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COMMUNICATIONS ABOUT THE PUBLIC’S BUSINESS ARE PUBLIC RECORDS REGARDLESS OF WHERE THEY ARE

Background

The California Public Records Act (CPRA) was enacted in 1968.  It recognized that the public has a right to access information regarding the conduct of the people’s business by public agencies.  The purpose of the CPRA was to provide a legislative basis for citizens to request copies of documents that represent work done on behalf of the public by an agency’s employees and officials.

When CPRA was originally enacted, public records were primarily paper documents in the custody of local agencies (“local agencies” includes counties, cities, districts, other political subdivisions and legislative bodies).  Since then, the systems and formats used for conducting the people’s business have expanded and now encompass electronic documents, databases, email, voicemail, and social media, to name just a few.

The information contained in these systems and formats is owned by the agency.  Ownership has not been, nor is it, in question.  Production of public records in response to Public Record Requests may include records from any of the agency’s various systems and formats.

However, as technology has grown more sophisticated, it has become possible – whether advisable or not – for agency employees (which includes members, agents, and officers of that agency) to use non-agency, private devices and accounts to communicate about and conduct agency business.  This practice has become more commonplace, creating questions and concerns by both citizens and agencies.

The issue before the California Supreme Court was: Are agencies required to search for and produce information from non-agency, private systems and formats when responding to a Public Record Request, or is that information protected as private because it resides in a device not owned by the agency, but rather by an individual?

The Ruling

On March 2, 2017, the California Supreme Court issued a ruling.  In part, they ruled 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.”

Full text of the ruling can be viewed at:

http://www.courts.ca.gov/opinions/documents/S218066.PDF

What It Means

Public agencies have an obligation to the public and to their constituencies to do the right thing, not simply to minimally adhere with requirements. Managing agency records is the right thing to do regardless of who created them, where they originate, where they are stored, or in what format they exist.

The costs to agencies of responding to Public Record Requests are a significant concern.  Because of the court’s ruling, searches to find information pertinent to these requests will be broader, and could require searching systems outside of the agency’s control, including private accounts, if used to do agency work.  This will only increase agency costs.   For the most part, agencies cannot pass these cost increases along to requesters.  Pressure to find more efficient ways of responding to requests will increase accordingly

What You Can Do

Taking steps to properly address the requirements in the court’s ruling does not have to be difficult.

• Review and Update Your Agency Policies – Does your agency have policies that address the use of personally owned devices for agency business?
• Are the Agency’s Information Management Systems Easy to Use? – Is it easier for agency employees and officials to use existing tools than to develop workarounds, including personal devices and account? Are existing tools and systems meeting the agency’s need?
• Do Agency Staff and Officials Know What Tools Exist and How to Use Them? – Is training provided? Are there system references available to help when someone forgets how to do something?
• Is the Agency’s Records Management Program Up-to-Date? – If the agency’s program is focused only on paper records, it is time to look at how the Program can be updated.
• Do Agency Staff and Officials Know Their Responsibilities? – Are employees and officials trained on their roles and duties when it comes to protecting and managing agency information?
• Where Is the Information? – Does the agency have a data map that displays where agency information comes from, how it is processed, where it goes and where/how it is stored.
• Is Information Being Retained Too Long? – Does the agency’s Retention Schedule accurately reflect current activities and operations? Do the retention periods reflect both the operational and risk avoidance needs of the agency?

Kaizen InfoSource can help with these steps.  Our local government experience, our focus on effective governance, our emphasis on practical and achievable solutions, combines with our years as practitioners to help guide your agency’s journey towards better compliance coupled with more efficient management of information.