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California to decide whether personal device communication is public record

Thu 2 Feb 2017

Public records

California’s Supreme Court is due to make the call whether emails, text messages and other communications sent by government officials on private devices are public records.

The decision, set for early March, will mark the latest development in an eight-year-old case which saw the former lawyer and activist Ted Smith suspect backroom dealings between a developer and the San Jose City Hall, and file a public records request for all related communications.

Smith was denied access to some emails and texts sent by employees which were not covered by the state’s Public Records Act.

If the Court now rules that theses are in fact public records, it would mean that government business communicated via private phones and computers are available for investigation.

At a hearing in early December, the Supreme Court seemed ready to make a decision to this effect. However, a debate has ensued around how best to formulate the ruling in order to protect the privacy of governmental officials, while still ensuring that business communications are open to the public.

“If I say my boss is a jerk, am I conducting public business?” asked Justice Carol Corrigan at the hearing.

City and county councils, as well as school boards, have urged the Court to maintain that personal device communications remain private. The groups argue that any ruling which orders them to hand over such information would be a drawn-out and expensive hassle.

In a statement representing the news media, Karl Olson opined that many public officials are using their personal computers and phones to communicate business secrets. He wrote that the practice is ‘widespread,’ providing as an example Hillary Clinton’s use of a private email account while holding her position as secretary of state.

James McManis, Ted Smith’s lawyer commented in a recent interview: “If the court rules, as it should, that these are public records, I guarantee you the use of private devices will stop immediately.”


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