With the passage of the Public Records Act nearly 50 years ago, California made clear a golden rule — that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state.” The message was clear and unequivocal.
But the strength of those words has been allowed to erode over time with the advancement of electronic forms of communication. In 1968, just about all government business was done on papers that could be filed, stacked or bound in leather and were easily searchable. Now, so much of government business is done in digital form, sometimes on smartphones away from City Hall and out of the public eye. With this evolution came the growing presumption, for practical and personal reasons, that there were some forms of government business, such as texting and emails done on a private phone, that the public was not entitled to see. For many cities and counties, this became policy.
But last week, the state Supreme Court took a bold stand in defense of the original intent of the Public Records Act, finding that even in a digital age, it still means what it says that “the writings of public officials and agencies shall be open to public scrutiny.” This includes emails and text messages sent or received on private phones outside of the workplace. The alternative, the court said in its unanimous ruling, is unacceptable.
“If communications sent through personal accounts were categorically excluded from CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts,” Associate Justice Carol Corrigan wrote for the seven-member court.
The March 2 ruling came out of a lawsuit involving a community activist who sued the city of San Jose for denying his Public Records Act request for the communications of San Jose City Council members and staff about a proposed downtown development. The city provided some records but said communications on private devices were not covered by the California Public Records Act. Smith sued, winning in a trial court but losing in a court of appeal decision.
San Jose argued that responding to such broad requests for information would place an undue burden on government and would be an invasion of public employee privacy rights. But the court would have none of it. “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,” Corrigan wrote.
The bottom line is this: If you’re a government official conducting the public’s business, there is no presumption of privacy no matter where you are or what kind of electronic device you are using.
It so happens that Sunday marks the beginning of national Sunshine Week, a time of recognition of the importance of freedom of information, open government and civic awareness. We can’t think of a better way to start this week than with the definitive statement provided by the California Supreme Court that although technology may evolve over time, the state’s cornerstone principle that access to information “is a fundamental and necessary right” has not changed.