Recent Public Records Act Decisions Raise Significant Concerns

Recent developments in Court treatment of California Public Records Act (CPRA) issues has raised some concern as to possible Court expansion of the scope of records that a public agency may be compelled to produce.  We want to share these concerns with you, so that you can better prepare to meet increasingly challenging requirements as Courts expand the scope of the CPRA.

Under the CPRA “public records” comprise “any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”  (Government Code section 6252(e).)  This term can be read expansively based on the legislative intent of the PRA “to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to ‘the conduct of the public's business could be considered exempt from this definition...’.”  (Commission on Peace Officer Standards and Training v. Superior Court (2007) 42 Cal.4th 278, 288, fn 3)  The CPRA defines “writing” to include any record “transmitting by electronic mail… and every other means of recording upon any tangible thing any form of communication or representation…and any record thereby created, regardless of the manner in which the record has been stored,” reaching electronically-stored records.  (Government Code Section 6252(g).)

While common sense would dictate that a public agency can only produce those records it actually has, a case decided last year has raised some concern of expansion and overreach beyond that common sense limit.  In that decision the California Fifth District Court of Appeal ruled that a public agency has possession of documents even if only through “constructive” possession, meaning that if the agency has the right to control the records, either directly or through another person, it may be considered as actually having them.  (Consolidated Irrigation District v. Superior Court (2012) 205 Cal.App.4th 697, 710, 711.)  The ruling rested on whether specific contract language gave the public agency ownership of documents that it had never actually possessed, which the Court equated with the right (and, somehow, the ability) to control.  But the implication is troubling, as it could force an agency into a Hobson’s choice: deny the CPRA request on the basis that it does not have the records, or that the contract clause does not entitle it to the records; or, instituting legal action against a contractor who takes the position that that the contract clause does not entitle the agency to the contractor’s records.

Our concern has grown in light of a recent Superior Court ruling from Santa Clara County holding a public agency responsible for producing emails from its Board members and administration that were sent using private email accounts, not official government accounts.  It has been announced that the ruling will be appealed.  The implications of a ruling that invades private correspondence just because an individual works for or serves a public agency are deeply troubling, both pragmatically and because of the intrusion into individuals’ privacy based on their public employment or public service.

Nonetheless, every public agency needs to be consulting with its counsel to review employee and Board member communication policies and procedures to best prepare themselves in the event of PRA requests that go well beyond the commonly understood scope of the CPRA, intruding into private correspondence, because some Courts appear ready to support those requests.

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