Attorney General Sessions Defines Federal Funding Subject to Withholding Due to Sanctuary Policies

June 2017
Number 27

U.S. Attorney General Jeff Sessions provided clarity on which federal funding would be subject to a withholding for implementing “sanctuary” policies that direct employees to refuse to communicate with, or frustrate communication of immigration status information to, Immigration and Customs Enforcement (ICE) as required by federal law.

On May 22, 2017, the Attorney General issued a memorandum regarding one of President Donald J. Trump’s executive orders that would withhold federal funds from “sanctuary jurisdictions.” The executive order, issued on January 25, 2017, charges the U.S. Attorney General and Secretary of the Department of Homeland Security with ensuring that “sanctuary jurisdictions” are not eligible for federal grants, except as deemed necessary for law enforcement purposes. While the order defines “sanctuary jurisdictions” as those that refuse to comply with 8 U.S.C. § 1373 – which prohibits government entities from restricting or creating policies restricting agencies from communicating immigration status information with ICE – it does not spell out the types of government agencies that will be considered “sanctuary jurisdictions” or the types of grants subject to a potential withholding.

The Attorney General’s memorandum narrows the scope of the executive order to apply only to “federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.”

This memorandum follows a recent decision out of the federal district court for the Northern District of California, which had granted a preliminary injunction halting execution of the executive order’s enforcement provision. In separate lawsuits, both San Francisco and Santa Clara counties challenged the executive order’s enforcement provision as unconstitutional. (County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and County of San Francisco v. Trump, 17-cv-0485-WHO.) The order’s lack of specificity, and President Trump and his administration’s statements, sowed fears among cities, counties and school districts that their policies could result in the loss of millions of dollars of federal funding for everything from law enforcement to special education programs and health care subsidies.

The court agreed with the counties’ argument that the executive order was unconstitutionally vague and did not provide any notice or opportunity for local jurisdictions to provide input. The court agreed that the executive order is unconstitutional because the President lacks the authority to place new conditions on federal funds. The court also held agreed that any conditions for receipt of federal funds must be unambiguous and timely made.

The court drew inferences about the scope of the executive order from the public comments made on television and in press briefings and conferences from the President; his press secretary, Sean Spicer; and Sessions. In particular, the court considered a quote from the President saying he would use “defunding” as a “weapon” so that sanctuary cities would change their policies. In issuing the injunction, the court ruled that these statements erased any doubt that this was a threat of major cuts to federal funding, and that it has caused budget uncertainty within the plaintiff counties. The Attorney General’s memorandum appears to be in direct response to these inferences and significantly limits the risk of implementing these sanctuary laws and policies.

The memorandum and court decision mean that, for now, the federal government may not withhold federal funding from any sanctuary jurisdiction based on the executive order, except for those with federal grants through the Department of Justice or the Department of Homeland Security that had already contained requirements to comply with 8 U.S.C. § 1373. This likely means that many school districts are not intended to and would not be subject to a withholding of federal funding under this executive order.

However, the memorandum states the Department of Justice will continue to point out actions taken by state and local public agencies who are undermining “our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.”

The memorandum comes as state legislators consider laws that seek to protect immigrants and limit the state and local role in enforcement and both state and local government agencies seek to reassure immigrant communities. On April 3, 2017, the California Senate passed and forwarded to the state Assembly a “sanctuary state” bill, Senate Bill (SB) 54, which bars state and local law enforcement agencies from using their resources to conduct immigration enforcement activities. Notably, state and local law enforcement would be prohibited from asking about immigration status and would not be allowed to give ICE access to interview individuals in custody. A related, bill, SB 6, would provide money for legal services for undocumented immigrants.

As we await further guidance, regulations and case law regarding the impact sanctuary policies may have on federal funding, Lozano Smith encourages public agencies to discuss drafting or revising sanctuary or safe haven laws and policies with legal counsel in order to ensure compliance with federal law.

For more information on the executive order, the district court’s decision or adopting compliant policies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

2017 Annual Notice of Parental Rights and Responsibilities Updates

April 2017
Number 21

California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes inCalifornia law requiring updates for the 2017-2018 annual notice.

Excused Absence to Attend Student’s Naturalization Ceremony

Assembly Bill (AB) 1593 amended Education Code section 48205, adding a student’s attendance at their naturalization ceremony to the list of authorized excused absences, which is statutorily required to be included in the annual notice. (Ed. Code, § 48980, subd. (a).) (See 2016 Client News Brief No. 48.)

Residency for Children of Military Service Members

Senate Bill (SB) 1455 provides that a student complies with a school district’s residency requirements for school attendance if the student’s parent is transferred or is pending transfer to a military installation within the boundaries of the school district while on active military duty pursuant to an official military order. In such circumstances, districts must accept applications by electronic means for enrollment, including enrollment in a specific school or program within the district, and for course registration. In this situation, the parent must provide proof of residency within 10 days after the published arrival date provided on official documentation. This annual notice provision only applies to school districts that have military installations within their boundaries. (Ed. Code, §§ 48204.3, 48980, subd. (h).) (See 2016 Client News Brief No. 70.)

Graduation Requirements for Former Juvenile Court School Students/Student’s Right to File a Uniform Complaint

AB 2306 amended Education Code section 51225.2 to enable former juvenile court school students, who have transferred into a school district from a juvenile court school after their second year of high school, to earn their high school diplomas more quickly. School districts and county offices must exempt these students from local graduation requirements that exceed state requirements and grant such students credit for courses taken while in juvenile court school. AB 2306 also allows juvenile court school students
to file complaints of noncompliance under the school district or county office’s Uniform Complaint Procedures. This change in the law impacts annual notice requirements relative to the Uniform Complaint Procedures. (See 2016 Client News Brief No. 70.)

Transfer of Student Convicted of a Violent Felony or Misdemeanor

SB 1343 allows school district governing boards to adopt a policy to transfer students who have been convicted of violent felonies and designated misdemeanors to another school within the district, if the offending student and the victim of the crime are enrolled at the same school and if certain requirements are satisfied. If a school district adopts such a policy, it must include notice of the policy in its annual notice. This provision applies to school districts, but not to county offices. (Ed. Code, §§ 48929 and 48980, subd. (n).)

Cal Grant Program/Student Opt-Out Deadlines

AB 2908 enacted new deadlines for students and parents and guardians to opt out of the Cal Grant program. Districts must now give written notice annually, by January 1, to 11th graders and to their parents, that students will be automatically deemed Cal Grant applicants unless the student, or the student’s parent or guardian if the student is a minor, opts out by a deadline, which may not be less than 30 days from the date of the notice. (Ed. Code, § 69432.9, subd. (d)(1).)

Anti-Seizure Medication Administration

Former Education Code section 49414.7 allowed the parents of students with epilepsy who have been prescribed an emergency anti-seizure medication to request that their child’s school have one or more of its employees receive voluntary training in the event that their child suffers a seizure when a nurse is not available. Although Education Code section 49414.7 was repealed by its own terms on January 1, 2017, parents still have the right to request assistance with the administration of medication, including prescribed emergency anti-seizure medication, to their children under Education Code section 49423. Parents must provide their written authorization and a note from a physician, surgeon or physician’s assistant with instructions for administering the medication. Districts and county offices of education should contact their legal counsel regarding whether these developments and the current state of the law on this subject require revision to their annual notice.

Language Acquisition Programs

California voters approved Proposition 58 in November 2016. This proposition repealed most of Proposition 227, the “English in Public Schools” ballot initiative, which generally required English learners to be taught in English and restricted the use of bilingual programs. Under Proposition 58, schools are no longer required to teach English learners in English-only programs, and may use a variety of programs, including bilingual programs, to teach their English learners.

Effective July 1, 2017, Education Code section 310 will require that when the parents or guardians of 30 or more students in a school, or the parents or guardians of 20 or more students in any grade level at a school, request a language acquisition program, the school must offer the language acquisition program to the extent possible once various requirements are met, such as the program having been established with parental, school employee and community input.

If a district implements a language acquisition program pursuant to Education Code section 310, parents and guardians must receive notice, either as part of the school district’s annual notice or upon enrollment, containing a description of the types of language acquisition programs available to district students. This notice requirement takes effect on July 1, 2017.

We recommend that school districts and county offices of education review and update as necessary their annual notices of parental rights and responsibilities each year. Lozano Smith regularly assists in updating annual notices. For questions regarding any of the required changes discussed above, or annual notice requirements or review in general, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Mary Gates

Paralegal

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court says Minors’ Claims against Public Agencies Must Adhere to Government Claims Act Timelines

April 2017
Number 14

In J.M. v. Huntington Beach Union High School District (Mar. 6, 2017, No. S230510) ___ Cal.5th ___ 2017 [Cal. LEXIS 1609] < http://www.courts.ca.gov/ opinions/documents/S230510.PDF >, the California Supreme Court determined a high school football player was not entitled to court relief for his personal injury claim against a school district because he failed to strictly comply with the timelines spelled out in the California Government Claims Act (Act), often referred to as the Tort Claims Act.

This holding illustrates the consequences of failing to strictly comply with the procedural requirements for bringing claims against government entities. As the Court held, no additional recourse is available to a minor who does not petition for superior court relief within the six-month timeframe set by the Act.

J.M., a minor who attended the Huntington Beach Union High School District, received concussion injuries while playing in a high school football game. J.M. did not file a government claim against the District within the six month statute of limitations period on his tort claim. After almost a year had passed since the date of his injury, J.M. retained counsel who submitted an application with the District to file a late claim. The District did not take action on the late claim application, and the claim was denied by operation of law 45 days after it was presented.

After nearly one year had passed, J.M.’s attorney petitioned the superior court for relief from the Act’s claim filing requirements. Both the trial court and the Court of Appeal rejected the claim, holding that J.M. did not file his petition for court relief within six months from the date the claim was deemed denied by the District, as required by the Act. In affirming the decision, the California Supreme Court also disapproved a contrary appellate court ruling in E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736.

The Act, as set forth in Government Code sections 810 et seq., generally requires that claims for money or damages against a public entity must be presented in writing to the public entity prior to filing a lawsuit in court. A tort claim must be filed with the public entity within six months of the accrual of the claim. However, the Act permits a minor to submit an application for permission to file a late claim up to one year after expiration of the claims period. If a public entity does not take affirmative action to respond to the late claim within 45 days, the application is denied by operation of law, and the applicant may seek relief by filing a petition in court within six months.

In J.M., the plaintiff claimed that he was not obligated to comply with the Act’s requirement that he petition the court within six months from the date the District was deemed to have denied his late claim application, arguing that the Act required the District to grant late applications if the applicant was a minor during the entire claims period, and that he was therefore entitled to relief. The Court rejected this argument, finding that it was J.M.’s responsibility to timely seek relief in court from the District’s denial of his late claim application, even if the District was required to grant it.

In finding that J.M.’s claim was time barred, the Court reversed a contrary holding in E.M., under which J.M. would have been entitled to relief. The minor in that case did not file a petition for relief in court
until more than six months had passed since her late claim application was rejected. The appellate court in E.M. found the plaintiff’s untimely petition for relief was irrelevant because plaintiff had satisfied the technical requirements of the Act when she made a timely application to file a late claim with the entity. The Supreme Court in J.M. rejected this holding, finding that strict adherence to the Act’s timelines for filing a petition for relief was required, and no additional recourse was available to a plaintiff who failed to petition the court within six months of a denial of a late claim application.

The Court also dismissed J.M.’s claim that he was entitled to relief based upon the District’s failure to provide him with written notice of its deemed denial of his late claim application. The Court found that while the Act required written notice of a claim that is deemed denied by an entity’s inaction, the Legislature did not include the same notice requirement for an agency’s failure to act upon a late claim application.

For more information on the Supreme Court’s decision or on application of the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Penelope R. Glover

Senior Counsel

Niki Nabavi Nouri

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Local Education Agencies Now Prohibited from Collecting Social Security Numbers

March 2017
Number 13

Armed with the understanding that Social Security numbers are the piece of information most used by criminals perpetrating identity thefts, the California legislature has barred local education agencies from collecting them.

Effective January 1, 2017, Assembly Bill (AB) 2097 modified section 56601 of the Education Code to prohibit school districts, county offices of education and charter schools from collecting or soliciting Social Security numbers or the last four digits of Social Security numbers from pupils or their parents or guardians. Prior to the law’s effective date, Education Code section 56601 authorized the Superintendent of Public Instruction to collect and use the Social Security numbers of individuals with exceptional needs as student identification numbers in order to assist the state in evaluating the effectiveness of special education programs.

AB 2097 was a direct response to issues raised inMorgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ. (E.D. Cal., No. 2:11-cv-3471) (Morgan Hill), a case brought by parent groups who claimed the state systematically failed to provide disabled children with a free and appropriate public education. ( See 2016 Client News Brief No. 12.) During the discovery process in Morgan Hill, the court issued an order requiring the California Department of Education (CDE) to release student data relating to as many as 10 million current and past public school students. The data was presumed to include sensitive information, such as student Social Security numbers. Some of the central concerns raised by parents in response to this order were the security of their children’s information and the possibility of identity theft.

AB 2097 repealed Education Code section 56601’s authorization to collect and use Social Security numbers in conjunction with special education programs and requires the Superintendent of Public Instruction to instead assign and use student identification numbers, commencing with the 2017-18 fiscal year and phased in over a two-year period. AB 2097 also added section 49076.7 to the Education Code to implement a broad prohibition on local educational agencies from collecting or soliciting Social Security numbers or their last four digits from pupils or their parents or guardians in any program, unless otherwise required to do so by state or federal law. Going even further, AB 2097 authorizes the CDE to create additional restrictions on the collection and solicitation of other personally identifiable information.

This new law should not only alert public agencies to the risks of and prohibitions against requesting Social Security numbers, but should serve as a reminder that public agencies should review and update non-complying forms and processes.

The newly added Education Code section 49076.7 declares that pupil data privacy is a priority because students are at risk of identity theft when providing their Social Security numbers to local educational agencies. It cites to a technical brief published by the United States Department of Education (DOE) in 2010, “ Data Stewardship: Managing Personally Identifiable Information in Electronic Student Education Records.” Through its brief, the DOE provides guidance and “best practices” regarding the ongoing management of electronic data collection, processing, storage, maintenance and use of student records. It addresses data stewardship at all levels of governance, ranging from the state department of education to individual schools. Resources like this may be invaluable to public agencies as they assess their current practices and vulnerabilities.

Data governance and stewardship in the public sector are becoming increasingly important as public sector agencies continue to transition from the use and storage of paper records to electronic and online data. For educational agencies, this transition has raised concerns about the storage and release of sensitive and confidential student information because the laws and regulations governing student records have been slower to evolve than the technology used to electronically collect, use and store the data.

To better protect electronic data maintained by public sector agencies, as well as the agencies themselves, Lozano Smith’s Technology & Innovation Practice Group is committed to working with its clients in order to refine
and develop their data policies and practices. If you have any questions about AB 2097 or any other issues related to student privacy or data protection, please contact the authors of this Client News Brief or an attorney in our
Technology & Innovation Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Amanda E. Ruiz

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court Clarifies Educational Progress Standard for Students in Special Education

March 2017
Number 12

In a much anticipated decision, a unanimous United States Supreme Court has ruled that under the Individuals with Disabilities Education Act (IDEA), Individualized Education Programs (IEPs) must be reasonably calculated to enable a child with a disability to make appropriate educational progress in light of the child’s circumstances. (Endrew F. v. Douglas County Sch. Dist. RE-1 (March 22, 2017, No. 15-827) ___ U.S. ___ <https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf&gt;.) The high court vacated and remanded a Tenth Circuit Court of Appeals ruling that set the standard for providing a free, appropriate public education (FAPE) to children with disabilities under the IDEA as requiring “merely more than de minimis” educational progress.

Endrew F. is a child with autism who attended school within the Douglas County (Colo.) School District from preschool through fourth grade. When the child’s IEP team met to discuss his IEP for his fifth grade year, his parents contended the new IEP was substantially similar to his fourth grade IEP and the same goals were generally carried over from year to year. They argued this meant he was not making appropriate progress and enrolled him in a private school for students with autism. The private school created a behavior intervention plan and new academic goals and he achieved significant progress there.

The child’s parents later filed a complaint against the school district alleging a failure to provide a FAPE. An administrative law judge, a federal district court and the appellate court all found the IEP was reasonably calculated for the child to make some progress, defined as “merely more than de minimis.” The Supreme Court then grantedreview.

Foundational to the Supreme Court’s opinion is an acknowledgement ofBoard of Education v. Rowley (1982) 458 U.S. 176, the landmark ruling that established the existence of a substantive standard for FAPE. Refusing to adopt an “equal opportunity” standard inRowley, the Supreme Court required “some” educational benefit but declined to adopt a single measure of adequacy. Upholding Rowley and relying on the statutory language of the IDEA, the Supreme Court inEndrew F. found that in order for a school district to provide a FAPE under the IDEA, an IEP must be reasonably calculated to enable a child to make appropriate educational progress in light of the child’s circumstances and that sufficient progress means exceeding “merely more than de minimis.”

The Supreme Court reasoned that this standard “should come as no surprise” considering the IDEA’s many references to individuality, includingspecially designed instruction, unique needs of a child, and even individualized education program. While declining to establish a bright-line rule regarding what constitutes “appropriate” progress, the Supreme Court held that FAPE necessitates designing a program which allows a student to “‘advance appropriately toward attaining the annual goals’ and, when possible, ‘be involved in and make progress in the general education curriculum'” as statutorily required. “[F]or most children [that] will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade. If that is not a reasonable prospect for a child, his IEP need not aim for grade level advancement,” the Court added. “But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

California special education decisions have long applied a standard similar to the one advanced by the Supreme Court in Endrew F. Ninth Circuit decisions have historically interchanged “some educational benefit,” “educational benefit” and “meaningful educational benefit” when applying the Rowley standard to require something meaningful for a particular child. Office of Administrative Hearings decisions frequently cite to Second, Fourth and Eighth Circuit authority holding that FAPE requires progress commensurate with ability, which appears consistent with the standard offered by the Supreme Court. As such, this new iteration of the Rowley standard may have limited impact in California. However, the practical examples outlined in the decision, including issues related to least restrictive analysis, grade level standards and advancement, goal revision, and the instruction that staff be prepared to explain how programs are designed to offer progress appropriate in light of circumstance, should be thoroughly considered by California school districts moving forward.

For more information on Endrew F. or its impact on the development of IEPs and offers of FAPE, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

Colleen R. Villareal

Senior Counsel

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court Returns Transgender Student Rights Case to Lower Court

March 2017

On March 6, 2017, the United States Supreme Court sent the case of Virginia transgender high school student Gavin Grimm back to an appellate court, which must now consider the case and the parties’ arguments “in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017” that rescinded the Obama administration’s May 2016 guidance on transgender student rights and facilities access. (Gloucester County School Board v. G.G. (March 6, 2017, No. 16-273).)

Last April, the United States Court of Appeals for the Fourth Circuit held that courts should defer to the Obama administration’s guidance on and interpretation of Title IX and Title IX’s regulations (specifically, 34 C.F.R. § 106.33) relative to access to school restrooms based upon gender identity. The appellate court’s ruling held that Grimm should have access to school restrooms based upon gender identity.

The Supreme Court’s order to vacate the court of appeals’ decision follows the Trump administration’s rescission in February of the Obama administration’s guidance. ( See 2017 CNB No. 9.) For now, it is left to the lower courts in this matter to decide whether gender identity discrimination constitutes sex-based discrimination prohibited by Title IX, or possibly under other theories of law, such as constitutional equal protection.

As we await further guidance from the courts on this important interpretation of federal law, California school districts are reminded that their obligations under state law remain unchanged. AB 1266 (Ed. Code, § 221.5(f)), which became effective January 1, 2014, and other state laws (Ed. Code, §§ 220, 234.1), prohibit discrimination against students based upon their gender identities and require that students be permitted to use facilities and participate in sex-segregated school programs and activities that are consistent with their gender identities. (See 2014 Client News Brief No. 14
and 2016 Client News Brief No. 16.)

For more information on the Supreme Court’s decision or on federal Title IX guidance and state law regarding gender identity, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Joanna J. Kim

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Public Records Act Applies to Private Accounts

March 2017
Number 11

Emails, text messages and other written communications sent to or from a public official’s private account may be subject to disclosure under the California Public Records Act (CPRA), the California Supreme Court ruled unanimously in a highly anticipated decision published on March 2, 2017. (City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___ < http://www.courts.ca.gov/opinions/documents/S218066.PDF>.)

The court held that the public has a right under the CPRA to access texts, emails and other records discussing public business regardless of whether the records were created, received by or stored in a private account. “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device,” the court wrote, “sensitive information could routinely evade public scrutiny.”

This case had its origin in a 2009 lawsuit against the City of San Jose, its redevelopment agency and several city officials. The plaintiff in that case, a community activist, claimed that the city’s failure to provide certain records regarding a downtown redevelopment project and other city business violated the CPRA. The city had provided certain records, but declined to provide voicemails, emails and text messages that were sent and received by city officials on personal devices using personal accounts. In 2013, a trial court judge ruled against the city, finding that communications sent to or received from city officials regarding public business are public records regardless of what device or account was used to create and deliver them. ( See 2013 Client News Brief No. 17.)

The city appealed the decision, and in 2014, the Sixth District Court of Appeal reversed the decision. The appellate court ruled that the CPRA’s definition of public records as communications “prepared, owned, used, or retained” by a public agency did not include messages sent or received on individual city officials’ and employees’ private devices and accounts. ( See 2014 Client News Brief No. 21.) Distinguishing between a public agency as the holder of public documents and its individual elected officials and employees, the appellate court held that, as a practical matter, the city could not use or retain a message sent from an individual council member’s phone that was not linked to a city server or account. While acknowledging the potential for abuses, the court determined that it is up to the Legislature to decide whether to require public agencies to police officials’ private devices and accounts.

The community activist then appealed to the California Supreme Court, where the case languished for nearly three years before the high court overturned the appellate decision.

In its ruling, the Supreme Court disagreed with the appellate court because records “prepared” on private devices could still qualify as public records. The high court observed that the agency itself is not a person who can create, send and save communications; rather, any such communication would come from or be received by an individual. As such, the city’s elected officials and employees were in essence acting as the city, and to the extent that their emails pertained to city business, they were public records.

The court did narrow the type of records that are subject to disclosure, holding that records containing conversations that are primarily personal in nature are not subject to disclosure under the CPRA. The court also acknowledged that determining whether particular communications constitute public records is a heavily fact-specific process, and decisions must be made on a case-by-case basis. This will create challenges for public agencies as they attempt to follow the reasoning of this decision.

The court also addressed the practical challenges around retrieving records from personal accounts, including ways to limit the potential for invading personal privacy. For guidance, the court offered examples of methods for retrieving records from personal accounts including procedures adopted by federal courts applying the Freedom of Information Act and followed by the Washington Supreme Court under that state’s records law that allow individuals to search their own devices for responsive records when a request is received and to submit an affidavit regarding potentially responsive documents that are withheld. The court also discussed adoption of policies that would prohibit the use of personal accounts for public business, unless messages are copied and forwarded to an official government account. While these methods were offered as examples, the court did not endorse any specific approach.

The opinion did not address a host of other practical issues, such as how public agencies should proceed when employees refuse or fail to provide access to records contained in their private accounts.

The decision means that public agencies must now carefully consider how to retrieve business-related public records that may be located in employees’ and officials’ personal accounts. One approach is to create new policies that address the decision. However, public agencies should consider the implications such policies may have on issues such as collective bargaining, records retention, acceptable use policies and other policies concerning technology.

Lozano Smith attorneys can provide a wide array of CPRA services, including preparing policies to address this opinion, responding to CPRA requests, analyzing documents and assisting in related litigation. Lozano Smith has a model email retention policy, and is in the process of reviewing and updating this and other model policies to reflect the impact of this decision. In order to receive our existing retention policy, which addresses individual employees’ obligations in relation to electronic communications, or to request our upcoming board policy to address the court’s decision, you may also email Harold Freiman at hfreiman@lozanosmith.com or Manuel Martinez at mmartinez@lozanosmith.com. We will also be producing webinars about the City of San Jose case and electronic records under the CPRA.

For more information on the City of San Jose opinion or about the California Public Records Act application to personal technology in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.