The state Supreme Court last week made a fundamental change to the right of the public to have access to the communications of their public officials. In City of San Jose v. Santa Clara Superior Court, the court declared that emails and texts sent by public officials on their private accounts involving official business must be disclosed to the public. The ruling comes at a time when private emails and communications have taken center stage in national politics.
This highly anticipated ruling is a game-changer in terms of how public officials communicate with others, and for the public’s right to access communications by public officials. Many significant questions remain, however, as to implementation of this new public access right.
Californians’ right to access public records has developed over time. In 1968, the California Public Records Act was enacted. The CPRA declared access to “information concerning the conduct of the people’s business” to be a fundamental right. Voters elevated this right to the state constitution in 2004 through Proposition 59, which declared that “the writings of public officials and agencies shall be open to public scrutiny.”
This right to disclosure has always been weighed against strong statutory and state constitutional protections of individual privacy. These two rights came to a head in the San Jose case, where the court weighed the right to privacy in a public official’s private emails against the right to public disclosure of official business. The court came down squarely on the side of public disclosure, finding that the records were prepared by and under the control of the public agency even though they were on a private email account.
The court did not fully address, however, exactly how public agencies are supposed to implement this process. Two key issues were left open. The first is when an email is “sufficiently related to public business” that it must be disclosed. The court used two examples to demonstrate the difficulty in determining this. It gave one example of a public official emailing a spouse to complain that “my co-worker is an idiot.” This, it suggested, would not be subject to disclosure. Next, it gave the example of a public official emailing his or her supervisor about a co-worker’s mismanagement. This, it held, would be a public record. There will be many future cases that will revolve around what is or isn’t “sufficiently related to public business.”
Second, the process to access and verify that public officials actually provide the public records requested is unclear. The court opined that simply notifying public officials of the request and allowing them to search their own private accounts would be sufficient. But what if a public official refuses to cooperate? Can the public rely on public officials, even if well intentioned, to apply and interpret what is or isn’t a public record?
Resolution of these issues will again have to consider the public official’s rights to privacy. It will also require new interpretations of the lengths to which an agency is required to go to produce public records. There is now an exception to disclosure where the burden of producing them is undue. If a public official refuses to provide records contained on a private account, would it be an undue burden to compel them to produce the records?
These questions will take years to consider and require the creation of a new body of law to provide guidance. Until then, this fundamental shift in access to public records will be determined on a case-by-case basis.
Gary Winuk is the Sacramento managing attorney of the Kaufman Legal Group. He can be contacted at Gwinuk@kaufmanlegalgroup.com.