Significant Court Case on the Public Disclosure of Private Emails and Texts

This morning, the California Supreme Court issued a decision which could significantly alter how lobbyists and members of the public interact with elected officials and government employees. The decision subjects state and local public officials’ and employees’ personal emails, text messages and other electronic communications to public disclosure under the California Public Records Act. Prior to this decision, different governmental entities had varying policies regarding the disclosure of emails and text messages sent or received on private devices – though most public officials and lobbyists typically considered private emails and texts to be exempt from public disclosure.

A lower court had ruled that private emails and texts were subject to disclosure if they concerned government business, though an appellate court had ruled the other way, primarily because a public official’s private emails and mobile phones are not government property per se. In short, the Supreme Court unanimously held that privacy concerns do not outweigh the public’s right to know how the government is conducting its business, and that the government has the legal duty to produce emails, text messages and other electronic communications which are “prepared by” public officials or employees on their private devices.

The Court conceded that the distinction between private and public communications will not always be clear, and left it to each governmental entity to determine the method of gathering records from private devices. While it is too early to tell how governmental entities will implement the Court’s directive, the Court indicated that the governmental entity’s first step should be to forward the request to the public official or employee, and then it can rely on the public official or employee to search his or her own personal devices.

In sum, lobbyists and members of the public should no longer consider texting with public officials, sending emails to their private email accounts, or communicating with them via other electronic means to be beyond the reach of Public Records Act requests. Talking on the phone or in-person may now be the only way to keep communications confidential.

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Please contact a Sutton Law Firm attorney or Political Compliance Specialist if you would like assistance setting up a lobbying or gift law compliance system in the City of Los Angeles or any other jurisdiction.

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About the Sutton Law Firm
The Sutton Law Firm specializes in political and election law, representing businesses, individuals, candidates, ballot measures, PACs and nonprofit organizations involved in the political and legislative processes on the state, local and national levels. The firm offers its clients a full range of legal, reporting and litigation services.