March 31, 2017
The recent California Supreme Court ruling (City of San Jose v. Superior Court) that public employees’ digital messages existing in private electronic devices, or in personal messaging accounts are presumptively open to public disclosure under the California Public Records Act, if they concern “the conduct of public business.”
This decision occurs only in the context of a public records request, though the public agency now has to provide the requested documents. Connect Media asked attorneys at Allen Matkins what this ruling means for those in the CRE industry. Here’s what the firm’s Emily Murray and Andrew Lee shared about the potential impact in our latest 3 CRE Q&A.
Q: Under what circumstances could this ruling potentially affect those who work in commercial real estate?
A Murray: Developers and real estate owners must frequently communicate with state and local agencies in the process of entitling, permitting, and developing property. These communications, no matter what form they take, are subject to public disclosure under the California Public Records Act (CPRA). City of San Jose clarifies that communications about a project are subject to disclosure even if such communications are directed to a public official’s personal email account, phone number, or social media accounts. Disclosure of such communications to the public, pursuant to the CPRA, could be detrimental or even embarrassing to the public official, and to the private party and the project.
Q: What suggestions can you make to those in the world of CRE on how to avoid being affected by this ruling?
A Lee: The press and opposing parties frequently utilize the CPRA to obtain emails and other communications about a project from the permitting agency. The best way to avoid disclosure of sensitive project information is not to put such information in writing. A telephone call or in-person meeting that does not generate a written “record” is the surest way to maintain confidentiality under the CPRA. In addition, as City of San Jose makes clear, communications on personal accounts or devices are not protected, if those communications concern a project. The public and private sectors are well-advised to keep their personal and business email and phone accounts separate, and to view all written communications with an eye toward public disclosure before sending.
Q: What repercussions in the world of CRE do you see down the line as a result of this ruling?
A Murray: City of San Jose will likely serve as a reminder to state and local agencies of the scope of the CPRA. Quick and fluid communication with such agencies could become more difficult as a result. Further, City of San Jose could increase the costs for state and local agencies to respond to CPRA requests. These costs could be passed on to private parties, particularly if there is litigation to compel disclosure.
For comments, questions or concerns, please contact Dennis Kaiser