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Private email exempt from open records law

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POSTED April 1, 2014 6:15 p.m.

SAN JOSE  (AP) — A California appeals court has ruled that private text messages, emails and other electronic communications sent and received by public officials on their own devices are not public records regardless of the topic.

The 6th District Court of Appeal in San Jose ruled last week that the state’s Public Records Act doesn’t extend to officials’ private devices.

The California Supreme Court is expected to be asked to step in and settle this long-simmering debate.

State laws do require the communications of elected officials and other officials involving public issues to be retained and turned over upon request.

Since the coming of email, activists and others in the state have been battling at all levels of government over whether public issues discussed on private devices with personal accounts are covered by the Public Records Act. Similar legal battles and political debates have sprung up across the country as well.

The March 27 ruling reverses a lower court decision in favor of environmental activist Ted Smith, who sought access to messages sent on private devices through private accounts of the San Jose mayor and City Council members

Smith’s attorney James McManis said he will ask the state Supreme Court to review the case. If the high court refuses to take it, the appeals court ruling will stand.

“It’s a huge way for public officials to get around the Public Records Act,” McManis said.

Several news companies and free speech organizations filed friend of the court briefs in support of the environmentalist’s lawsuit seeking the records.

The League of California Cities supported San Jose’s position and hailed the ruling Tuesday.

Spokeswoman Eva Spiegel said that beyond the legal issues, cities having to turn over messages from private devices would face significant administrative challenges in complying with records requests.

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