On March 2, 2017, the California Supreme Court ruled in City of San Jose v. Superior Court that where a public employee uses a personal email account or texts to communicate about the conduct of public business, those writings may be subject to disclosure under the California Public Records Act (“PRA”). While resolving one long-debated question in California law, this decision also raised myriad new issues, including issues that are specifically relevant to litigation under the California Environmental Quality Act (“CEQA”).
The decision characterized the question presented to the Court as a narrow one: whether material in a public employee or official’s personal account was categorically excluded from a request for public records under the PRA. The Court first observed that a public record must not only pertain to agency business, but also be prepared, controlled, or retained by a public agency. Stressing that a document’s status as public or confidential “does not turn on the arbitrary circumstance of where the document is located,” the Court rejected the idea that materials from an employee’s personal account might be per se excluded from disclosure. The Court likewise rejected the idea that such documents were out of the control of a public agency, and therefore not properly considered a “public record.” Where a public official or employee sends an email or text pertaining to agency business (even on a private device) the Court reasoned that such a communication is both prepared and possessed by a public agency, and is therefore within the scope of the PRA.
The opinion has some important limitations. First, the Court clarified that to be considered a public record, emails from personal accounts must relate in some substantive way to the conduct of the public’s business. Communications that contain “no more than incidental mentions” of agency business would not generally be considered public records under this test. Second, because none of the documents from employees’ personal accounts had yet been disclosed, the Court did not consider whether the particular documents contained in those accounts might be subject to other exemptions from disclosure.
This case may raise more questions than it answers, as public agencies and those associated with them work to understand the implications of the Court’s decision as it relates to their existing policies and practices pertaining to official business carried out via personal accounts. At the most basic level, the decision dramatically expands the universe of documents that might be considered a “public record,” a fact which is significant not only in the context of the Public Records Act itself, but in nearly any legal challenge involving the action of a public employee or official, including contract and bidding disputes, land use or environmental review, challenges to agency enforcement actions, and nondiscrimination claims, among others. The decision is also significant in its scope, which encompasses not only high-ranking public officials, but any public employee carrying out the business of the agency.
Application to CEQA Cases
The question of whether and to what degree agency emails must be included in a CEQA administrative record has likewise been a subject of debate over the years. CEQA mandates that the administrative record include:
Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project . . . and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division. (Pub. Res. Code § 21167.6(e)(10).)
Courts have interpreted this subdivision to mean “that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.” (County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8.) When disputes concerning the content of the administrative record arise, the dispute often centers on the interpretation of exemptions from disclosure under the PRA.
Recent CEQA cases have specifically delved into the issue of whether an agency has “constructive possession” over environmental consultant files. For example, in Consolidated Irrigation District v. Superior Court, a city did not have constructive possession of documents in files maintained by subconsultants because the city had no contractual right to control the subconsultants or their files. ((2012) 205 Cal.App.4th 697, 710.) In contrast, in Community Youth Athletic Center v. City of National City, a city had a duty under the PRA to disclose a consultant’s field survey records because the city had a contractual ownership interest and right to possess this material. ((2013) 220 Cal.App.4th 1385, 1426, 1428-1429.)
In City of San Jose the Supreme Court looked to these two cases in evaluating the relevance of “constructive possession” to communications in personal accounts of public employees and officials. The Supreme Court refrained from specifically overruling the approach in these prior cases, but instead explained that it “is a separate and more fundamental question whether a document located outside an agency’s walls, or servers, is sufficiently ‘owned, used, or retained’ by the agency so as to constitute a public record.” There was no need for a constructive possession analysis here, the Court concluded, because materials relating to public business that are authored or retained by a public employee are documents “prepared or retained by” a public agency. The Court concluded that such documents “otherwise meeting [the PRA’s] definition of ‘public records’ do not lose this status because they are located in an employee’s personal account.” The Court did not address whether a parallel reasoning might apply to consultants or independent contractors, and so the decision is instructive as to the importance of clearly delineating public officials and employees from independent contractors and consultants, and providing clear document management and retention guidance to each group.
This shift may signal a widening view of the PRA’s scope and authority, and has serious consequences for the preparation of an administrative record under CEQA, or any other regulatory approval. With regard to CEQA litigation, the Supreme Court’s decision also has the potential to dramatically broaden the scope of a CEQA administrative record, as lead agencies will now need to determine whether any private emails, texts, or other communications by public officials and employees may be relevant to compliance with CEQA or the agency’s approval or denial of a particular project. Public agencies would be well-advised to consider this decision in their planning efforts, and should provide guidance regarding records management and communications to their consultants, contractors, and employees.