What-Is-Instagram-Wiki.htm 69 Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al., 521 U.S. 844 (1997). 70 Google sites. “Instagram and Nonverbal Communication” https://sites.google.com/site/tomcom125/instagram-as-a-form-of-mass-nonverbal-communication 71 Id. 72 Id.
PGCC 1-18-2023
16 1190845.1
meeting under the Brown Act.73 Instead, the council used a series of electronic communications to discuss and deliberate on an item within their subject matter jurisdiction.
And, openness of a conversation to the public is not the critical factor under the Brown Act. This discussion about city business, whether in person with a majority of the council, over the phone, via email or text would not comply with the Brown Act. As discussed above, the main problem faced with the Brown Act and digital and social media is that the Act was drafted when communication was much more limited and it was significantly easier to have private conversations. New technology offers elected officials great communication potential with little effort, but public officials may inadvertently find themselves in the midst of an e-mail conversation or conversation thread with other members of their commission or city council without any such intent, or much thought or effort. While it may seem behind the times or even counter to the concept of enhanced public transparency, such communications nonetheless present significant risks of Brown Act violations.
i. Open Meeting Law Issues
A June 2009 study by the Public Policy Institute of California reveals these interesting trends:
• 76 percent of Californians have access to the Internet; • Rural Californians are as likely to use the Internet as urban Californians and almost as likely to have access to high speed Internet; • Latinos are less likely to use information technology than whites, blacks, and Asian Pacific Islanders;
• Those with disabilities also are less likely to use a computer and the Internet; • Renters are less likely to have access to the Internet and broadband technology than homeowners; and
• Access also varies by income as well.74
The potential to inadvertently hold a “meeting” as defined by the Brown Act is startling and should give city attorneys second thought when advising elected officials about their use of social media. As discussed above, when a government body meets, the meeting is to be open to the public, in a public location, with no restrictions on who may attend and where open discussion is allowed. Statutes and rules are designed to ensure that fair notice is given to the public of what will be discussed at a public meeting so the individual citizen can make an informed decision on whether or not he or she wants to
73 See also 84 Ops. Cal. Atty. Gen. 30 (2001) (opinion of the attorney general that the Brown Act does not allow a quorum of a legislative body to discuss agency business over e-mail even if those e-mails are made publicly available and posted to the agency’s website). 74 Baldassare, Mark, Bonner, Dean, Petek, Sonja, and Shrestha, Jul. “Just the Facts: California’s Digital Divide.” Public Policy Institute of California Statewide Surveys. (June 2013). http://www.ppic.org/content/pubs/jtf/JTF_DigitalDivideJTF.pdf PGCC 1-18-2023
17 1190845.1
attend that particular meeting. Additionally the rules are to govern conduct so that an orderly meeting can be held.75
With so many people having access to digital and social media, it is ironic that elected officials discussing a topic in public on social media may be a violation of the Brown Act. One could argue that social media platforms are significantly more open, transparent and accessible than a council meeting at city hall. Yet, local officials should be wary of commenting on any other official’s social media content out of a fear that more than one other official doing so would unintentionally create a “serial” meeting.
However, not all social media discussions are public and not everyone may be heard either. Until the Brown Act catches up with the digital era, it is best to caution elected officials from participating in discussion on social media. Posting their own comment may be safest, but liking, retweeting, and commentating on other official’s sites and posts may be a violation of the Brown Act.
ii. First Amendment Issues
In 1996, in the landmark case Reno v. ACLU, a unanimous Supreme Court specifically extended the First Amendment to written, visual and spoken expression posted on the Internet. While the First Amendment does not give anyone the right to say whatever they wants, whenever they want, to whomever we want, it similarly does not justify violations of the Brown Act.
Local officials typically use social media to post information showing their position and activity for constituents. Social media is used successfully to publicize information about election day polling places and results, as well as important city functions. However, the interactivity provides the public and other members with a vehicle to respond which may be both critical of the official and trigger a “meeting” according to the Brown Act.
There may be technological ways to limit how much conversation occurs on a user’s page though. However, it would be ill advised for an elected official to delete any posts other than their own from a site they or the City host.
iii. Public Resources Issues
Another consequence of the mass information accessible as a result of digital and social media is the lack of control an official or agency may have over distribution of information. While more individuals can contribute, elected officials should be mindful of their use of public resources to maintain social media connections. There are existing restrictions on use of public resources for personal and political purposes. Specifically, California law prohibits elected officials from using public resources for personal or
75 Oona Mallett. Who’s Afraid of the Big, Bad Wolfe? A Call for a Legislative Response to the Judicial Interpretation of the Brown Act, 39 McGeorge L. Rev. 1073, 1076 (2008).
PGCC 1-18-2023
18 1190845.1
campaign gains.76 “Personal purposes” refers to actions for personal enjoyment, private gain or advantage or an outside endeavor not related to business. “Personal purposes” do not include the incidental and minimal use of public resources, such as an occasional telephone call.77 While an occasional personal message or post may not pose a significant problem, public officials and employees should be cautious about using city digital media to promote campaigns and personal issues.
iv. Public Records Retention
Considering how a local entity can track elected official’s and the agency’s use of social media for records retention purposes is overwhelming. Yet, more and more agencies are increasingly using social media platforms to engage with and inform the public.78 This activity may create records that must be captured and managed to comply with records retention requirements.79 Not only is it difficult to identify what data should be saved, but technology changes so rapidly it makes it difficult to anticipate how to adapt to the next new app. And, comments and conversations on these platforms only enhance the likelihood that a digital Brown Act violation may come back to haunt an elected official when captured and disclosed in a PRA request. d. Advising Agency Officials and Staff to Best Avoid Creating Serial Meetings
A review of the above discussion shows generally that human interaction via digital and social media does not fit neatly within the confines of the Brown Act. It may seem that clicking a key or tapping a button does not register the same trace of expression and communication as does the written or spoken word. Instead, the reach of communication through social media and the ability to converse in seconds, in public, from anywhere exposes the limitations of the Act. Since even clicking “like” on Facebook is considered a statement of expression, officials must think twice before participating in social media platforms.
76 See Stanson v. Mott, 17 Cal. 3d 206, 210-11(referring to expenditure of staff "time and state resources" to promote passage of bond act); Vargas v. City of Salinas, 46 Cal. 4th 1, 31-32 (2009). See also People v. Battin, 77 Cal. App. 3d 635, 650 (4th Dist. 1978) (county supervisor's diversion of county staff time for improper political purposes constituted criminal misuse of public monies under Penal Code section 424), cert. denied, 439 U.S. 862 (1978), superseded on other grounds by People v.
Conner, 34 Cal. 3d 141 (1983); Cal. Gov’t Code § 8314. 6 Cal. Gov’t Code § 8314(a). 77 Cal. Gov’t Code § 8314(b)(1). 78 National Archives and Records Administration. White Paper on Best Practices for the Capture of Social Media Records. (May 2013). http://www.archives.gov/recordsmgmt/resources/socialmediacapture.pdf 79 Id.
PGCC 1-18-2023
19 1190845.1
Given that the Brown Act and the courts have barely dipped into the technology pool by addressing emails, it is best for public officials to take a conservative approach with other social media. While a social media presence is certainly acceptable and may even be expected for a successful campaign, officials should avoid commenting, liking, tweeting, retweeting, or posting regarding topics within the jurisdiction of the governing body on which they sit. Posting general city information without personal comment or opinion is acceptable as it is likely posted publicly elsewhere. Posting a picture of the official at a city event without comment on any other city affairs is a safe bet too. But a seemingly innocent engagement in public or private social media discussion online may find the official charged with a Brown Act violation.
And as always, it is prudent for everyone to keep in mind that anything posted via the Internet may someday be found. From picture evidence of questionable behavior at best to interesting internet dating profiles, and angry retorts to an off color joke, everything should be considered accessible. Best practices for posting online should prioritize respect, honesty, clarity, and especially for elected officials, transparency.
Importantly, there are methods to engage in social media without triggering Brown Act concerns. Until the law is able to converge with technology, public officials should be mindful of accidentally holding an online meeting.
PGCC 1-18-2023
1 PUBLIC RECORDS PRACTICES
AFTER THE SAN JOSÉ DECISION
Thursday, July 20, 2017 – 10:00a.m. - 11:30a.m.
Jolie Houston, Interim City Attorney, City of Merced
Assistant City Attorney, City of Gilroy
Partner, Berliner Cohen
HongDao Nguyen, Assistant City Attorney, City of Stanton Assistant City Attorney, City of Lake Forest
Deputy City Attorney, City of San Juan Capistrano
Associate, Best Best & Krieger
DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials.
Copyright © 2017, League of California Cities®. All rights reserved.
This paper, or parts thereof, may not be reproduced in any form without express written permission from the League of California Cities®. For further information, contact the League of California Cities® at 1400 K Street, 4th Floor, Sacramento, CA 95814. Telephone: (916) 658-8200.
PGCC 1-18-2023
2 PUBLIC RECORDS PRACTICES AFTER THE SAN JOSÉ DECISION
Local agencies throughout the state have wrestled with the decision in City of San José v.
Superior Court since the California Supreme Court issued its opinion earlier this year.iThe court found that records in local agency employees’ personal accounts or devices may be subject to the California Public Records Act (CPRA) if the records pertain to public business. In the opinion’s aftermath, many local agencies have received requests for records in public employees’ and officials’ personal email, text messaging, and social media accounts.
Background of the San José Case
The San José case was borne out of a PRA request by Ted Smith, described by media accounts as a former attorney with a background in nonprofit work. Smith’s request to the City of San José asked for, among other things, “all electronic information relating to public business, sent or received by [San José’s-then mayor and then-council members] using his or her private electronic devices” related to a real estate deal involving the City. When the City did not provide documents from Council members’ personal accounts or devices, Smith sued and won in the trial court. The appellate court reversed the trial court decision, and on petition, the California Supreme Court reversed the appellate decision. The State’s highest court ruled: “[W]e hold 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….” What This Resource Paper Will and Will Not Do
This resource paper will explore the issues surrounding the San José case with an important caveat: the law continues to evolve on the topic of public records in personal accounts and devices. The San José decision was filed in March 2017, and no subsequent case law has addressed this issue. Moreover, no legislation has been passed on this topic. Therefore, local agencies only have the San José case to dissect and interpret.
While the San José court provided “Guidance for Conducting Searches” of personal accounts or devices, even the San José court qualified that guidance by noting, “we do not hold any particular search method is required or necessarily adequate.” As such, this resource paper will explore the many issues left unresolved by the decision with the understanding that those issues may later be resolved through subsequent case law or legislative action.
Scope and Application of the Case to Local Agencies
Does San José apply to public officials or just public employees? Most likely, San José applies to public officials in addition to public employees. The court 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.”ii Some have questioned whether the ruling applies to public officials because the ruling only calls out city employees. However, there’s a good reason why San José likely applies to public PGCC 1-18-2023
3 officials, too: The CPRA request at issue targeted, among other things, text messages on council members’ personal phones. Certainly the court was aware of the underlying facts of the case.
Moreover, the opinion is peppered with references to public officials. For example, in supporting its ruling, the court opined, “there is no indication the Legislature meant to allow public officials to shield communications about official business simply by directing them through personal accounts.” The justices also opined, “We are aware of no California law requiring that public officials or employees use only government accounts to conduct public business. If communications sent through personal accounts were categorically excluded from the CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts.” [Emphasis added.] As such, it would be risky for a local agency to assume that public officials are not subject to the San José ruling.
Does San José really apply the CPRA to text messages?
In the wake of San José, some have expressed dismay that text messages in public employees’ and officials’ personal phones could be public records under the CPRA. This is understandable, as text messaging is a newer form of electronic communication. However, the CPRA request at issue in San José targeted “emails and text messages ‘sent or received on private electronic devices used by’ the mayor, two city council members and their staffs.” Thus, text messages in a public employee’s or official’s personal account or device may be subject to the CPRA if those text messages pertain to public business.
Does San José apply to social media accounts?
San José does not explicitly mention social media accounts like Facebook or Twitter. However, the court acknowledged that records in “other electronic platforms” could also be subject to the CPRA. For example, if a public employee or official emails a constituent from his or her personal account about a civic center groundbreaking, for practical purposes, that same correspondence should also be a public record even if the discussion occurred in a private Facebook message.
In San José, the court looked past where the message resided and which electronic medium was used. Rather, if a record meets the “factors” mentioned in this paper, it is probably a public record subject to the CPRA, regardless of the record’s location or electronic medium.
Public Record Requests and Responses under San José
When a local agency receives a CPRA request for local agency correspondence, including emails, is the local agency required to automatically request that public employees and officials search their personal accounts or devices?
San José did not change the way that local agencies typically respond to CPRA requests that ask for correspondence and emails. Rather, San José expanded the local agency’s search obligation to include public employees’ and officials’ personal accounts or devices.
PGCC 1-18-2023
4 The San José court opined that the scope of a local agency’s search for public records “need only be reasonably calculated to locate responsive documents.” One way local agencies may fulfill that search obligation is to initially perform a search of the local agency server for responsive emails when the CPRA request is submitted. If there are responsive emails, then the custodian of recordsiii should ask the public employee or official whose name appears on the responsive emails if he or she has any “public records” in his or her personal accounts or devices. If there are responsive public records, they should be forwarded to the custodian of records for review and disclosure.iv
This search obligation should be governed by a rule of reasonableness. Not every CPRA request necessarily implicates public employees or officials. Routine CPRA requests may be fulfilled as they have been in the past. For example, a CPRA request for a routine local agency contract would not require that the local agency request that public employees or officials search their personal accounts or devices for that contract. Occasionally, especially on controversial topics, the requestor may revise or broaden his or her request, which may mean that public employees or officials will be required to search their personal accounts or devices for responsive records. As such, decisions regarding whether personal accounts or devices must be searched should be made on a case-by-case basis.
Should a local agency assume that a CPRA request for public records from personal accounts or devices must be forwarded to former public employees or officials? Yes, if the former public employee or official was employed or in office, respectively, during the time period for which the records are requested. In San José, the court noted that “an agency’s public records ‘do not lose their agency character just because the official who possesses them takes them out the door.’” This appears to be true of former public employees and officials as well. In other words, just because a former public employee or public official may have left with public files or may have them filed in his or her personal email inbox does not mean that the records lose their public character. Of course, any record that the former public employee or official generated after he or she left the local agency would not be subject to the CPRA.
In some instances, when the local agency’s custodian of records receives a CPRA request, he or she may have an idea of whether a former public employee or official may have responsive records in his or her personal accounts or devices and can reach out, directly, to those individuals. In other instances, the local agency’s custodian of records may not have an indication of whether a former public employee or official has public records in his or her personal accounts or devices.
As discussed above, local agencies should conduct searches that are “reasonably calculated” to locate responsive records and must disclose records that the agencies can find with “reasonable effort.” One way to fulfill the search obligation might be for the custodian of records to initially perform a search of the local agency server for responsive emails when the request is submitted.
If there are responsive emails pertaining to the former public employees or officials, then the custodian of records should ask each former public employee or official whose name appears on the responsive emails if he or she has any “public records” in his or her personal accounts or PGCC 1-18-2023
5 devices. If there are responsive public records, then they should be forwarded to the custodian of records for review and disclosure.
Regardless of how the local agency decides to deal with the issue, the agency should be prepared to demonstrate in writing (either to the requestor or a court or both) that it complied with San José and reasonably conducted its search by communicating the CPRA request to former public employees and officials, as necessary.
In response to a CPRA request for “correspondence” related to a particular topic, should the local agency clarify whether the requester is seeking public records from a personal account or device?
Under the San José case, a request for “public records” now includes public records wherever they are stored. That means that, in addition to searching local agency servers, the custodian of records should ask applicable public employees or officials whether they have public records in their personal accounts or devices each time a request comes in for “correspondence.” Moreover, if a local agency did clarify whether the request was meant to include personal records in personal accounts or devices under Government Code section 6253.1, the answer would probably be “yes.”
What is the process of obtaining potential public records from public employees’ and officials’ personal accounts or devices?
San José includes a section titled, “Guidance for Conducting Searches.” In this portion of the opinion, the court emphasized that public employees and officials do not lose all of their privacy rights simply because they work for a local agency. The court explained that in responding to a CPRA request for public records in personal accounts or devices, a local agency does not need to seize computers or obtain individuals’ user names and passwords to search for the records.
Rather, local agencies are obligated to conduct searches that are “reasonably calculated” to locate responsive records and disclose records that the local agencies can find with “reasonable effort.” Like any other CPRA request, upon receiving a request for public records in individuals’ personal accounts or devices, the local agency’s custodian of records should reach out to the employees and officials who are the subject of the request. San José suggests that public employees and officials may then search their own personal files, accounts, and devices for responsive material.
What “factors” should a local agency consider when deciding whether a record is public or personal?
The court provided local agencies with the following “factors” to consider when determining whether a document is a public document or a private one.
Content. Does the content of the email relate in a substantive way to the conduct of the local agency’s business? In San José, the court stated, “Whether a writing is sufficiently related to the public business will not always be clear. For example, depending on the context, an email to a PGCC 1-18-2023
6 spouse complaining ‘my coworker is an idiot’ would likely not be a public record. Conversely, an email to a superior reporting the coworker’s mismanagement of an agency project might well be.”
Context/Purpose. Why was the email written? Was it written to conduct the local agency’s business or further the local agency’s interest?
Audience. To whom was the email sent? Was it sent to an agency employee, official, resident, consultant, agency stakeholder, etc.? Or was the email sent to a friend or family member? Scope. Was the email written in the individual’s capacity as an agency official or employee representing the agency? Or was the email written as a private individual? Each record must be reviewed on a case-by-case basis to determine whether it is a public or personal record.
If a local agency chooses to use an affidavit like the one the court referenced in San José, what should the affidavit contain?
In San José, the court suggested that if a public employee or official withholds documents from his or her personal accounts or devices, then the individual may “submit an affidavit with facts sufficient to show the information is not a ‘public record’ under the CPRA.” This practice is modeled after the federal Freedom of Information Act and a practice used in the State of Washington.v
There is no consensus, however, on whether local agencies should follow this practice or how to implement it. The CPRA and San José do not require this practice. However, if a local agency decides to use an affidavit to demonstrate that it has asked public employees and officials to search their personal accounts or devices, the affidavit could include the following: a description of the CPRA request, language stating that the employee or official searched his or her personal accounts and devices, and what action he or she is taking (for example, disclosing records, not disclosing records — including a description of why — or disclosing some and withholding some). The affidavit could then be filed away and produced if needed to defend the local agency in litigation or it could be provided to the requestor.
How have other states, such as Washington, dealt with similar laws and case law providing that records in a public official’s or employee’s private devices or accounts may be subject to public disclosure?
Other states, like Washington, have had more time to digest the idea of public records residing in personal accounts and devices. In San José, the court relied on a case decided by the Washington Supreme Court: Nissen v. Pierce County.vi In Nissen, the court held that an elected county prosecutor’s text messages regarding work-related matters sent and received from his private cell phone could be public records. Following Nissen, additional case law is beginning to emerge, giving us a glimpse of what may eventually transpire in California.
PGCC 1-18-2023
7 For example, in 2016, a Washington appeals court found that under Nissen, a trial court could require an elected city council member to produce emails stored in his personal email account that were deemed city records. The trial court was also allowed to require the council member to submit an affidavit attesting to the adequacy of his search of his personal account.vii The council member had refused to provide records in his personal accounts, arguing (among other things) that he had a constitutional privacy right to personal records. Moreover, the city and council member argued that Nissen applied only to elected executive officers, not elected legislative officials. The Washington appellate court rejected those arguments.
How long should public employees and officials retain public records in their personal accounts and devices?
Although the CPRA is not a record retention statute, local agency public records on the agency’s server generally must be retained in accordance with Government Code section 34090, which requires certain public recordsviii to be kept for at least two years.ix The retention statutes do not address records stored on personal accounts or devices, nor do they provide a specific retention period for emails, texts, or other forms of social media.
Now that we know public records may be stored in personal accounts or devices, public employees and officials should be made aware of their respective agencies’ retention policies.
If a public employee or official is concerned about following retention schedules for messages on personal accounts or devices, the easiest solution is for him or her not to use personal accounts or devices for public business. If that’s not possible, then a public employee or official could routinely forward public records from his or her personal accounts or devices to the local agency’s server. Another solution could be to courtesy copy (cc) a local agency account on the message so that the message reaches the local agency’s server. After taking one or both of those actions (forwarding or cc-ing the messages) the messages in the personal account or devices may be deleted. The CPRA does not require an agency to keep duplicate copies of a record.
Another way a local agency may ensure the retention of public records stored in personal accounts or devices is to ask all public employees and officials to conduct searches of their personal accounts or devices that are “reasonably calculated” to locate public records and forward those records to the custodian of records before a certain date. After the public employees or officials have forwarded all public records from his or her personal device or account to the custodian of records, the public employees or officials should delete those public records in their personal accounts or devices. Going forward from the established “cut-off” date, public employees and officials should stop using their personal accounts or devices for local agency business.xIf this “cut-off” process is followed, then the local agency should have the public employees or officials confirm in writing that that they have complied with this request.
Thereafter, the local agency should be able to rely on the public employee’s or official’s confirmation that after the “cut-off” date, there have been no public records generated from or stored in his or her personal accounts or devices.
Are public officials’ campaign-related records in their personal accounts or devices subject to disclosure under the CPRA?
PGCC 1-18-2023
8 No. Campaign-related records in personal accounts or devices are not subject to the CPRA. State law prohibits individuals from using public resources for political purposes. Public officials may lawfully use only their personal or campaign accounts and devices for campaign purposes; such proper use of personal accounts or devices would not expose those political messages to public scrutiny under the CPRA.
Policies, Best Practices, and Training to Comply with San José Make the public employees and officials aware.
If your local agency’s employees or officials are not yet aware of the San José decision, then they should be made aware of it. This is as simple as the local agency’s attorney or custodian of records sending an email to all public employees and officials apprising them of the court’s decision and letting them know that records pertaining to local agency business in their personal accounts or devices may be subject to the CPRA.
Update the local agency’s CPRA policy
Similarly, the local agency should update its CPRA policy to implement the San José case. The policy update should acknowledge that public records may be found in personal devices or accounts, and that public employees and officials may be asked to search for and disclose such records to the local agency. Those records may then be turned over to a CPRA requestor, subject to applicable exemptions and privileges. Local agencies should also consider including a protocol that addresses public employees and officials who leave public employment or office to ensure that all public records stored in personal devices or accounts have been transferred to the local agency.
Training local agency employees and officials
Once a policy is in place, local agency employees and officials should be trained to understand that records in their personal devices or accounts relating to agency business may be subject to the CPRA. Local agency employees and officials should be trained in how to distinguish between a personal record and a public record. Specifically, local agency employees and officials should be trained in the “factors,” mentioned in this paper, that may make a record public or not.
Local agency employees and officials should also be trained in the agency’s records retention schedule. If employees and officials keep records in their personal devices and accounts longer than the time period the agency keeps such documents, responsive documents kept in those devices or accounts may need to be produced to a requestor.
Documentation
Local agencies should take care to document that they have asked their public employees and officials whether they have public records in their personal devices or accounts, when applicable.
PGCC 1-18-2023
9 In CPRA litigation, this information will be used as part of the local agency’s defense as to whether it performed a reasonable search as required by the San José case, or not. Moreover, whether or not a local agency uses affidavits or not, the local agency should document whether public employees or officials have conducted a search for public records in their personal accounts or devices and whether those public employees or officials have provided any responsive documents as a result of that search. If a public employee or official has not responded to the local agency’s request, the custodian of records (or city attorney) should followup in writing with that public employee or official. Again, a court will review a local agency’s action to determine whether the local agency conducted a “reasonable” search.
i City of San José v. Superior Court (2017) 2 Cal.5th 608. ii Id. at p. 614.
iii For purposes of this paper, we used the more general reference to the custodian of records, but it will most likely be the local agency/city clerk.
iv Once a record is forwarded to the custodian of records or local agency attorney, the record should be reviewed to determine whether applicable CPRA exemptions or privileges apply. v City of San Jose, supra, 2 Cal.5th at p. 628, citing Grand Central Partnership, Inc. v. Cuomo (2d Cir. 1999) 166 F.3d 473, 481 and Nissen v. Pierce County (2015) 183 Wn2d 863. vi Nissen, supra, 183 Wn2d 863.
vii West v. Vermillion (2016) 196 Wn.App. 627.
viii Though there is no definition of “records” for purposes of the retention requirements applicable to local agencies, the retention requirements and the disclosure requirements of the PRA should complement each other. Local agencies should exercise caution in deviating too far from the definition of “public records” in the PRA in interpreting what records should be retained under the records retention statutes. See League of California Cities:
“The People’s Business: A Guide to the California Public Records Act” revised April 2017, p. 67. ix Retention of special district records are governed by Government Code sections 60200 through 60203, which do not include the same two-year minimum retention as Section 34090. However, many special districts follow the general two-year retention in Section 34090 for emails. x
For some local agencies, it may be difficult for all public employees and officials to cease using their personal accounts and devices for public business. In those instances, a best practice is to encourage public employees and officials to use their personal accounts and devices as little as possible for public business. If the personal accounts and devices are used for public business, the public records should be forwarded or copied to a local agency account.
PGCC 1-18-2023