In a decision that will impact everyone who owns a smartphone and receives a public paycheck, the California Supreme Court ruled that public employees’ personal accounts may be subject to the Public Records Act (PRA). Partner Gregory Rolen authored a two-part article in Law360 discussing The City of San Jose v. Superior Court decision and how it will forever change the way we conduct business as public institutions and private people, as well as suggestions for how to respond to this change.
“The PRA defines ‘public records’ as any writing related to the public’s business if it is ‘prepared, owned, used or retained by the state or local agency,’” Rolen wrote. “Each employee could be treated as an agency; therefore they would be individually responsible for the myriad of PRA requirements.”
“There are already laws ensuring public accountability. Expanding public records to personal devices will create an overwhelming burden on the underfunded agencies, taxpayers and employees,” Rolen added. “[M]aking personal thoughts on personal devices subject to PRA scrutiny is nothing less than a privacy intrusion.”
Rolen highlighted that in a rare departure from judicial restraint, the court offered some assistance on how to comply with this new mandate, including: conducting reasonable searches; developing internal agency policies for conducting searches; communicating the scope of the information requested; searching your own personnel files; accounts and devices; training your employees; submitting affidavits for nonresponsive material; and developing technology policies.
Rolen also explained that both agencies and employees can protect themselves against privacy violations by notifying governing board members of the new legal mandate, including disclaimers on all writing that is subject to the PRA, identifying a custodian of record and simply using the telephone instead.