Private emails used for public business have been more than a little bit of a sticking point for several high profile politicians. It would hardly be an exaggeration to say that private emails characterized our most recent election. In a streak of extreme irony, it even came to light a few weeks back that Vice President Mike Pence had used his private email account to conduct official Government business while he was Governor of Indiana. The difference between the two incidents–Clinton and Pence–being that while Clinton sent emails through a server set up for the private use of her family; Pence sent emails from a plain Jane AOL account.
Frankly, both of these incidents are far from a new concept and neither deserved anywhere near the scrutiny they received. It’s remarkably common for government agents to use private email accounts–so much so that a recent California Supreme Court case pitting the City of San Jose against one Ted Smith has ruled that the California Public Records Act (CPRA) and the California Constitution demand that the public be allowed access to the private emails and personal devices of government officials where the officials use these tools to conduct public business.
There are many who would salivate at the opportunity were such a ruling on the federal level. However, the Freedom of Information Act (FOIA)–the federal predecessor of the CPRA–has a number of differences from California’s Public Records Act which make a ruling of this sort highly unlikely on a federal level. To fully understand why, let’s look at the California Supreme Court case itself, as well as the differences between FOIA and the CPRA.
Figuring Out Where Private Meets Public
The case the California Supreme Court just decided started all the way back in June of 2009 when Ted Smith used the CPRA to request the disclosure of 32 categories of public records from the City of San Jose, its agency handling redevelopment, and a number of other named government officials and employees. Some of the documents Mr. Smith asked for included text messages and emails sent or received on private electronic devices used by the mayor and a number of government officials and their staffers. San Jose responded to the request with all the communications made with official city accounts, but refused to produce anything from a personal account.
Mr. Smith was unsatisfied with this result, and sued to get the information from the personal accounts as well. At first, Mr. Smith won access easily with the district court giving him access to the documents through summary judgment. However, the Court of Appeals basically issued an order telling the city not to disclose. Now, nearly 8 years later, the California Supreme Court has finally decided that the CPRA guarantees Mr. Smith the right to access these personal accounts.
CPRA v. FOIA
As mentioned above, FOIA is one of the most substantial leaps in government transparency of the last century. Made law in 1966, the Act allows for the full or partial disclosure of otherwise unreleased information held by the U.S. government upon a request from the member of the public following certain procedures. The Act requires every agency to, upon any request for records which reasonably describes those records, to promptly make the records available to the person who asked. The law also gives courts the power to order production where an agency refuses to produce documents which are properly requested.
FOIA itself has been subject to quite a bit of limitations over the years. While the Privacy Act of 1974 expanded the power to request documents under FOIA, the Act has a number of specifically enumerated exceptions that are quite broad. These exceptions include the following:
- Information related to information where disclosure would constitute a breach of privacy (especially relevant in the context of comparing FOIA to the CPRA ruling)
- Information relating to national defense,
- Foreign policy documents
- Information related solely to internal personnel rules and practices,
- Information related to accusing a person of a crime,
- Information related to investigatory records where the information would harm the proceedings,
- Information which would lead to financial speculation or endanger the stability of any financial institution
- Information related to the agency’s participation in legal proceedings.
- Information exempted by a specific statute.
- Information related to financial agency operations
- Law enforcement records
- Federal agency internal memorandum, and
- Oil well data.
As you can see, the exemptions are quite broad and quite numerous. The first exemption, ruling out info that would breach the privacy of individuals would obviously put a serious cramp in any ruling such as the California Supreme Court’s recent decision. However, it serves to highlight the distinction between FOIA and the CPRA.
Many states have their own versions of FOIA which mirror it to some degree or another, the CPRA is California’s. So similar are they that case law dealing with FOIA is often accepted in reaching decisions under the CPRA. However there is a substantial distinction between the two laws, and that distinction is a doozy.
The CPRA states that “access to information concerning the conduct of the people‟s business is a fundamental and necessary right of every person in this state.” In fact, since 2004, it has been a right guaranteed by the California Constitution. This means that, although the CPRA is subject to several exceptions, its provisions have much more legal punch than FOIA could ever hope to have.
At the same time, the California Constitution also guarantees something else no other constitution in the U.S. offers–state or otherwise. A constitutional right of privacy. These two guarantees came into play in the CPRA decision.
Understanding the CPRA Decision
These two constitutional guarantees–access to public records and privacy–were the central conflict of the California Supreme Court’s decision. The court felt that, while public access must yield to personal privacy on some occasions, the importance of government accountability is an even stronger interest–at least most of the time.
The constitutional right of public access in California explicitly does not supersede of modify existing privacy rights. However, the Court felt that the ability to essentially hide information from the public by exploiting a loophole for public business sent via a nongovernment account. They recognized that an agency is not a monolith, but rather a sum of its employees. For those reasons, the public business sent by those individuals should be accessible to the public.
The ruling did provide some limits to this access, any information sought must relate in some substantive way to the conduct of the public’s business. This determination would look to the context of the communication, the content, the audience, etc. Where a determination finds that the content is primarily public business, the ruling could allow access to Twitter messages, Facebook messages, private emails, physical smart phones, and more. State employees can file affidavits with factual support of the personal nature of a communication in order to avoid a requirement of disclosure.
Government Emails are Public, But Only in California (For Now)
This ruling represents a huge step in public access. Unfortunately, the ruling is almost certainly unique to California–neither FOIA or any other state analog is similarly situated for a ruling to allow such access. That being said, such changes are not totally out of the question. For example, Washington courts have situationally allowed access to private communications addressing public matters via court rulings on FOIA. There will continue to be a tension between the access of the public and the privacy of government employees as this area of law develops–and rightly so. However, it is hard to argue that increasing government transparency is not in the public’s best interest.
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