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Appeals court says officials' private emails, texts are exempt from open records law

A state appeals court in San Jose has ruled that text messages, emails and other electronic communications sent and received by public officials on their personal devices are not public records regardless of the topic.

The ruling on March 27 by the 6th District Court of Appeal means the California Public Records Act (CPRA) doesn’t extend to public officials’ private devices.

The decision sets a legal precedent for South Bay counties but the issue is likely to remain unsettled until the California Supreme Court weighs in, the Mercury News said.

According to the National Law Review, the suit was brought by activist Ted Smith, who sought public records about a downtown San Jose redevelopment project.

The city complied with most of his request but refused to turn over “all voicemails, emails or text messages sent or received on private electronic devices” used by the mayor, members of the City Council, or their staff.

Smith sued and won a summary judgment ruling in superior court that found the CPRA extends to any official communication, regardless of where the record originated or how it is stored. The city appealed and the League of California Cities filed a friend-of-the-court brief in support of the city.

The appeals court on Thursday found in favor of the city. The appeals court ruled that, under the CPRA, communications “prepared, owned, used, or retained” by individual city officials on their personal electronic devices using private accounts were not equivalent to communications “prepared, used, owned, or retained” by the city.

The appeals court acknowledged the “serious concern” that city council members would conceal their communications on public issues by sending and receiving the communications on their private devices from private accounts, but it declined to re-write the CPRA, saying that was the job of the Legislature.

Smith’s attorney said his client will seek review of the decision by the California Supreme Court.

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