California

The California Public Records Act requires that the government grant prompt access to all non-exempt e-mail written to or by government officials. Government Code Section 6252 (defining “writing” covered by the PRA as including electronic mail) and 6253.9 (requiring the government to make the requested information available in any electronic format in which it holds the information). These two provisions, considered together, give meaning to the “broad” right of access to government records, which are increasingly maintained in electronic form. 88 Ops. Atty. Gen. 153.

Courts construing the PRA have made clear that e-mail messages sent to or by government officials become part of the government record, and that neither the officials nor their constituents have reasonable expectations of privacy in such communications. Holman v. Superior Court, 31 Media L. Rep. 1993 (2003).

On the other hand, in a decision not favorable to access to government e-mail messages, the First Appellate District held that the Public Records Act did not preclude a government agency from recovering more than $26,000 in costs associated with retrieving e-mail messages that a school had sought for use in litigation against the City of San Rafael. St. Vincent School for Boys v. City of San Rafael, 160 Cal. App. 4th 1426, 1437-39 (2008).

There are no published court decisions determining whether city council members may shield e-mail communications by using their private e-mail accounts. Such a holding would create a large loophole in the Public Records Act. However, in Tracy Press v. Superior Court, 164 Cal. App. 4th 1290, 1294-1295, 1300 (2008), the court refused to allow discovery of a city councilwoman’s e-mail communications with a laboratory because she had sent them from a private account.

Finally, in San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Unified School Dist., 139 Cal. App. 4th 1356, 1411 (2006), the court stated that the school superintendent’s testimony that she had neglected to produce e-mail messages in response to a Public Records Act request, although she later produced them at deposition, was insufficient evidence of failure to produce available documents in a timely fashion under the CPRA. The court thus credited the superintendent’s testimony that her practice was to delete e-mail, and so she did not know that her laptop computer was actually saving some of them.