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California Supreme Court’s Decision About Public Records on Private Devices May Impact CEQA Administrative Records

On March 2, 2017, the California Supreme Court issued the City of San Jose decision, ruling that e-mails and text messages about the conduct of public business are subject to disclosure under the California Public Records Act (“CPRA”), even if they are sent or received on the private electronic devices or personal accounts of public officials or their staffs.

City of San Jose may also have ramifications for the preparation of administrative records under the California Environmental Quality Act (“CEQA”). In CEQA litigation, the lead agency must certify a “record of proceedings,” or administrative record, containing certain broad categories of documents which agency decision makers relied upon in environmental review and approval of a project.  (Pub. Res. Code sec. 21167.6).  In practice, administrative records have swelled to multi-volume compendiums containing thousands, if not tens of thousands, of pages.  In addition, administrative records have generated secondary litigation about the proper scope of their contents.  The City of San Jose decision may add to the expense, time, and burden of preparing administrative records.

While the decision did not mention CEQA, it may be interpreted as expanding the sources which agencies must examine to compile their administrative records.  In addition to thoroughly searching official agency files and electronic databases, agencies may also need to ascertain whether e-mails and text messages on private devices or personal accounts of public agency officials and employees contain material required for inclusion in administrative records. Agencies may be able to reduce this burden by adopting policies to reduce the likelihood that administrative record documents would be sent, received, or stored on private devices or accounts.