Originally published in California Publisher, Winter 2018.
by Jason M. Shepard
A recent decision by the California Supreme Court that the state’s Public Records Law applies to private devices of public officials is an important precedent for government transparency in the digital era.
“This a very important case,” says Thomas Peele, a Pulitzer Prize-winning investigative reporter for Bay Area News Group. “I think the predisposition of most officials before this ruling was to use private email to avoid disclosure. Now they know that if they’re using a private account, it’s still a public record.”
In the age of smartphones, public officials can conduct all sorts of government business in the palm of their hands. With the creation of free email networks like Gmail and easy-to-use mobile apps, many eschew more cumbersome government networks.
The trend of using private accounts has ballooned in recent years. A survey of contact information for Bay Area public officials by the regional chapter of the Society of Professional Journalists found that about 40 percent listed private email addresses, according to Peele.
“Right from the get-go, these officials were inviting correspondence with an email address that up until this ruling might not be considered public records,” Peele says.
When it came to complying with public records requests, government agencies were increasingly relying on public officials and employees to police their own communications.
“We’ve seen public officials who thought it was kind of cute to skirt around public records laws by using a Gmail or Yahoo account, or Facebook messaging,” says Dave Maass, a journalist and senior investigative researcher at the Electronic Frontier Foundation. “Now that’s not an option.”
Public records laws were one outcome of the rise of the “right to know” movement, rooted in the idea that citizens are best equipped for self-governance when they have access to full information about government affairs.
In 1913, three years before he was appointed to the U.S. Supreme Court, Louis Brandeis lamented the ability of wrongdoers to pass themselves off as honest men. “Publicity is justly commended as a remedy for social and industrial diseases,” he wrote in Harper’s Weekly.
“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman,” Brandeis wrote.
As journalism professor Michael Schudson recounts in the recent book, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975, a number of laws in the middle of the last century gave citizens more access to government information.
In 1968, the California Legislature passed the California Public Records Act, modeled after the 1966 federal Freedom of Information Act.
The CPRA declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state” and sets forth the basic framework of public records requests. The law provides a number of exemptions to protect sensitive information from public release.
California voters enshrined access rights in the state Constitution with the passage of Proposition 59 in 2004, which reads in part: “The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
The California Supreme Court has expanded access rights in several important cases. In 2007, the Court wrote, “Openness in government is essential to the functioning of a democracy.”
Implicit in public access laws is the idea that transparency allows citizens and journalists “to expose corruption, incompetence, inefficiency, prejudice and favoritism,” the Court wrote.
But anyone who’s filed a public records request knows that hurdles abound. Delays and high costs top of the list of problems people encounter. So too are questionable applications of statutory exemptions that limit disclosure.
That’s why the California Supreme Court decision in City of San Jose v. Ted Smith is important.
In 2009, Smith, a lawyer and environmental activist, wanted more information about a redevelopment plan in downtown San Jose involving a loan to a former mayor. He filed a public records request seeking 32 categories of documents related to correspondence between developers and the mayor, the city council and city staff. The request specifically included voicemails, emails and text messages sent or received on private electronic devices.
The legal question presented appeared simple: Is public business still public when conducted on a private account or device?
The city maintained that because they weren’t in possession of records on private devices, those communications were not covered by the public records law. The city also argued that privacy rights could be implicated if public employees have to open up their private devices to public inspection.
In 2013, Santa Clara County Superior Court Judge James P. Kleinberg sided with Smith. If San Jose’s arguments were to hold, the judge wrote, “a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own.”
However, an appeals court overturned the ruling in 2014, saying that records not in the possession of city servers were not public records under statutory definitions.
Smith appealed to the Supreme Court, and press organizations filed briefs in support.
“The problem with the (appeals court) ruling should be obvious to all: As soon as a public official realizes that his constituents have no right to look at anything he says on his personal cellphone or laptop, he’ll simply do all of his sensitive or secret communications on those devices. With a flick of the wrist, public officials will exempt themselves from accountability,” the Los Angeles Times editorialized.
In March 2017, the state Supreme Court unanimously overturned the appellate court, siding with Smith.
“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,” wrote Justice Carol A. Corrigan.
The Court noted that privacy protections and exemptions still apply, so not all communications on private devices would automatically be public. But the law does require disclosure of communications that are sufficiently related to public business and not subject to statutory exemptions.
Attorney Karl Olson, who represented the press in a friend-of-the-court brief in support of Smith, told The Times the decision was “a resounding victory for the public.”
At least 11 states have clarified that their public records laws covers records on personal electronic accounts and devices, according to briefs filed in the case.
For government officials, the decision is causing some headaches. When emails or documents are government servers, IT experts have some ability to search and verify whether such records exist. When public officials are using private accounts, they have greater ability to delete or withhold information.
Municipalities and government agencies are working to develop retention and retrieval policies and guidelines for public officials and employees who use private devices.
Still, if a public official wants to hide communications on private systems, they are likely to be able to do so. Peele, the Bay Area investigative reporter, thinks the best solution is to ban the practice of using private email accounts for government work.
“If you’re doing public business, do it on public email, period. And have penalties for using a private account,” Peele said. “Until there is a way that the public and journalists are assured that they are getting the entire of set of responsive documents, I don’t trust the system.”
Jason M. Shepard, Ph.D., is chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at firstname.lastname@example.org or on Twitter at @jasonmshepard.