June 27, 2011 Leave a comment
The California Public Records Act is a tool residents can use to monitor the goings on of the government. Does electronic mail (email) constitute public records under the California Public Records Act?
Government Code section 6252 reads, in pertinent part:
(e) “Public records” includes 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. “Public records” in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975.
(g) “Writing” means 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.
So, for electronic mail to be a public record, it has to be 1) a writing 2) containing information relating to the conduct of the public’s business 3) prepared, owned, used, or retained 4) by any state or local agency 5) regardless of physical form or characteristics.
Is electronic mail a “writing” under Government Code section 6252(e)? Writing is defined two subsections later in section 6252(g). “Writing” includes “transmitting by electronic mail.”
Specifically, for electronic mail to be a disclosable public record, it has to contain information relating to the conduct of the public’s business. This is a low threshold, perhaps only exempting the use of official electronic mail by a public employee to send a grocery list to a relative. That scenario opens a variety of other issues, and arguably, the use of public resources for purely private matters is arguably “information relating to the conduct of the public’s business.”
The records has to be prepared, owned, used, or retained by a public entity. Some public entities have record retention policies that are relatively short for electronic mail. Therefore, the public needs to vigilantly request information near the events so that routine electronic mail is not deleted. However, some entities, though they have policies for the deletion of electronic mail, may retain the electronic mail beyond the retention period.
Even if electronic mail is a public record, it may be subject to some exemptions. Electronic mail protected by a privilege, such as the attorney-client privilege may not be subject to disclosure. Some public entities claim that electronic mail are “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure” under Government Code section 6254(a). I will let the reader judge the appropriateness of that theory.