Background
City of San José v. Superior Court (2017) 2 Cal.5th 608 is among the most significant California municipal law decisions of the past decade. The case addressed a deceptively simple question: if a city council member sends emails about city business from a personal Gmail account on a personal phone, are those emails public records?
The California Supreme Court answered yes — unanimously.
The Facts
Ted Smith, a San José resident and open government advocate, submitted a California Public Records Act (CPRA) request to the City of San José seeking communications by council members, their staffs, and the mayor's office about a proposed downtown development project. The city produced records from official city accounts but refused to search personal accounts and personal devices.
Smith sued. The trial court ordered production. The city appealed, arguing that records on personal devices and accounts were not "public records" under the CPRA because they were not in the city's custody or control.
The Court's Holding
The Supreme Court held that a communication is a public record if it relates to the conduct of public business — regardless of what device was used to create it or whose account it was sent from. The key test is the content and purpose of the communication, not the technology used to transmit it.
The Court reasoned that the CPRA's purpose — ensuring transparency in government — would be "easily frustrated" if officials could simply use personal accounts to conduct public business off the record. A contrary rule would create a straightforward workaround for any public official who wanted to avoid disclosure.
What This Means for Local Governments
The decision has practical implications for every department in city hall:
- Council members and commissioners must understand that personal device communications about city business are subject to disclosure.
- City Clerks cannot fulfill CPRA obligations without a process for identifying and preserving personal-device records in response to requests.
- City Attorneys must advise elected officials and staff on CPRA compliance even when communications occur outside city systems.
- IT Directors face the challenge of implementing records retention policies that extend to personal devices and accounts.
The Ongoing Challenge: Retention and Search
The San José decision created a legal obligation but did not provide a technology solution. Cities continue to struggle with how to:
- Establish policies requiring officials to copy city accounts on work-related personal-device communications
- Conduct good-faith searches of personal devices and accounts in response to CPRA requests
- Retain text messages, personal emails, and social media communications that relate to public business
- Apply appropriate redactions to personal content within otherwise responsive communications
Connection to the Brown Act
The San José decision intersects with SB 707's Brown Act changes (effective 2026), which establish new rules about what communications about pending agenda items may constitute a serial meeting — and how social media use during meetings is regulated. Cities updating their Brown Act compliance procedures should address personal device CPRA obligations in the same policy revision cycle.
Practical Guidance for City Staff
- Adopt an official policy explicitly prohibiting the use of personal accounts for city business — or, if permitted, requiring that all such communications be copied to official accounts.
- Brief elected officials annually on CPRA obligations including the San José rule.
- Include a personal-device search procedure in your CPRA response protocol.
- Consult with the City Attorney before denying any CPRA request based on a personal-device argument.
Cases like City of San José v. Superior Court illustrate why local governments need proactive legal guidance — not just reactive responses to complaints. Legislaide helps cities identify compliance gaps before they become headlines.
Published February 15, 2026 by Legal Team at Legislaide.