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San Jose Court Rules Text Messages, E-Mails, Electronic Communications Of Public Officials On Private Devices Deemed As ‘Public Records’


A Northern California judge has ruled that private text messages, emails and other electronic communications sent and received by San Jose officials about city affairs are public records.


The ruling Friday in Santa Clara County has the potential to settle a long-simmering legal debate in California over access to such records.

The state’s Public Record Acts and other laws require communications of elected officials and other public officials on public issues to be retained and turned over upon request.

Since the advent of email, activists and others in the state have been battling with officials at all levels of government over whether public issues discussed on private devices with personal accounts are covered by the Public Records Act. Similar legal battles and political debates have sprung up across the country as well.

While 26 states view the use of private emails for government business as public records, California and the rest have no clear rules or prevailing case law — a source for continuing turmoil in state courts, according to the Reporters Committee for the Freedom of the Press.

A federal judge last year ordered Environmental Protection Agency officials to make public “secondary accounts” of high-ranking officials who used alias email accounts to conduct official business.

Last year, the New Mexico governor ordered all state employees in the governor’s office to use only official email accounts to conduct state business after it was disclosed officials were using private accounts to communicate.

In 2011, Alaska’s governor released 24,000 pages of state-related emails Sarah Palin sent or received on her personal account in the two years she served as Alaska’s chief executive. The state’s Supreme Court later ruled that private emails about government business are public records.

In California, a Court of Appeal in 2008 tossed out a newspaper’s lawsuit seeking such records from the Tracy City Council on technical grounds before addressing the core issue. The city of Auburn last year settled a lawsuit filed by the First Amendment Coalition when it set up a special government email account for city officials to forward all official correspondence done on private devices with personal accounts.

The ruling Friday could have widespread implications if higher courts upheld the decision.

San Jose City Attorney Rick Doyle said the San Jose City Council will discuss Tuesday night whether to appeal.

The San Jose City Council and its staff are already required to turn over their private discussion about public business, Doyle said. He said the city is concerned the ruling expands that policy to all 5,000 city employees, creating potential compliance problems.

“You now have to worry about every employee when a request for records comes in,” Doyle said. “The Public Records Act has never been interpreted this broadly. The ruling goes too far.”

Peter Scheer, executive director of the First Amendment Coalition, conceded that “there are practical problems” in how to search officials’ private devices and personal accounts without unduly invading their privacy.

“That’s does have to be worked out,” Scheer said. Still, he said policies and procedures can be developed to safeguard officials from embarrassing disclosures of their private lives.

The ruling Friday was prompted by a lawsuit filed by environmental activist Ted Smith. Neither Smith nor his attorney James McManus returned phone calls.

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