California Supreme Court opens personal communications on public matters to open records requests

The California Supreme Court on Thursday ruled unanimously that employee writings conducted about public business on personal accounts are subject to the state Open Records Act, a ruling that can aid in reporting on public schools and colleges.

The case originated in 2009 when California resident Ted Smith requested 32 categories – including private emails and text messages – of open records from the city of San Jose concerning a redevelopment effort. The city turned over communications made on government telephones and emails but none of the employees’ personal accounts, saying private communications are not open records since the city does not maintain or control the documentation.

Smith then sued, arguing that communications about government business are public regardless of how they are created or stored. A trial court ordered that the records be disclosed, but the California Court of Appeal overturned the order.

Justice Carol Corrigan in the Supreme Court decision described the issue of private communications between public employees as “narrow”.

“Are writings concerning the conduct of public business beyond [the California Public Records Act’s] reach merely because they were sent or received using a nongovernmental account? Considering the statute’s language and the important policy interests it serves, the answer is no,” she wrote.

Several states have seen similar disputes in recent years over communications made on non-governmental accounts. In 2011, Illinois Attorney General Lisa Madigan ruled that communications about government business on personal devices were subject to open records law. The ruling was appealed to the state appellate court, which partially agreed with Madigan, agreeing that emails and texts on personal devices sent during public meetings were subject to freedom of information laws.

More recently, Kansas lawmakers in July changed the state open records law to include “any recorded information, regardless of location, which is made, maintained or kept by or is in the possession of any public agency.”

The change was prompted by reporting in The Wichita Eagle that revealed the state budget director used a private email to send advance copies of Gov. Sam Brownback’s proposed budget to lobbyists prior to its public release. Brownback was also found to have used a private e-mail server to communicate with staff members.

For student media, the California ruling is another win for transparency and open government. In years past, the SPLC has reported on various court rulings that clarify when public officials’ emails are and are not subject to open records laws.

The ruling could also provide precedent for obtaining records in university presidential searches that are not open to the public. SPLC has previously reported on the quest for student journalists to obtain records in closed presidential searches, even detailing attorneys telling search committee members to avoid written communications that could be subjected to open records laws.

While the California ruling is not universal, it does provide yet another instance of a court declaring that public officials cannot hide behind private accounts to subvert freedom of information laws–a win for journalists everywhere.