SAN FRANCISCO (AP) — Government employees in California cannot hide from the public work-related emails and texts on personal devices and private accounts, the California Supreme Court ruled unanimously Thursday, closing a loophole justices said could allow the “most sensitive, and potentially damning” communications to be shielded.
California now joins a growing list of states that treat public business on private accounts as public records.
The ruling came in a lawsuit against the city of San Jose. San Jose City Attorney Richard Doyle said he was not surprised by the decision and did not plan to challenge it.
But he said it raised practical challenges for cities and counties.
“The question is how do we access those communications on personal devices without the government being overly intrusive,” he said. “I don’t expect and intend to have people turn over their phones.”
The use of private email accounts by public officials has faced scrutiny in recent years, with accusations that some were using them as a way to avoid disclosure. Hillary Clinton was sharply criticized during the presidential campaign for using a private email account while at the State Department.
In a survey by The Associated Press two years ago, Gov. Jerry Brown, Lt. Gov. Gavin Newsom and other top elected officials in California acknowledged using personal email accounts to conduct government business.
The state Supreme Court ruling would apply to those officials as well as lower level city, county and state officials and public employees.
It does not apply to the state Legislature, which has its own public records policy.
“This ruling is a model for giving government transparency laws meaning in the digital age,” said Matthew Cagle, an attorney at the American Civil Liberties Union of Northern California, which filed a brief in the case.
Many state courts and attorneys general have concluded that official communications on personal devices are subject to public disclosure.
And at the federal level, an appeals court ruled last year that work-related emails from a private account used by the White House’s top science adviser were subject to disclosure under federal open records laws.
Opponents have raised privacy concerns and said public officials sometimes need confidentiality to discuss unpopular views.
They have also argued that sifting through employees’ private accounts and devices in response to requests for records would be expensive and burdensome.
San Jose said in court documents that forcing employees to turn over their passwords to inspect communications on private devices would be akin to making them hand over their house keys.
Corrigan said in the ruling that privacy concerns should be addressed on a case-by-case basis and officials could redact any personal information not related to the conduct of public business.
She said employees could also search their own personal accounts in response to records requests.
“If communications sent through personal accounts were categorically excluded from (the California Public Records Act), government officials could hide their most sensitive, and potentially damning, discussions in such accounts,” the justice said.
The lawsuit before the California Supreme Court was filed by Ted Smith, who in 2009 requested messages about development in downtown San Jose that were sent or received on private devices used by San Jose’s mayor and City Council.
The city said it did not have access to any messages created on personal devices, so they were not public records.
Smith sued. A Superior Court judge ruled in his favor, but an appeals court overturned that decision in 2014.
The Supreme Court did not rule on the merits of Smith’s request, instead sending the case back to a lower court for that determination.
Copyright 2017 The Associated Press.