Public officials in a wired world: How much privacy should they get?
New technology often challenges society’s long-standing assumptions and standards, but sometimes courts — and others — lose sight of common sense as they grapple with the changes. That’s the case in a recent decision of California’s 6th Appellate District, which found that text messages and emails between public officials are beyond the reach of the Public Records Act if they are sent on private devices rather than ones owned by public agencies.
The three-judge panel said that electronic communications between council members and the mayor of San Jose, even those regarding city business, should not be considered “public” records if they are not “used” or “retained” by the city government (the language cited comes from California’s Public Records Act, written long before smartphones existed). Accordingly, the 6th Circuit overturned the decision of the trial court judge and ruled that the city need not turn over the communications to interested members of the public, even though both sides conceded that they involved official business.
That decision hews to the narrow language of the act, but it distorts the act’s larger purpose, which is to ensure that the public can scrutinize the actions of its employees when they are doing public work. Indeed, the problem with the ruling should be obvious to all: As soon as a public official realizes that his constituents have no right to look at anything he says on his personal cellphone or laptop, he’ll simply do all of his sensitive or secret communications on those devices. With a flick of the wrist, public officials will exempt themselves from accountability.
Does that mean that every communication, no matter how personal, should be subject to public scrutiny? No.
To decide what is a public record, it’s useful to consider four categories: a public communication by a public official on a public device; a private communication by a public official on a public device; a public communication by a public official on a private device; and a private communication by a public official on a private device.
That’s the spectrum. Here’s how it plays out. Any communication by a public official using a government device or server is a public matter. Period. If that same official uses his own phone or other device to conduct public business, that should be public too. But if the official uses his private device for purely private communications, that ought to be considered exempt. No one needs to review the mayor’s grocery list.
This type of line-drawing wasn’t necessary in an era when communications were written on paper, mailed on city stationery and filed in city offices. It’s more complicated now, but the courts must preserve sound principles: When public officials conduct public business, their constituents get to watch. That’s true no matter the platform.
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