California cop’s sexy texts may leave records requesters heartbroken

When California police sergeant Jeff Quon used his city-issued pager to exchange racy text messages with his girlfriend, it is readily apparent what was on his mind – and it was not the future of journalists’ access to public records.

Nevertheless, Quon’s dispute with his former employer has become the unlikely vehicle for a court case placing the accessibility of government officials’ electronic correspondence at risk.

On Monday, the Supreme Court heard arguments in Quon’s case arising out of his dismissal by the City of Ontario, Calif., on the grounds of excessive personal use of city equipment.

Quon contends that the city’s inspection of the content of his messages violated his Fourth Amendment right against unreasonable searches. In June 2008, a three-judge panel of the Ninth Circuit U.S. Court of Appeals agreed.

The appeals court found that, even though the city expressly reserved the right to monitor employees’ electronic communications, Quon (as well as the co-plaintiffs with whom he texted) had a reasonable expectation of privacy in the messages.

If the Supreme Court ratifies that reasoning — and the Court’s leanings were difficult to discern from Monday’s arguments — the decision could have enormous spillover impact on the accessibility of government officials’ correspondence under state open-records laws.

Access to government employees’ correspondence is a creature of state and federal open-records laws. The federal Freedom of Information Act (FOIA) and many of its state analogs provide latitude for a government agency to withhold otherwise-public records on the grounds that the contents contain embarrassing personal information.

A common formulation appears in Michigan’s open-records statute, which provides that agencies may decline to honor requests for documents where disclosure would “constitute an unwarranted invasion of personal privacy.”

Even before the Quon case arose, a number of states were moving toward excluding some or all electronic messages from disclosure as public records.

In November 2009, West Virginia’s Supreme Court rejected the Associated Press’s attempt to obtain e-mails between a state Supreme Court justice and a coal company executive with a case pending before the court.

The justices ruled that, even though the messages were sent on a government e-mail account during working hours, they were not subject to disclosure because none of the messages “was related in any manner to either the conduct of the public business, or to the official duties, responsibilities or obligations of the particular public body[.]”

The Michigan Court of Appeals came down on the same side in January, ruling that personal e-mails sent to and from three teachers’ union leaders on school computers were not public records. A similar issue awaits resolution in the Wisconsin Supreme Court, which is considering whether that state’s open-records act covers all e-mails – even personal ones – sent on teachers’ school e-mail accounts.

Of course, the use of government equipment and time to send personal messages is itself arguably newsworthy – and in extreme cases, exceptionally so.

The Detroit Free Press won the Pulitzer Prize for local news reporting for its 2008 investigation of misconduct by then-Detroit Mayor Kwame Kilpatrick. The Free Press’ reporting was made possible by access to thousands of messages sent and received on Kilpatrick’s city-owned pager.

Kilpatrick was driven out of office, and pleaded guilty in September 2009 to two felonies.

Although Kilpatrick’s text messages initially came to light as part of a civil suit and not as a result of journalists’ public-records requests, the case illustrates how major news stories can depend on access to officials’ “personal” correspondence.

In the Quon case, the fired sergeant argued that the City expressly contemplated the personal use of pagers when it promulgated a policy allowing employees to reimburse the City for non-business usage.

That policy was decisive for the Ninth Circuit, which found that the city’s rationale for reviewing Quon’s texts – that it needed to verify whether its monthly texting limit was adequate – was not a reasonable basis for the search, since less intrusive means were easily available.

Open-records and privacy are separate bodies of law, and a ruling in favor of Quon would not conclusively decide the legal question of whether personal text messages are public records.

But as a practical matter, a Supreme Court ruling affirming a privacy interest in Quon’s text messages inevitably would chill access to all forms of electronic communications.

Government agencies are risk-averse about releasing records containing “private” information. When in doubt, agencies err on the side of non-disclosure, preferring the minimal penalties that accompany state disclosure statutes over the risk, however remote, of liability for invasion of privacy.

Supreme Court recognition of a privacy interest in the Quon case would be all the excuse that hidebound agencies might need to deny legitimate requests for newsworthy information like the Kilpatrick texts. And that would risk elevating the dubious privacy right of public officials in using government time and property for personal business over the public’s right to know.