Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Eric Glassman | The Daily Recorder | April 11, 2017

The California Supreme Court recently issued a landmark decision, holding that a public employee’s written electronic communications via a personal account may be subject to a Public Records Act request.  One of the interesting questions the decision raises relates to investigations of workplace misconduct:  Can an investigator use a Public Records Act request to obtain communications made by public-sector witnesses on their personal devices?  Subject to some significant limitations, it appears that the answer is “yes.”

The Court’s Ruling   

In City of San Jose v. Superior Court of Santa Clara County, a community activist made a Public Records Act request for public records related to the city’s redevelopment efforts.  The request included all subject matter-related texts and emails sent by the mayor, council members, and city staff on their private electronic devices.  The city resisted the request, arguing that city officials had a privacy interest in communications held on their personal electronic accounts, and the city did not possess the officials’ private devices.    

The Supreme Court found for the activist, holding that the public’s right to access information regarding governmental actions trumps individual privacy rights.  Citing the very broad language of California’s Public Records Act, the court directed the city to ask the officials to search their own personal files, accounts, and devices for documents responsive to the Public Records Act request.  The court made clear that public-sector employees cannot evade the release of public records by keeping those records on personal devices.    

An Investigator’s Dilemma

Investigators charged with reviewing allegations of employee misconduct frequently encounter witnesses who refuse to provide electronic data, such as emails or text messages that may be relevant to the investigation.   If the employer’s servers store the data, of course, the investigator may obtain the documents through the employer’s IT department.  Increasingly, however, employees are using their personal devices, such as smart phones, to text and email privately.  In that case, the investigator may document a witness’ lack of cooperation, but generally is powerless to “order” the witness to turn over “private” communications.

A Potential Solution  

The Supreme Court’s ruling in City of San Jose offers investigators conducting public agency investigations a possible way forward via the Public Records Act.  The investigator could make a Public Records Act request to the employer seeking the electronic documentation held on the recalcitrant witness’s private accounts.   The government body could then require the witness search for and turn over responsive documents.  Although untested in the courts, such a method may be used successfully to obtain relevant documents. 

That said, there are some limitations on an investigator‘s ability to use Public Records Act requests.  The first one is practical:  most agencies do not have procedures in place to respond to these kinds of requests from third-party investigators.  If the investigator narrowly tailors the request to documents held by a specific witness on private accounts, though, the employer is likely to be more amenable.

The second limitation is more significant.  As its name implies, the Public Records Act process only applies to “public records.”  As the court in City of San Jose made clear, many workplace communications do not qualify as public records.  For example, texts of a sexual nature between co-workers might be highly relevant in a harassment investigation, but they likely do not qualify as public records under the Act.  However, texts between two managers in a whistleblowing investigation, or emails detailing hiring practices in a discrimination investigation, might well fit within the definition of a public record. 

Another obstacle?  That Act exempts wide categories of documents.  For instance, personnel records, attorney-client privileged documents, and drafts of memoranda are not subject to production in response to a Public Records Act request. 

As the court in City of San Jose recognized, some employees will use their personal accounts to send communications.  Even if the agency requires employees to copy their government accounts on all agency-related communications, however, employers can easily ignore or forget such policies.  Additionally, it may be cumbersome (or impossible!) for employees to “cc” a government account on text messages, or on social media communications.       

What About Private Sector Investigations? 

The Public Records Act applies only to communications prepared or retained by public sector employees.  The Act’s standards do not readily apply in private sector investigations.  However, private employers frequently have policies in place governing the use and control of information held on personal devices.  Particularly if the employer contributes to the cost of the device’s use (by reimbursing employees for their monthly data plan, for example), the employer may be in a strong position to argue that the employee must provide access to company-related data.

Should a private-sector investigator face a recalcitrant witness, the investigator should inquire as to the company’s policies.  An investigator naturally has no power to compel a private sector employee, either. However, management may enforce the company’s policies, and an employee’s refusal to abide by a lawful policy may be insubordination. Again, an investigator also can make note of an employee’s refusal to comply with a company directive and, when appropriate, draw inferences from that refusal.