March 2017

By Daniel S. Cucchi

City of San Jose v. Superior Court (March 2, 2017, S218066) ___ Cal.5th ___.

Citing the need to broaden the definition of “public records” to address the “evolving methods of electronic communication,” a unanimous California Supreme Court reversed the Sixth District Court of Appeal, holding that communications related to the “conduct of the public’s business” by agency officials and employees on their personal accounts are subject to disclosure under the California Public Records Act (“CPRA”).

In June 2009, the petitioner filed a CPRA request with the City of San Jose (the “City”), which included the City’s redevelopment agency, certain elected officials and staff, for all documents related to redevelopment efforts in the City’s downtown.  The request for documents included “emails and text messages ‘sent or received on private electronic devices used by’ the mayor, two city council members, and their staff.”  The City refused to provide the information on private electronic devices, stating that they were not public records, because the emails and texts were not within the City’s custody or control.  Petitioner filed suit and the trial court ordered disclosure.  The City appealed and the appellate court reversed.  The California Supreme Court granted the petition for review.

Seeking to balance the public’s right to know enshrined within the CPRA and the California Constitution against an individual’s right to privacy, the Court outlined a standard intended to avoid an interpretation that “would allow evasion of the CPRA simply by the use of a personal account,” while limiting disclosure of private communications to only those that involve substantive discussions of public matters.  While recognizing the standard cited in San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774, which normally excludes only communications “totally void of reference to governmental activities” under the CPRA, the Court distinguished the context of communications sent through personal accounts, reasoning that this broad standard would likely sweep up more than necessary to comply with the CPRA.  Instead, the Court laid out a less exacting standard that these communications “must relate in some substantive way to the conduct of the public’s business” before they become a public record.  Thus, incidental mentions of a public matter would normally be insufficient to trigger disclosure.

The City also claimed that the private communications were not a public record because they were not “prepared, owned, used, or retained” by the City, nor were they accessible to, or retained by, the City.  The Court rejected this interpretation of the statute, reasoning that (1) agencies, much like corporations, can only act through its officials, and (2) the City still had constructive control over the records because its own officials and employees had access to those records.  It further noted that to conclude otherwise would allow an agency to avoid disclosure by transferring custody to a third party, or even its own employees.  The Court concluded by reviewing the various exemptions available to protect the privacy of officials and employees, including preliminary and draft notes and memoranda (Gov. Code §6254(a)), personal financial data (Id. §6254(n)), as well as the “catchall” exemption when the public interest in withholding “clearly outweighs” the public interest in disclosure (Id. §6255(a)).

In the age of technology and instant communications, it can be easy for agency officials to grab their phone to send that text or email, particularly when they do not have a device issued by the agency. Whether or not such communications were ever intended to avoid disclosure, the Court’s decision puts to rest any question that substantive communications about public matters will be considered a public record. Agencies can best avoid these complex and costly issues by establishing clear technology policies strongly discouraging use of private communication systems for public matters and, at a minimum, issuing phones and/or other similar devices to those agency officials that are most likely to generate electronic communications for agency business outside of the office.  And of course, there are always the very old school options of simply picking up the telephone or a face-to-face conversation.          

Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

By Daniel S. Cucchi

Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194

In 2011, the Town of Apple Valley (the “Town”) circulated a local initiative called the “Wal-Mart Initiative Measure,” or in some cases the “Wal-Mart Supercenter Ballot Initiative,” which was subsequently declared null and void. Two years later, the Town noticed a city council agenda item for a “Wal-Mart Initiative Measure” with a recommended action to “provide direction to staff.”  Petitioner did not attend the council meeting believing the matter was follow-up activities related to the 2011 measure.  He later learned that the Town council had adopted two resolutions for a new voter initiative for a proposed 30-acre commercial development that included a new Wal-Mart Supercenter, as well as a Memorandum of Understanding (“MOU”) to accept a gift from Wal-Mart to pay for the special election. After filing a request with the Town to cure the alleged agenda defect, which the Town rejected, Petitioner filed suit arguing the Town violated the Ralph M. Brown Act and that the initiative measure itself violated California Constitution, article II, section 12’s prohibition against specifically naming any individual or corporation to “perform any function or to have any power or duty….”  The trial court granted petitioner’s Motion for Summary Judgment on both claims, finding the MOU and the initiative were void and invalid.  The Town and Wal-Mart appealed.

The appellate court first considered the Brown Act claim, finding that while the resolutions calling for the special election were properly noticed, the Town’s adoption of the MOU was not, creating a fatal flaw in the approval of all of the resolutions. The Town argued that the agenda packet included all of the relevant information regarding the proposed initiative, but the court was not persuaded. While choosing not to rule on the question of whether information in an agenda packet can be used to bring an agency into compliance with the Brown Act, it noted that the record showed that the MOU resolution was added to the agenda item after release of the agenda.  This was fatal, the court reasoned, because it was reasonable to conclude the MOU was “a major factor in the decision to send the matter to the electorate.”  Thus, since the MOU resolution was improperly noticed, the resolutions to place the initiative measure on the ballot were null and void as a result.

Anticipating the likelihood that the initiative measure would likely return to the ballot, the court next turned to the question of whether the measure violated the California Constitution. Petitioner argued that although Wal-Mart was not specifically named in the initiative text, the ballot measure materials clearly established that approval would grant powers to the owner and developer, Wal-Mart.  The court disagreed.  It held that the initiative was properly drafted, even though it ultimately benefitted Wal-Mart, because the text of the initiative did not specifically name Wal-Mart.  It reasoned that the use of the words “developer” and “owner” in the initiative meant that if Wal-Mart were to sell the property, it would retain no superior rights in the property over the subsequent owner.  Thus, Wal-Mart’s current beneficial position was granted by ownership of the subject property and not by the initiative itself.          

Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.