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April 2017


A recent California Supreme Court case, City of San Jose v. Superior Court of Santa Clara County (Smith) is one of the scarier things to happen to public entities. Although the case did not originate with the WCAB, it has major implications for anyone who deals with public entity workers’ compensation cases.

Briefly stated, the Court held that the California Public Records Act (CPRA) may render public entity employees’ personal electronic data storage devices subject to public access requirements if those devices are used to send, receive, create or store documents concerning the conduct of public business. CPRA is essentially California’s state-level Freedom of Information Act. Noting that CPRA generally establishes “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency,” the court acknowledged that there were statutory exceptions, but concluded that the emails sent, received and stored on personal devices of the San Jose Mayor and City Council members constitute “public records” within the meaning of the CPRA, to the extent that they concern the business of the public entity.

The Court made a very strong statement with its holding, “[W]e conclude a city employee’s communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account.”

What does this mean for workers’ compensation professionals? Arguably, anyone who works for or does business with a public entity should consider very carefully whether their personal cellular phone, tablet, laptop or other electronic device may become discoverable if used in the course of administering public agency workers’ compensation claims or representing the public agency in such claims. While the Court acknowledged privacy concerns regarding the content of such devices to the extent that it is not related to the business of a public entity, the justices seemed to think that it was sufficient privacy protection that “personal information not related to the conduct of public business, or material falling under a statutory exemption, can be redacted from public records that are produced or presented for review.”

Other than having a separate laptop or tablet and cell phone used only for business, there does not seem to be a way to avoid the application of this case. Whether or not the issue ever arises in the context of a workers’ compensation case, it seems wise to be cautious about using our personal devices and/or personal email or data storage accounts for anything a court might deem to constitute “the conduct of the people’s business.”

Patricia Hastings, Esq.


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