On March 2, 2017, the California Supreme Court ruled in City of San Jose v. Superior Court (Smith) (Mar. 2, 2017, S218066) that personal devices and accounts are subject to scrutiny under the California Public Records Act (“CPRA”). The Court stated any other ruling would result in government officials hiding “their most sensitive, and potentially damning, discussions in such accounts.” While the ruling stopped short of requiring individuals to turn over their personal devices and logins to agency IT departments, it does require agencies to consider content stored on personal devices when responding to CPRA requests.

This does not mean each text or email on a personal device must be disclosed. Only records and information on a personal device or account that pertain to the public’s business can be the subject of a public record request. For instance, a text stating, “my coworker is an idiot” sent to an employee’s spouse would not likely pertain to the public’s business, no matter how interesting it is to the public. In contrast, a message sent to a supervisor that reports a coworker mismanaging an agency project could be deemed a public record.

As the case involved no factual questions regarding particular records, the ruling does not clarify what constitutes a proper search of a device or the consequences of a poor or incomplete search. Many of these questions will be answered in future court decisions.

As this complex issue evolves, Churchwell White will follow up with additional Client Alerts focused on:

• When must an agency request an individual to search his or her device?
• What must the individual do to perform the search on his or her device?
• What are the consequences for documents missed in the search?
• What if the search failure was intentional?
• What are the costs to a public agency when defending against a CPRA-based lawsuit?
• What are the consequences of deleting a text message or an email?
• Does that deletion amount to destruction of a public record?

If you have any questions regarding the City of San Jose decision, please contact Doug White at (916) 468-0947 or doug@whitebrennerllp.com, Nubia Goldstein at (916) 468-0946 or nubia@whitebrennerllp.com, or Christopher LaGrassa at (916) 458-0626 or christopher@whitebrennerllp.com.