Government employees in California cannot hide from the public work-related emails and texts on personal devices and private accounts, the California Supreme Court ruled unanimously Thursday, March 2, 2017, closing a loophole justices said could allow the “most sensitive, and potentially damning” communications to be shielded. Jae C. Hong AP
Government employees in California cannot hide from the public work-related emails and texts on personal devices and private accounts, the California Supreme Court ruled unanimously Thursday, March 2, 2017, closing a loophole justices said could allow the “most sensitive, and potentially damning” communications to be shielded. Jae C. Hong AP

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Capitol Alert

Government officials can’t use private devices to hide texts and emails, court rules

By Christopher Cadelago and Ryan Lillis

ccadelago@sacbee.com

March 02, 2017 5:35 PM

State and local government officials can no longer shield from scrutiny their communications about public business by using private phones and accounts, the California Supreme Court ruled Thursday, handing a major victory to media and transparency advocates.

The state’s high court issued a unanimous decision, saying the public has the right to view messages about government business conducted in that fashion.

“A city employee’s communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account,” Justice Carol Corrigan wrote in the ruling. “Sound public policy supports this result.”

The use of private email accounts by public officials has faced scrutiny in recent years even as other states treat the emails as public records.

Retired San Mateo Superior Court Judge Quentin Kopp, now on the board of the First Amendment Coalition, hailed the ruling as “spectacularly significant” while David Snyder, the group’s executive director, said it strips away what the advocates have long described as a “loophole” in the California Public Records Act that had left many public officials free to conduct back-channel communication.

“To the extent government agencies were doing that – they can’t any longer,” Snyder said, calling the decision “a real positive step for the public records act, and for public access in California.”

Karl Olson, who represented media in the case, agreed it respects the public’s strong right to know what’s going on with public business.

“The policy underlying this is the public should be able to see what business their leaders and officials are conducting on their behalf,” he said.

The lawsuit before the court involved messages on private devices used by San Jose’s mayor and members of the City Council.

Opponents of the case raised concerns about privacy, arguing that public officials sometimes need confidentiality to discuss unpopular views.

San Jose contended in court documents that forcing employees to turn over their passwords to inspect communications on private devices would be akin to making them hand over the keys to their houses.

But on Thursday the city leaders acknowledged the strong political headwinds blowing against them, including the widespread attention during the presidential campaign on Hillary Clinton and her use of a private email server.

In an interview, San Jose City Attorney Richard Doyle said he was not surprised by the decision, noting courts in other states ruled against government in such cases. While he still has questions about implementation, “the decision is pretty clear and we are looking at complying.”

A city employee’s communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account.

Justice Carol Corrigan

The court instructed that agencies develop their own internal policies for conducting searches.

“We are certainly not going to have people bring in their cellphones and turn them over to be searched, but we will make sure they are aware of their requirements,” Doyle added, suggesting the city may ask the Legislature for clarification.

“At this point we will come up with our own protocols and go from there.”

Corrigan wrote in the 21-page ruling that privacy concerns should be addressed on a case-by-case basis and said officials could redact personal information not related to the conduct of public business. Employees also could search their personal accounts in response to records requests.

“If communications sent through personal accounts were categorically excluded from (the California Public Records Act), government officials could hide their most sensitive, and potentially damning, discussions in such accounts,” Corrigan wrote.

At the federal level, an appeals court ruled last year that work-related emails from a private account used by the White House’s top science adviser were subject to disclosure under federal open records laws.

Even before the decision, Gov. Jerry Brown’s administration said official business should be done on government email accounts as a matter of general policy and practice.

At the California Capitol, where the Democratic-dominated Legislature has its own, significantly narrower law mandating what records are public, Olson said by phone that he hoped officials would honor the intent of the Supreme Court’s decision.

“I think it would certainly let the Legislature know they should act in accordance with the spirit of the court’s ruling in this case,” he said.

Spokesmen for Assembly Speaker Anthony Rendon and Senate President Pro Tem Kevin de León declined to comment.

In Sacramento, Mayor Darrell Steinberg and all eight City Council members use private cellphones, according to City Clerk Shirley Concolino. Former Mayor Kevin Johnson and his City Hall staff relied heavily on Gmail to correspond. Johnson also kept a personal cellphone.

Most notably, the Gmail accounts created by the former mayor’s office were used to advance Johnson’s campaign to take control of the National Conference of Black Mayors and to discuss his involvement in various education-related ventures.

The accounts had “omkj” in the name, short for “Office of Mayor Kevin Johnson.”

Thousands of the mayoral emails were released to the public over the past two years in response to public records act requests by local media, including The Sacramento Bee.

Johnson copied city officials on many of his private emails, meaning they wound up on city computer servers. The city said those emails were part of the public record.

The San Jose case was brought by local activist Ted Smith after he unsuccessfully set out to inspect emails and text messages sent or received by officials on their private devices or accounts in 2009. A Superior Court judge sided with Smith, who wanted the records about downtown development issues, but the appeals court agreed with the city.

The 6th District Court of Appeal held that the California Public Records Act does not require the city to produce messages from personal devices not accessible to an agency. The law was enacted in 1968, when records were mostly physical and on paper.

Nor does it require the city to search those devices and accounts for messages relating to official business, the court of appeal ruled in 2014.

The decision had implications on state and city agency responses for documents.

Nearly three years ago, it was cited when Covered California, the state health insurance exchange, reviewed a request for emails between commissioners submitted by Santa Monica-based Consumer Watchdog.

The group at the time was campaigning for an ultimately unsuccessful statewide ballot measure to regulate health insurance rates. Covered California’s volunteer, part-time board members were not issued official email addresses, and instead communicated using other accounts.

“What we might have learned about Covered California might have changed the outcome of that ballot measure,” Jamie Court, the president of Consumer Watchdog, said Thursday after the ruling.

Looking ahead, Court instructed, “it’s critical for government to adapt so it instructs its own officials that they can no longer hide.”

Christopher Cadelago: 916-326-5538, @ccadelago. The Associated Press contributed to this report.

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