In its unanimous opinion, the state's High Court ruled, "[W]e conclude 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. Sound public policy supports this result." It reasoned: "The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny."

To read the CA Supreme Court's full opinion, click here.

[Scroll down for further.]

Simply put: city officials statewide can no longer avoid disclosing their communications on matters of city business under the CA Public Records Act by using "personal" email accounts, other backchannels or storing their records on non-government databases.

The High Court set some limits on requesters and allowed City Halls flexibility in fashioning ways to comply with such record requests. "CPRA requests invariably impose some burden on public agencies. Unless a records request is overbroad or unduly burdensome, agencies are obliged to disclose all records they can locate "with reasonable effort." [citation omitted] Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. [citation omitted] In general, the scope of an agency's search for public records 'need only be reasonably calculated to locate responsive documents.' CPRA does not prescribe specific methods of searching for those documents. Agencies may develop their own internal policies for conducting searches. "

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In the opinion's conclusion, the Court stated: "Consistent with the Legislature's purpose in enacting CPRA, and our constitutional mandate to interpret the Act broadly in favor of public access (Cal. 21 Const., art. I, § 3, subd. (b)(2)), we hold that a city employee's writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account. "

[Mar. 3 UPDATE] LB's City Attorney's office indicates it is "reviewing this decision and will be working with staff and elected officials to implement." [LBREPORT.com presumes the CA Supreme Court ruling applies to Long Beach elected officials, appointees to various city Commissions, and city management and staff to the extent they use (or have been using) personal email accounts to communicate on matters of public business.]

Reaction to the ruling was swift from open-government advocates. David Snyder, Executive Director of the First Amendment Coalition (quoted in SacBee.com) said it strips away what the advocates have long described as a "loophole" in the CA Public Records Act that let many public officials conduct back-channel communication. "To the extent government agencies were doing that -- they can't any longer," Mr. Snyder said and called the Court ruling "a real positive step for the public records act, and for public access in California."

In contrast, the "League of CA Cities" (advocacy group represents interests of City Halls), which submitted a court brief arguing against Public Records Act accessibility to such materials, had no statement visible on its website the day after (March 3) as of 9:00 a.m. [END UPDATE]

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The issue percolated up to the CA Supreme Court when San Jose resident Ted Smith sought records under the CA Public Records Act about a downtown development project funded partly by the City, and included in his request records on the commercial email accounts of San Jose's Mayor and Councilmembers. San Jose City Hall refused to provide the records; Mr. Smith sued; a trial court sided with Smith; an appeals court reversed...and the CA Supreme Court has now sided with Mr. Smith...and in the process broadened access to public records statewide.

Among those supporting Public Records Act access were the CA Newspaper Publishers Ass'n, McClatchy Newspapers, CA Broadcasters Ass'n, L.A. Times Communications, plus Friend of the Court briefs from the Electronic Frontier Foundation and ACLU of CA. The "League of CA Cities" (in which the City of Long Beach is a dues-paying member) submitted a brief opposed to allowing Public Records Act access.

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Although Long Beach City Councilmembers frequently pledge fidelity to transparency and digital openness, the Council didn't support -- and in one incident blocked one Councilmember's effort to discuss in a Council committee -- making their communications on public business disclosable public records when using "private" email channels.

In April 2013, seven Long Beach Councilmembers -- then-Vice Mayor (now-Mayor) Robert Garcia, plus Suja Lowenthal, Gary DeLong, Patrick O'Donnell, James Johnson, Al Austin and Steve Neal [Dee Andrews absent] -- sat silently and refused to second a motion by then-Councilwoman Gerrie Schipske to send to the Council's Elections Oversight Committee (at the time O'Donnell, Lowenthal, Andrews) a proposal to require elected officials to disclose non-public communications about public business. (Schipske's agenda item also threw in banning political contributions from contractors and those having business before the City Council and disclosing any communications being received during Council meetings from lobbyists. An independent reliable source told us at the time that some people inside City Hall were "freaking out" over the latter item.) Schipske's motion died for lack of a second.

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