The U.S. Supreme Court has held that under the Fourth Amendment a government agency must get a search warrant to search personal electronic devices like a cellphone, or a private email account because of the intrusion on the privacy interests of the individual.
However, in City of Ontario v. Quon, the Supreme Court held that the Fourth Amendment allowed for the search of text messages on a pager assigned by a government agency to an employee under the “special needs” doctrine. The Court held that, when conducted for a “non investigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government agencies warrantless search is reasonable if it is “justified at its inception,” and if “the measures adopted were reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search.”
In San Jose the Supreme Court ruled that communications on private devices and accounts could be subject to a public records request if the communications were related to the public agency’s business. The San Jose case began with a PRA request made by a private citizen seeking electronic communications on the private devices of San Jose’s City Council members and employees. The City denied the request for the communications on the private devices asserting it did not prepare, own, use, or retain the communications. The citizen filed a lawsuit, seeking to compel the City’s officials and employees to release their electronic communications. In 2013, a trial court judge found that the communications — which pertained to the public’s business — were subject to PRA disclosure even though they were located on a private device or server. The City appealed, and in a 2014 opinion, the Sixth District Court of Appeal sided with the City. The Supreme Court then reversed, siding with the citizen. The Court created a four-part test to determine whether private communications could qualify as public records subject to the Act.
The test requires that for a communication to be considered a public record, the communication must: (1) be a writing (2) with content relating to the conduct of the public’s business, (3) be prepared by, or (4) owned, used, or retained by any state or local agency. The court made it clear that being prepared by, owned, used, or retained by a government agency included being prepared by, owned, used, or retained by any agent of the entity, including employees. The Court explained that an email from a public employee to a spouse complaining “my coworker is an idiot” is likely not a public record. However, an employee’s email to a manager about a co-worker’s mismanagement of an agency project might be.
The court also detailed the procedure by which an agency would respond to a public records request where responsive documents are held by an employee on their private device or account. The agency is required to convey the request for records to the employee in question and is able to rely upon the employee to conduct a reasonable search of their private device or account to locate and disclose records. The Court noted that any personal information contained within communications otherwise covered by the Act could be redacted. The court further noted that privacy concerns could and should be addressed on a case-by-case basis, starting with the statutory exemptions from disclosure contained in the Public Records Act.