SAN JOSE -- In a decision that draws a line on public access to government records, an appeals court ruled Thursday that government workers in San Jose and beyond can keep their communications private if they send them on a personal device like a cell phone.

The Sixth District Court of Appeal decision directly affects South Bay counties and sets legal precedent in California that could influence judges in other parts of the state, although the issue is likely to remain unsettled until the California Supreme Court weighs in.

Last year, open records advocates had defeated San Jose City Hall in the lower courts in a case over whether the city's 5,500 workers had to make public messages sent on their private devices. Typically, for instance, emails sent or received on a city's system would be subject to disclosure under the California Public Records Act. But it was not clear whether the same employee could keep a government-related message sent from a personal Gmail account private.

Media groups and open government activists argued officials could skirt the spirit of the landmark 1968 Public Records Act by texting, calling or emailing about government business with their personal devices. But city officials, aided in court by the California League of Cities, said they have no control over the employees' personal accounts and it would be costly and unwieldy to compile the records.


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The city emerged victorious Thursday in the 6th District following a hearing in San Jose earlier this month. In a 3-0 ruling, justices Franklin Elia, Conrad Rushing and Eugene Premo said it should be up to the California Legislature to determine which records are public -- not the courts.

The decision reversed a March 2013 ruling from a Santa Clara County Superior Court judge who said "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

But James McManis -- the attorney for activist Ted Smith, who first sued to get access to the records -- said "they haven't heard the last from us." His group will petition the state's highest court for a final review, but it's up to California Supreme Court justices to decide whether to accept the case.

"When you think about it -- it's just nuts," McManis said. "If they can hide stuff by using their private devices, that's no way to run a railroad."

City Attorney Rick Doyle said the California records law, passed in an age well before texting or email, "never contemplated" that private devices would be subject to records requests.

"These aren't retained or held by the public agency and individuals aren't the public agencies," Doyle said. "They may work for the public agency, but it's not the same thing."

Doyle said San Jose has among the best sunshine ordinances in the state. Ironically, he noted, the city in 2010 approved a policy that makes messages about public business sent on private devices public, but it only applies to the City Council and their staff. But even then, the rule is tough to enforce.

"They're on the honor system on that," Doyle said. "They're supposed to turn (the records) over."

Contact Mike Rosenberg at 408-920-5705. Follow him at twitter.com/RosenbergMerc.