On March 2, the California Supreme Court ruled that the emails and texts of public employees dealing with official business are to be considered a matter of public record even if they are sent from private devices or accounts.
The case was brought by community activist and former attorney Ted Smith who, in 2009, submitted an open records request for the communications of San Jose City Council members and staff relating to a downtown development being proposed. San Jose turned over some communications to Smith, but refused to hand over communications from private devices. Smith sued, arguing that the California Public Records Act, established in 1968 (long before email), was meant to give the public access to government records. And indeed, public records are defined as “any writing containing information relating to the conduct of a public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristic.”
Smith won his case before the trial court, but an appeals court overruled it. Cities and counties sided with San Jose, arguing that having to search and turn over private communications would be too costly and burdensome.
The case was appealed again, to the California Supreme Court. Justice Carol A. Corrigan wrote for the California Supreme Court that, “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.”
The California Supreme Court acknowledged that it will not always be clear which communications would need to be made public, so each case will have to be examined individually to determine the content, purpose, and recipient of the communication and whether it was written within the scope of the sender’s job. Under the ruling, the government will not be obligated to search all private devices for the communications, but simply make “reasonable efforts” to access them.
While the ruling only applies in the state of California, it is still significant. Studies have found that the California Supreme Court’s rulings are followed by more courts in other states than any other state supreme court. Its decisions have often been persuasive, playing an important part in shaping rulings elsewhere. That said, many other state courts have already agreed with the California Supreme Court and held that correspondence from private accounts may be turned over under open records should that correspondence relate to public business.
All 50 states have public records laws that allow the public to access government documents and public records, as does the federal government with the Freedom of Information Act (FOIA). While each law is different, overall, it is common for personal email accounts to be subject to open records laws if they contain “public records” — emails or communications that relate to publicly funded business.
In light of this treatment, scientists must be especially mindful about how open records laws may affect them. Scientists who receive public money — whether because the federal government employs them, they work at a public university, or they’ve received a public grant — should understand that open records laws may apply to them and their emails.
With this in mind, there are important steps researchers can take to ensure that their private communications stay private. Scientists should always keep their professional and personal email accounts separate due to the risk of open records requests and other legal inquiries. Personal email accounts should never be used for work-related communication and vice-versa. If a personal account ends up with work-related content on it, the account may be considered to contain public records and the entire account could be searched in case of an open records request. And remember that emails are not always private, so keep them professional and consider discussing sensitive matters in person or over the phone.
Scientists employed by the government or public universities, and those who receive government grants, are often subject to open records requests. Sometimes these requests can seek thousands of emails, over long time ranges, as a form of harassment by partisan groups. Consequently, scientists must know whether open records laws apply to them, and what records they must keep and disclose. Your institutional counsel, institutional records office, or a legal group like CSLDF can help you understand how the laws may affect you.
For more information about open records laws, and how to respond if you receive an open records request, check out the resources on our website and read our pocket guide for scientists, Handling Political Harassment & Legal Intimidation.
Scientists with questions or concerns about legal issues can also contact CSLDF at (646) 801-0853 or firstname.lastname@example.org.
— Renee Cho is a blogger for the Earth Institute at Columbia University