Privacy Issues in the Workplace

In City of San Jose v. Superior Court 336 , the California Supreme Court reversed the Court of Appeal and held that communications by a city employee concerning public business on a personal account, such as email, phone, or computer, may be subject to disclosure under the California Public Records Act (“PRA”). The Court held that a city employee’s communications about public business are not excluded under the PRA just because they are sent, received, or stored in a personal account. 337 The purpose of the PRA is to provide public access to “the conduct of the people’s business” and the California Constitution broadly construes statutes to provide access to public information. 338 If a document satisfies the definition of a public record, it does not matter where the record is stored; it does not lose its status as a public record simply because it is stored in an employee’s personal account. 339 In reaching its decision, the Court focused on the definition of a “public record” under the PRA. 340 A “public record” has four aspects “(1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” 341 Writings include electronic communications and “must relate in some substantive way to the conduct of the public’s business” to meet this test. 342 The California Supreme Court also provided some guidance for conducting searches on personal accounts for communications related to official public business. 343 It recommended that public agencies develop their own internal policies for conducting searches and this could include communicating the request to the employees in question and then reasonably relying on the employees to search their own personal files, accounts, and devices for responsive material. Such an approach is supported by federal courts under the Freedom of Information Act, where individual employees may conduct their own searches and segregate public records from personal records, as long as they have been properly trained in how to distinguish between the two. The employees then must submit an affidavit with facts sufficient to show the information is not a public record under the PRA. come into governmental possession. 344 California courts have construed the statutory exemptions narrowly in order to accomplish the general policy of disclosure. 345 Importantly, Section 6254(c) exempts personnel, medical or similar files if the disclosure would “constitute an unwarranted invasion of personal privacy.” Courts will employ a balancing test in determining whether records should be exempt from disclosure under Section 6254(c) and weigh the individual’s right to privacy against the right of the public to oversee the actions of governmental employees. 346 a. Home Addresses and Telephone Numbers Section 6254.3 excludes the home addresses and home telephone numbers of state employees and employees of school districts and county offices of education from the definition of “public record” and exempts them from public inspection, except in specifically delineated situations. Telephone numbers relating to calls made and received by city council members have been found exempt from the disclosure requirements of the Public Records Act, based upon the Section 6254 provides exemptions to the disclosure requirements of the Act for certain records. The exemptions are designed to protect privacy interests of individuals whose data or documents

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 106