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CCP132 Electronic Communications for Public Records Act Requests PolicyCITY OF SAN JUAN CAPISTRANO COUNCIL POLICY Subject: Effective Policy Page Date Number ELECTRONIC COMMUNICATIONS CONCERNING CITY BUSINESS 1 of 5 10/3/17 132 PURPOSE The City Council as the legislative body of the City of San Juan Capistrano hereby adopts the following policy regarding the conduct of the City’s business via electronic communications by Councilmembers, commissioners and employees. Specifically, this policy is adopted in light of the City of San Jose case, which held that a city employee’s communications related to the conduct of public business do not cease to be public records under the California Public Records Act, simply because they were sent or received using a personal account or personal device. Existing and emerging electronic communications technologies have become an integral part of the ability of City officials and staff members to efficiently and effectively conduct City business. Such technology has the potential to enhance communications with the public and provide a higher level of service to the citizens of the City. However, with such technology in the work environment, the City must ensure it continues to meet its legal obligations with respect to transparency in the conduct of the people’s business, including in the area of public records disclosure and retention requirements. To that end, the following protocol will be followed. Definitions For purposes of this policy, the following definitions apply: “City” means the City of San Juan Capistrano, and includes all of the City’s affiliated entities, including, without limitation, the Housing Authority, and the Successor Agency. “City official” shall mean any elected official, commissioner or employee of the City. “City business” shall be construed broadly to mean information relating to the conduct of the public’s business or communications concerning matters within the subject matter of the City’s jurisdiction, including, but not limited to, pending or potential City projects, past or prospective City agenda items, or City budgets or expenditures involving City funds. Resolution of the question will involve an examination of several factors, including: (a) the content itself; (b) the context in, or purpose for which, it was written; (c) the audience to whom it was directed; (d) the purpose of the communication; and (e) whether the writing was prepared by a City official acting or purporting to act within the scope of his or her employment. CITY OF SAN JUAN CAPISTRANO COUNCIL POLICY Subject: Effective Policy Page Date Number ELECTRONIC COMMUNICATIONS CONCERNING CITY BUSINESS 2 of 5 10/3/17 132 “Electronic communications” includes any and all electronic transmission, and every other means of recording upon any tangible thing in any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. Without limiting the nature of the foregoing, “electronic communications” include e-mails, texts, voicemails, and also include communications on or within commercial applications (apps) such as Facebook Messenger, Twitter, WhatsApp, etc. “Electronic messaging account” means any account that creates, sends, receives or stores electronic communications. Policy/Protocols 1. All City officials shall be assigned a City electronic messaging account. 2. City accounts shall be used to conduct City business. City officials shall not use personal accounts for the creation, transmission or storage of electronic communications regarding City business. 3. The City account, along with the attendant access to the City’s account server, are solely for the City and City official’s use to conduct City business and shall not be used for personal business or political activities. Incidental use of City electronic messaging accounts for personal use by City officials is permissible, though not encouraged. 4. If a City official receives an electronic message regarding City business on his/her non-City electronic messaging account, or circumstances require such person to conduct City business on a non-City account, the City official shall either: (a) copy (“cc”) any communication from a City official’s personal electronic messaging account to his/her City electronic messaging account; or (b) forward the associated electronic communication to his/her City account no later than 10 days after the original creation or transmission of the electronic communication. 5. City officials shall endeavor to ask persons sending electronic communications regarding City business to a personal account to instead utilize the City official’s account, and likewise shall endeavor to ask a person sending an electronic communication regarding non-City business to use the City official’s personal or non-City electronic messaging account. CITY OF SAN JUAN CAPISTRANO COUNCIL POLICY Subject: Effective Policy Page Date Number ELECTRONIC COMMUNICATIONS CONCERNING CITY BUSINESS 3 of 5 10/3/17 132 6. City officials understand they have no expectation of privacy in the content of any electronic communication sent or received on a City account or communication utilizing City servers. City provided electronic devices, including devices for which the City pays a stipend or reimburses the City official, are subject to City review and disclosure of electronic communications regarding City business. City officials understand that electronic communications regarding City business that are created, sent, received or stored on an electronic messaging account, may be subject to the Public Records Act, even if created, sent, received, or stored on a personal account or personal device. 7. In the event a Public Records Act request is received by the City seeking electronic communications of City officials, the City Clerk’s office shall promptly transmit the request to the applicable City official(s) whose electronic communications are sought. The City Clerk shall communicate the scope of the information requested to the applicable City official, and an estimate of the time within which the City Clerk intends to provide any responsive electronic communications to the requesting party. 8. It shall be the duty of each City official receiving such a request from the City Clerk to promptly conduct a good faith and diligent search of his/her personal electronic messaging accounts and devices for responsive electronic communications. The City official shall then promptly transmit any responsive electronic communications to the City Clerk. Such transmission shall be provided in sufficient time to enable the City Clerk to adequately review and provide the disclosable electronic communications to the requesting party. 9. In the event a City official does not possess, or cannot with reasonable diligence recover, responsive electronic communications from the City official’s electronic messaging account, the City official shall so notify the City Clerk, by way of a written declaration, signed under penalty of perjury. In addition, a City official who withholds any electronic communication identified as potentially responsive must submit a declaration under penalty of perjury with facts sufficient to show the information is “personal business” and not “public business” under the Public Records Act. The form of the declaration is attached hereto as Attachment A. 10. It shall be the duty of the City Clerk, in consultation with the City Attorney, to determine whether a particular electronic communication, or any portion of that electronic communication, is exempt from disclosure. To that end, the responding City official shall provide the City Clerk with all responsive electronic communications, and, if in doubt, shall err on the side of caution and should “over produce”. If an electronic communication involved both public business and a personal communication, the responding City official may redact the CITY OF SAN JUAN CAPISTRANO COUNCIL POLICY Subject: Effective Policy Page Date Number ELECTRONIC COMMUNICATIONS CONCERNING CITY BUSINESS 4 of 5 10/3/17 132 personal communication portion of the electronic communication prior to transmitting the electronic communication to the City Clerk. The responding City official shall provide facts sufficient to show that the information is “personal business” and not “public business” by declaration. In the event a question arises as to whether or not a particular communication, or any portion of it, is a public record or purely a personal communication, the City official should consult with the City Clerk or the City Attorney. The responding City official shall be required to sign a declaration, in a form acceptable to the City Attorney, attesting under penalty of perjury, that a good faith and diligent search was conducted and that any electronic communication, or portion thereof, not provided in response to the Public Records Act request is not City business. 11. City provided AB 1234 (ethics) training should include a discussion of the impacts of the City of San Jose case and this policy. Such training should include information on how to distinguish between public records and personal records. City officials who receive AB 1234 training from other providers should actively solicit training from the alternative provider on the impacts of the City of San Jose case. 12. City officials understand that electronic communications regarding City business are subject to the City’s records retention policy, even if those electronic communications are or were created, sent, received or stored on a City official’s personal electronic messaging account. It is a felony offense to destroy, alter or falsify a “public record”. As such, unless the City official has cc’d/transmitted electronic communications in accordance with paragraph 5 above, that City official must retain all electronic communications regarding City business, in accordance with the City’s adopted records retention policy, regardless of whether such electronic communication is originally sent or received on a personal electronic messaging account. 13. Failure of a City official to abide by this policy, following its adoption, may result in one or more of the following:  Disciplinary action, up to and including termination (for employees);  Removal from office (for commissioners);  Censure (for commissioners or elected officials); CITY OF SAN JUAN CAPISTRANO COUNCIL POLICY Subject: Effective Policy Page Date Number ELECTRONIC COMMUNICATIONS CONCERNING CITY BUSINESS 5 of 5 10/3/17 132  Revocation of electronic device privileges (including revocation of stipend or reimbursement);  Judicial enforcement against the City official directly, by the requesting party; and  If this policy is adopted by way of ordinance, such penalty as is provided for violation of City ordinance. 14. This policy does not waive any exemption to disclosure that may apply under the California Public Records Act. ATTACHMENT A DECLARATION [attached on following page] 1 In the matter of: California Public Records Act Request Pursuant to Gov. Code § 6250 et seq. Re: __________________________________ _____________________________________ Insert shorthand name of record request, including request number, if applicable Requester: _____________________________ Print or type name of requester Declaration of: ______________________________ Print or type name of official Regarding Search of Personal Electronic Messaging Account STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO I, ______________________________________________________ declare: Print name 1. I received notice of a California Public Records Act (“CPRA”) request regarding a search of my personal electronic messaging account(s). 2. I understand that the CPRA request seeks: ________________________________________________________________ ________Insert text of CPRA request. 3. I am the owner or authorized user of the following personal electronic messaging account and have the authority to certify the records: ________________________________________________________________ ________Insert description of personal electronic messaging account(s). 4. I have made a good faith, diligent, thorough, and complete search of the above mentioned personal electronic messaging account(s) for all electronic communications potentially responsive to the above mentioned CPRA request. 5. Any responsive electronic communications discovered, and referenced below, were prepared or used by me in the ordinary course of business at or near the time of the act, condition or event. 6. Any responsive electronic communications discovered, and referenced below, are true copies of all records described in the above mentioned CPRA request. 2 Check the applicable box:  I certify that I do not possess responsive electronic communications.  I certify that I cannot reasonably recover responsive electronic communications. ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________ Explain efforts to retrieve responsive electronic communications and why you were unable to recover responsive electronic communications.  I certify that I discovered potentially responsive electronic communications from my personal electronic messaging account, but I am withholding that information because the information is “personal” business. This is for the following reasons: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________Describe with sufficient facts why the contested information is personal business and not subject to the CPRA. Attach additional pages, if necessary.  I certify that I discovered potentially responsive electronic communications from my personal electronic messaging account. I am providing all responsive information. However, some information is nonresponsive and I am withholding that information, because the information is personal business. This is for the following reasons: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________Describe with sufficient facts why the contested information is personal business and not subject to the CPRA. Attach additional pages, if necessary. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that I have personal knowledge of the facts set forth above. Executed this ___ day of _______________ 20___ , in ______________________, California. By:________________________________ Print Name:_________________________