Supreme Court to Review Decision on Whether Messages on Private Devices and Accounts are Public Records

The California Supreme Court will review a lower court decision that e-mails and other messages sent or received by public agency officers and employees on private electronic devices or accounts are not “public records” under the California Public Records Act   Last week, the Court decided it would review the California Court of Appeal’s decision in City of San Jose v. Superior Court (Smith) (Mar. 27, 2014, H039498).

In 2009, a member of the public requested voicemails, e-mails and text messages concerning public business sent or received by San Jose officials on the officials’ private electronic devices.  A lawsuit followed after the City of San Jose objected to the request.  In March of this year, the Court of Appeal concluded that messages sent or received on private electronic devices or accounts are  not “prepared, owned, used or retained” by the public agency, and thus do not qualify as “public records” under the CPRA.  The court acknowledged that the decision might result in public officials using private accounts or devices to conduct public business.

Now that the California Supreme Court has granted review in the case, the lower court’s decision is no longer binding precedent. The Supreme Court will likely hear the case during its next term, which begins in September.