City of San Jose v. Superior Court of Santa Clara Cnty.

However, public access to information must sometimes yield to personal privacy interests. When enacting CPRA, the Legislature was mindful of the

2. Relating to the Conduct of the Public's Business

The overall structure of CPRA, with its many exemptions, makes clear that not

3. Prepared by Any State or Local Agency

The City focuses its challenge on the final portion of the "public records" definition, which requires that writings be "prepared, owned, used, or retained by any state or local agency." (§ 6252, section (e).) The City argues

The City's narrow reading of CPRA's local agency definition is inconsistent with the constitutional directive of broad interpretation. (Cal. Const., art. I, § 3, subd. (b)(2); see Sierra Club v. Superior Court , supra , 57 Cal.4th at p. 175, 158 Cal.Rptr.3d 639 , 302 P.3d 1026 .) Broadly construed, the term "local agency" logically includes not just the discrete governmental entities listed in section 6252, subdivision (a) but also the individual officials and staff members who conduct the agencies' affairs. It is well established that a governmental entity, like a corporation, can act only through its individual officers and employees. ( Suezaki v. Superior Court (1962) 58 Cal.2d 166 , 174, 23 Cal.Rptr. 368 , 373 P.2d 432 ; Alvarez v. Felker Mfg. Co. (1964) 230 Cal.App.2d 987 , 998, 41 Cal.Rptr. 514 ; see United States v. Dotterweich (1943) 320 U.S. 277 , 281, 64 S.Ct. 134 , 88 L.Ed. 48 ; Reno v. Baird (1998) 18 Cal.4th 640 , 656, 76 Cal.Rptr.2d 499 , 957 P.2d 1333 .) A disembodied governmental agency

An agency's actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested. (See § 6253, subd. (c).) It is a separate and more fundamental question whether a document located outside an agency's walls, or servers, is sufficiently "owned, used, or retained" by the agency so as to constitute a public record. (See § 6252, subd. (e).) In construing FOIA, federal courts have remarked that an agency's public records "do not lose their agency character just because the official who possesses them takes them out the door." ( Competitive Enterprise Institute v. Office of Science and Technology Policy , supra , 827 F.3d at p. 149.) We likewise hold that documents otherwise meeting CPRA's definition of "public records" do not lose this status because they are located in an employee's personal account. A writing retained by a public employee conducting agency business has been "retained by" the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account.

The City argues various CPRA provisions run counter to this conclusion. First, the City cites section 6270, which provides that a state or local agency may not transfer a public record to a private entity in a manner that prevents the agency " from providing the record directly pursuant to this chapter." (Italics added.) Taking the italicized language out of context, the City argues that public records are only those an agency is able to access "directly." But this strained interpretation sets legislative intent on its head. The statute's clear purpose is to prevent an agency from evading its disclosure duty by transferring custody of a record to a private holder and then arguing the record falls outside CPRA because it is no longer in the agency's possession.

It is no answer to say, as did the Court of Appeal, that we must presume public officials conduct official business in the public's best interest. The Constitution neither creates nor requires such an optimistic presumption. Indeed, the rationale behind the Act is that it is

D. Conclusion

Consistent with the Legislature's purpose in enacting CPRA, and our constitutional mandate to interpret the Act broadly in favor of public access (Cal. Const., art. I, § 3, subd. (b)(2)), we hold that a city employee's writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.

DISPOSITION

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

We Concur:

Cantil-Sakauye, C.J.

Werdegar, J.

Chin, J.

Liu, J.

Cuéllar, J.

Kruger, J.

In CPRA cases, this standard approach to statutory interpretation is augmented by a constitutional imperative. (See Sierra Club v. Superior Court , supra , 57 Cal.4th at p. 166, 158 Cal.Rptr.3d 639 , 302 P.3d 1026 .) Proposition 59 amended the Constitution to provide: "A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." (Cal. Const., art. I, § 3, subd. (b)(2), italics added.) " 'Given the strong public policy of the people's right to information concerning the people's business (Gov. Code, § 6250 ), and the constitutional mandate to construe statutes limiting the right of access narrowly (Cal. Const., art. I, § 3, subd. (b)(2)), "all public records are subject to disclosure unless the Legislature has expressly provided to the contrary." ' " ( Sierra Club , at p. 166, 158 Cal.Rptr.3d 639 , 302 P.3d 1026 .)

We begin with the term "public record," which CPRA defines to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." (§ 6252, subd. (e); hereafter "public records" definition.) Under this definition, a public record has four aspects. It is (1) a writing, (2) with content relating to the conduct of the public's business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.

1. Writing

CPRA defines a "writing" as "any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored." (§ 6252, subd. (g).) It is undisputed that the items at issue here constitute writings.

In 1968, creating a "writing" could be a fairly involved process. Typically, a person would use an implement to type, or record words longhand, or would dictate to someone else who would write or type a document. Writings were generally made on paper or some other tangible medium. These writings were physically identifiable and could be retrieved by examining the physical repositories where they were stored. Writings exchanged with people outside

Today, these tangible, if laborious, writing methods have been enhanced by electronic communication. Email, text messaging, and other electronic platforms, permit writings to be prepared, exchanged, and stored more quickly and easily. However,

Next, the City relies on section 6253.9, subdivision (a)(1), which states that an agency must make a public record available "in any electronic format in which it holds the information" (italics added), and on section 6253, subdivision (a), which requires that public records be available for inspection "during ... office hours." These provisions do not assist the City. They merely address the mechanics of how public records must be disclosed. They do not

B. Policy Considerations

Both sides cite policy considerations to support their interpretation of the "public records" definition. The City argues the definition reflects a legislative balance between the public's right of access and individual employees' privacy rights, and should be interpreted categorically. Smith counters that privacy concerns are properly addressed in the case-specific application of CPRA's exemptions, not in defining the overall scope of a public record. Smith also contends any privacy intrusion resulting from a search for records in personal accounts can be minimized through procedural safeguards. Smith has the better of these arguments.

The City's interpretation would allow evasion of CPRA simply by the use of a personal account. We are aware of no California law requiring that public officials or employees use only government accounts to conduct public business. If communications sent through personal accounts were

Furthermore, a crabbed and categorical interpretation of the "public records" definition is unnecessary to protect employee privacy. Privacy concerns can and should be addressed on a case-by-case basis. (See International Federation , supra , 42 Cal.4th at p. 329, 64 Cal.Rptr.3d 693 , 165 P.3d 488 .) Beyond the definition of a public record, the Act itself limits or exempts disclosure of various kinds of information, including certain types of preliminary drafts, notes, or memoranda (§ 6254, subd. (a)), personal financial data (§ 6254, subd. (n)), personnel and medical files (§ 6254, subd. (c)), and material protected by evidentiary privileges (§ 6254, subd. (k)). Finally, a catchall exemption allows agencies to withhold any record if the public interest served by withholding it "clearly outweighs" the public interest in disclosure. (§ 6255, subd. (a).) This exemption permits a balance between the public's interest in disclosure and the individual's privacy interest. ( International Federation , at pp. 329-330, 64 Cal.Rptr.3d 693 , 165 P.3d 488 ; BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742 , 755-756, 49 Cal.Rptr.3d 519 .) The analysis here, as with other exemptions, appropriately focuses on the content of specific records rather than their location or medium of

Arguments that privacy interests outweigh the need for disclosure in CPRA cases have typically focused on the sensitive content of the documents involved, rather than the intrusiveness

Federal courts applying FOIA have approved of individual employees conducting their own searches and segregating public records from personal records, so long as the employees have been properly trained in how to distinguish between the two. (See Ethyl Corp. v. U.S. Environmental Protection Agency (4th Cir. 1994) 25 F.3d 1241 , 1247.) A federal employee who withholds a document identified as potentially responsive may submit an affidavit providing the agency, and a reviewing court, "with a sufficient factual basis upon which to determine whether contested items were 'agency records' or personal materials." ( Grand Cent. Partnership, Inc. v. Cuomo (2d Cir. 1999) 166 F.3d 473 , 481.) The Washington Supreme Court recently adopted this procedure under its state public records law, holding that employees who withhold personal records from their employer "must submit an affidavit with facts sufficient to show the information is not a 'public record' under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA." ( Nissen v. Pierce County (Wash. 2015) 183 Wash.2d 863 , 357 P.3d 45 , 57.) We agree with Washington's high court that this procedure, when followed in good faith, strikes an appropriate balance, allowing a public agency "to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees." ( Id ., 357 P.3d at p. 58.)

Further, agencies can adopt policies that will reduce the likelihood of public records

We do not hold that any particular search method is required or necessarily adequate. We mention these alternatives to offer guidance on remand and to explain why privacy concerns do not require categorical exclusion of documents in personal accounts from CPRA's "public records" definition. If the City maintains the burden

Enacted in 1968, CPRA declares that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (§ 6250.) In 2004, voters made this principle part of our Constitution. A provision added by Proposition 59 states: "The people have the right of access to information concerning the conduct

Whether a writing is sufficiently related to public business will not always be clear. For example, depending on the context, an email to a spouse complaining "my coworker is an idiot" would likely not be a public record. Conversely, an email to a superior reporting the coworker's mismanagement of an agency project might well be. Resolution of the question, particularly when writings are kept in personal accounts, will often involve an examination of several factors, including the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment. Here, the City claimed all communications in personal accounts are beyond the reach of CPRA. As a result, the content of specific records is not before us. Any disputes over this aspect of the "public records" definition await resolution in future proceedings.

We clarify, however, that to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public's business. This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental

A writing is commonly understood to have been prepared by the person who wrote it. If an agency employee prepares a writing that substantively relates to the conduct of public business, that writing would appear to satisfy the Act's definition of a public record. The City urges a contrary conclusion

Moreover, although employees are not specifically mentioned in the local agency definition, nothing in the statutory language indicates the Legislature meant to exclude these individuals from CPRA obligations. The City argues the omission of the word "officer" from the local agency definition reflects a legislative intent that CPRA apply to individuals who work in state agencies but not employees in local government. The City offers no reason why the Legislature would draw such an arbitrary distinction. If it intended to impose different disclosure obligations on state and local agencies, one would expect to find this difference highlighted throughout the statutory scheme, particularly when the obligations relate to a "fundamental and necessary right of every person in this state." (§ 6250.) Yet there is no mention of such an intent anywhere in the Act. Indeed, under the City's logic, CPRA obligations would potentially extend only to state officers , not necessarily state employees . The distinction between tenured public officers and those who hold public employment has long been recognized.

As to retention, the City argues "public records" include only materials in an agency's possession or directly accessible to the agency. Citing statutory arguments and cases limiting the duty to obtain and disclose documents possessed by others, the City contends writings held in an employee's personal account are beyond an agency's reach and fall outside CPRA. The argument fails.

Under the City's interpretation of CPRA, a document concerning official business is only a public record if it is located on a government agency's computer servers or in its offices. Indirect access, through the agency's employees, is not sufficient in the City's view. However, we have previously stressed that a document's status as public or confidential does not turn on the arbitrary circumstance of where the document is located.

In Commission on Peace Officer Standards , supra , 42 Cal.4th at pages 289 to 290, 64 Cal.Rptr.3d 661 , 165 P.3d 462 , a state agency argued certain employment information was exempt from disclosure under CPRA because it had been placed in confidential personnel files. In considering a Penal Code provision that deems peace officer personnel records confidential, we rejected an interpretation that made confidentiality turn on the type of file in which records are located, finding it "unlikely the Legislature intended to render documents confidential based on their location, rather than their content." ( Commission , at p. 291, 64 Cal.Rptr.3d 661 , 165 P.3d 462 .) Although we made this observation in analyzing the scope of a CPRA exemption, the same logic applies to the Act's definition of what constitutes a public record in the first place. We found it unlikely "the Legislature intended that a public agency be able to shield information from public disclosure simply by placing it in" a certain type of file. ( Commission , at p. 291, 64 Cal.Rptr.3d 661 , 165 P.3d 462 .) Likewise, there is no indication the Legislature meant to allow public officials to shield communications about official business simply by directing them through personal accounts. Such an expedient would gut the public's presumptive right of access ( Sander v. State Bar of California , supra , 58 Cal.4th at p. 323, 165 Cal.Rptr.3d 250 , 314 P.3d 488 ), and the constitutional imperative to broadly construe this right (Cal. Const., art. I, § 3, subd. (b)(2)).

C. Guidance for Conducting Searches

The City has not attempted to search for documents located in personal accounts, so the legality of a specific kind of search is not before us. However, the City and some amici curiae do highlight concerns about employee privacy. Some guidance about how to strike the balance between privacy and disclosure may be of assistance.

CPRA requests invariably impose some burden on public agencies. Unless a records request is overbroad or unduly burdensome, agencies are obliged to disclose all records they can locate "with reasonable effort." ( California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159 , 166, 78 Cal.Rptr.2d 847 .) Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. (See American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440 , 453, 186 Cal.Rptr. 235 , 651 P.2d 822 ; Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353 , 371-372, 182 Cal.Rptr.3d 308 .) In general, the scope of an agency's search for public records "need only be reasonably calculated to locate responsive documents." ( American Civil Liberties Union of Northern Cal. v. Superior Court (2011) 202 Cal.App.4th 55 , 85, 134 Cal.Rptr.3d 472 ; see Community Youth , supra , 220 Cal.App.4th at p. 1420, 164 Cal.Rptr.3d 644 .)

CPRA does not prescribe specific methods of searching for those documents. Agencies may develop their own internal