Are you allowed to read the private texts and emails of public officials? Absolutely, if they count as public records.

With the advent of smartphones and laptops, personal devices have become entangled with official communications, and government devices have become entangled with personal communications. 

Many state public records laws have acted to keep up with this change. Florida law, for instance, says private communications on government devices are not public records, but official communications on private devices are public records subject to citizen access.  That law applies statewide.

In California, however, local loopholes are creating a confusing landscape. 

The California Public Records Act states that:

• All public records must be kept for 2 years.
• If public employees use private devices for email and text messages, those communications become public records.
• City and county agencies may decide how to execute this.

Because of that last  provision, specific CA locales have been creating their own laws that allow a loophole of sorts.

In Anaheim, the city deletes emails sent by leading city staff after 90 days – while other emails get deleted after just 37 days.

This constitutes a very short window for public records inquiries. Yet the agency would be able to say, “We did our duty and searched for any relevant records.” If those records were already deleted, of course, they can’t be found. But the agency can’t be held accountable for withholding them, either.

I represent news media, bloggers, publishers, and citizens interested in government access, and others who operate under the First Amendment—public records; public meetings; newsgathering; avoiding defamation lawsuits; suing Anti-SLAPP violators. My job is to help you get the records and access you need, help you get the story, help you get the story without getting arrested, help get the story published without defaming anyone, and then defend the story after publication. 

If you need help with any of these areas and don’t have an attorney already, contact me: [email protected]. This post is not intended to be legal advice and does not form the basis of a lawyer-client relationship.