Privacy Rights and the Public Records Act

Posted on July 10, 2014

By: Kyle D. Kring

Competing interests of transparency in government and elected officials and government employees' right to privacy has stirred up a debate throughout California. A recent California appellate court ruled that government officials and employees' private communications sent on personal devices and not stored on public servers are not subject to the California Public Records Act (CPRA). City of San Jose v. Superior Court (2014) 169 Cal. Rptr.3d 840. This case addresses the important debate encompassing transparency in public agencies versus a public employee's right to privacy. The scope of this issue is evident as the California Supreme Court has recently decided to step in and settle the heated debate.

This issue has gained momentum with the dramatic increase in the ability of a person to store personal information and data on personal devices over the past few years. While the CPRA allows for transparency into public records, there must be a line drawn to respect and guarantee the privacy of these public individuals and define what exactly shall be considered "public records". Currently, the definition of public records remains vague and provides that public records are "any writing containing information related to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Gov. Code § 6252(e).

Public officials and employees are not the only ones to be affected by the high court's upcoming ruling. The debate parallels similar issues within the private workplace and will likely have an effect on future rulings related to the handling of private employee personal communications.

As California remains one of the enduring states in the diminishing pool of those yet to develop clear rules or fundamental case law on the issue, the Supreme Court's ruling will be vital in settling the debate and creating a stronger sense of what is protected and unprotected by the CPRA. The Appellate Court's decision essentially allows public officials and employees to store and arguably "hide" public documents on personal devices or accounts. A practical yet somewhat unrealistic goal would be to have a system where personal devices were prohibited from having any public information stored on them, and not subject to the CPRA. The California Supreme Court will presumably draw the line and set a much needed precedent on the debate by clarifying whether public documents "possessed, used, owned, or retained" on personal devices or accounts are subject to disclosure under the CPRA and included in the definition of "public records". We will keep you posted on this very interesting privacy case.

Kyle D. Kring is the managing partner of Kring & Chung, LLP. He can be reached at (949)261-7700 or kkring@kringandchung.com.