California School News — August 2017
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Private Communications And The CPRA: Tips For Compliance

Earlier this year, the California Supreme Court held that a government employee’s writings and communications about public business are not excluded from a California Public Records Act request simply because they have been sent from, or received in, a personal account or personal device.

In the City of San Jose v. Superior Court case, the court ruled that board members communicating about district or county office issues may be subject to a CPRA request even if doing so from a private electronic method of communication.

In response, CSBA and the Education Legal Alliance filed an amicus brief in the case, which pointed to the potential intrusion on the privacy rights of board members and school district staff who use their personal phones and other private communication devices for board business. Addressing that concern, the Supreme Court said that the CPRA does not require extraordinary or intrusive searches so long as school districts and county offices use “reasonable effort” to locate existing records. The court recognized that not every communication that happens to mention the agency in question is a public record. Depending on the context, an email or text may still be entirely personal.

Steps that board members can take to comply with the ruling

Trustees who use their personal email accounts, devices and text messaging to communicate about district or county office-related business need to keep the Supreme Court ruling in mind. They may be required to search their personal communications and provide, in a sworn declaration, a sufficient factual basis for determining whether the communications are subject to the CPRA. Continued use of personal accounts and devices may lead to persistent, intrusive CPRA requests and even litigation to obtain these records.

Board members wishing to take proactive steps to separate their district or county office-related communications from personal communications may do so by:

» Using only a district or county office-provided email address, or device, to send district or county office-related communications.

» As the Supreme Court suggested in its ruling, copying a district or county officeprovided email address on any district or county office-related communications sent from a personal email account.

» When possible, using a separate, dedicated phone and/or application to send and receive district or county office-related communications.

» Using a phone or tablet provided by the public agency to communicate regarding public business.

» Conducting public business over the phone or in person.

» Avoiding the use of text messages or other instant-messaging tools to conduct public agency business, as such messages may become public records that are inconvenient or difficult to retrieve.

CSBA would like to thank its affiliate law firms for their counsel and assistance on this matter: Atkinson, Andelson, Loya, Ruud, & Romo, Dannis Woliver Kelly, Fagen Friedman & Fulfrost, and Lozano Smith.