The assault on the Public Records Act (“PRA”) has garnered a lot of attention recently. A previous post on this blog highlighted the legislature’s attempt to make compliance with the PRA voluntary, rather than mandatory as it currently is. The swift outcry led to a hasty, and wise, retreat and the bill died as it should have. However, the Court of Appeal has again stepped in the PRA fray, and this author believes it missed an opportunity to close a dangerous loophole created by technology outpacing the law.
In City of San Jose v. Superior Court, 2014 DJDAR 4859, the 6th Circuit Court of Appeal was faced with the question of whether emails and text messages sent to or from public officials’ and public employees’ private electronic devices, using their private accounts, were required to be disclosed pursuant to a proper PRA request. The trial court had held that communications on private devices were “public records” under the PRA and were required to be produced. Unfortunately, the Court of Appeal disagreed and reversed the trial court.
I will dispense with the Court’s analysis and skip to the point – with the Court of Appeal now holding that communications using private devices are not subject to disclosure under the PRA, the potential for abuse is obvious. In fact, the City of San Jose Court specifically stated “[t]hat city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern. . .” However, the Court left it to the legislature to deter such behavior with appropriate legislation. I will note the irony given that the legislature recently wanted to gut the PRA by making it voluntary.
This trend towards making government less transparent is troubling. Given how slowly the state legislature reacts to decisions like these (and its own efforts to undermine the PRA), I believe that the best way to curb these abuses is for local cities, counties, and other agencies to implement their own policies prohibiting officials and employees from using their private devices or accounts to conduct public business. These policies will only be effective if violations are dealt with severely. This also could increase costs for local agencies should they choose to purchase electronic devices for each public official and employee, but the resulting transparency should be worth the cost.
If you have any questions about the Public Records Act, please contact Greg Woodard at (949) 769-6602.