California Court Holds Electronic Communications on Private Devices Not Subject to Public Records Act

An April 9 Governing article reported on a recent decision by the 6th District Court of Appeals in California, which held that electronic communications about public business are not subject to the California’s public records laws if the communications occur on a private computer or device.  If upheld or let stand, the case could establish a precedent and affect public information laws in other states.  The article also discussed the challenges rapidly changing technology poses for public information laws.

Peter Scheer, executive director of the First Amendment Coalition, a nonprofit group that advocates for free speech and open government, explained that public records laws are built on a presumption that when writing or communicating about government business, that speech is public record. There are exemptions that address policy considerations that justify confidentiality at times, but it’s generally accepted that government communications can be requested by the average citizen.

“This goes way beyond that,” Scheer said, referring to the 6th District’s decision. “This simply creates a whole new parallel channel of communication which is totally untouched and unregulated and is outside of the freedom of information system and rules we have.”

The 6th District Court of Appeal’s ruling overturned a lower court decision that would have enabled a citizen to obtain messages sent on private devices through private accounts of the San Jose mayor and city council members. The California Supreme Court may take up the case, but if it doesn’t, the 6th District’s decision would stand, creating a precedent for similar situations in the future.  …

Chuck Thompson, general counsel and executive director of the International Municipal Lawyers Association, felt the situation in California was hard to judge because all states have slightly different open records laws. But he said the appeals court decision “does seem to conflict” with the laws other states have on the books.  …

Thompson believes there are a number of additional issues that states need to consider that could become public record law nightmares. He pointed to cloud storage and the federal communications storage laws and how they may impact future public requests for information.

UPDATE 2014-04-23: The holding would likely have little impact on Maryland law, which focuses on the nature and type of the record and not the source where the record originated.  Thus, a communication dealing with public or governmental business is treated as a public record regardless of whether it was generated on a private computer or device.  However, Maryland law does not explicitly address cloud storage.