Fwd: [foianet] Court victory for transparency in California

Vin Mar 3 13:23:41 UTC 2017

a propos, de discutia de ieri, de la Club OGP, cea pornita de Ovidiu,
despre adresa de email si numarul de telefon ;)  si mai exista astfel de
decizii si in alte jurisdictii (mi-aduc aminte de Canada)...  atentie,
chiar si atunci cand demnitarul sau functionarul nu a oferit aceste date
personale (email, telefon), informatiile vehiculate prin mijloace de
comunicare private sunt _tot_ de interes public si accesibile prin
solicitari de acces la informatii :)  #abonantandiorsaliu ;)
===
www.codruvrabie.eu mobile: +40-723-552-180
==========================================
Education's purpose is to replace an empty
mind with an open one. --Malcolm S. Forbes

---------- Forwarded message ----------
From: Helen Darbishire <helen la access-info.org>
Date: Thu, Mar 2, 2017 at 10:29 PM
Subject: [foianet] Court victory for transparency in California
To: FOIANet Advocates <foianet la foiadvocates.info>

Dear FOIAnet friends: I am sharing this interesting and important ruling
from the California Supreme Court as reported by the Electronic Frontier
Foundation,

Best,

Helen

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<?subject=California%20Supreme%20Court%20Rules%20Public%20Records%20Act%20Covers%20Government%20Communications%20on%20Private%20Email%20and%20Personal%20Devices&body=In%20a%20major%20victory%20for%20transparency%2C%20the%20California%20Supreme%20Court%20ruled%20today%20that%20when%20government%20officials%20conduct%20public%20business%20using%20private%20email%20or%20personal%20devices%2C%20those%20communications%20may%20be%20subject%20to%20disclosure%20under%20the%20California%20Public...%0A%0Ahttps%3A//www.eff.org/deeplinks/2017/03/california-supreme-court-rules-public-records-act-cover-government-communications%0A>

March 2, 2017 | By Dave Maass <https://www.eff.org/about/staff/dave-maass>
and Mark Rumold <https://www.eff.org/about/staff/mark-rumold>
California Supreme Court Rules Public Records Act Covers Government
Communications on Private Email and Personal Devices

In a major victory for transparency, the California Supreme Court ruled
today that when government officials conduct public business using private
email or personal devices, those communications may be subject to
disclosure under the California Public Record Acts (CPRA).

In the unanimous opinion
<https://www.eff.org/document/california-supreme-court-ruling-public-records-personal-accounts>,
the court overturned an appellate court ruling, writing:

CPRA and the [California] Constitution strike a careful balance between
public access and personal privacy. This case concerns how that balance is
served when documents concerning official business are created or stored
outside the workplace. The issue is a narrow one: Are writings concerning
the conduct of public business beyond CPRA’s reach merely because they were
sent or received using a nongovernmental account? Considering the statute’s
language and the important policy interests it serves, the answer is no.
Employees’ communications about official agency business may be subject to
CPRA regardless of the type of account used in their preparation or
transmission.

EFF has long been concerned with the potential for officials to hide public
records by using private online accounts or personal phones and computers
to conduct business.  In this case, activist Ted Smith
<http://www.mercurynews.com/2013/03/19/judge-orders-san-jose-to-disclose-officials-messages-on-private-devices/>
was
seeking records from the City of San Jose that may have been stored in
personal devices or accounts. These issues have come up, not only on the
local level, but federal as well—all the way up to former Secretary of
State Hillary Clinton, who was embroiled in a high-profile scandal over her
use of a private email server based out of her home.

EFF joined the ACLU in filing an amicus brief
<https://www.eff.org/document/eff-aclu-amicus-california-supreme-court-smith-v-san-jose>
in this case, asking the Supreme Court to overturn an appellate court
ruling in favor of the City of San Jose. As we wrote in our opening:

[The court of appeal's] holding violates both the letter and spirit of the
California Public Records Act and Article I, section 3 of the California
Constitution by holding that emails related to official business are
outside the PRA merely because they are sent and receiving using
non-governmental accounts. And the court’s reasoning would allow government
officials and employees to circumvent the PRA simply by opening a new
browser window and logging into a personal web-based email account as they
sit at their government-owned computers. The result would be to curtail if
not eliminate public access to informal emails between individual officials
and employees and with industry and special interests that provide critical
insight into the government operations beyond the often sanitized contents
of formal memoranda and bulletins: not just what the government is doing
but why it is doing it and at whose behest.

The California Supreme Court pointed out in its ruling that agencies aren’t
just disembodied entities, but rather rely on human beings to prepare,
retain, or use records: “When employees are conducting agency business,
they are working for the agency and on its behalf.”

The court added: “The whole purpose of CPRA is to ensure transparency in
government activities. If public officials could evade the law simply by
clicking into a different email account, or communicating through a
personal device, sensitive information could routinely evade public
scrutiny.”

While government officials should not be able to use private devices to
evade public scrutiny, at the same time, government employees shouldn’t
have to forfeit all rights to privacy by holding public office, and their
personal communications shouldn’t be subject to search every time someone
files a public records request. The court seemed to take this issue into
account and provided some guidance on what records on private devices would
be subject to disclosure. As the Court wrote in the opinion:

We clarify, however, that to qualify as a public record under CPRA, at a
minimum, a writing must relate in some substantive way to the conduct of
the public’s business. This standard, though broad, is not so elastic as to
include every piece of information the public may find interesting.
Communications that are primarily personal, containing no more than
incidental mentions of agency business, generally will not constitute
public records. For example, the public might be titillated to learn that
not all agency workers enjoy the company of their colleagues, or hold them
in high regard. However, an employee’s electronic musings about a
colleague’s personal shortcomings will often fall far short of being a
“writing containing information relating to the conduct of the public’s
business."

Ultimately, the Court’s message was clear: if you’re a government official
conducting the public’s business, those are public records, no matter where
those records are stored. Today’s decision will have wide-ranging impact on
how public records are treated throughout the state, whether that’s elected
officials communicating with lobbyists through Twitter direct messages or
law enforcement officers exchanging controversial text messages on their
personal smartphones. The case doesn’t end the discussion, though. We hope
it will also trigger policy reforms within agencies to ensure that
employees and officials do not use personal communications tools to conduct
public business: this requirement would ultimately be the best way to
ensure transparency and privacy.

----------------------------------------------

*Helen Darbishire*

Executive Director

*Access Info Europe*

www.access-info.org

@helen_access, @access_info

Mobile: +34 667 685 319 <+34%20667%2068%2053%2019>

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