On July 5, 2016, the United States Court of Appeals, District of Columbia Circuit, in the case of Competitive Enterprise Institute v. Office of Science and Technology Policy (CEI v. OSTP) held that “an agency cannot shield its records from search or disclosure under FOIA [Freedom of Information Act] by the expedient of storing them in a private email account controlled by the agency head. . . .”

This is significant to California because in 2014 the Sixth District Court of Appeal held, inCity of San Jose v. Superior Court (Smith), 225 Cal.App.4th 75, that the California Public Records Act (CPRA) “does not require public access to communications between public officials using exclusively private cell phones or e-mail accounts.”

Subsequent to the appellate court decision in San Jose, the California Supreme Court accepted the case for review, vacating the lower court decision, and the matter is still pending. However, this new federal court decision may have an effect on the outcome of theSan Jose case.

Although FOIA is not binding on California, California courts have observed that the CPRA “was modeled upon the federal Freedom of Information Act, and has a common purpose” and that “federal ‘legislative history and judicial construction of the FOIA’ may be used in construing California’s Act.” City of San Jose v. Superior Court, 74 Cal.App. 4th 1008 (Cal. Ct. App. 1999), quoting Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991).

Facts in San Jose

“In June 2009, Smith submitted a request to the City, seeking 32 categories of public records involving specified persons and issues relating to downtown San Jose redevelopment.  The City complied with all but four categories of requests . . . .  These four requests were essentially for ‘[a]ny and all voicemails, emails or text messages sent or received on private electronic devices used by Mayor Chuck Reed or members of the City Council, or their staff, regarding any matters concerning the City of San Jose, including any matters concerning Tom McEnery, John McEnery IV, Barry Swenson, Martin Menne, Sarah Brouillette, or anyone associated with Urban Markets LLC or San Pedro Square Properties.’”

“The City disclosed responsive non-exempt records sent from or received on private electronic devices using these individuals’ City accounts, but not records from those persons’ private electronic devices using their private accounts (e.g., a message sent from a private gmail account using the person’s own smartphone or other electronic device).  The City took the position that these items were not public records within the meaning of the CPRA.”

The City argued that “messages sent from or to private accounts using private electronic devices are not ‘public records’ under the CPRA, and that individual officials and employees are not included within the definition of ‘public agency’ under the Act. In their view, only those records ‘within the public entity’s custody and control’ would be subject to disclosure under the Act.”

However, “Smith maintained that communications prepared, received, or stored on City officials’ private electronic devices are public records under the CPRA, since local agencies ‘can only act through their officials and employees’.  Those officials and employees, he argued, are acting on behalf of the City, and therefore their disclosure obligations are ‘indistinguishable’ from those of the City.”

The Court of Appeal said that “(t)he issue before us is whether the definition of ‘public records in [CPRA] encompasses communications ‘prepared, owned, used, or retained’ by City officials and employees on their private electronic devices and accounts.  Underlying this dispute is the question of whether those officials and employees are ‘agents’ of the City, as Smith contends.”

The Court notes that “(t)he CPRA was modeled on the federal Freedom of Information Act (FOIA) (5 U.S.C. §552).  Their common purpose ‘is to require that public business be conducted ‘under the hard light of full public scrutiny’ [citation], and thereby ‘to permit the public to decide for itself whether government action is proper.’  For both the FOIA and the Act, ‘disclosure, not secrecy, is the dominant objective.’”

Nonetheless, after extensive discussion of the purpose behind, and history surrounding, the  CPRA, the Court  concluded  that “(w)e . . . cannot agree with Smith that individual city council members and their staff must be considered equivalent to the City for purposes of providing public access to their writings on public business.  Because it is the agency  – here, the City – that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition.”

The Court recognized that “city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern;  but such conduct is for our lawmakers to deter with appropriate legislation.”  Notwithstanding that concern, the Court held that “the Act does not require public access to communications between public officials [even though they involved city business] using exclusively private cell phones or e-mail accounts.”

Facts in CEI v. OSTP

“Competitive Enterprise Institute (CEI), in October of 2013, submitted a FOIA request for ‘all policy/OSTP-related email sent to or from jholdren@whrc.org (including as cc: or bcc:).’  The email address set forth in the FOIA request is a nonofficial account maintained by John Holdren, Director of OSTP, at Woods Hole Research Center.  CEI had learned . . . that the address had apparently been used for some work-related correspondence.”

“In February of 2014, OSTP sent a response refusing to provide records from the address on the basis that such records were ‘beyond the reach of FOIA’ because they were in an ‘account’ that ‘is under the control of the Woods Hole Research Center, a private organization.’  OSTP did not in its response state that it had made any attempt to search for records in that email account responsive to the FOIA request, nor has it at any time in this litigation asserted any claim to have made such a search.”

In an argument similar to that made in the San Jose case, “OSTP argued that because the email account at issue was ‘not under the control of the agency,’ its contents were not within the agency documents required to be produced under FOIA, nor was the agency capable of conducting a search.”

OSTP “has argued that ‘[d]ocuments on a non-governmental email server are outside the possession or control of federal agencies, and thus beyond the scope of FOIA.’  In pursuing that defense, appellee repeatedly refers to the email account as being ‘under the control’ of the Woods Hole Research Center, a private entity.  Appellant has consistently challenged the logic of the proposition that the director of an agency may place his work-related records beyond the reach of FOIA for the simple expedience of using a private email account rather than the official government communications system.”

After analyzing several cases addressing the issue of FOIA and access to documents no longer under the control of specific persons or entities, the federal Court of Appeal focused on the case of Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), “in which a requestor sought documents from the Department of Justice which were within the exclusive control of the Attorney General.  The Department asserted that the documents were not within the agency since they were under the exclusive control of its head.  In rejecting that argument, we concluded that there is no basis in the FOIA ‘to view the Attorney General as distinct from his department for FOIA purposes.’”

Most importantly, the Court stated that “an agency always acts through its employees and officials.  If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.  This seems to us to be the only resolution that makes sense.  If the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced.  The agency’s claim before us simply makes little sense.”

“Further, appellee’s argument is inconsistent with the purpose of FOIA.  The Supreme Court has described the function of FOIA as serving ‘the citizens’ right to be informed about what their government is up to.’  If a department head can deprive the citizens of their right to know what his department is up to by the simple expedience of maintaining his departmental emails on an account in another domain, that purpose is hardly served.  It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

As such, the Court stated that “(w)e therefore reverse the District Court’s grant of dismissal in favor of the appellee, and remand the case for further proceedings consistent with this opinion.  We make clear that we are not ordering the specific disclosure of any document.  It may be that OSTP has valid exemption claims, or even that no document found among thejholdren@whrc.org emails falls within the definition of ‘agency records.’”


As noted above, the California Supreme Court has accepted the San Jose case for review but has not yet rendered a decision.  By accepting the case, the Court of Appeal decision is, in essence, vacated.  Therefore, as of right now, we have no definitive law in California regarding whether or not information regarding the government’s business is subject to discovery under the CPRA if it is on a private email or cell phone.

However, this most recent federal court case holds that it is subject to discovery, under the FOIA.  As set forth above, both the California Court of Appeal and the California Supreme Court have held that since the CPRA “was modeled upon the federal Freedom of Information Act, and has a common purpose” that “federal ‘legislative history and judicial construction of the FOIA’ may be used in construing California’s Act.”

The analysis and logic set forth in the CEI case is in depth and appears to have great similarity to the issues raised in the San Jose case.  Although there is no way to forecast the future, it might behoove California public agencies to take note of the CEI case and consider it while waiting for a decision from the California Supreme Court.

However, as with all legal issues, it is imperative that you consult with your agency’s legal advisor to secure advice and guidance as to the best way to proceed.

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