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[City Att'y Parkin / Ass't City Att'y Mais memo text]

• It is no longer good practice to use private devices or private accounts to conduct City business. In the event of a PRA [Public Records Act] request, it will be necessary to cull through an devices or accounts used in order to retrieve responsive communications. Use of multiple electronic devices or non-City accounts or "dotcoms" is likely to make retrieval cumbersome and time consuming.

• Emails, text messages and other written communications sent to or from a public officials' or employees' private account, or on a privately owned device, may be subject to disclosure under the CPRA depending on the content or context of the communication.

• If the City receives a PRA asking for private device or account information the involved official or employee will be asked to search the account or device and provide the communication for review and possible disclosure.

• In the event of litigation over questions regarding whether or not the PRA was thoroughly responded to,it is possible that a Court could issue a court order requiring an actual search of the device or account by a third party.

• In the context of a Federal Freedom of Information Act FOIA) request, federal statutes, regulations, and court decisions have resulted in policies that require federal employees to use their official agency accounts for all business related communications. In light of the recent San Jose case, it is possible that such policies may be forthcoming at either the state or local level.

• To the extent that elected City officials continue to maintain private accounts or use private devices in the conduct of City business, it would be good practice to forward all business related texts or emails to recognized City accounts for ease of search or access in the event of a PRA request.

• Texts sent or received on a private phone or tablet during the course of a public meeting which involve public business would be subject to disclosure if a PRA request were made, unless the communication is otherwise exempt from disclosure pursuant to the provisions of the CPRA.

• In the case of a communication involving both public business and a purely private communication, it would be permissible under the San Jose case to redact the private portions of the communication before producing the public portions of the communication.

• If a communication maintained on a private device or in a private account involves City business it is likely that a Court would rule that it must be disclosed unless an exception already recognized under the law exists (e.g., attorney-client communication).

• In the event a question arises as to whether or not a particular communication held on a private device or in a private account is a public record or purely a personal communication, the involved official or employee should contact the City's Records Coordinator or the City Attorney's office.

The City Attorney's office made the full text of its memo to the Mayor/Council publicly available through a release on its website at this link. To read the CA Supreme Court's full opinion, click here.

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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," a privately run advocacy entity to which the City of Long Beach pays dues, submitted a brief opposed to allowing Public Records Act access.

The issue reached 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 sided with Mr. Smith and in the process broadened access to public records statewide.

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." The Court stated: "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."

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LB's Mayor and City Council members, who have agendized and voted to take positions in other ongoing litigation with "Friend of the Court" briefs, didn't do so in the Public Records Act lawsuit...and in April 2013, the Council blocked an effort by one of its members to discuss in a Council committee making their communications on public business disclosable public records when using private email channels.

Seven then-Long Beach Councilmembers -- then-Vice Mayor/now-Mayor Robert Garcia, plus Councilmembers 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 that time comprised of O'Donnell, Lowenthal, Andrews.)

Councilwoman Schipske's agendized item proposed to require elected officials to disclose non-public communications about public business and included banning political contributions from contractors and those having business before the City Council and disclosing any communications being received during Council meetings from lobbyists. Her motion died for lack of a second.

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The state legislature could have plugged the Public Records Act loophole (which the City Council didn't advocate in its annual state legislative agenda) but neither Dem nor Repub legislative leadership pursued the issue.

Over a period spanning several years, LBREPORT.com repeatedly urged editorially that the City Council require forwarding emails and other communications on the public business through personal/commercial email accounts to City's .gov accounts, which would automatically make them public records more easily searched and disclosable. (Councilwoman Schipske said she routinely did so.) The City Attorney's memo (above) says that in light of the CA Supreme Court decision, this would be good practice.

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