Judge plugs “private email” loophole in CA public records law

email-privacy-150x150In a big victory for open government, a Superior Court judge in San Jose has ruled that the state’s Public Records Act applies to government officials’ emails and texts about government business–EVEN IF those messages are sent or received using the officials’ private email or text accounts, rather than accounts belonging to the government.

The decision by Superior Court Judge James Kleinberg rejected San Jose’s argument that local governments can’t be held legally responsible for digital messages that reside in computer servers that they don’t own, lease, use or control. Judge Kleinberg reasoned that government officials, when emailing and texting about government business, are functioning as agents of the city. The officials’ ownership and control of the messages is imputed to the city.

The decision is consistent with FAC’s 2012 suit against the city of Auburn. That case ended in a settlement in which Auburn agreed to adopt policies requiring city officials, when emailing about city business using their personal email accounts, to “cc” the emails to a city mail server where they would be stored in a searchable archive.

In recent years more and more government officials have turned to personal email accounts as a back channel for official communications, believing that those communications are shielded from disclosure under the Public Records Act. The  new decision, Ted Smith v. City of San Jose et al., suggests that belief may be misplaced.

Link to full text of Judge Kleinberg’s decision.

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